Saleem @ Mulla @ Ali Mohammad vs State of Rajasthan

Mahesh Chandra Sharma, J.—This criminal revision petition u/s 397 read with section 401 Cr.P.C. against the judgment dated 5.7.2011 passed by the learned Additional Sessions Judge, No. 1, Alwar in criminal appeal No. 131/11 whereby he dismissed the appeal filed by the accused petitioner and confirmed the judgment of conviction and sentence dated 3.6.2011 passed by the learned Judicial Magistrate, Ramgarh, Alwar in criminal case No. 232/142 /2011 convicting the accused petitioner u/s 379 IPC for three years R.I. and a fine of Rs. 5,000/-, in default of payment of fine, further one month''s simple imprisonment. Brief facts of the case are that on 26.7.2010 the complainant Mohan Lal Sharma lodged a written report Ex. P.1 against unknown person at Police Station Ramgarh, District Alwar with regard to the incident alleged to have taken place on 25.7.2010.

On the basis of that report, the Police registered a criminal case bearing FIR No. 342/10 for the offence u/s 379 IPC and started investigation. After investigation, the Police submitted challan against the accused petitioner u/s 379 IPC in the Court of learned Judicial Magistrate, Ramgarh, Alwar who took cognizance against the accused petitioner for the offence u/s 379 IPC. Charges were framed against the accused petitioner for the aforesaid section and the accused petitioner denied the charges and claimed trial.

During trial the prosecution examined as many as 8 witnesses and exhibited 11 documents in support of its case. After completion of prosecution evidence, the statement of the accused petitioner was recorded u/s 313 Cr.P.C. whereby he denied the prosecution case.

After hearing the arguments, the learned trial Court vide its judgment dated 3.6.2011 while holding guilty convicted the accused petitioner for the offence under Sec. 379 IPC and sentenced him as mentioned above and acquitted other accused persons namely Assu Khan and Hakmuddin Khan Meo.

Aggrieved by the order of learned trial Court, the accused petitioner preferred an appeal before the Teamed Additional District & Sessions Judge No. 1, Alwar. The learned appellate court after hearing the arguments dismissed the appeal vide its judgment dated 5.7.2011 and confirmed the judgment of conviction and sentence dated 3.6.2011 passed by the learned trial Court.

Aggrieved by the aforesaid judgments dated 3.6.2011 and 5.7.2011 passed by the learned courts below, this revision petition.

Learned counsel for the accused petitioner has contended that the judgments dated 5.7.2011 and 3.6.2011 passed by the learned courts below are contrary to the provisions of law and facts as without due appreciation of evidence the courts below have passed the aforesaid judgments.

He has further contended that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles; one is that the guilt against the accused must be proved beyond reasonable doubt and second is that the burden on the accused should not be so heavy to prove the plea taken by him as it lay on the prosecution.

He has further contended that the statements of the prosecution witnesses are inconsistent, contradictory and suffer from infirmities.

He has further contended that from the evidence of the prosecution witnesses it appears that arrest memo, seizure memo and other documents were prepared at the Police Station and not on the spot.

He has further contended that complainant PW.1 Mohan Lal has not proved the prosecution story. The prosecution has completely failed to prove guilt of the accused petitioner beyond all reasonable doubt. As such, conviction and sentence passed against the accused petitioner is bad in the eye of law and deserves to be set aside.

Lastly, he has prayed that the accused petitioner has been convicted for a period of three years and already he has served out the sentence for a period of seventeen months and in view of this he should be released for the period already undergone by him or in the alternative benefit of probation be granted to the petitioner and simultaneously he does not want to challenge the conviction and sentence passed by the courts below.

On the contrary, learned Public Prosecutor has contended that the prosecution has proved its case beyond reasonable doubt. He has drawn attention of this Court towards the statements of the prosecution witnesses and specifically on the statement of PW.6 Phool Chand which is reproduced as under:-

Learned P.P. has also drawn attention of this Court. towards para No. 11 of the judgment of the learned trial Court which is reproduced as under:-

He has further drawn attention towards para No. 8 of the judgment of the learned appellate court which is reproduced as under:-

In view of above, learned P.P. has contended that after due appreciation of evidence, the learned trial court has passed the aforesaid conviction and sentence which was affirmed by the learned appellate court.

He has further contended that the accused petitioner is a habitual offender. Number of cases were pending against him at the time of the trial which are as under:

(1) Case No. 186/07 u/s 411 IPC PS Laxmangarh dated 29.6.2007;

(2) Case No. 190/07 u/s 379 IPC PS Ramgarh dated 24.6.2007;

(3) Case No. 90/07 u/s 379 IPC PS Aravali Vihar dated 14.5.2007;

(4) Case No. 44/08 u/s 379 IPC PS Shivaji Park dated 31.1.2008 and

(5) Case No. 10/05 u/s 379 IPC PS GRP Alwar dated 28.2.2005.

According to learned P.P. such type of persons should not be released for the period already undergone or on probation. Such type of persons should also be not benefited u/s 433 Cr.P.C. Hence, prayed that conviction and sentence awarded to the accused petitioner should not be set aside.

Heard learned counsel for the parties and gone through the judgment passed by the courts below and other material available on record.

I have gone through the statement of the investigating officer Phool Chand PW.6 who has clearly stated that he has prepared the map Ex. 10 in presence of the accused petitioner. He recovered the motor cycle No. RJ 32 GA 3724 from the custody of the accused petitioner. He has prepared recovery memo Ex. P.5 which has been signed by the accused petitioner identified by the witnesses. This statement was also given by the complainant.

The record reveals that the accused petitioner is a habitual offender and five criminal cases are pending against him out of which four are of theft and one is of receiving of stolen property. The accused petitioner has made it his business. I am also agree with the argument of learned P.P. that such type of hard core criminals should not be shown any indulgence giving concession either releasing on probation or release on the period already undergone as prayed by the learned counsel Mr. Gurvinder Singh. As also such persons should not be benefited u/s 433 Cr.P.C. The should remain in jail till completion of period of sentence awarded by the courts below.

In the result, this revision petition is dismissed being devoid of merit. Since the revision petition itself has been dismissed, the suspension of sentence application stands dismissed.