Imran @ Gabbar vs The State Of Madhya Pradesh
2023 Latest Caselaw 18919 MP

                                                                                          1
                             IN          THE               HIGH COURT OF MADHYA PRADESH
                                                                 AT INDORE
                                                             BEFORE
                                            HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
                                                CRIMINAL REVISION No. 4323 of 2023
                           BETWEEN:-
                           IMRAN @ GABBAR S/O SHRI RAFIQ KHA, AGED ABOUT
                           30       YEARS, OCCUPATION:    SERVICE    R/O
                           GRAMKAMLAPUR TEHSI BAGLI DISTT. DEWAS
                           (MADHYA PRADESH)

                                                                                                                                               .....PETITIONER
                           (SHRI YOGESH GUPTA, LEARNED COUNSEL FOR THE PETITIONER)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION KHAJRANA
                           INDORE (MADHYA PRADESH)

                                                                                                                                          .....RESPONDENTS
                           (SHRI GAURAV RAWAT- DY. GOVT. ADVOCATE)
                           ..........................................................................................................................................................
                                                                       RESERVED ON: 02.11.2023
                                                                      PRONOUNCED ON: 08.11.2023

                                      T h is criminal revision having been heard and reserved for orders,
                           coming on for pronouncement this day, the court passed the following:
                                                                                            ORDER

With consent of the parties heard finally.

1. This criminal revision under Section 397/401 of Cr.P.C. has been filed b y t h e petitioner being aggrieved by the judgment dated 02.02.2018, passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Indore in Criminal Appeal No. 9638947/2016, whereby learned Court has affirmed the order dated 28.11.2016, passed by the learned JMFC, in Criminal Case No. 26693/2009 and convicted the petitioner for the offence punishable under Section 379 of IPC and sentenced to undergo RI for 3 years with a fine of Rs. Signature Not Verified Signed by: VARSHA DUBEY Signing time: 09-11-2023 18:34:06

100/- with default stipulations.

2. Learned counsel for the applicant submitted that the said seizure and arrest of accused have not been properly supported by the independent eye witnesses. The prosecution case is only supported by Police Officials. There is infirmity and contradictions in the statements of Police witness N.S Bhadouria (PW-03) A.S.I.. and S.K. Mishra (PW-04), S. I.. In any condition, the applicant cannot be convicted only on the basis of the testimony of the Police Officials. Hence, the conviction held by the learned trial Court as well as the learned appellate Court is bad in law. Alternatively, learned counsel for the applicant also prays that since the applicant has already undergone

approximately nine months jail incarceration, his sentence be reduced to the period already undergone. It is further submitted that the applicant deserves some leniency as he has already suffered the ordeal of the trial since 2008 i.e. for a period of 15 years. It is further submitted that this petition be partly allowed and the sentence awarded to the applicant be reduced to the period already undergone by enhancing the fine amount.

3. Learned counsel for the State on the contrary remonstrated that motorcycle was seized from the applicant and there is no reason to disbelieve the testimony of Police Officials. The conviction is also proper in proportion of crime.

4. Having considered the rival submissions and on perusal of the record, the point for consideration is as to whether the finding of learned trial Court regarding conviction and sentencing of applicant is incorrect in the eyes of law and facts?

5.In view of the submissions advanced by both the parties, I have gone through the evidence available on record.

Signature Not Verified Signed by: VARSHA DUBEY Signing time: 09-11-2023 18:34:06

6. Azahar (PW-01) is a person who has lodged the FIR Ex. P-1 regarding theft of his motorcycle bearing No.MP-09-L.F.3760. Certainly, the seizure of motorcycle was not supported by independent witness Umesh but in this regard, the testimony of PW-03 and PW-04 is unrebutted in their cross- examination. These witnesses elucidated that the said motorcycle was seized from the co-accused Ayub. The present applicant in his memorandum statement stated that he alongwith Ayub stolen 08 motorcycles. In cross- examination, the Investigating Officer S.k Mishra (PW-4) has clearly stated that it is wrong to say that no motorcycle was seized from the present applicant and from his possession six, other bikes have been seized.

7.In view of the aforesaid, the learned trial Court as well as appellate Court have convicted the applicant under Section 379 of IPC. In limited revisional jurisdiction, this Court does not find any reason to interfere the findings given by both the Courts below.

8.In the case of State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon'ble Apex Court held as under:

"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.

9.In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338 , the Hon'ble Apex Court held as under:

Signature Not Verified Signed by: VARSHA DUBEY Signing time: 09-11-2023 18:34:06

"The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non- speaking judgment."

10.In upshot of the aforesaid prepositions, this Court does not find any manifest illegality and gross miscarriage of justice in the judgments of learned Courts below, hence, the finding regarding conviction warrants no interference. So far as the sentence of the applicant is concerned, since the applicant is involved in so many cases of theft, he is required to be sentenced for substantial custody.

11.On this aspect, the following excerpt of the judgment of Hon'ble Apex Court rendered in Bhagwan Narayan Gaikwad vs. State of Maharashtra; [2021 (4) Crimes 42 (SC) which is as under:-

"28. Giving punishment to the wrongdoer is the heart of the criminal delivery system, but we do not find any legislative or judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. Nonetheless, if one goes through the decisions of this Court, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc."

12.Considering the aforesaid ratio and also mitigating circumstances of the case, the sentence of applicant is required to be reduced from three years to one year by enhancing the fine amount from Rs.100/- to Rs.1,000/- under Section 379 of IPC.

13.In view of the aforesaid discussion, in entirety, this petition is partly allowed and the conviction of applicant under Section 379 of IPC is hereby Signature Not Verified Signed by: VARSHA DUBEY Signing time: 09-11-2023 18:34:06

affirmed and the sentence of applicant is reduced from three years R.I to one year R.I by enhancing the fine amount from Rs.100/- to Rs.1,000/-. If the applicant fails to deposit the fine amount as stipulated above, he will suffer one month S.I in default.

14. He be set at liberty forthwith if not required in other case in jail.

15.The judgment of learned trial Court regarding seized property stands confirmed.

16.With the aforesaid, the present revision stands disposed off. 17 Pending application, if any, stands closed. C.C. as per rules.

(PREM NARAYAN SINGH) JUDGE VD

Signature Not Verified Signed by: VARSHA DUBEY Signing time: 09-11-2023 18:34:06