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2010 DIGILAW 419 (ORI)

Sk. Babar Alli v. State

2010-06-24

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. : The petitioner assails the confirming judgment passed by the Ad-hoc Addl. Sessions Judge (FTC), Bala¬sore in Criminal Appeal No. 59 of 1995 wherein he confirmed the conviction of the petitioners under Section 379/34 I.P.C. the learned Ad-hoc Addl. Sessions Judge also confirmed the sentence of rigorous imprisonment of three years and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for a period of another one month each. 2. The prosecution alleges that on 7.8.1987, electric staffs were performing their patrolling duty in between village Nandika and Chalanti and then they found three persons were cutting the tower angles at a distance. Out of such three members of the patrolling group, one came to call the other workers from Baghakali camp and rest two watched the culprits. On the arrival of further staff, the accused persons were surrounded and caught red handed, but another culprit escaped. Thereafter, the matter was reported to the policy by the Junior Engineer, Electrical and case under Section 379/34 IPC was registered. 3. In course of the trial, the prosecution examined eight witnesses. After considering the materials on record, the learned trial Court came to a conclusion that prosecution has proved its case beyond reasonable doubt. He connected them for offences under Section 379/34 IPC and sentenced them as aforesaid. 4. Upon an appeal, the learned Ad-hoc Addl. Sessions Judge, Balasore confirmed the findings recorded by the learned trial Court and also confirmed the sentence. 5. In course of hearing of the appeal, the learned counsel for the petitioner submitted that the accused persons were in custody for 71 days during trial and therefore, the sentence is modified to the period undergone. 6. I have verified the records. The trial Court records shows that on 14.8.1987, the accused persons were arrested and proceeded to Court. They were in custody till 24.10.1987. On 24.10.1987, they were released on bail. In total, they have undergone incarceration for a period of 71 days. The substantive sentence imposed by the learned trial Court is for three month. It is seen that the offence committed under Section 379/34 of Indian Penal Code and the occurrence took place in the year 1987 i.e. 23 years ago. No criminal antecedents have been reported against the prosecution. 7. The substantive sentence imposed by the learned trial Court is for three month. It is seen that the offence committed under Section 379/34 of Indian Penal Code and the occurrence took place in the year 1987 i.e. 23 years ago. No criminal antecedents have been reported against the prosecution. 7. In view of the aforesaid facts, no fruitful purpose will be served by sending the petitioners to the jail to undergo remaining 19 days of rigorous imprisonment i.e. the remaining period of substantive sentence. In view of the above, the revi¬sion is disposed of with a modification of sentence. Confirming the conviction, this Court modify the sentence to the period already undergone and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for another one month. Revision disposed of.