Madhya Pradesh High Court
Lakhan vs The State Of Madhya Pradesh on 7 May, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 7th OF MAY, 2025
Criminal Revision No. 720/2025
LAKHAN
Versus
STATE OF MP
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Appearance:
Shri M.P. Tripathi- Advocate for the petitioner.
Shri Anoop Sonkar -Panel Lawyer for the respondent.
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ORDER
This criminal revision under Section 438/442 of B.N.S.S. has been preferred
against the judgment dated 06.01.2025 passed by learned Sessions Judge,
Burhanpur, in Criminal Appeal No.325/2024 (Lakhan Vs. State of MP), whereby
appeal preferred by the petitioner against judgment dated 03.10.2024, passed by
the learned JMFC, Burhanpur in RCT No. 684/2021, convicting the petitioner for
commission of offence under Section 379 of IPC and sentencing with S.I. of 1 year
and with fine of Rs. 1000/- with default stipulation, has been dismissed.
2. Brief facts relevant for the disposal of present revision are that on
02.05.2021 at about 9:45, petitioner was found transporting sand in tractor trolley
bearing registration No. MP-68-A-3081 without any licence.
3. Learned counsel for the petitioner, after referring to evidence on record,
submits that learned Trial Court as well as Appellate Court has erred in convicting
and sentencing petitioner under section 379 of IPC. It is urged that Shrikant (PW-
1) has turned hostile and he did not support the prosecution story. Further,
Narendra (PW/5) supported prosecution story in examination-in-chief, but in
cross-examination, he did not support prosecution story and has denied whole of
the prosecution story. He has admitted in cross-examination that he signed all the
documents in police station itself and he is not aware as to what was written in
documents Ex. P/1 and Ex. P/2. Further, after referring to testimonies of Sonal
Tomar (PW-3), Vishnu Rathore, ASI (PW-4), it is also urged that prosecution has
failed to prove as to from which place, sand found in the possession of petitioner,
was mined. No order of Collector restricting mining of sand in District, Burhanpur
has been filed in the instant case. It is also urged that a person cannot be punished
twice. In this connection, he has referred to complaint Ex. P-7 filed by the mining
officer. Further, from evidence on record, it is not established that sand found in
possession of petitioner was illegally mined and it was subject matter of theft. It is
also urged that petitioner has served sentence of more than 4 months out of
sentence of 1 year. There are no criminal antecedents of petitioner. Therefore,
petition filed by the petitioner be allowed and he be acquitted of offence under
Section 379 of IPC. Alternately it is prayed that petitioner be sentenced with the
period already undergone by him.
4. Learned counsel for the State submits that in the facts and circumstances of
the case, applicant cannot be sentenced with the period already undergone. He
further submits that trial Court has rightly convicted and sentenced the petitioner.
No interference is required in the same and appeal filed by the appellant be
dismissed.
5. Heard and perused the record of the case.
6. So far as petitioner's conviction under Section 379 of IPC is concerned, it is
correct that Shrikant (PW-1) has turned hostile and he did not support the
prosecution story. Similarly, Narendra (PW-5), in his cross examination, did not
support the prosecution story. Therefore, Narendra (PW-5) is also not a reliable
witness.
