Manish Jaiswal vs State Of Chhattisgarh
2022 Latest Caselaw 3850 Chatt

                                                                              1


                                                                         NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

      CriminalC      Criminal Revision No. 217 of 2007R. 217 of 2007
   • Manish Jaiswal S/o Kamta Prasad Aged About 25 Years, R/o Kalibadi
     Chowk, Sarkanda, P.S. Sarkanda, Bilaspur presently R/o Sharan
     Nagar, Police Station Thakatpur, District Bilaspur, Chhattisgarh
                                                                 ---- Applicant
                                    Versus
   • State of Chhattisgarh, Through S.H.O. Police Station Thakatpur
     District Bilaspur(C.G.)
                                                              ---- Respondent

____________________________________________________________ For Applicant : Shri Varun Sharma & Shri Aman Kesharwani, Advocates For Respondent/State : Shri Sameer Oraon, G.A.

____________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput

JUDGMENT ON BOARD

17.06.2022

1) Assailing the legality, validity, correctness and judicial propriety of the

judgment dated 05.04.2007 passed by First Additional Sessions

Judge, Bilaspur (C.G.) {for short ASJ} in Criminal Appeal No. 173/2006

by which the learned ASJ has upheld the judgment of conviction and

award of sentence dated 14.09.2006 passed by Judicial Magistrate

First Class, Bilaspur (C.G.) {for short JMFC} in Criminal Case No. 459

of 2005, the applicant has preferred this revision under Section

397/401 Code of Criminal Procedure, 1973 {for short Cr.P.C}.

2) Prosecution case in brief, is that the complainant and his wife both are

teachers. Applicant used to visit the house of the applicant when they

go to school after 11 AM. The mother of the complainant is left alone in

the house after he went to school. On 18.10.2005 when complainant

opened the cupboard and saw the locker, then he found that cash and

jewelry were not there. Thereafter on suspicion, the report was lodged

by the complainant against the applicant. The investigation was set on

motion and after due investigation charge-sheet was filed against the

applicant. The applicant was charged for commission of offence

punishable under Sections 454, 380 of Indian Penal Code, 1860 {for

short IPC}. The applicant denied the charges. Th e prosecution

examined as many as 09 witnesses in support of their case. Statement of

applicant under section 313 Cr.P.C. was recorded in which he has stated

that he is innocent and falsely implicated in the case.

3) The learned JMFC after appreciation of oral and documentary

evidence brought before it, convicted the applicant under section 454

of IPC and sentenced him to undergo one year rigorous imprisonment

and Rs.300/- fine and in default of payment of fine 1 month additional

rigorous imprisonment was imposed and for offence under section 380

of IPC, he has been sentenced to one year rigorous imprisonment and

Rs.200/- fine and in default of payment of fine 1 month additional

rigorous imprisonment was imposed. Both the sentences were

directed to run concurrently. Being aggrieved by the judgment of

conviction and award of sentence, the applicant preferred an appeal

under section 374 of Cr.P.C. before the learned Sessions Judge,

Bilaspur (C.G.). The appeal was heard by the learned ASJ and after

due consideration the same was dismissed and the conviction of the

applicant was maintained/upheld, however, reduced the sentence to 6

months.

4) Learned counsel Shri Varun Sharma & Shri Aman Kesharwani,

appearing for the applicant submitted that both the Courts below have

committed an error of law in convicting the applicant for the aforesaid

offences and did not appreciate the evidence on record to its proper

perspective and erroneously convicted and sentenced the applicant for

the commission of offence under Sections 454 and 380 of IPC. It is

also submitted that the purchase receipt of jewelry was prepared after

the commission of crime, hence, it cannot be relied upon. The

impugned judgment cannot sustain in the eyes of law hence, the

appeal may kindly be allowed and the applicant may be acquitted from

all charges. Alternatively they submitted that the offence was

committed in the year 2005, the applicant faced trial since 2005 and

the revision remained pending since 2007, therefore, after a lapse of

about 17 years the applicant may not be sent back to prison. They

further submitted that the applicant has already served/undergone one

month and 16 days (46 days) of sentence awarded to him. Shri Varun

Sharma, Advocate submits that ends of justice would be served if the

sentence awarded to the applicant is reduced to sentence already

served/undergone by him by enhancing the fine amount.

