Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1737 (BOM)

Sanjay Murlidhar Chaugule v. State of Maharashtra

2014-08-05

V.M.DESHPANDE

body2014
ORAL JUDGMENT By the present Cri.Revn.Appln., the applicant is questioning the correctness of the Judgment and Order dated 29th May, 1997 passed by the learned Chief Judicial Magistrate, Dhule in Reg.Trial Case No.305 Of 1993 whereby the applicant alongwith co-accused Sanjay @ Babu Ramdas Ahirrao were convicted for the offences punishable under Section.s. 380, 457 read with 34 of the Indian Penal Code. For both these offences, the learned Magistrate was pleased to sentenced them to suffer Simple Imprisonment for six months. The sentences were directed to run concurrently. No fine was imposed upon them. It is to be mentioned here that other accused Sushilabai w/o Ramadas Ahirrao was acquitted by the learned Magistrate, together with the Judgment and order of dismissal dated 5th July, 2001 passed by the learned Addl.Sessions Judge, Dhule in Cri.Appeal No.17-A/1997. 2. I have heard Mr. R.M. Deshmukh, Advocate for the Applicant and Mrs. Pratibha Bharad, A.P.P. for the State of Maharashtra. With their able assistance, I have gone through the Record & Proceedings, which was called by this court at the time of admission of present Cri.Revn.Appln. and also impugned Judgments passed by the courts below. 3. During the course of submissions before this court, the learned counsel for the applicant fairly submitted that, in fact, he is not questioning the correctness of the Judgment and Order dated 29th May, 1997 passed by the learned Chief Judicial Magistrate, Dhule in Reg.Trial Case No.305/93, which was confirmed by the learned Addl. Sessions Judge in Cri.Appeal No. 17-A/1997 in respect of holding the applicant guilty for the offence punishable under Section.s. 380, 457 read with 34 of the Indian Penal Code but, he submitted that sentence awarded to the present applicant is at higher side and, therefore, this court be pleased to reduce the quantum of sentence. 4. On 22nd May, 1993 Madhukar Joshi, filed First Information Report with Police Station, Azhadnagar, Dhule. Said F.I.R. is at Exh.No.12. By the said F.I.R., it was reported that theft is committed in the house of Ramkrushna Dattatraya Pathak, when said Ramkrushna was away from Dhule and was at Dombiwali. On the basis of said report, vide CR No. 191/93 for an offence punishable under Section.s. 457, 380 read with 34 of the Indian Penal Code was registered against the present applicant and two others with Azhadnagar Police Station, Dhule. On the basis of said report, vide CR No. 191/93 for an offence punishable under Section.s. 457, 380 read with 34 of the Indian Penal Code was registered against the present applicant and two others with Azhadnagar Police Station, Dhule. During the course of investigation, present applicant and co-accused Sanjay were arrested on 8th August, 1993. They were in jail till 9th September, 1993. The learned Magistrate was pleased to frame the charge against the present applicant and co accused Sanjay and Suishilabai. 5. The prosecuting agency in order to bring home the guilt of the accused examined in all eight witnesses before the Court. The learned Magistrate after appreciating the prosecution evidence, by his Judgment and Order dated 29/05/1997 recorded the findings of guilt against present applicant and the co-accused Sanjay @ Babu Ramadas Ahirrao and convicted them to suffer simple imprisonment for six months. Though Sanjay was sentenced to suffer simple imprisonment for six months, it appears that he did not prefer Criminal Appeal before the court of Sessions and it is the only present applicant, who preferred Cri.Appeal No.17-A/1997. 6. In so far as offence of committing lurking house-trespass by night or house-breaking by night, which is punishable under Section 457 of the Indian Penal Code, there is no reason to disbelieve the prosecution case; since the prosecution has proved the lurking house-trespass by night and house-breaking by night by adducing cogent evidence of PW No.8 Ramkrushna Pathak. Offence was committed in between 12th May, 93 to 25th May, 93. During that period, the prosecution has proved that Ramkrushna alongwith his family members were away from Dhule and they were at Dombiwali and their house was in locked condition. No doubt there is no eye witness in the present case, nor it is expected to have the eye witness in such a cases. 7. After going through the impugned judgment and in view of the submissions made by the learned counsel for the applicant that the applicant is not questioning the correctness of the Judgment and Order passed by the learned Chief Judicial Magistrate, Dhule in Reg.Trial Case No.305/93, which was confirmed by the learned Addl. Sessions Judge in Cri.Appeal No. 17-A/1997 in respect of holding the applicant guilty for the offence for which he was charged, there is no necessity to deal with the grounds raised in the memorandum of Cri.Revn.Appln. 8. Sessions Judge in Cri.Appeal No. 17-A/1997 in respect of holding the applicant guilty for the offence for which he was charged, there is no necessity to deal with the grounds raised in the memorandum of Cri.Revn.Appln. 8. As regards the the sentence, the learned counsel for the applicant submitted that, the applicant was arrested on 8th August, 93 and was released on bail by the trial court on 9th September, 93. The judgment of the appellate court was passed on 5th July, 2001 and applicant surrendered himself before the jail authority on 19th July, 2001. This court released the applicant on bail on 20th September, 2001. Thus the applicant is on bail since 20th September, 2001. Thus total period of incarceration of present applicant is three months. Thus it is clear that out of six months, the applicant has already suffered jail sentence for three months. Having regards the long period that has elapsed, this court is of the view that the sentence of imprisonment imposed upon the applicant should be reduced to the period already undergone by him. Hence, following order :- ORDER [i] Cri.Revn.Appln. is partly allowed. [ii] Judgment and Order dated 29th May, 1997 passed by the learned Chief Judicial Magistrate, Dhule in Reg. Trial Case No. 305 Of 1993 holding the applicant guilty for the offences punishable under Section.s. 457, 380 read with 34 of the Indian Penal Code, is hereby confirmed. [iii] However the sentenced as imposed by the courts below is modified from the period of six months to the sentence which he has already undergone, as indicted in the body of the present Judgment. [iv] With this modification, Cri.Revn.Appln. is partly allowed. [v] Rule is made absolute in above terms. Cri.Revn.Appln. partly allowed.