Chattisgarh High Court

Subhash Patel And Anr vs State Of Chhattisgarh on 7 July, 2022

                                                                NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                          CRR No. 47 of 2009

                     Order reserved on 17.06.2022

                    Order pronounced on 07.07.2022
     1. Subhash Patel, S/o. Laxman Patel, aged about 21 years, R/o.
        Jalampur Ward, Dhamtari, District Dhamtari, CG
     2. Murli Patel, S/o. Laxman Patel, aged about 19 years, R/o.
        Jalampur Ward, Dhamtari, District Dhamtari, CG
                                                           ---- Applicants
                                    Versus
       State of Chhattisgarh through the District Magistrate,
       District Dhamtari, CG                ---- Respondent

For applicants: Mr. Shivendu Pandya and Mr. Dinesh Yadav For State/respondent: Mr. Ashish Tiwari, GA.

C.A.V Order

Hon'ble Shri Justice Sachin Singh Rajput

1. Assailing the legality, validity, correctness and judicial

propriety of the judgment dated 12.01.2009 passed by the

Additional Session Judge, Dhamtari, District Dhamtari, CG

{for short ASJ} in Criminal Appeal No. 36/2008 by which the

ASJ has upheld the judgment of conviction dated

06.08.2008 passed by Judicial Magistrate First Class,

Dhamtari District Dhamtari, CG {for short JMFC} in Criminal

Case No.9/2005. The applicants have preferred this revision

under Section 397 read with Section 401 of Criminal

Procedure Code, 1973 {for short Cr.P.C.}.

2. Prosecution case in brief is that on the date of incident i.e.

28.08.2005, Dinesh Kumar Sahu (PW-4) was taking away

the 30-35 persons for function by Metador to village Borsi.

The said Metador was owned by Umesh Rajak (PW-11). When they reached near the Jalampur and parked the

Metador in front of the house of the accused/applicants. The

accused/applicants abused him and damaged the Metador.

Further, it is alleged by the complainant that the

accused/applicants damaged the headlight, indicator of the

metador and set on fre the cover of the metador. After the

incident, Dinesh Kumar informed the owner of the metador

then he came near the spot and reported the matter in

Police Station Dhamtari. After due investigation charge-

sheet was fled. The prosecution examined as many as 14

witnesses in support of their case. Statement of applicants

under Sections 313 Cr.P.C. was recorded in which they have

stated that they have been falsely implicated and they are

innocent.

3. The learned JMFC after appreciation of oral and

documentary evidence brought before it convicted the

applicants under section 435 of IPC and sentence them to

undergo 1 year rigorous imprisonment and Rs. 500/- fne

and in default of payment of fne 15 days simple

imprisonment. For section 324/34, 323/34 of IPC imposed

sentence of 15 days and fne of Rs.500/- and Rs.500/- total

Rs.1000/- was imposed. In default of payment of fne 15

days simple imprisonment was imposed. Being aggrieved

by the judgment of conviction and award of sentence, the

applicants preferred an appeal under Section 374 of Cr.P.C.

before the learned Session Judge, Dhamtari, CG. The appeal

heard by the learned ASJ and after due consideration the

conviction was upheld however sentence of 1 years

rigorous imprisonment imposed under section 435 was

reduced to simple imprisonment of 6 months and fne amount of Rs.500/- was maintained. Under section 323/34,

323/34 the sentence of 15 days simple imprisonment was

set aside however the fne amount of Rs.500/-, Rs.500/- was

maintained. So the appellants were to undergo 6 months

simple imprisonment and total Rs.1500/- fne on each

applicant was imposed with default sentences.

4. I have heard the learned counsel appearing for the

applicants and the non-applicant/State. Shri Shivendu

Pandya and Shri Dinesh Yadav, learned counsel for the

applicants did not attack the impugned judgment on merits

however they restricted their submission to reduce the

sentence awarded to applicants to sentence already served/

undergone by them. They submitted that the ofence was

committed in the year 2005, the applicants faced trial since

2005 and the revision remained pending since 2009

therefore after a lapse of about 17 years the applicants may

not be sent back to prison.

5. State counsel however supports the judgment impugned in

letter and spirit. State counsel submits that merely

pendency of the revision would not entitle them to get any

undue leniency from the court.

6. I have heard the learned counsel for the parties and

perused the judgments passed by Courts below and oral

and documentary evidence with utmost circumspection. It

is true that learned counsel for the applicants have not

assailed the impugned judgments on merits however after

going though the evidence on record it is apparent that the

non-applicant/State was able to bring home the guilt of the

applicants. The fnding arrived at by the learned JMFC and the learned ASJ is based on proper evidence on record and

it does not require any interference hence it is afrmed.

7. Now I shall consider the submission of the learned counsels

of the applicants for reduction the sentence to the period

they have already served/undergone. It is evident from

record that ofence was committed in the year 2005, the

applicant faced prosecution since 2005 and they have

remained in jail for about 10 days. The sentence awarded to

applicants was suspended and they were granted bail by

this court on 21.01.2009. It also appears that the applicants

have not misused their liberty. Fine amount has been

deposited by the applicants. It is to be seen that the

applicant no.1 was a young man of 21 years and applicant

no.2 was 19 years old at the time of omission of ofence.

They must be around 37 and 35 years respectively at

present. For the long 13 years, the applicants must have

gone through the mental trauma of the fact that they may

be sent back to prison in the event of their revision is

dismissed. In the same breath I am persuaded to mention

herein below few lines from the judgment authored by

Justice V.R. Krishna Iyer in case of Mohammad

Giasuddin Vs. State of Andhra Pradesh reported in AIR

1977 SC 1926 :-

"Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alferi has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-

culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infiction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the ofender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeofrey Streatfeld : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'"

Therefore, after a lapse of 17 years, as no negative

information is brought to the notice of this court that the

applicants have not reformed themselves and their freedom

is detrimental to society at large, it may not be appropriate

to send back the applicants to prison. Therefore, by

recording the above stated adequate and special reasons, I deem it proper to maintain the conviction of the applicant,

and the sentence of 6 months so awarded, is reduced to the

period of sentence already served/undergone by the

applicants. In lieu of it fne imposed upon the applicants is

enhanced to Rs.5000/- in total for each applicant. The

applicants are granted 3 months time from date of

judgment to deposit the remaining amount of fne, in the