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Andhra High Court · body

2005 DIGILAW 201 (AP)

Chand Ram v. State of Rajasthan

2005-03-03

H.R.PANWAR

body2005
Judgment H.R. Panwar, J. — By the instant criminal revision petition under Sec. 397 read with Sec. 401, Cr.P.C., the accused-petitioner has challenged the impugned judgment dated 14.9.2004 passed by the Additional Sessions Judge, Barmer (for short, “the appellate Court” hereinafter) in Criminal Appeal No, 15 of 2003, by which the appeal filed by the accused-petitioner against the judgment and order dated 18.9.2003, passed by the Additional Chief Judicial Magistrate, Barmer in Criminal Case No. 353 of 2001 has been dismissed. 2. The facts of the case, relevant and necessary for disposal of this criminal revision petition, in a nut shell, are that on 23.4.2001 complainant Doda Khan lodged an FIR with Police Station, Ramsar stating therein that on 20.4.2001, at about 6.00 a.m., PW. 3 Bilal Khan came to his house and informed that in the night, at about 1:00 a.m., he and Kamruddin alighted from the truck at the bus stand of village Gagariya and were going to their house and saw accused-petitioner coming out from the broken part of the cabin of the complainant. On this information, the complainant went to his cabin and found the cabin broken. On searching the chest, it was found that the currency notes and coins to the tune of Rs. 250/- were missing and some used match-sticks were found inside the cabin. On this report, the investigation ensued and the police filed challan against the petitioner for the offences under Secs. 457 and 380 IPC. After trial, the trial Court, vide judgment and order dated 18.9.2003, convicted accused-petitioner for the offences under Secs. 457 and 380 IPC and sentenced him to two years’ rigorous imprisonment and a fine of Rs. 3,000/- and in default of payment of fine to further undergo one month’s simple imprisonment for the offence under Sec. 457 IPC; and one year’s rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine further to undergo simple imprisonment for one month for the offence under Sec. 380 IPC. The accused-petitioner filed an appeal before the Appellate Court, which has been dismissed vide impugned judgment dated 14.9.2004. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the impugned judgments and orders passed by the Courts below as also the record of the case. 4. PW. 3 Bilal has stated that while he and PW. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the impugned judgments and orders passed by the Courts below as also the record of the case. 4. PW. 3 Bilal has stated that while he and PW. 4 Kamruddin were returning to their home from the bus stand of village Gagariya, he heard some voice of breaking the hotel and saw the petitioner coming out from the hotel and going on the road. The petitioner was identified by them and the matter was informed to complainant Doda Khan. Thereafter he came to know that the petitioner earlier also committed a theft. 5. PW. 4 Kamruddin has stated that while he and PW. 3 Bilal were going to PW. 3 Bilal’s house, he heard the sound from the hotel of complainant PW. 1 Doda Khan. They saw the petitioner coming out from the hotel of the complainant and identified the petitioner. The matter was informed to the complainant in the night itself. In cross-examination, this witness has admitted that the petitioner was seen from a distance of 60 to 70 paces from the hotel of the complainant. The petitioner was seen from his back side. The hotel was having “Kuchchi” boundary and access of any person therein was possible. 6. Complainant PW. 1 Doda Khan has stated that PW. 3 Bilal and PW. 4 Kamruddin came to his house and informed that the petitioner had broken his cabin. Thereafter he went to Gagariya station, there he found the cabin broken. In the cabin, coins amount to Rs. 200-250/- and certain goods were lying. 7. In the instant case, there are only three material witnesses, viz. PW. 1 Doda Khan, PW. 3 Bilal and PW. 4 Kamruddin. All these witnesses have consistently deposed that it was the petitioner who had broken the cabin of the complainant and was seen coming out from the hotel by PW. 3 Bilal and PW. 4 Kamruddin. PW. 1 Doda Khan also stated that when he went to his cabin, it was found broken and in the cabin, a chest containing Rs. 200/- and certain goods were lying. PW. 1 Doda Khan has nowhere stated that the petitioner committed the theft. His statement is only to the extent that the cabin of the hotel was found broken and according to PW. 3 Bilal and PW. 200/- and certain goods were lying. PW. 1 Doda Khan has nowhere stated that the petitioner committed the theft. His statement is only to the extent that the cabin of the hotel was found broken and according to PW. 3 Bilal and PW. 4 Kamruddin, it was the petitioner who had broken the cabin and they saw the petitioner coming out from the broken cabin. These witnesses also did not say that the petitioner committed any theft. However, PW. 3 Bilal, of course, has stated that he came to know that earlier also, the petitioner committed a theft. 8. The other witnesses have deposed against the conduct of the petitioner. PW. 5 Madan Lal has stated that a jerrican of 20 litres was stolen by the petitioner, however, the matter was not reported to the police as it was returned by the petitioner on the intervention of the Panchayat. PW. 6 Jagmal Singh has stated that the petitioner had stolen his tape-recorder from the car, which was ultimately returned to him. PW. 7 Gautam has stated that in April, 2001, one bag of Gawar was stolen and on inquiry, he came to know that it was the petitioner who had stolen the Gawar bag; however, on being intervened by the Panchayat, it was returned to him. He too had not reported the matter to the police. PW. 8 Ishwar Singh also stated that a tin was taken away by the petitioner which was returned to him on the intervention of the Panchayat. 