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2023 DIGILAW 912 (MP)

Pappu Lodhi v. State of Madhya Pradesh

2023-11-09

SANJEEV S.KALGAONKAR

body2023
ORDER Sanjeev S. Kalgaonkar, J. - This criminal revision is filed assailing the judgment dated 05.03.2014 passed by IIIrd Additional Sessions Judge, Guna in Criminal Appeal No.233/2013 whereby the judgment of conviction and order of sentence dated 19.07.2013 passed by Shri R.L. Karoriya, Judicial Magistrate First Class, Guna in RCT No.1660/2012 convicting the appellant for offence punishable under Section 379 of IPC and sentencing him with simple imprisonment for two years and fine of Rs.2,000/- with default stipulation was affirmed. 2. The exposition of fact, giving rise to this revision petition is as under:- (i) Jayprakash Agrawal resident of Madhavganj, Gwalior submitted a written complaint with SHO GRP, District Guna inter alia alleging that he was travelling from Bara, Rajasthan to Guna by train. As the train reached Railway Station, Ruthiyai, some unknown person stolen his bag containing cash of Rs.29,000/-, visiting card of Triupati Traders and 15 pieces of apparel. On duty GRP and RPF staff caught hold one person with the bag. He identified his bag. Accused Pappu Lodhi was arrested. Police Station GRP, Guna registered FIR at Crime No.56/2012 for offence punishable under Section 379 of IPC against Pappu Lodhi. The stolen articles (blue colour bag along with cash of Rs.29,000/- and 15 pieces of apparel) were seized from the possession of the Pappu Lodhi. He was arrested. Statement of witnesses were recorded. On completion of investigation, final report was submitted before the Court of learned CJM, Guna. (ii) Learned CJM, Guna on completion of trial and hearing of the accused, convicted the accused Pappu Lodhi for offence punishable under Section 379 of IPC and sentenced him as under:- Appellant Conviction under Section Imprisonment Fine Amount Default Stipulation Pappu Lodhi 379 of IPC Simple Imprisonment for two years Rs.2,000/- Simple Imprisoment for 3 months 3. Feeling aggrieved by judgment of conviction and order of sentence dated 19.07.2023, the petitioner Pappu preferred appeal before the Sessions Judge, Guna. Learned IIIrd Additional Sessions Judge, Guna vide judgment dated 05.03.2014 passed in CRA No.233/2013 rejected the appeal while confirming the conviction and sentence. 4. The impugned judgment dated 05.03.2014 is assailed in present revision petition on following grounds:- (1) That the impugned order is unjust, arbitrary and bad in law. (2) Jaiprakash Agarwal (PW-1) was not carrying railway travel ticket. He has not presented bills for jeans pant. (3) All the witness examined by the prosecution were interested witness. 4. The impugned judgment dated 05.03.2014 is assailed in present revision petition on following grounds:- (1) That the impugned order is unjust, arbitrary and bad in law. (2) Jaiprakash Agarwal (PW-1) was not carrying railway travel ticket. He has not presented bills for jeans pant. (3) All the witness examined by the prosecution were interested witness. Learned Magistrate did not consider these aspects of the matter. (4) Learned Magistrate committed an error in not extending benefit of Probation of Offenders Act. Learned Appellate Court also failed to consider the same. (5) There are many omissions and contradictions in the testimony of prosecution witness. The prosecution case was doubtful. 5. On such grounds, it is requested that the impugned judgment dated 05.03.2014 passed by First Appellate Court be set aside and the petitioner be acquitted of all the charges. 6. Learned counsel for the petitioner referring to the testimony of Jaiprakash Agarwal (PW-1), Laxmikant Chourasia (PW-2), Prabhudayal (PW-3), Ramesh Kumar Panthi (PW-4), Vivek Kaushal (PW-5), Sheikh Safik (PW-6), Surendra Kumar (PW-7) and Investigation Officer Om Prakash (PW-8) submits that there are inconsistencies in statement of witnesses with regard to seizure of bag alleged to be stolen from possession of the accused, therefore, the offence punishable under Section 379 of IPC was not proved beyond doubt. 7. Per-contra, learned counsel for the State submits that there is no material contradictions or inconsistencies in the statement of prosecution witness. Learned trial Court and First Appellate Court had elaborate appreciation of the evidence concluded that alleged offence is proved beyond doubt. Therefore, the concurrent finding cannot be interfered with in absence of patent illegality. 8. Under Section 397 of the Cr.P.C, the Court is vested with the power to call for and examine the record of any inferior Court for the purpose of satisfying itself as to legality and regularity of any proceedings or order made in a case. The object of this provision is to correct the patent defect or an error of jurisdiction or the perversity which has crept in the proceedings. 