Partly allowed

Vishambhar v. State of U.P.

Allahabad HC24 Sept 2018CRLR/1714/1999

Case brief

AI extract

What is this about?

The court allowed the revision in part, reducing the sentence for lurking house-trespass by nocturne. Recognizing the crime's age and the revisionist's incarceration, imprisonment was reduced to time already undergone, with a fine imposed in lieu of further detention.

What did the court decide?

Revised sentence to imprisonment already undergone with fine of Rs. 10,000/-; default leads to simple imprisonment for one year.

Vishambhar Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL REVISION No. - 1714 of 1999

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Revisionist :- Vishambhar Opposite Party :- State Of U.P. Counsel for Revisionist :- A.R.B. Kher,Avanish Kumar Shukla,Mithilesh Kumar Shukla Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Aniruddha Singh,J.

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Heard learned counsel for the revisionist and learned AGA and perused the record.

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This criminal revision has been filed against judgment and order dated 9.8.1999 passed by VIII Additional District & Sessions Judge, Kanpur Dehat in Criminal Appeal No. 9 of 1999 dismissing the appeal and confirmed the judgment and order dated 10.2.1999 passed by 1st Additional Chief Judicial Magistrate, Kanpur Dehat in Criminal Case No. 101 of 1993 whereby he convicted revisionist under section 457 IPC and sentenced him for one year rigorous imprisonment.

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In brief, facts of the case are that in the intervening night at 11:30 P.M. of 9/10.3.1992 he entered into the house of Ganesh doing offence of lurking housetrespass in night for theft and this accused was arrested on spot. Another accused Ramesh fled away.

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After investigation charge sheet was submitted against Vishambhar under section 457/380/511 IPC. Charge was framed against him and Trial Court examined P.W.-1 Shyam Narain, P.W.-2 Ganesh, P.W.-3 Shiv Ram, P.W.-4 Shiv Vibhor and P.W.-5 Sub Inspector Mathura Singh.

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After recording statement of accused and hearing learned counsel for the parties, Trial Court convicted revisionist under Section 457 IPC and sentenced to three years' rigorous imprisonment and acquitted him under Section 380/511 IPC vide order dated 10.2.1999 passed by Ist Additional Chief Judicial Magistrate, Kanpur Dehat in Case No. 101/93, Police Station Shivrajpur. Criminal Appeal No. 9/99 filed against conviction order was dismissed but sentence has been reduced from three years R.I. to one year R.I. under Section 457 IPC. Hence this revision.

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On the point of facts and conviction, both Trial and Appellate Courts have given concurrent finding and view taken by both the Courts is plausible view. Hence no interference is called for on the point of conviction.

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On the point of sentence learned counsel for the revisionist submitted the incident is of year 1992, about 25 years have elapsed; revisionist belongs to rural area; he has no criminal history and he belongs to poor family. He has served out about one month in jail after dismissal of appeal. In the circumstances, no fruitful purpose would be served in sending him to jail and lenient view may be taken against revisionist and he may be sentenced to imprisonment already

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undergone with fine.

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Learned AGA opposed the prayer but on this point he did not raise any argument that the case is very old and the revisionist is also old person, hence a lenient view may be taken.

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This Court in the case of Sukhbir and others vs. State of U.P. in Criminal Appeal No. 2905 of 1980 decided on 16.9.1999 and Supreme Court in Narayansingh Nathusingh vs. Natvarlal Hiralal Thakkar and another, (1981) 4 SCC 507 have reduced the sentence to the imprisonment already undergone with fine.

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In the case of Ved Ram and others vs. State of U.P., 2010(68) ACC 182 wherein appellants have already remained in jail for almost eight months and on being satisfied with the period of incarceration, the Court imposed additional fine of Rs.1000/- and altered conviction from under Section 307 IPC to under section 324/149 IPC.

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Hon'ble Apex Court in the case of State of Karnataka vs. Kaisarbaig and others, (2018) 4 SCC 403 sentenced the appellants to the period of imprisonment already undergone with fine of Rs.50,000/- in addition to what has already been paid to the victim under Section 148/324/149 IPC.

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The Division Bench of Hon'ble Supreme Court in the case of Raman Kalia and another vs. State of Gujarat, AIR 1979 SC 1261 has held that "we would, therefore, while upholding the conviction of Raman Kalia under Section 323 I.P.C. reduce the sentence to the period already served, which we understand is about a month and a half."

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Considering the age, social status, family background and gravity of offence against this accused, no fruitful purpose would be served in sending him to jail at this stage and it would be appropriate and justified to reduce sentence awarded by the appellate Court. Purpose would be served if he is convicted and sentenced to imprisonment already undergone with fine.

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The revision is partly allowed. Revisionist Vishambhar is convicted and sentenced to imprisonment already undergone with fine of Rs.10,000/- (Rupees ten thousand) under Section 457 IPC and in default to deposit fine, he shall undergo simple imprisonment for one year. Fine shall be deposited within two months from today.

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Office is directed to transmit copy of this order to the Court below immediately. Compliance report be submitted within three months which shall be kept on record.

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Order Date :- 24.9.2018 P.P.

Vishambhar v. State of U.P.

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Vishambhar v. State of U.P.

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