Court No. - 34
Case :- CRIMINAL REVISION No. - 384 of 1992 Revisionist :- Chandan Singh And Another Opposite Party :- State of U.P.
Counsel for Revisionist :- S.K. Chaturvedi,K.D. Tripathi Counsel for Opposite Party :- A.G.A.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri S.K.Chaturvedi, learned counsel for revisionists, learned A.G.A. for State of U.P. and perused the record.
2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 27.02.1992 passed by Sri M.C.Gupta, Vth Additional Sessions Judge, Jhansi, in Criminal Revision No.93 of 1991 whereby appeal was dismissed and judgment and order dated 24.8.1991 passed by II Additional Chief Judicial Magistrate, Jhansi in Case No.218 of 1990 by which revisionist was convicted under Section 411 IPC and sentenced to undergo two years rigorous imprisonment has been confirmed.
3. It is contended that revisionists were convicted under Section 411 IPC though goods recovered were iron scrap which was released by the Court in another Criminal proceedings and sold by DW-1 to revisionists and it did not constitute stolen item.
4. This aspect has been considered in detail by Courts below and concurrent findings have been recorded against revisionists. Trial Court has discussed this aspect in its judgment and relevant portion thereof reads as under :
^^vc iz'u ;g mBrk gS fd D;k ;g pksjh dk eky FkkA vfHk;qDrx.k us vius C;ku /kkjk&313 n0iz0la0 esa dgk gS fd ;g eky mUgksaus lsuiky flag xzke flrukSj Fkkuk clbZ ftyk nfr;k ls [kjhnk FkkA bl lsuiky flag dks crkSj Mh0MCyw0&1 ijhf{kr djk;k x;k gSA lsuiky flag us dgk gS fd lu~ 1978 esa clbZ dh iqfyl us mlds ikl ls 7 Vu yksgk idM+k Fkk] tks QhYM Qk;fjax jsUt dk FkkA ml cjkenxh dk eqdnek nfr;k eas pyk vkSj og ednekq NVw x;kA lu~ 1980 eas ;g ykgs k mls U;k;ky; ds vkns'k ls okfil feyk vkSj mlds 5@6 ekg ckn gh ml us ;g eky txnh'k flag o pUnu flag dks csap fn;k FkkA tqMhf'k;y eftLV~sV nfr;k ds U;k;ky; ds Qslyk fn% 24-6-80 dh izfr Hkh nkf[ky dh xbZ gSA lsuiky flag okys eqdnek dk fu.kZ; eq[; U;kf;d eftLV~sV nfr;k ds U;k;ky; us 24-6-80 dks fn;kA blds 5@ 6 ekg ckn gh ;fn lsuiky flag us ml eqdnek okys eky dks vfHk;qDr dks cspk Fkk rks bldk rkRi;Z ;g gqvk fd lu~ 1980 ds var eas ;k vf/kd ls vf/kd 1981 esa ds izkjEHk eas vfHk;qDrx.k ds ikl og eky vk x;k FkkA rc ls yds j ds 10-7-84 rd vFkkZr lk<+s pkj lky rd vfHk;qDr pUnu flag o txnh'k flag vius ikl gh j[ks jgsA mUgkasus ;g eky u cspk vkSj u gh mldks dksbZ mi;ksx fd;kA ;g drbZ fo'oluh; ugha gSA ;fn vfHk;qDrx.k us lsuiky flag ls ml le; eky [kjhnk Fkk rks bruk vf/kd eky fuf'pr :i ls O;kikj ds mn~ns'; ls gh [kjhnk tk ldrk gS vkSj dksbZ Hkh O;kikjh viuk eky lk<+s pkj lky rd vius [ksr ds dq;s ij ;kas gh Mkys jgxks fo'oluh; izrhr ugha gkrks gSA ;g eky txnh'k flag ds dq;s ls cjken gqvk gSA vr% vfHk;qDrx.k dk ;g dFku iw.kZr;k vof'oluh; gS fd ;g eky ogh gS] tks vfHk;qDrx.k us lsuiky flag ls [kjhnk FkkA oSls Hkh ;g rF; Hkh fo'oluh; ugha gS fd lsuiky flag us vfHk;qDrx.k dks dksbZ eky cspk FkkA lkr Vu yksxk ;fn dksbZ [kjhnsxk rks mldh jlhn vo'o ysxkA fo'ks"k :i ls ml ifjfLFkfr eas tc fd og eky QhYM Qk;fjax jsUt ,fj;k dk gks ftlds ckjs esa idM+s tkus dh lEHkkouk gksA blds ckotwn Hkh vfHk;qDrx.k us lsuiky flag ls dksbZ jlhn ugha yhA lsuiky flag us vius c;ku eas dgk gS fd ml dks ekyew ugha Fkk fd jlhn nh tkrh gSA blfy, ugha nhA ysfdu [kjhnus okyk fcuk jlhn ds bl rjg ls eky ugha [kjhnsxkA vr% ;g rF; drbZ fo'oluh; ugha gS fd vfHk;qDrx.k us lsuiky flag ls eky [kjhnk Fkk cfYd lsuiky flag ds eqdneas dk ykHk mBk dj ;g ckr ckn eas lkps le> dj ds cukbZ xbZ gSA vr% vfHk;qDrx.k mijkDrs rdZ ls dksbZ ykHk izkIr ugha dj ldrsA** “Now there arises a question as to whether these were stolen goods. In his statement u/s 313 Cr.P.C., the accused has stated that he had purchased these goods from Senpal Singh, r/o Sitnaur, PS Basai, District Datia. This Senpal Singh has been examined as DW-1. Senpal Singh has stated that in the year 1978, the police from Basai had recovered from him 7 tons of iron belonging to field firing range. The trial in the case of that recovery was held at Datia and he was acquitted in the said case. In the year 1980, he got this iron back by order of the court and only 5-6 months later, he sold the same to Jagdish Singh and Chandan Singh. A copy of the judgment dated 24.06.1980 passed by the Court of Judicial Magistrate, Datia has also been enclosed. The judgment in the case pertaining to Senpal was passed by the Court of Chief Judicial Magistrate, Datia on 24.06.1980. If Senpal Singh sold the goods belonging to that case