9. PW. 3 Durga Ram is a witness to the site map and he had admitted that the site map Exh. P/2 bears his signature, but what has been written therein, he cannot say. He has stated that he had only signed Exh. P/2 and does not know what had been written therein. PW. 10 Hukam Singh is the investigating officer, who has proved the arrest memo Exh. P/3 and the statement of witnesses recorded under Sec. 161 CrPC. After the arrest, neither the petitioner furnished any information under Sec. 27 of the Evidence Act, nor was any recovery effected from the petitioner. Even the investigating officer did not state that any theft was committed by the petitioner. The evidence of the investigating officer is also to the extent that the cabin was found broken. 10. After the arrest, neither the petitioner furnished any information under Sec. 27 of the Evidence Act, nor was any recovery effected from the petitioner. Even the investigating officer did not state that any theft was committed by the petitioner. The evidence of the investigating officer is also to the extent that the cabin was found broken. 10. Thus, in absence of any reliable evidence and in view of the fact that soon after the occurrence the petitioner was not found in possession of any article, even a presumption under Sec. 114(a) of the Evidence Act cannot be drawn. There is no evidence that the petitioner committed the theft; however, there is over-whelming evidence that it was the petitioner who had broken the cabin of the complainant. Thus, the offence punishable under Sec. 457 IPC has been fully established against the petitioner. The trial Court as well as the appellate Court have not considered at all this aspect of the matter that none of the prosecution witnesses has stated before the Court on oath that the petitioner committed any theft. There is only the evidence of PW. 1 Doda Khan, PW. 3 Bilal and PW. 4 Kamruddin that it was the petitioner who had broken the cabin lying in the shed of the hotel of the complainant. In absence of any evidence, both the Courts below have erred in convicting and sentencing the petitioner for the offence under Sec. 380 IPC. 11. It is not the practice that the revisional Court will re-assess, re-appreciate or scan the evidence for the purpose of examining whether the findings of fact arrived at by the Courts below are correct or not; unless and until there is some misreading of evidence or overlooking of an important piece of evidence causing miscarriage of justice or some manifest illegality or grave miscarriage of justice is there or the findings arrived at by the Courts below are perverse then only the revisional Courts may call for the record and examine the same for the purpose of satisfying itself as to the correctness, legality or propriety of the finding, sentence or order recorded. Keeping in view the evidence discussed above, I am of the view that the findings of the Courts below convicting and sentencing the petitioner for the offence under Sec. 380 IPC cannot be sustained and liable to be set-aside. 12. Keeping in view the evidence discussed above, I am of the view that the findings of the Courts below convicting and sentencing the petitioner for the offence under Sec. 380 IPC cannot be sustained and liable to be set-aside. 12. However, the findings of the Courts below holding the petitioner guilty for the offence under Sec. 457 IPC and convicting him for the said offence appears to be based on sound and proper appreciation of the evidence, which calls for no interference. 13. Now coming to the question of quantum of sentence, it has been contended by the learned Counsel for the petitioner that the petitioner is a poor person living in drought-prone area; no previous conviction stands to his credit and he had already undergone the imprisonment for nearly six months, therefore, the petitioner’s sentence for the offence under Sec. 457 IPC be reduced to the period of imprisonment already undergone by him. Keeping in view the poor economic conditions and the fact that the petitioner had already undergone the imprisonment from 27.4.2001 to 11.5.2001 and thereafter from 14.9.2004 till date which comes to six months, in the interest of justice, I consider it just and proper to reduce the sentence of imprisonment for the offence under Sec. 457 IPC to the period of imprisonment already undergone by the petitioner and reduce the amount of fine to Rs. 500/-, in default of payment of fine, the petitioner shall undergo seven days’ simple imprisonment. 14. Consequently, the revision petition is partly allowed. The judgments and orders impugned passed by the Courts below to the extent of convicting and sentencing petitioner Chanda Ram S/o Vakila Ram Jogi for the offence under Sec. 380 IPC are hereby set-aside and the petitioner is acquitted of the offence under Sec. 380 IPC. However, the conviction of the petitioner for the offence under Sec. 457 IPC is maintained but for this offence, the sentence of imprisonment awarded by the Courts below is reduced to the period of imprisonment already undergone by the petitioner and the amount of fine is reduced to Rs. 500/-, in default of payment of fine, the petitioner shall undergo seven days’ simple imprisonment. The petitioner is in jail and he be set at liberty, if not required in any other case, on deposit of fine of Rs. 500/-. The application seeking suspension of sentence also stands disposed of. Appeal allowed partly.