Partly allowed

Rajendra Khairwar v. State Of Chhattisgarh

Chhattisgarh HC9 Dec 2024CRR/736/2017

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh in Criminal Revision allowed the revision partly, maintaining the conviction for house breaking by night but reducing the sentence and increasing the fine to Rs.15,000 with compensation provisions.

What did the court decide?

Revision partly allowed. Conviction upheld under Section 457 IPC. Sentence reduced to period already undergone. Fine enhanced to Rs.15,000 with compensation of Rs.13,000 to complainant.

Rajendra Khairwar Vs State Of Chhattisgarh — Cheating and Forgery | Chhattisgarh HC (2024)

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2024:CGHC:48514

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 736 of 2017

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Rajendra Khairwar S/o Daulat Ram Khairwar, Aged About 20 Years R/o Village Limtara Kotetara Police Station Jaijaipur, Civil And Revenue District Janjgir Champa, Chhattisgarh

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... Petitioner(s)

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versus

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State Of Chhattisgarh Through District Magistrate, Janjgir, Distrit Janjgir Champa, Chhattisgarh

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---- Respondent

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(Cause title is taken from the CIS)

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For Applicant	: Shri	Ishwar Jaiswal, Advocate
For Respondent/State	: Ms	Vaishali Mahilong, PL

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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board

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10.12.2024

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1. Present Criminal Revision under Section 397 r/w 401 CrPC 1973 filed by the applicant/accused against the impugned judgment (Annexure A1) dated 19.04.2017, passed by the learned First Additional Sessions Judge, Sakti, District-Janjgir-Champa, Chhattisgarh in Criminal Appeal-38 of 2016, whereby the appeal filed by the applicant/accused against the judgment of conviction, and order of sentence dated 30.03.2016 passed by the learned Judicial Magistrate First Class, Jaijaipur, district Janjgir-

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Crr 736 of 2017

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Champa in Criminal Case-396 of 2014 is dismissed and judgment of conviction and order of sentence is affirmed.

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2. Brief facts of the case are that on 12.10.2014 at about 4 am, complainant Bajrang Chouhan PW1 was sleeping in his house. At that time, present applicant committed house trespass by night in order to commit theft in his house, and spread up the articles of his almirah, and suit cases. At the same time, when Chavnibai, PW2, wife of the complainant, woke up and raised alarm, then, other family members also woke up and caught hold of the applicant but somehow, he could flee from the place. The complainant has lodged report to the Police, where the offence has been registered, applicant has been arrested and after investigation, charge-sheet has been filed.

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3. Learned trial Court framed charge against the applicant for the offence under Section 457 of the IPC. The applicant denied the charge and claimed trial. During the trial, prosecution has examined six witnesses. Statement of the applicant under Section 313 has also been recorded, and after completion of trial, and hearing the parties, learned trial Court has convicted the applicant for the offence under Section 457 of the IPC and sentenced him RI for six months, and to pay fine of Rs.200/- in default of payment of fine, further Simple Imprisonment for one month, vide its judgment of conviction and sentence dated 30.03.2016.

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Crr 736 of 2017

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4. Judgment of conviction and order of sentence dated 30.03.2016 was challenged by the applicant/accused before the learned First Additional Sessions Judge, Sakti, District Janjgir-Champa, by filing Criminal Appeal-38 of 2016. Said Criminal Appeal filed by the applicant/accused was decided on 19.04.2017 and considering the evidence available on record, the appeal filed by the applicant /accused was dismissed by the learned appellate court. The Judgment passed in the appeal is under challenge in the present revision petition.

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5. Learned counsel for the applicant would submit that a false report has been lodged against the applicant. Applicant was working as Driver and at the relevant point of time, he came there to attend the 10^th day rituals of his uncle, and in the morning when he was going towards the fields for answering the call of nature just by side of the complainant’s house, on apprehension, his wife started shouting that he tried to commit theft in her house. He would further submit that no incriminating article has been seized from him. He would further submit that applicant has already remained in jail for about 16 days, as after passing of judgment by the learned appellate court on 19.04.2017, he surrendered before the learned trial Court on 13.07.2017, and he was granted bail by this Court vide order dated 28.07.2017. Offence under Section 457 of the IPC does not provide any minimum sentence, and by enhancing some fine amount, his undergone period may be considered to be sufficient sentence for the alleged offence.

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6. Per contra, learned State counsel opposes the submissions made by learned counsel for the applicant, and submitted that the applicant was caught red-handed in the house of the complainant at the time when he entered inside the house, but somehow, he fled away from the spot. He was seen by the witnesses, and considering their evidence, learned trial Court has rightly convicted and sentenced the applicant for the alleged offence. Applicant is guilty for house trespassing by night and for committing theft in the house of complainant, therefore, he is not entitled for any leniency, and the revision is liable to be dismissed.

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7. Heard learned counsel for the parties, and perused the record.

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8. From perusal of the evidence led by the prosecution, it is quite vivid that on the date of incident, at about 4 am, applicant entered into the house of the complainant, and when he was seen by family members of the complainant, they started shouting, and caught hold of the applicant. The suit case was found opened and Rs.5,000/- cash was stolen. The act of house breaking by night by the applicant finds support of evidence of PW1- Bajrang, PW2- Chavni Bai, PW3- Rina Chouhan, PW4Dukhuram, and PW5- Jagram, who all have duly supported that the applicant has committed house breaking by night for committing theft in his house.

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9. Learned trial Court as well as the appellate Court considering the entire evidence led by the prosecution, concurrently convicted the applicant in which this Court does not find any illegality or infirmity to

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Crr 736 of 2017

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interfere with the said concurrent finding of his conviction. This Court also in agreement with the same that the learned trial Court, as well as the appellate court has rightly convicted the applicant for the offence under Section 457of the IPC.

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10. So far as the sentence of the applicant is concerned, learned trial Court has sentenced him RI for six months with fine of Rs.200/- with default stipulation, which has been affirmed by the learned appellate Court.

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11. Hon’ble Supreme court while dealing with regard to sentence part of an accused in the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, it has been observed as under:

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“9. Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue

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cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'

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12. The submission made by learned counsel for the applicant that the offence is of the year 2014, and the applicant suffered criminal litigation for about 10 years. He is presently aged about 30 years, and having various family responsibilities. The offence of Section 457 IPC does not

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provide any minimum sentence, since no loss has been caused to the complainant as no articles were stolen from his house the applicant has already remained in jail for about 16 days and his undergone period may be considered to be sufficient sentence by enhancing the fine amount suitably, appears to be acceptable to meet the ends of justice. Therefore, while maintenance the conviction of the applicant under Section 457 of the IPC, his sentence is reduced for the period already undergone by him with fine of Rs.15,000/-

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13. The fine amount shall be paid by the applicant within six months from today, failing which the applicant shall undergo one month additional imprisonment. The fine amount paid earlier, if any, shall be adjusted towards fine amount imposed upon by this Court.

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14. Out of the total fine amount imposed upon the applicant, on being so deposited, Rs.13,000/- shall be paid to the complainant PW1, Bajrang as compensation as provided under Section 395 of the BNSS 2023.

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15. With this modification of sentence, Criminal Revision filed by the applicant is partly allowed. Copy of this order be sent to the learned trial Court for compliance, and necessary action.

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16. Record of the trial court, as well as appellate Court be sent back along with copy of this order.

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Sd/- (Ravindra Kumar Agrawal) JUDGE

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padma

Rajendra Khairwar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajendra Khairwar v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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