9. However, this Court, in revision, exercises supervisory jurisdiction of restricted nature. It cannot re-appreciate the evidence, as second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. 9. However, this Court, in revision, exercises supervisory jurisdiction of restricted nature. It cannot re-appreciate the evidence, as second Appellate Court, for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. Recently, in case of Malkeet Singh Gill v. State of Chhattisgarh, reported in (2022) 8 SCC 204 , the Supreme Court observed as under- "10.Before adverting to the merits of the contentions,at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely 8 narrow. Section 397 of the Criminal Procedure Code (in short "CrPC") vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings." (Duli Chand v. Delhi Admn. (1975) 4 SCC 649 ; State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand (2004) 7 SCC 659 also relied). 10. In the backdrop of the aforesaid proposition of law, the fact situation of the case in hand is examined. 11. Learned trial Court in Para Nos.7 to 11 of the judgment elaborately dealt with the evidence on record and concluded that the accused has committed theft of one blue colour bag containing cash of Rs.29,000/-, one visiting card and 15 pieces of apparel from the possession of the Jai Prakash Agarwal travelling in quota ticket passenger train. Learned Appellate Court in Para Nos.8 to 11 of the impugned judgment reappreciated the evidence on record. Learned Appellate Court in Para Nos.8 to 11 of the impugned judgment reappreciated the evidence on record. Learned First Appellate Court rejected the contention that merely non-production of passenger ticket or purchase bill by the complainant wold not be sufficient to discard the testimony of Jai Prakash Agarwal (PW-1). Learned First Appellate Court also consider the contention that some of the witness are police witness. On consideration of all the contentions, learned First Appellate Court concluded that the trial Court has not committed any error in appreciation of evidence and reaching to the conclusion that the accused has committed offence of theft punishable under Section 379 of IPC. 12. No patent illegality or perversity is made out in the impugned judgment, therefore, there is no reason for invoking supervisory revisional jurisdiction to interfere with the finding of conviction under Section 379 of IPC against the revision-petitioner. 13. Learned counsel for the revision-petitioner contends that both the Courts below committed error in denying benefit of Probation of Offenders Act to the revision-petitioner Pappu. Learned CJM in Para 13 of the judgment considered benefit of Probation of Offenders Act and concluded that considering the conduct of the accused and nature of offence, it is not expedient to extend benefit of probation to the accused. Learned Additional Sessions Judge in Para 11 considered the contention with regard to the benefit of probation and on consideration of over all circumstances, affirmed the conclusion of trial Court. The reasoning given by both the Courts below in this regard is appropriate, therefore, no interference is called for in exercise of supervisory revisional jurisdiction. 14. Learned counsel for the revision-petitioner submits that it is first offence alleged against the petitioner, he has never been convicted, no criminal antecedent is alleged against the petitioner. He has already undergone imprisonment for more than one year. His conduct in jail has been unblemished, therefore, the sentence may be reduced. 15. Perused the record. No criminal antecedent was reported against the petitioner. The arrest memo Exhibit (P-4) reveals that applicant is aged 25 years and labourer by profession. He was caught immediately after stealing a bag from possession of complainant Jai Prakash Agarwal at railway platform. Learned counsel for the petitioner contends that family of applicant is facing great financial hardship as the sole bread earner of the family is incarcerated for more than one year. He was caught immediately after stealing a bag from possession of complainant Jai Prakash Agarwal at railway platform. Learned counsel for the petitioner contends that family of applicant is facing great financial hardship as the sole bread earner of the family is incarcerated for more than one year. Considering these aspects of the matter, the sentence of imprisonment for two years appears to be disproportionate, therefore, this revision is partly allowed from the point of sentence and the impugned judgment is amended to the extent that petitioner Pappu Lodhi S/o Ramprasad Lodhi is sentenced for offence punishable under Section 379 of IPC is as under:- Appellant Conviction under Section Imprisonment Fine Amount Default Stipulation Pappu Lodhi 379 of IPC Simple Imprisonment for 1 year and 5 months Rs.2,000/- Simple Imprisonment for 3 months 16. The period of custody already undergone by petitioner/accused Pappu Lodhi shall be set off against the sentence of imprisonment. 17. The petition is accordingly disposed of.