Sangaram vs State Of Rajasthan on 6 November, 2009

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               S.B.CRIMINAL REVISION PETIION NO. 233/1994
             Sanga Ram         Vs.           State of Rajasthan


               Date of Order              ::   18.11.2009


                HON'BLE MR. JUSTICE GOVIND MATHUR

       Mr. P.R. Choudhary, for the petitioner/s.
       Mr. A.R. Nikub, Public Prosecutor.

                                ...


      This petition under Section 397 read with Section 401 Cr.P.C. is

preferred to assail validity, correctness and propriety of the judgment

dated 17.6.1994 passed by learned Additional Sessions Judge, Barmer

affirming conviction of sentence passed by the Chief Judicial Magistrate,

Barmer   under judgment and order dated 27.2.1993. Learned Chief

Judicial Magistrate by the judgment aforesaid convicted the accused-

petitioner for offence punishable under Section 379 IPC and awarded

sentence for six months' rigorous imprisonment with a fine of Rs.200/-

and in default of fine one month's simple imprisonment.




      In brief case of the prosecution is that the informant Motilal,

Chowkidar with Tehsil Office, Barmer submitted a written report to

Station House Officer, Barmer on 10.9.1986 stating therein that in early

hours of the morning of the same day two persons came to motor tanker

garage on bicycle and one Sangaram, present accused petitioner, was

carrying a jute bag on his bicycle. On opening of the jute bag aforesaid
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certain articles such as diesel pump, piston and oil pump were

recovered.   On basis of the information aforesaid a case was lodged

against the accused petitioner and one other person namely Onkar.

After regular investigation challan was filed and charge was framed and

read over to the accused-persons. To support the prosecution story six

witnesses were examined and seven documents were exhibited.

Statement of the accused-petitioner as per provisions of Section 313

Cr.P.C. too was recorded. The trial court after examining the entire

evidence available on record acquitted Onkar, however, convicted the

petitioner and sentenced to undergo 6 month's rigorous imprisonment

with fine of Rs.200/-.    The conviction recorded and the sentence

awarded was affirmed by the appellate court.




      The argument advanced by learned counsel for the petitioner to

assail validity, correctness and propriety of the orders impugned is that

no adequate evidence is available on record to establish the theft

alleged.   It is asserted that as a matter of fact   whatever evidence

available on record, that at the most proves possession of certain

articles by the accused petitioner Sanga Ram but the factum of theft has

not been established.




      I do not find any substance in the argument advanced, as in the

instant case the the accused was caught red-handed while carrying
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          stolen articles from the garage itself.   On the question of sentence

          awarded it is urged by learned counsel for the petitioner that the

          incident in question occurred much back in the year 1986, and

          therefore, now after a lapse of about 23 years it shall be too harsh to

          remit the accused petitioner to undergo remaining sentence especially

          in the circumstances that he has already undergone imprisonment for a

          period of about two months. From examination of record I have found

          that the petitioner has already undergone sentence for a term of about

          57 days. The incident is quite old one and looking to all facts and

          circumstances of the case while affirming conviction I consider it

          appropriate to modify the sentence.




                Accordingly, the revision petition is allowed in part.         The

          conviction recorded against the petitioner for offence punishable under

          Section 379 IPC by the trial court is confirmed. However, the sentence

          granted by the trial court and affirmed by the appellate court is

          modified to the extent imprisonment already undergone instead of six

          months' rigorous imprisonment. The fine i.e. of Rs. 200/- is maintained.




                                                           (GOVIND MATHUR), J.

Jgoyal’