Santosh Kumar Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 5106 Chatt

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                                                                         NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                             CRR No. 403 of 2010

Santosh Kumar Yadav S/o Shobharam Yadav, aged about 35 years, residence
of Village Sankara, Tahsil Nagri, District Dhamtari, C.G.
                                                                ---- Applicant
                                   Versus
State Of Chhattisgarh Through - The District Magistrate Dhamtari, District
Dhamtari, Chhattisgarh.
                                                             ---- Respondent

For Applicant                    : Mr. Sunil Sahu, Advocate
For Respondent/State             : Ms. Priyamvadha Singh, Dy. G.A.


               Hon'ble Shri Justice Rakesh Mohan Pandey

                             Order on Board
10-08-2022

1. This revision petition has been brought by invoking the revisional

jurisdiction of this Court under Section 397 read with Section 401 of the

Code of Criminal Procedure, 1973. The applicant herein has filed the

instant criminal revision challenging the impugned judgment dated

19.7.2010 passed by the learned Additional Sessions Judge (FTC),

Dhamtari in Criminal Appeal No. 18 of 2010, affirming the judgment of

the conviction and order of sentence dated 8.3.2010 passed by the

Judicial Magistrate First Class, Nagri, District Dhamtari in Criminal Case

No. 504 of 2009, whereby the applicant has been convicted for

commission of offences punishable under Sections 380 and 457 of

Indian Penal Code and was sentenced to undergo rigorous

imprisonment for 2 years and 3 years and to pay fine of Rs.200/-

and Rs.300/-, in default of payment of fine, to further undergo

additional RI for 1 month, respectively.

2. The case of the prosecution, in brief, is that on 15.10.2009, when

complainant - Rameshwar Lal Patel had gone to attend marriage

ceremony of his relative alongwith his wife, some unknown person

entered into his house and committed theft of TV, VCR, Camera and

GPS System and value of the stolen articles was about Rs.10,000/-.

After investigation, police seized colour TV of LG Company, Dish TV

receiver and one digital camera from possession of the present

applicant and the same was identified by the complainant.

3. The police arrested the present applicant and one Anil Kumar in

connection with the crime.

4. The matter was investigated by the concerned police and after

investigation charge-sheet was filed before the competent criminal Court

against the applicant and co-accused for commission of offence

punishable under Sections 380 and 457 of the IPC and sentenced him

to undergo rigorous imprisonment for 2 years and 3 years and to

pay fine of Rs.200/- and Rs.300/-, in default of payment of fine, to

further undergo additional RI for 1 month, respectively. T he

applicant and co-accused abjured their guilt and took the plea that they

are innocent and they have falsely been implicated in this case.

5. During the course of trial, the prosecution examined as many as

9 witnesses and exhibited 17 documents to bring home the offence.

Upon appreciating the oral and documentary evidence on record,

learned Judicial Magistrate First Class, Nagri, District Dhamtari by its

judgment dated 8.3.2010, convicted the applicant whereas, acquitted

the co-accused - Anil Kumar by the learned trial Court.

6. In an appeal preferred by the applicant learned Additional Sessions

Judge (FTC), Dhamtari vide its judgment dated 19.7.2010, affirmed the

judgment of conviction and order of sentence passed by the trial

Magistrate. Feeling dissatisfied with the judgment of the Appellate

Court, the applicant has filed the instant criminal revision.

7. Shri Sunil Sahu, learned counsel appearing for the applicant would

submit that both the Courts below have committed legal error in

convicting the applicant for commission of offence punishable under

Sections 380 and 457 of the IPC by recording a finding, which is

perverse and contrary to the evidence available on record. He would

alternatively submit that the jail sentence awarded to the applicant is

disproportionate to the gravity of the offence as the applicant has

already remained in custody for a period of 9 months and 22 days,

therefore, the period already undergone by the applicant be held to be

sufficient sentence against the sentence awarded by the two Courts

below and accordingly, the revision be allowed by modifying the

sentence awarded.

8. On the other hand, Ms. Priyamvadha Singh, learned Dy. G.A. for the

State would submit that the judgment of conviction and sentence

awarded is based on the evidence available on record and it is best

merited judgment concurrently recorded by both the Courts below and

as such, no interference is called for by this Court in this revisional

jurisdiction, therefore, the instant criminal revision deserves to be

dismissed.

9. I have heard learned counsel for the parties and perused the impugned

judgment and records of both the Courts below with utmost

circumspection.

10. Learned trial Magistrate in its judgment dated 8.3.2010 has clearly

recorded a finding based on the testimony of the complainant and

seizure of the stolen articles from possession of the applicant and that

piece of evidence has not been rebutted by the applicant. Learned trial

Magistrate after appreciating oral and documentary evidence has clearly

recorded a finding that it is the applicant who committed theft in the

dwelling house of the complainant.

11. On an appeal being preferred the Appellate Court has clearly affirmed

the finding of the trial Magistrate holding that there is no infirmity in the

finding recorded by the trial Magistrate and found the applicant guilty for

the offences under Sections 380 and 457 of the IPC.

12. After hearing both the parties and on perusal of the record and taking

into consideration the testimony of the witnesses and seizure memo,

I do not find any illegality or infirmity in the finding recorded by both the

Courts below holding the applicant guilty for the offence under Sections

380 and 457 of the IPC and thus, I hereby affirm the finding so recorded

by both the Courts below. Accordingly, the conviction of the applicant for

the offence under Sections 380 & 457 of the IPC is hereby maintained.

13. Shri Sunil Sahu, learned counsel appearing for the applicant would

submit that the applicant remained in jail for 9 months and 22 days,

therefore, taking a lenient view of the matter, the sentence awarded by

the applicant RI for 3 years be reduced to the period already undergone

by him.

14. Ms. Priyamvadha Singh, learned Deputy Government Advocate would

submit that the stolen property was seized from the possession of the

applicant and it is a clear cut case of theft and the same has been

proved by the prosecution, therefore, the sentence awarded to the

applicant is just and proper.

15. Taking into consideration all the facts and circumstances of the case

and keeping in view that the incident had taken place on 15.10.2009 at

that time the age of the applicant was 35 years, he remained in jail for 9

months and 22 days during the pendency of trial and appeal, therefore,

I am of the opinion that the sentence awarded to the applicant, RI for 2

years and 3 years under Sections 380 and 457 of the IPC

respectively should be modified to the period already undergone

i.e. 9 months and 22 days as there is no minimum sentence

provided under Sections 380 and 457 of the IPC.

16. Accordingly, the instance criminal revision is partly allowed.

Sd/-

(Rakesh Mohan Pandey) Judge Nimmi