Rajjab Ali and Another vs State of U.P.

Vinod Prasad, J.—This revision has been filed by Rajjab Ali and Salahuddin, who were tried by A.C.J.M., Court No. 9, Basti In Criminal Case No. 5637/06. Stale v. Mohd. Kaish and others, for offences u/s 379/411. I.P.C. relating to P.S. Mahuli district Sant Kabir Nagar. Finding charge u/s 411. I.P.C. established to the hilt, learned trial Magistrate convicted all of the three accused Mohd. Kaish. Rajjab Ali and Salahuddin for that offence and sentenced them to two years-simple imprisonment with fine of Rs. 500 imposed on each of them vide judgment and order dated 26.3.2009. Default sentence was 15 days further imprisonment. Aggrieved by the said conviction and sentence, two revisionists Rajjab Ali and Salahuddin preferred Criminal Appeal No. 19/09 before the Sessions Judge. Basti, which was transferred to Additional Sessions Judge. Court No. 1, Basti for disposal. Vide impugned judgment and order dated 9.3.2011, 1st Additional Sessions Judge, Basti dismissed their appeal in full and affirmed the judgment of their conviction and sentence. Hence, this revision challenging aforesaid conviction and sentence.

Prosecution allegations, in brief, against the revisionists, as was alleged by the informant Vijay Pal Singh in his F.I.R. were that on 13.3.2003 informant had gone to see a picture in late night show (9 to 12 p.m.) at Nath Nagar picture hall on his Suzuki motor cycle Max R 100 of black colour with Chasis No. 1001 F 520132 and Engine No. 1001 M 570849 and model of it was 2000. After viewing the picture when the informant came out his aforesaid motor cycle was missing. On 29.3.2003. informant lodged F.I.R. of Crime No. 79/03. u/s 379. I.P.C. against unknown persons at P.S. Mahuli, district Sant Kabir Nagar, in respect of aforesaid theft of his motor cycle. Sub Inspector Ram Dular Mishra investigated the registered offence, and during its course, from the possession of the three accused aforesaid motor cycle was recovered on 30.3.2003. Usual investigation was conducted and Investigating Officer charge-sheeted aforesaid three accused for offences u/s 379/411. I.P.C. Charge-sheet resulted in summoning of all the accused by the Magistrate. After accused had put in their appearance they were charged for the aforesaid offences which they denied, and claimed to be tried.

During trial, prosecution examined Vijay Pal Singh informant P.W. 1. Constable C.P. 365 Jay Ram Prasad P.W. 2. Constable Moharrir Chandan Prasad P.W. 3. Om Prakash P.W. 4, Constable Ram Shabd C.P. No. 153 P.W. 5 as its witnesses. Besides aforesaid witnesses prosecution also relied upon documentary evidences of charge-sheet Ext. Ka-6. F.I.R. Ex. Ka-3, written report Ext. Ka-1. GD Ext. Ka-4 and recovery memo Ext. Ka-2.

In their statements u/s 313. Cr. P.C. common defence of denial and false implication was taken up by the accused persons.

A.C.J.M., Court No. 9. Basti appreciated documentary and oral evidences and concluded that prosecution had not been able to establish charge u/s 379. I.P.C. and therefore, acquitted all the accused for the said offence. However, it came to the conclusion that prosecution had successfully brought home the guilt for offence u/s 411, I.P.C. and therefore, convicted and sentenced accused revisionist for it with two years simple Imprisonment with a fine of Rs. 500 on each of them. Learned Magistrate further directed that in default of payment of fine accused shall undergo 15 days'' additional Imprisonment vide its judgment dated 26.3.2009.

As noted earlier, two revisionists Rajjab All and Salahuddin had appealed before the lower appellate court, against their conviction and sentence, being Criminal Appeal No. 19/09. which was dismissed by Additional Sessions Judge, Court No. 1, Basti In full vide impugned judgment and order dated 9.3.2011. Hence this revision by two revisionists challenging their aforesaid conviction and sentence. It is recorded here that third accused Mohd. Kaish had already undergone his entire period of sentence and had been released from jail.

I have heard Sri Tarkeshwar Mishra In support of this revision and Sri Sangam Lal Kesarwani learned A.G.A. for respondent State and have perused entire record of the revision.

Learned counsel for the revisionists mainly submitted that the revisionists had been acquitted for offence u/s 379. I.P.C. and u/s 411, I.P.C. they had already undergone more than a year of sentence and, as an under trial also they had remained in jail for some days, therefore, their sentence be reduced to the period of imprisonment already undergone by them as they had no criminal history and it was their first crime, it is next contended that they had not committed theft of Motor Cycle and F.I.R. about the incident was lodged after inordinate delay of sixteen days, therefore, prosecution case have some facts which were unconvincing.

Learned A.G.A. contended that the revisionists had been convicted and sentenced by the trial court in accordance with merits of evidences on record and therefore, this Court should not interfere either with the conviction or with the sentence.

I have considered rival contentions and perused record of the revision. Main submission of the learned counsel for the revisionists is that the quantum of sentence imposed on the revisionists is too excessive and not commensurate with their guilt as perusal of the impugned judgments does not indicate that revisionists accused had any criminal history and it was their first crime. For the charge u/s 379. I.P.C. they have already been acquitted by the trial Magistrate. Incident occurred in 2003 and nine years have gone by interregnum. Revisionists had already undergone more than one year of imprisonment. During the intervening period they have not indulged into any criminal activity. While convicting them, learned Magistrate had not given sufficient reason to sentence them with two years imprisonment u/s 411. I.P.C. Hence, looking to the facts and circumstances of the case, I am of the opinion that sentence of Imprisonment already undergone by the revisionists accused with enhancement of fine to Rs. 10,000 (Ten thousand only) and in default in payment of fine, simple imprisonment of four months shall serve the ends of Justice.

Revision is allowed in part. Revisionists conviction u/s 411, I.P.C. is hereby affirmed but their jail sentence is reduced to the period of Imprisonment already under-gone by them with enhancement of fine to Rs. 10,000, In default of payment of fine revisionists shall serve four months simple imprisonment as default sentence.

Both the revisionists are in jail. They are directed to be released from jail on their furnishing a personal bond of Rs. one lakh and two sureties each In the like amount to the satisfaction of Magistrate concerned. Both the sureties shall be their family members. Both the revisionists are allowed 15 days time to deposit the amount of fine imposed hereinabove, failing which trial Magistrate shall take them into custody and lodge them in to jail to serve out their default sentence. After the revisionist had deposited the fine or they are arrested to serve default sentence, their personal and surety bonds shall be discharged.

Let a copy of this judgment be sent to the trial Magistrate for his intimation and follow up action.