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2012 DIGILAW 759 (ALL)

LALA v. STATE OF U. P.

2012-03-29

VINOD PRASAD

body2012
Vinod Prasad. J.;- This revision has been filed by the sole revisionist Lala, challenging impugned judgment and order of conviction dated 10.2.2011 passed by Additional Session's Judge, court no.2, Banda in Criminal Appeal No.27 of 2010, Lala Vs. State of U.P., by which impugned judgment, lower appellate court has affirmed revisionist conviction under Sections 380, 457 IPC and imposed sentences of 3 years R.I. on both the counts with fine of Rs.500/- and Rs.5000/-, respectively, for those offences, imposed by Judicial Magistrate, Atarra, district Banda in Case No.677/IX/2001, State Vs. Lala, relating to Crime No.170 of 1991, P.S. Atarra, District Banda. 2. Stated briefly, charge against the appellant, as was leveled by the prosecution, through informant Bandhan son of Jugiva, scribed in the written FIR, Ex. Ka1,were that the appellant along with his one another associate committed theft in informant's house of silver ornaments-100 grams of sliver anklet and 100 grams of sliver dant bandhan and cash amount of Rs.1300/-, on 23.5.1991, after scaling wall of his house and jumping into enclosed courtyard ( aagan), and trespassing into the house, after midnight, when informant's wife Sumitra, daughter Phoola, Kashkali, Budhia, son Ramdeen, daughter-in-law Dasia with two other villagers were sleeping. Informant's wife Sumitra woke up during the incident and raised hue and cry and she caught the revisionist accused, but he dragged her to the entrance door, where revisionist kicked her and made his escape good. 3. Initially informant Bandhana's FIR was not registered, but after orders passed by the District Magistrate the same was registered on 11.6.91 at 4.40 p.m. Investigation into the crime was conducted by PW5 S.I. RP, and final outcome of the same culminated in submission of a charge sheet, Ex. Ka 4, against the accused revisionist. 4. Learned Magistrate summoned the revisionist on the basis of Ex. Ka4 to stand trial for charge sheeted offences u/s 380/457 IPC and tried him for those charges. 5. In the trial, prosecution in it's effort to establish accused guilt and bring home the charges, examined informant Bandhan P.W.1, his wife Smt. Sumitra P.W.2, Ramdeen P.W.3, Smt. Phoola P.W.4 and I.O. S.I. R.P. P.W.5. Besides oral evidences of these witnesses, prosecution also relied upon documentary evidences of written F.I.R. Ext. Ka-1, site plan Ext. Ka-2, recovery memo regarding search Ext. Ka-3 and charge sheet Ext. Ka-4. 6. Besides oral evidences of these witnesses, prosecution also relied upon documentary evidences of written F.I.R. Ext. Ka-1, site plan Ext. Ka-2, recovery memo regarding search Ext. Ka-3 and charge sheet Ext. Ka-4. 6. Learned trial Magistrate/Judicial Magistrate, Atarra,District Banda, after looking into the prosecution evidences, both oral and documentary, and considering the defence of the accused held that the charges were successfully anointed against the revisionist and therefore, convicted him for both the charges, under Sections 380 and 457 IPC. For the former charge 3 years R.I. with fine of Rs.500/- and in default thereof to undergo 15 days additional imprisonment and for the second charge 3 years R.I. with Rs.5000/- fine with three months of default sentence was imposed by the learned trial Magistrate, who had further directed that both the sentences shall run concurrently by his impugned judgment and order dated 30.4.2010. 7. Revisionist unsuccessfully challenged his conviction and sentence in Criminal Appeal No.27 of 2010, before Session's Judge, Banda, as his appeal was dismissed by Additional Session's Judge, court no.2, vide impugned judgment and order dated 10.2.2011 and as a follow-up action revisionist surrendered on 15.2.2011 and is now incarcerated in jail. 8. Present revision has been filed by the convicted revisionist challenging both the impugned judgments by the ACJM and the lower Appellant Court. 9. At the stage of admission itself, no illegality could be pointed out by Sri Ajay Singh, Advocate, who had advanced arguments on behalf of the revisionist, on the merits of the revisions, and he failed to dislodge conviction of the revisionist, and consequently, he mainly concentrated his submissions on the quantum of sentence. 10. Sri Singh argued that present was the maiden crime of the revisionist, who had no criminal proclivity or conviction to his credit and therefore his sentence is too sever, not commensurate with his guilt. It was contended that learned trial Magistrate should have released him on probation and he had not inked sufficient and cogent reasons to impose such sever sentence on the revisionist. FIR was recorded after a month, which creates a doubt on the prosecution story. It was further submitted that incident had occurred in the year 1991 and more than a decade had lapsed since then. It was next submitted that the appellant never involved himself with any other crime and hence also he deserves compassionate consideration in matter of sentence. FIR was recorded after a month, which creates a doubt on the