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1996 DIGILAW 547 (ALL)

AMAR NATH v. STATE OF U P

1996-05-06

G.S.N.TRIPATHI

body1996
G. S. N. TRIPATHI. J. This is a revision under Section 397 Cr. P. C. directed against the judgment and order dated 22. 3. 96, passed by the learned Sessions Judge Mirzapur, whereby he has dismissed the Criminal Appeal No. 13 of 1995, filed by the revisionists Amar Nath and Ram Surat. That appeal itself arose out of judgment and order dated 4. 5. 1995 passed by 1st A. C. J. M. Mirzapur in Criminal Appeal No. 2397 of 90, State v. Amar Nath and Ram Surai. By virtue of this order learned Sessions Judge convicted the accused appellants on a charge under Section 380 1. P. C. and sentenced them to undergo 6 months R. I. 2. In the night of 27/28-1-1987, a theft took place in the house of Mansa Ram Complainant, P. W. 1 After a hot pursuit, at a distance of about 200 paces, the accused Amar Nath and Ram Surat were arrested in the field and from their possession three parats, weighing about 6 kg. valued about Rs. 250/- and one Cuskut Batuloi, weighing about 1 Kg, valued about Rs. 40/- were recovered. Both the accused were brought to the Police Station in the same night and a case was registered. Memos of the recovered articles were also prepared. The accused were lodged in the police lock-up at the Police Station. After usual investigation, the police submitted the charge-sheet against the accused. 3. The prosecution examined (P. W. 1), Mansa Ram, the complainant and (P. W. 2) Budhi Ram both are witnesses of fact. Other documents prepared by the investigating agency, during the course of investigation, were admitted by the learned Counsel for the revisionist. Therefore, further formal evidence was not called upon. 4. The accused in their statement under Section 313 Cr. P. C. had denied the allegations and had said that on account of enmity, they have been falsely implicated. 5. The accused led no evidence in defence. 6. After perusal of the entire oral and documentary evidence on the record, the learned Magistrate concluded that the charge under Section 411 I. P. C. was not made out as the accused were arrested in a hot pursuit only, few paces away from the spot. Therefore, the charge under Section 380 I. P. C. only was made out. 6. After perusal of the entire oral and documentary evidence on the record, the learned Magistrate concluded that the charge under Section 411 I. P. C. was not made out as the accused were arrested in a hot pursuit only, few paces away from the spot. Therefore, the charge under Section 380 I. P. C. only was made out. The accused were acquitted of the charge under Section 411 I. P. C. But they were convicted on the charge under Section 380 and were accordingly sentenced as noted above. 7. While convicting the accused, the learned Magistrate has met all the objections raised from the side of the accused and after a thread-bsre discussions, he found that the witnesses Mansa Ram and Budhi Ram were quite independent. They had no grudge or enmity with the accused and they were telling the truth. The factum of theft was, in fact, not disputed before the learned trial Court. The accused said there was a dispute between the parties with regard to a parnala and on account of that dispute, the accused have been falsely implicated. The learned trial Court has rightly rejected this contention by saying that enmity, as alleged by the accused, was not proved on the record rather, the learned trial Court has believed the prosecution version that accidentaly the main gate of his house remained unclosed and around mid-night, the accused took advantage of this opportunity and committed the theft. The learned trial Court has examined this evidence in the Sight of objections raised by the accused under Section 313 Cr. P. C. He found that the prosecution case was credible. The allegations of enmity were not made out. 8. I have scanned the judgment recorded by the learned trial Court. I find that he has given cogent reasons for coming to the conclusion that the story of theft raised by the prosecution and the recovery of the stolen property in the hot pursuit in the same night, were fully proved. 9. The aggrieved accused filed a Criminal Appeal No. 13 of 1995 before the learned Sessions Judge, Mirzapur. I find that he has given cogent reasons for coming to the conclusion that the story of theft raised by the prosecution and the recovery of the stolen property in the hot pursuit in the same night, were fully proved. 9. The aggrieved accused filed a Criminal Appeal No. 13 of 1995 before the learned Sessions Judge, Mirzapur. The learned Sessions Judge has also analysed the evidence and circumstances on the record and believed the prosecution theory that a theft was committed in the house of the complainant and in the same night the accused was arrested after a hot chase and the aforesaid good belonging to the complainant were recovered from their possession. He has also believed that the accused alongwith the recovered articles were taken to the Police Station, where memos were prepared and the accused were lodged in the police lock-up. 10. Learned Counsel Sri S. K. Singh argued the case very vehemently but he could not show any mistake or error in the orders of the Courts below. I find that the finding of fact recorded by the Courts below, has not been rightly challenged because it is based on evidence and circumstances available on the record. Therefore, I agree with the conclusion drawn by the Courts below. 11. This Court normally cannot interfere when on facts, there are concurrent finding of two Courts, unless it is proved on the record that the approach of the learned trial Court was perverse or from the evidence on the record any other reasonable conclusion was possible. The trial Court had an opportunity to watch the demeanour of the witnesses, a privilege not available to the IInd Appellate Court. Therefore in absence of any misdirection or perversity on the part of the Courts below, there is no justification to interfere in the finding recorded by the Courts below. 12. Accordingly, I ditto the conclusion drawn by the courts below. 13. Learned Counsel lastly argued that a leniency in sentence may be shown. I agree with the learned 1st A. C. J. M. that there was no justification to show any more leniency with the accused. The accused are neighbours of the complainant. They are supposed to protect the property and person of the complainant. 13. Learned Counsel lastly argued that a leniency in sentence may be shown. I agree with the learned 1st A. C. J. M. that there was no justification to show any more leniency with the accused. The accused are neighbours of the complainant. They are supposed to protect the property and person of the complainant. If accidently the outer door of the complainants house remained unclosed, the accused should not have embarked upon this heinous crime of committing theft in the house of their own neighbour. Normally, it is expected that the neighbour will protect the interest of other neighbour. But they have, instead, committed the breach of faith and higher values as well as the noble sentiments of a neighbour. Hence, no leniency can be shown in the sentence otherwise, it will be a mockery of justice, giving rise to derision or contempt in the minds of other persons, similarly situated, as the accused persons. Hence I reject this plea of the learned Counsel Sri S. K. Singh that the sentence should be reduced. 14. I find that if there is any mistake in the approach of the learned courts below, it is only to this extent that they have been very soft towards sentencing the accused in such a heinous act. The sentence is extra-soft, further softening is totally unjustified. 15. The revision is accordingly dismissed. Revision dismissed. .