7. With respect to petitioner's conviction under Section 379 of IPC, sole
testimony available on record is that of ASI Vishnu Rathore (PW-4). Vishnu (PW-
4) Rathore has deposed in his examination-in-chief as under:-
"
%&
01 eSa fnukad 02-05-2021 dks iqfyl Fkkuk 'kkgiqj esa lgk;d mifujh{kd ds
in ij inLFk FkkA mDr fnukad dks bykdk Hkze.k djrs xzke xksikyiqjk igqapk
tgka ij eq[kfcj }kjk bl vk'k; dh lwpuk feyh fd voS/k jsr [kku dj
egyxqjkMk rjQ ls lksukfydk daiuh dk ,d uhys jax dk V~zsDVj o V~zkyh
fla?k[ksMk 'kkgiqj rjQ vk jgk gS] lwpuk ij fo'okl dj jkgxhj iapku Jhdkar o
ujsUnz dks voxr djk;k vkSj gejkg ysdj fla?k[ksMk] eq[kfcj ds crk;s LFkku ij
igaqps tgka dqN nsj ckn ,d uhys jax dk fcuk uEcj dk V~zsDVj o V~zkyh vkrs
fn[kh ftls iapkuks dh enn ls ?ksjkcanh dj idMk rFkk uke irk iwNusa ij mlus
viuk uke y[ku firk vtey jkBksj mez 22 o"kZ fuoklh lkaMl[kqnZ dk gksuk
crk;kA V~zsDVj V~zkyh dks psd djrs V~zkyh esa dkys jax dh jsr ikbZxbZA V~zsDVj V~zkyh
esa Hkjh jsr dh jkW;YVh o oS/k nLrkost iwNus ij ugha gksuk crk;k A ekSds ij
iapuksa ds le{k vkjksih ls fcuk uEcj dk V~zsDVj lksukfydk daiuh dk ,oa V~zsDVj
V~zkyh jsr Hkjh gqbZ o V~zsDVj dk pkyd y[ku }kjk is'k djus ij jftLV~zs'ku dkMZ
dh dkih ftldk uEcj ,e-ih-68, 3081 Fkk dks tIr fd;k Fkk ,oa tIrh i=d
izn'kZ ih&1 dk cuk;k Fkk ftlds ch ls ch Hkkx ij mlds gLrk{kj rFkk lh ls
lh Hkkx ij vfHk;qDr y[ku ds gLrk{kj gSA
02- mDr fnukad dks vfHk;qDr dks mDr iapkuksa ds le{k fxjQrkj dj
fxjQrkjh i=d izn'kZ ih&2 dk cuk;k Fkk ftlds ch ls ch Hkkx ij esjs gLrk{kj
rFkk lh ls lh Hkkx ij vfHk;qDr y[ku ds gLrk{kj gSA Fkkuk okilh ij Fkkus ds
vijk/k dzekad 401@2021 vUrxZr /kkjk 379 Hkknfo ,oa /kkjk 53&d e-iz- xkS.k
[kfut vf/kfu;e dh ys[kc) dh Fkh tks fd izn'kZ ih&8 gS ftlds , ls , Hkkxksa
ij mlds gLrk{kj gSA foopsuk ds nkSjku mDr iapkuksa ds le{k vkjksih dk
eseksjs.Me dFku fy;k Fkk ftlesa mlus crk;k Fkk fd okgu Lokeh dks crk;s fcuk
mDr V~zsDVj V~zkWyh esa jsr pksjh dj Hkjdj ysdj tk jgk Fkk]mDr eseksjs.Me izn'kZ
ih 3 gS ftlds lh ls lh Hkkx ij mlds rFkk Mh ls Mh Hkkx ij vfHk;qDr y[ku
ds gLrk{kj gSA foospuk ds nkSjku lk{kh ujsUnz] JhdkUr ds dFku muds crk;s
vuqlkj ys[kc) fd;s FksA foospuk ds nkSjku okgu Lokeh ijljke firk vkasd
a kj dks
/kkjk 133 eks-Ogh- vf/k- dk lwpuki= fn;k Fkk tks iz-ih-&5 gS ftlds , ls , Hkkx
ij mlds gLrk{kj gS rFkk okgu Lokeh dk vaxwBk fu'kkuh gSA izdj.k esa jokuxh
okilh lkUgk dzekad 11 o 8 gS tks izn'kZ ih-9 vkSj 10 gSA izdj.k esa tIr'kqnk
V~zsDVj V~zkyh esa Hkjh jsr dh xq.koRrk ewY; ,oa ifjokn iznku djus ds lEcU/k esa
[kfut vf/kdkjh ] [kfut 'kk[kk ftyk dysDVj dk;kZy; [kfut cqjgkuiqj dks
i= Hkstk Fkk tks in'kZ ih&6 gSA izdj.k esa dk;kZy; dysDVj 'kk[kk [kfut }kjk
tkap dj tIr'kqnk dkyh jsr dh tkap dj fjiksVZ ,oa ifjokn izLrqr fd;k Fkk tks
in'kZ ih&07 gSA lEiw.kZ foospuk iw.kZ dj vfHk;ksxi= ekuuh; U;k;ky; esa izLrqr
fd;k A"
8. Now question arises as to whether prosecution witness Vishnu Rathore (PW-
4) is a reliable witness or not. Perusal of cross examination of Vishnu Rathore
(PW-4) reveals that he has been extensively cross-examined on behalf of the
petitioner, but in cross examination of aforesaid witness, nothing substantial has
come out so as to render the testimony of Vishnu Rathore (PW-4) unreliable. The
witness is wholly reliable. There is nothing on record to show that petitioner has
been falsely implicated in the case on any ground whatsoever. In petitioner's
