Rudra Dutt vs State of U.P.

B.K. Sharma, J.—This is a revision against the judgment and order dated 20.1.1983 passed by Sri R.N. Sinha, the then 1st Additional Sessions Judge, Mainpuri in Rudra Dutt v. State, Criminal Appeal No. 12 of 1982, whereby, he dismissed the appeal and upheld the conviction of the accused-revisionist Rudra Dutt for the offence u/s 379, I.P.C. read with Section 39 of the Indian Electricity Act and has sentenced him to R.I. for a period of 6 months and a fine of Rs. 100.

Raid was made by a party belonging to the Hyde department at a house in village Vasudevamayee P.S. Shikohabad on 28.7.1979, that the raiding party found that the accused-revisionist Rudra Dutt had taken illegal connection from the main line and was using electricity in his house and that on seeing the raiding party, the accused-revisionist ran away from the village taking the electric wire with him which was the instrument for stealing the electrical energy from the mains.

The prosecution examined a number of witnesses before the trial court and the trial court accepted the prosecution story and rejected the alibi set up by the accused-revisionist and the appellate court agreed with he findings of the learned Magistrate.

The learned Counsel for the accused-revisionist has claimed that the conviction was vitiated because the witnesses examined by the prosecution did not know the accused-revisionist from before and the accused-revisionist was never put up for test identification. He has pointed out that these witnesses claimed that the inhabitants of the village had pointed out to them that this house is of the accused- revisionist. However, there is a prosecution witness, namely. Ram Gopal Sharma, P.W. 5, who was in the raiding party, who had categorically stated on oath that he had passed near the house in question prior to the date of occurrence also and that he knew the accused-revisionist and his father Satiated Sharma because he was a consumer of P.T.W. The learned Counsel for the accused-revisionist has challenged the evidence of this witness. However, there is no occasion for reassessment of the evidence of this witness by this Court in this revision after the lower court had given a categorical finding on the basis of the evidence that P.W. 5, knew the Appellant and his house from before.

The learned Counsel for the accused-revisionist has then argued that the alibi set up by the accused- revisionist was not examined by the Courts below. As a matter of fact, the evidence of the defense witnesses examined by the accused-revisionist on the point of alibi has been considered by the trial court and also by the lower appellate court. The claim of the accused-revisionist in the defense evidence was that he lived at another place in the house of one Jag Mohan D.W. 2 and that at the time of occurrence, he was on duty in his office. This evidence has been considered by both the Courts below and rejected and there is no occasion to reassess the same as there is no apparent illegality in any of these findings. So there is no force in the revision on merits.

However, the learned Counsel for the revisionist has pointed out that the revisionist is a driver in the N.C.C. and the matter relates to the year 1979 and that after the dismissal of his appeal by the lower appellate court on 20.1.1983, he was taken into custody and remained in jail till his release on bail pursuant to the bail order dated 24.1.1983 passed by this Court in this revision. It has been pointed out by the learned Counsel for the revisionist that the case related to Mainpuri and so it would have taken more than 3-4 days after 24.1.1983 before the accused-revisionist could have been actually released on bail from the district jail, Mainpuri, after the acceptance of the bail bonds in the Magistrate Court. He has also argued that the sending back of the accused-revisionist to jail after his having been on bail from the year 1983 uphill now, would do more harm than good and that the interests of justice would be met if the sentence of imprisonment is reduced to the period of sentence already undergone and in lieu thereof the sentence of fine is suitably raised from Rs. 100. He has pointed out that the provisions of Section 39 of the Indian Electricity Act, for compulsory sentence of imprisonment have been inserted only w.e.f. 1.4.1986 and the occurrence relates to an earlier period and consequently this amended provision would not come in the way of granting relief to the accused-revisionist in this revision.

I find substance in the arguments of the learned Counsel. In my view, the fine of Rs. 1,000 may be adequate.

Next learned Counsel for the revisionist has prayed that the service career of the accused-revisionist may be protected. Considering the facts and circumstances of this case, in their totality, this prayer is also acceptable.

For the reasons aforementioned, the revision is partly allowed. The conviction of the accused-revisionist Rudra Dutt for the offence u/s 379, I.P.C. read with Section 39, of the Indian Electricity Act as made by the learned Magistrate and as upheld by the 1st Additional Sessions Judge, Mainpuri in appeal is maintained. However, the sentence of imprisonment for a period of 6 months is reduced to the period of imprisonment already undergone by him as a convict after dismissal of his appeal by the lower appellate court and in lieu thereof, the sentence of fine of Rs. 100 is enhanced to Rs. 1,000 (Rs. one thousand). In default of payment of fine he shall suffer simple imprisonment for a period of 15 days. The accused-revisionist is given two months time from today to deposit the fine in the Court of the learned Magistrate concerned. In case, the fine is not deposited within the time permitted, the learned Magistrate concerned shall get him arrested and consigned to the District Jail concerned to serve out the sentence of imprisonment in default. It is made clear that this conviction and sentence of the accused-revisionist for the aforesaid offence shall not adversely affect his service career with the N.C.C. or elsewhere.

Let a copy of this judgment be sent to the learned Magistrate concerned within a week from today by Fax/Registered post A.D. for information and compliance. Compliance report shall be submitted by the learned Magistrate to this Court by 2.7.1999. List this revision on 6.7.1999 along with the compliance report of the Magistrate concerned for orders.