to the accused 5-6 months later, it means the said goods came to be with the accused by the end of 1980 or, at most, in the beginning of 1981. From that time till 10.07.1984 i.e. for up to 4 years, the accused Chandan Singh and Jagdish Singh kept the said goods with them. They neither sold the goods nor used the same. It is not at all credible. Had accused purchased the goods from Senpal Singh at that time, such a huge quantity of goods can be purchased certainly for commercial purpose and it does not appear to be worth believing that any trader would keep his goods for up to 4½ years in the well of his field for no reason. These goods have been recovered from Jagdish Singh's well. Hence, the statements of the accused are entirely unreliable that these were the same goods which they had purchased from Senpal Singh. Even after this, it is also not reliable that Senpal Singh had sold any goods to the accused. If anybody purchases 7 tons of iron, he would certainly secure its receipt; particularly where such goods belonged to field firing range area that may cause the apprehension of arrest. Despite this, the accused did not secure any receipt from Senpal Singh. In his statement, Senpal Singh has stated that he did not know if receipt was to be given; hence, he did not give the same but the buyer shall not buy the goods in this way without the receipt. Hence, it is not at all reliable that the accused had purchased the goods from Senpal; rather, this story, by way of an after thought, has been deliberately cooked up by taking advantage of the case pertaining to Senpal Singh. Hence, the accused cannot benefit from the aforesaid argument.” (English Translation by Court)
5. Lower Appellate Court has discussed above aspect and recorded its findings as under :
^^,d egRoiw.kZ rF; ;g gS fd ;g eky txnh'k flag ds edku ds gkrs ls cjken fd;k x;k gSA bleas ;g rF; vfo'oluh; gks tkrk gS fd ;g eky lsuiky flag }kjk mudks cspk x;k FkkA Mh0MCyw0 1 us dgk gS fd tc mlus yksgk cspk rks mldh dksbZ jlhn mlus ugha nh FkhA lsuiky flag us ;g Hkh Lohdkj fd;k gS fd og yksgk QhYM Qk;fjax jast dk FkkA bl izdkj dk dksbZ Hkh eky ;fn dksbZ [kjhnsxk rks vius cpko eas og mldh jlhn vo'; ysxk ysfdu bl [kjhn dh dksbZ Hkh jlhn u rks lsuiky us nh vkSj u vfHk;qDrx.k us yh vkSj u gh bl [kjhn fcdzh dk dksbZ nLrkost U;k;ky; eas izLrqr fd;k x;kA dkxt la0 115 ch0 U;k;ky; dk tks fu.kZ; nkf[ky fd;k x;k gS mlls ;g izrhr gksrk gS fd 7 Vu pksjh dk yksgk tks eqdnek lsuiky ds Åij pyk Fkk og bLdzsi vk;ju ds ihlst FksA ihlst dk eryc NksVs NksVs VqdM+ksa ls gksrk gS tc fd ih0MCyw0 4 us vius l'kiFk dFku esa dgk gS fd cjken 'kqnk yksgk VwVs QwVs yksgs] Vsadkas ds VqdM+s vkfn FksA VqdM+s fofHkUu lkbtkas esa Fks tks 50 o 100 fdyks ds FksA 50 o 100 fdyks dk tks yksgk gksxk og yksgs dk VqdM+k ugha dgyk,xkA QnZ cjkenxh ds vuqlkj vfHk;qDrx.k ds ikl tks eky cjken gqvk mleas Vsda ds ,Dly] ,Dly IyV]s VSad dh lkbM IyV]s VSadsa dh dekuh] VSad dk lkbM dh vxys fgLls dh Qsfdax] VSad ds baftu vk;y dh cSfjax] <Ddu] IysV] lspqfj;u VSad ds xksys] dqN VwVs dqN lkfcr ftudk e'kkyk fudkyk gqvk gS] fLiazx dekuh] ljeu VSad ds pys xksys] 'kh'k gSA bu rF;ksa ds vk/kkj ij eSa bl fu"d"kZ ij igaqpk gwaW fd Mh0MCyw0 1 dk dFku fo'oluh; ugha gS vkSj cpko i{k dk ;g dFku ekuk ugha tk ldrk fd cjken 'kqnk yksgk o /kkrq mlus lsuiky flag ls [kjhnk Fkk vkSj lsuiky flag us bls U;k;ky; nfr;k ls izkIr fd;k FkkA bl lEcU/k eas v/khuLFk U;k;ky; }kjk tks fu"d"kZ fudkyk x;k gS og iw.kZr;k oS/kkfud gS mleas dkbZs =qfV ugha gSA** “One of the important facts is that these goods have been recovered from the compound of the house of Jagdish Singh. From this, this renders it unreliable that these goods were sold to them by Senpal. DW-1 has stated that when he sold the goods, he did not give any receipt to this effect. Senpal Singh has also admitted that the iron belonged to field firing range. If anybody purchases any goods of this sort, he would certainly secure its receipt in his defence but a receipt for this purchase was neither given by Senpal nor was it secured by the accused nor was any document related to this sale-purchase produced before the court. From paper no. 115B i.e. judgment of the court so submitted, it appears that the case against Senpal for stealing 7 tons of iron was in fact for pieces of scrap iron. Pieces means small pieces whereas PW-4 has in his statement on oath stated that the recovered irons were the broken pieces of iron, tanks etc. The pieces were in different sizes weighing 50 and 100 kg. The iron weighing 