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2000 DIGILAW 1298 (PAT)

Basant Shah v. State of Bihar

2000-12-06

P.K.SINHA

body2000
JUDGMENT P.K. Sinha, J 1. Heard learned counsel for the petitioner and also the learned Additional Public Prosecutor. 2. Though learned counsel for the petitioner submitted that evidence in the trial Court was missing to impute and prove knowledgeable possession of the petitioner of the dynamo belts which have been proved to have been recovered from the inner courtyard, the learned counsel used such submissions to further implore this Court to reduce the sentence of the accused as awarded by the learned lower Court which was one year and six months under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. Ultimately, learned counsel based his arguments on the sentence. 3. Insofar as the facts are concerned, I find that the learned trial Court and learned appellate Court have taken into consideration the evidence on the record and the submissions advanced by the learned counsel for the accused and in that, I do not find any procedural mistake or a mistake on the face of record or wrong, or non-consideration of such evidence which might have clinched the issue in favour of the petitioner. 4. Therefore, this order will be confined to the sentence. 5. For reduction of sentence, learned counsel has based arguments on following points: (i) As per evidence and confession of Ashok Ram, it was brought on record that Ashok Ram had sold dynamo belts to one Kapil Yadav. The consistent evidence in the lower Court is also that on seeing the raiding party, Kapil Yadav had fled with bundle of dynamo belts which he placed in the courtyard of this petitioner and then fled away. Thereafter, on search three bundles of dynamo belts were recovered from the courtyard. Learned counsel submits that about three bundles of dynamo belts from the evidence on record it could be inferred that the bundles of dynamo belts were sold to Kapil Yadav and Kapil Yadav threw bundles of dynamo belts in the courtyard of the petitioner. The evidence against this petitioner is this much that the dynamo belts were recovered from the premises occupied by the petitioner. (ii) The petitioner was in custody for 38 days and from the lower Court records it will appear that this was the first offence committed by the petitioner which being so he deserved the benefit of Probation of Offenders Act. (ii) The petitioner was in custody for 38 days and from the lower Court records it will appear that this was the first offence committed by the petitioner which being so he deserved the benefit of Probation of Offenders Act. (iii) The date of occurrence in this case is 21.2.1990 and the petitioner has already faced litigation for ten years which should also be taken into consideration. (iv) From the judgment of the trial Court which was delivered on 12.8.1997 it will appear that the lower Court had assessed the age of the petitioner to be 60 years as per which the petitioner is now 63 years of age. 6. All the aforesaid points taken together may justify in reducing the sentence. However, the question is to which extent the sentence should be reduced. Under proviso of Section 3(a) of the Railway Property (Unlawful Possession) Act, the first offender is punishable with minimum imprisonment for one year of imprisonment in the absence of special and adequate reason which should be mentioned in the judgment of the Court. This also provides for punishment with fine or with both, but such fine, without special and adequate reason, should be not less than Rs.1,000/-. Therefore, the point for consideration also is whether there are such special or adequate reasons available on the record so as to award a sentence less than the minimum provided under the law, as has been urged by the learned counsel. It is a fact that it has not been brought on the record that earlier also this petitioner was convicted of any such offence or for any criminal offence. The submission of learned counsel about the age of the petitioner is also correct which will show that the petitioner is an old person. The facts that have been mentioned by the learned counsel primarily for urging reduction in sentence are also on the record. It is also a fact that this case upto this Court has lingered on for a period of ten years. These, in my opinion, will minimise the sentence below one year. 7. However, keeping in view that the petitioner has been found in possession of railway property, too lenient a consideration of the matter also cannot be taken. 8. In my view, the sentence, under the circumstances, of six months of rigorous imprisonment would serve the ends of justice. 9. These, in my opinion, will minimise the sentence below one year. 7. However, keeping in view that the petitioner has been found in possession of railway property, too lenient a consideration of the matter also cannot be taken. 8. In my view, the sentence, under the circumstances, of six months of rigorous imprisonment would serve the ends of justice. 9. In the result, the sentence awarded to the petitioner is reduced to six months rigorous imprisonment minus the period already undergone in custody as under the law. With this modification in sentence, this application is dismissed.