5) On the other hand, Shri Sameer Oraon, learned counsel for the State

submitted that both the Courts below have found the applicant guilty

under Sections 454, 380 of IPC. The prosecution witnesses have

supported the case of the prosecution. The stolen cash and jewelry

was recovered at the instance of the applicant. The duplicate receipt

was prepared on the basis of records maintained by the jeweler,

hence, applicant cannot take any advantage of it. Both the Courts

below were justified in convicting him and awarding sentence after due

appreciation of evidence, therefore, no leniency may be shown

towards the applicant and the revision deserves to be dismissed.

6) I have heard learned counsel appearing for the parties, perused the

judgments passed by the Courts below and oral and documentary

evidence with utmost circumspection. A constitutional Bench of the

Hon'ble Supreme Court in the case of Sheo Nandan Paswan Vs.

State of Bihar1 in paragraph 88 observed as under:- 1 (1987) 1 SCC 288

"88.There is no appeal provided by the Act against the order giving consent under section 321. But the order is revisable under section 397 of the Criminal Procedure Code. Section 397 gives the High Court of the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court does not dwell at the length upon the facts and evidence of the case. The court in revision considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."

7) In light of the above authoritative pronouncement this court shall now

proceed to consider the legality, propriety or the correctness of the

findings of the Courts below. The complainant Manish Prasad (PW-1)

stated that on 18.10.2005 when he came back from school and

opened the locker of cupboard then he found that a gold necklace, a

gold ring, a silver ring and Rs.3,400/- cash were not there. He lodged

the named First Information Report (Ex.P/1) against the applicant on

19.10.2005, he has stated in his cross-examination that he has

prepared the duplicate receipt as original was missing, duplicate

receipt was prepared by the jeweler on the basis of record and he

remained firm during the cross-examination. The case of the

prosecution was also supported by Smt. Egnes Prasad (PW-2) and

Shruti Prasad (PW-9). The stolen articles a gold necklace, a silver ring

and cash Rs.3,400/- was recovered at the instance of the applicant

from his house. Venkatesh Thakur (PW-4) and Sankalp Samual (PW-

7) have support the prosecution case and proved the memorandum

(Ex.P/4) and seizure memo (Ex.P/5). The learned JMFC on the basis

of evidence on record convicted and sentenced the applicant as stated

above. After careful examination of evidence on record, it cannot be

said that the finding recorded by learned JMFC is perverse or illegal.

No jurisdictional error could be demonstrated by the learned counsel

for the applicant. Therefore, I affirm the findings of the learned JMFC

and learned ASJ.

8) Now I shall consider the submission of the learned counsel for the

applicant with regard to reducing the sentence to already

served/undergone by the applicant. It is true that the offence was

committed in the year 2005 and the applicant faced trial since 2005.

The revision is pending since 2007 and about 17 years have lapsed

since the prosecution of trial and applicant has served/undergone

about 46 days of the sentence imposed upon him. However, the record

reflects that earlier bailable warrant was issued against applicant for

his appearance before this court. Thereafter non-bailable warrant and

ultimately permanent non bailable warrant was issued by this court.

Hence it appears that the applicant has misused the liberty granted to

him. Therefore, no undue leniency be shown to the applicant.

However, it is also evident from record that the applicant has

served/undergone about 46 days of sentence imposed upon him. The

complainant Manish Prasad (PW-1) has received the gold necklace,

silver ring and Rs.3,400/- cash on Supurdnama. Therefore, taking into

totality of circumstances, while maintaining the conviction of the

applicant under Section 454 and 380 of IPC, the sentence of six

months imposed is reduced to two months for conviction under

Sections 454, 380 of IPC. The fine and default sentence is unaltered.

Both the sentences to run concurrently. The applicant is reported to be

on bail. His bail bond is discharged. The applicant is directed to

surrender for serving the remainder part of sentence.

9) The present Criminal Revision is disposed of accordingly.

10) Records of the Courts below be sent back along with copy of this

order forthwith for information and necessary compliance.

Sd/-

(Sachin Singh Rajput)

Judge

parul