50 and 100 kg shall not be called a piece of iron. As per the recovery memo, the goods recovered from the accused consist of tank's axle, axle plate, side plate, Kamaani (leaf spring), faking of the front part, bearing of engine oil, lid, plate, centurion tank's bombshells – some broken and some intact with no gunpowder, spring Kamaani, bombshells, glass pieces etc. from serman tanks. On the basis of these facts, I conclude that the statement of DW-1 is not reliable and the statement of the defence cannot be accepted that he had purchased the recovered iron and metal from Senpal Singh and he (Senpal Singh) had received the same by order of the court at Datia. In this connection, the conclusion drawn by the subordinate court is absolutely legal having no error.” (English Translation by Court)
6. In the aforesaid concurrent findings recorded by both the Courts below, learned counsel for revisionists could not show any misreading of documents or perversity so as to pursue this Court to take a different view.
7. Counsel for revisionists contended that incident occurred in 1984 and now, after thirty five years, it will be harsh to send revisionists in jail and therefore punishment be reduced.
8. In the matter of awarding punishment multiple factors have to be considered by this Court. The law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of the offence. Sentencing process should be sterned so as to give a message to the offender as well as the person like him roaming free in the society not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner irrespective of time lag.
9. Further sentencing process should be sterned but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot be lost sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above.
10. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254, the Court confirmed that:
"any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system".
(Emphasis added)
11. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:
"It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
12. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, the Court said that:
"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."
13. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the court said that:
"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence"
14. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516, the Court observed that:
"We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment".
(Emphasis added)
15. The revisionist has not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what it is trying to take advantage is that the act of the Court should come to his rescue inasmuch as it is this Court which has taken two decades and more and taking up this revision and this should come to rescue of the revisionist for making reduction in punishment drastically though otherwise what has been done by the court below cannot be said per- se illegal, unjust or improper. It is well settled that the act of the court prejudice none. The failure of this court in taking up these matters within the reasonable time should not become a hand to the offender like present one to claim reduction in the punishment as a matter of right ignoring the fact that the society requires that an offender should be punished adequately and over the above the victim, who has suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert and accused as a victim ignoring all the rights of the actual victim, who has suffered, his family and the society in shown. Moreover, when the finding of guilty and punishment imposed by the court below is not found erroneous in any manner. I am of the view that such an order of the courts below cannot be interfered in exercise of revisional jurisdiction of this Court.
16. Counsel for revisionists further submitted that one of the two revisionists i.e. revisionist no.1 has died but there is no such report. Be that as it may, in case any of revisionists has already died, this revision shall treated to have abated in respect of such revisionist, who has died.
17. Subject to above, I find no reason to interfere with the orders passed by Courts below.
18. Revision lacks merit. Dismissed.
19. The accused, Chandan Singh and Jagdish Singh are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodge in jail to serve out the sentence passed against them. The compliance shall be prepared within two months.
20. Certify this judgment to the lower Court immediately.
Order Date :- 22.8.2019 KA