Chattisgarh High Court
Heeralal vs State Of Chhattisgarh on 1 July, 2022
1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Reserved on 17.06.2022 Pronounced on 01.07.2022 CRIMINAL REVISION No.589/2009 Heeralal S/o Mehattar Patel Marar, aged about 27 years, R/o Patelpara Gandai, Tahsil Chhuikhadan, District Rajnandgaon (C.G.) .......Applicant Versus State of Chhattisgarh, Through: Police Station Gandai, District Rajnandgaon (C.G.) ......Non-Applicant/State For Applicant: Shri Abhishek Sharma, Advocate For Non-Applicant/State Shri Himanshu Sharma, Panel Lawyer Hon'ble Justice Shri Sachin Singh Rajput CAV ORDER
1) Assailing the legality, validity, correctness and judicial propriety of the judgment dated 30.09.2009 passed by Additional Sessions Judge, Khairagarh, District Rajnandgaon (C.G.) {for short ' ASJ'} in Criminal Appeal No. 19/2009 by which the learned ASJ has upheld the judgment of conviction and award of sentence dated 22.08.2009 passed by Judicial Magistrate First Class, Chhuikhadan, District Rajnandgaon (C.G.) {for short ' JMFC'} in Criminal Case No. 1577 of 2008, the applicant has preferred this revision under Section 397 read with Section 401 Code of Criminal Procedure, 1973 {for short 'Cr.P.C'}.
2) Prosecution case in brief is that in the intervening night of 12/13-09-2008 when Sharad Agrawal had gone out of his house, applicant with intention to commit theft entered the house situated at ward no. 10, main road, Gandai from the kitchen door. On seeing that the cupboards were opened and the goods were spread over, Rajesh Kumar Yadav servant made a report to the police upon which Crime No. 245/2008 was registered and during course of investigation on the memorandum of applicant one gold necklace, 2 one gold biscuit, one gold necklace, two gold ginni, one pair of silver anklet were seized. From Shymlal Agrawal owner of Subhash Jewelers, Gandai one melted gold ball was seized. The applicant sold two gold rings and one gold locket to Shyamlal Agrawal who melted the gold. After completion of investigation charge sheet was filed. The applicant was charged for commission of offence punishable under Section 457, 380 of Indian Penal Code, 1860 {for short IPC}. The applicant denied the charges. The prosecution examined as many as 15 witnesses in support of the case. Statement of applicant under Section 313 Cr.P.C. was recorded in which he has stated that he has been falsely implicated and he is innocent.
3) The learned JMFC after appreciation of oral and documentary evidence brought before it convicted the applicant under Section 457 of IPC and sentence him to undergo three years rigorous imprisonment and Rs.1000/- fine and in default of payment of fine three months additional rigorous imprisonment was imposed. For offence under Section 380 of IPC three years rigorous imprisonment and Rs.1000/- fine and in default of payment of fine three month additional rigorous imprisonment was imposed. Both the sentence was directed to run concurrently. Being aggrieved by the judgment of conviction and award of sentence, the applicant preferred an appeal under Section 374 of Cr.P.C. before the leaned Additional Sessions Judge, Khairagarh, District Rajnandgaon (C.G.). The appeal was heard by the learned ASJ and after due consideration the same was dismissed and the conviction and sentence awarded to the applicant was maintained/upheld.
4) I have heard the learned counsel appearing for the applicant and the non-applicant/State. Shri Abhishek Sharma learned counsel did not attack the impugned judgment on merits but submitted that the offence was committed in the year 2008, the applicant faced trial since 2008 and the revision remained pending since 2009 therefore after a lapse of about 14 years the applicant may not be sent back to prison. He further submitted that the applicant has already served/undergone one year one month and 20 days out of three years sentence awarded to him. Shri Sharma submits that ends of justice would be served if the sentence awarded to the applicant is reduced to sentence already served/undergone by him by 3 enhancing the fine amount. On the other hands Shri Himanshu Sharma learned counsel for the state submitted that both the courts below have found the applicant guilty under Section 457, 380 of IPC. The prosecution witnesses have supported the case of the prosecution. The stolen jewelry was recovered at instance of the applicant. Both the courts below were justified in convicting him and awarding sentence after due appreciation of evidence, therefore no leniency may be shown towards the applicant and the revision deserves to be dismissed.
5) I have heard the learned counsel for the parties and perused the judgments passed by the courts below and oral and documentary evidence with utmost circumspection. A constitutional bench of the Hon'ble Supreme Court in the case of 'Sheonandan Paswan Vs. State of Bihar', (1987) 1 SCC 288 in paragraph 88 observed as under:-
"88. There is no appeal provided by the Act against the order giving consent under section
321. But the order is revisable under section 397 of the Criminal Procedure Code. Section 397 gives the High Court of the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court does not dwell at the length upon the facts and evidence of the case. The court in revision considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
6) That in light of the above authoritative pronouncement this court shall now proceeds to consider the legality, propriety or the correctness of the findings of the courts below. On meticulous perusal of the evidence and material available on record it is evident that the courts below have found the applicant guilty of offence under Section 457, 380 of IPC. There is no manifest error or perversity found in the findings recorded by the courts below. Therefore the conviction of the applicant under Section 457, 480 of IPC is hereby affirmed.
47) Now I shall consider the submission of the learned counsel for the applicant with regard to reducing the sentence to already served/undergone by the applicant. It is true that the offence was committed in the year 2008 and the applicant faced trial since 2008. The revision is pending since 2009 and about 14 years have lapsed since the prosecution of applicant and applicant has served/undergone about one year one month and 20 days of the sentence imposed upon him. The applicant did not misuse the liberty granted to him while suspending his sentence and granting bail by this court. The complainant Sharad Kumar Agrawal has received the stolen articles on supurdnama. Therefore, taking into totality of circumstances, while maintaining the conviction of the applicant under Section 457 and 380 of IPC, the sentence of 3 years each under Section 457, 380 of IPC is reduced to sentence already served/undergone by the applicant. The fine amount is enhanced to Rs.2000/- for each offence i.e. total Rs.4,000/- fine is imposed upon applicant. The applicant is granted 3 months time to deposit the fine on failure applicant will undergo additional one month rigorous imprisonment. The applicant is reported to be on bail. His bail bond is discharged.
8) Records of the courts below be sent back along with copy of this order forthwith for information and necessary compliance. Criminal Revision is disposed of accordingly.
Sd/-
(Sachin Singh Rajput) Judge Kamde