Suresh Jhariya vs State of Madhya Pradesh

N.K. Gupta, J.—The applicant was convicted for the offence punishable u/s 457 and 380 of the IPC and sentenced with two years R.I. with fine of Rs. 100/- and one year R.I. with fine of Rs. 100/- respectively vide judgment dated 13.2.2012 passed by the learned JMFC, Seoni in Criminal Case No. 182/2011. In Criminal Appeal No. 24/2012, the learned 3rd Additional Sessions Judge (Fast Track Court), Seoni vide judgment dated 26.7.2012 dismissed the appeal. Being aggrieved with the aforesaid judgments, the applicant has preferred the present revision.

The prosecution''s case in short is that, in the night of 12.1.2011 the victim Bhupat was sleeping in his house situated at village Chandankheda (Outpost Chheenda, Police Station, Kewlari, District Seoni). On the next day at about 6:00 a.m. when daughter-in-law of the victim Bhupat raised, she found that rear gate of the house was opened and two brass utensils were found missing. The victim lodged an FIR Ex. P/1 at Outpost Chheenda of Police Station Kewlari and thereafter an investigation was initiated. Ultimately, those utensils were recovered from the applicant. After due investigation, a charge sheet was filed before the trial Court.

The applicant abjured his guilt. He did not take any specific plea in defence and therefore, no defence evidence was adduced.

The learned JMFC after considering the prosecution''s evidence, convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto.

I have heard the learned counsel for the parties.

The learned counsel for the applicant has submitted that the applicant was convicted for the offence punishable u/s 380 of the IPC and sentenced for one year R.I. with fine of Rs. 100/-, whereas the offence u/s 380 of the IPC was the main offence and to commit such offence, offence of housebreaking was to done. It is alleged that the applicant has committed housebreaking and therefore, no more sentence could be given to the applicant for the offence u/s 457 of the IPC. The applicant remained in the custody for one year and ten months therefore, his almost sentence is executed. Under such circumstances, when he was sentenced for one year R.I. for the offence punishable u/s 380 of the IPC, his sentence may be reduced to the period for which, he remained in the custody for the offence punishable u/s 457 of the IPC. He has deposited the fine amount before the trial Court. The contention advanced by learned counsel for the applicant is acceptable. The applicant was sentenced for the offence punishable u/s 380 of the IPC with one year R.I., whereas he was sentenced for two years R.I. for the offence punishable u/s 457 of the IPC. Out of those, he has already undergone the jail sentence for one year and ten months. He was the first offender therefore, if he could not be released on probation then, such an excessive sentence should not have been passed. Hence, it is a fit case in which the sentence of the applicant may be reduced to the period for which he remained in the custody.

On the basis of aforesaid discussion, the present revision filed by the applicant is hereby partly allowed. The conviction for the offence punishable under Sections 457 and 380 of the IPC is hereby maintained but the sentence is reduced to the period for which he remained in the custody.

Office is directed to arrange for issuance of a super-session warrant so that the applicant may be released without any delay.

Copy of this order be sent to the appellate Court as well as trial Court alongwith their records for information and compliance.