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2014 DIGILAW 1621 (RAJ)

Raju @ Saitan @ Mukesh v. State of Rajasthan

2014-10-07

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT 1. - Instant revision petition has been preferred on behalf of petitioner under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 to assail the order dated 02.11.2012 whereby the Court of Additional Chief Judicial Magistrate, No.1, Kishangarh District Ajmer has held the petitioner guilty of offence under Section 379 I.P.C., and vide a separate order of even date, sentenced the petitioner to undergo three years rigorous imprisonment. 2. A further prayer has been made that the judgment dated 17.01.2013 rendered by the Additional Sessions Judge, Kishangarh, District Ajmer, whereby appeal preferred by petitioner was dismissed, conviction was upheld and sentence awarded by the trial Court has been affirmed, be also set aside. 3. Succinctly stated the facts of the prosecution case are that it was alleged by the complainant that on 23.01.2012 at about 02:30 P.M. he had gone in a Jeep, bearing registration No.RJ-21-UA-2410 to Mittal Hospital. He had parked the Jeep, out side of hospital and when he came out of the hospital at 06:00 P.M., he found that somebody had committed theft of his Jeep. 4. Petitioner was arrested in a case arising out F.I.R. bearing No.63/2012, registered at Police Station, Madanganj at the instance of complainant for theft of the said Jeep. Prosecution had examined as many as four witnesses, namely PW-1 Shankar Lal, PW-2, Shivcharan, PW-3 Gopiram and PW-4, Nathulal. Various documents i.e. from Exhibit P/1 to Exhibit P/13-A were also exhibited on the record. 5. The trial Court has also noticed that the petitioner is involved in fifteen cases. 6. The Lower Appellate Court, while maintaining conviction, had noted in Para 25 of the impugned judgment that even though prosecution has stated that the petitioner is involved in about fifteen cases, list of cases in which the petitioner was allegedly involved has not been produced on the record. The Lower Appellate Court further noted that the prosecution has not brought to the notice of the Court that whether the petitioner has been convicted or acquitted. 7. Mr. Prithviraj Singh Rajawat, the learned counsel appearing for the petitioner, has submitted that it is a common knowledge that once accused is arrested in one case of theft, his name is involved in remaining un-traced cases of theft. 7. Mr. Prithviraj Singh Rajawat, the learned counsel appearing for the petitioner, has submitted that it is a common knowledge that once accused is arrested in one case of theft, his name is involved in remaining un-traced cases of theft. It is further submitted by the learned counsel that he is conscious that this Court, being third Court will not be in a position to reevaluate and re-appreciate the evidence. 8. Counsel appearing for the petitioner contended that except to point out discrepancies, contradictions and improvements in the statement of witnesses, he has nothing in his arsenal to assail the conviction recorded by the two Courts below. It is further contended by the learned counsel that the Courts below have imposed maximum sentence, swayed by the fact that the petitioner is involved in about fifteen cases. 9. Argument of learned counsel appearing for the petitioner is that it was incumbent for the prosecution to produce the list of cases in which petitioner is allegedly involved, in case it wanted to secure maximum imprisonment prescribed for offence for which the petitioner has been tried. 10. Considering the merit in the alternative submissions advanced by the learned counsel appearing for the petitioner, this Court is of the view that to award sentence is an onerous duty on the part of the Court and the Court has to weigh mitigating and aggravating circumstances. It was required on the part of the Courts below, that while awarding maximum sentence, it should have weighed mitigating and aggravating circumstances before coming to a conclusion that the maximum sentence is to be awarded. 11. Last argument of learned counsel appearing for the petitioner is that the petitioner is a sole bread earner of the family and he has already undergone sentence of two-years & seven-months, out of three years sentence awarded. 12. After hearing the learned counsel appearing for the petitioner, as well as, the learned Public Prosecutor appearing for the State of Rajasthan, this Court is of the view that the ends of justice will be fully met in case the period of sentence of three years imprisonment imposed upon the petitioner is reduced to the period of two-years-&-nine-months. 13. Hence, sentence of three years imprisonment awarded to the petitioner is reduced to the period of two-years-&-nine-months. 13. Hence, sentence of three years imprisonment awarded to the petitioner is reduced to the period of two-years-&-nine-months. Consequently, the revision petition is disposed of by above modification in the sentence of imprisonment.Upon disposal of main petition, the stay application, filed therewith does not survive; the same is also disposed of.Revision disposed of. *******