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2013 DIGILAW 433 (MP)

Ankur @ Anshu v. State of M. P.

2013-04-02

N.K.Gupta

body2013
ORDER 1. The applicant was convicted for the offence punishable under section 379 of IPC vide judgment dated 1.8.2012 passed by the learned JMFC (Smt. Usha Tiwari) in criminal case No. 11978/06 and sentenced for one year’s RI with fine of Rs. 500/-. In criminal appeal No. 727/12, the learned 5th Additional Sessions Judge, Bhopal vide judgment dated 18.2.2013 dismissed the appeal in toto. Being aggrieved with aforesaid judgments, the applicant has preferred the present revision. 2. The prosecution’s case, in short is that, on 17.9.2006 at about 7:30 A.M. the complainant Qamar Khan was strolling on VIP Road Bhopal, when he reached to the end of Kinara Apartment, two boys came on the motorcycle and pillion rider had snatched a mobile of the complainant. The complainant rushed to the Police Station Kohefiza, Bhopal and lodged an FIR Ex. P/1. After sometime, the applicant was arrested on 20.10.2006 and he informed that the mobile was kept with co-accused Ankur. Thereafter, the co-accused was also arrested and mobile was seized from the co-accused. On 26.10.2006, test identification parade was conducted in the Central Jail, Bhopal by the Executive Magistrate, Shri Alok Pare (PW6), where the complainant Qamar Khan had identified both the accused persons amongst other ten persons. After due investigation, a charge sheet was filed before the trial Court. 3. The applicant abjured his guilt. He did not take any specific plea but he has stated that he was falsely implicated in the matter. However, no defence evidence was adduced. 4. The learned JMFC after considering the prosecution’s evidence convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto. 5. I have heard the learned counsel for the parties at length. 6. The learned senior counsel for the applicant has submitted that evidently the applicant was below 21 years of age at the time of incident. He was the first offender and at present he is selected for appointment in a private company and therefore, if he is not given an advantage of Probation of Offenders Act then his future will be spoiled. It is further submitted that in Criminal Revisinal No. 340/2013 vide order dated 14.3.2013 co-accused Vivek Pastore was given an advantage of Probation of Offenders Act. 7. It is further submitted that in Criminal Revisinal No. 340/2013 vide order dated 14.3.2013 co-accused Vivek Pastore was given an advantage of Probation of Offenders Act. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances, it is apparent that the stolen mobile was recovered from the applicant and by IMEI number of the mobile, it was found that it was the same mobile which was stolen and therefore, there is no basis so that any interference can be done in the concurrent findings given by both the Courts below relating to the conviction of the applicant under section 379 of IPC. So far as the sentence is concerned, the applicant was below 21 years of age at the time of incident and therefore, he was entitled to get the benefit of Probation of Offenders Act according to the provisions of section 6 of that Act. Now he is selected for some job and therefore, it would be proper not to spoil his future. If he is released on probation then there will be no stigma on his career and there will be no hurdle in getting a new job. The co-accused Vivek Pastore was released on probation vide order 14.3.2013. Under such circumstances, it would be proper that the applicant may also be given the benefit of provisions of section 3 of the Probation of Offenders Act. 8. On the basis of the aforesaid discussion the revision filed by the applicant is hereby partly allowed. His conviction for the offence punishable under section 379 of IPC is hereby maintained but sentence imposed upon him by the trial Court is set aside, he be released after due admonition as per provisions of section 3 of the Probation of Offenders Act, 1958. He would be entitled to get the fine amount back if he has deposited before the trial Court. 9. At present, the applicant is in jail. Office is directed to issue a release warrant without any delay so that the applicant may be released from the jail. 10. Copy of this order be sent to the trial Court as well as appellate Court along with their records for information and compliance.