examination under Section 313 of Cr.P.C, it has not been mentioned as to why he
has been falsely implicated. Further, in the instant case petitioner has failed to
produce any documents pertaining to the sand being transported by him in the
tractor-trolley. Further, petitioner has failed to establish that sand can be mined
from anywhere and without any license, and no license is required for mining of
sand.
9. This Court has also examined the judgments passed by the trial Court as
well as appellate Court. Perusal of the same, reveals that both the learned courts
have examined and assessed the evidence on record rightly. Learned counsel for
the petitioner has failed to point out any material illegality or perversity in the
findings recorded by the trial Court as well as appellate Court. Learned counsel for
the petitioner has also failed to point out any piece of evidence, which should not
have been taken into consideration or which was required to be taken into
consideration, but was not taken into consideration. Scope of criminal revision
under Section 438 and 442 of BNSS is limited.
10. Perusal of Ex.P-7 also reveals that aforesaid pertains to confiscation and
other matters of sand along with tractor-trolley seized in the instant case.
Therefore, it cannot be said that petitioner is being punished twice for the same
offence.
11. Hence, in view of discussion in the foregoing paras, in the considered
opinion of this Court, no material illegality or perversity is found in the findings
recorded by the trial Court as well as appellate Court. Learned trial Court as well
as appellate Court have rightly convicted the petitioner under Section 379 of IPC
and no interference is required in the same.
12. So far as sentence is concerned, learned trial Court has sentenced the
petitioner under Section 379 of IPC with S.I. for one year with fine of Rs.1000/-
with default stipulations. Learned counsel for the petitioner submits that petitioner
has undergone sentence of more than four months and there are no criminal
antecedents of identical nature. Therefore, petitioner be sentenced with the period
already undergone by him.
13. On the question of sentence, this Court has examined submissions of
learned counsel for the petitioner. It is correct that petitioner is not having criminal
antecedents of identical nature and he has served sentence of 4 months out of
sentence of 1 year. Offence proved against present petitioner is that he committed
theft of sand by mining the same from some river body. Having regard to
environmental impact of the offence committed by the petitioner, no lenient view
is required to be taken by this Court with respect to sentence. Therefore, no
interference is required in the sentence imposed by the trial Court and affirmed by
the Appellate Court. Hence, it does not appear appropriate to sentence petitioner
with period already undergone by him.
14. Resultantly, no interfere is required in the sentence imposed by the trial
Court and affirmed by the Appellate Court.
15. Accordingly, this criminal revision is dismissed.
16. A copy of this order be sent forthwith to learned trial court/ appellate court
Burhanpur, & concerned jail for information & necessary action.
(ACHAL KUMAR PALIWAL)
JUDGE
Digitally
L.R. signed by
LALIT SINGH RANA
Date: 2025.05.09
09:58:31 +05'30'