prosecution story. It was further submitted that incident had occurred in the year 1991 and more than a decade had lapsed since then. It was next submitted that the appellant never involved himself with any other crime and hence also he deserves compassionate consideration in matter of sentence. Next, it was argued that the appellant was the sole bread earner of his family and he was a poor person, therefore, also, he should not be sentenced so severely. After a gap of a decade, revisionist must have settled down in life, and the stolen articles were not worth Rs.15,000/- in all, on the present price index and hence revisionist sentence be mollified suitably. Learned counsel therefore, contended that revision be allowed and revisionist be imposed with sentence of imprisonment already under gone by him with enhancement of fine suitably. 11. Learned AGA did not harp much on the question of sentence, but submitted that it is neither excessive nor unjust as under Section 457 IPC even a sentence of 14 years of imprisonment can be imposed. He further contended that under Section 380 IPC, the maximum sentence provided under the statute is seven years and from that point of view the sentence cannot be said to be unjust. 12. I have considered the arguments raised by both the sides. So far as merits of revisionist conviction is concerned, there is no evidence on record, which may discredit it or caste a doubt on it. Both the courts below have not faltered to record it and both the impugned judgement and orders cannot be castigated on that score. Learned trial Magistrate as well as lower appellant court have considered the evidences in right and proper prospective and have summated facts correctly. Both the decisions are well merited after due consideration of oral and documentary evidences. Informant and his family members had no axe to grind so as to implicate the accused revisionist in a fib. In such a view, so far as conviction of the revisionist, is concerned it does require any interference and has to be upheld and is hereby affirmed. 13. Turning towards the main contentious issue regarding sentence to be imposed on the revisionist, it is noted that incident occurred in the night of 23.5.1991. Eleven years had already gone by. In such a view, so far as conviction of the revisionist, is concerned it does require any interference and has to be upheld and is hereby affirmed. 13. Turning towards the main contentious issue regarding sentence to be imposed on the revisionist, it is noted that incident occurred in the night of 23.5.1991. Eleven years had already gone by. Prosecution has not been able to fathom out any criminal history of the revisionist. He was not a previous convict and even during trial he had involved himself into any criminal activity. He has already suffered enough mental and physical tormentation more than a decade. Learned trial Magistrate was informed that he was a very poor person and the sole bread earner of his family. While convicting and sentencing him learned Magistrate has not recorded sufficient and convincing reasons to impose three years RI for both the offences, under Section 380 and 457 IPC. No recovery of any theft article was made from the possession of the revisionist. No charge under Section 411 IPC was framed against him. Revisionist had already under gone more than a year of imprisonment as after his surrender he is in incarceration since 15.2.2011. In such a view, in my humble opinion, after a lapse of so many years period of sentence already undergone by the revisionist with fine of Rs.15000/- out of which a compensation of Rs.14000/- to the informant will serve the ends of justice. 14. Revision is allowed in part. While conviction of the accused revisionist for both the offences u/s 380 and 457 IPC are hereby maintained, but his sentence on both the counts is diluted to the period of imprisonment already undergone by him. Revisionist is further imposed with a fine of Rs. 15000/- for both the charges, out of which a compensation of Rs.14000/- is awarded to the informant for the injury caused to him. Revisionist is incarcerated in jail. He shall be set at liberty on his furnishing a personal bond of Rs. one lac with two solvent sureties each in the like amount to the satisfaction of trial Magistrate concerned. His sureties and personal bonds shall be discharged only when the revisionist has deposited the fine awarded herein above or he is arrested to serve out the default sentence. one lac with two solvent sureties each in the like amount to the satisfaction of trial Magistrate concerned. His sureties and personal bonds shall be discharged only when the revisionist has deposited the fine awarded herein above or he is arrested to serve out the default sentence. Revisionist is directed to deposit the fine within a period of one month from today, failing which, he is directed to serve rigorous imprisonment for a period of one year. 15. If the fine is deposited by the revisionist, learned trial Magistrate shall hand over the compensation to the informant within a period of a month of it's deposit. 16. Let a copy of this judgment be certified to the learned Magistrate.