- (1.) VINOD Prasad, J. The revisionist Hashrat was tried by Chief Judicial Magistrate, J. P. Nagar in Criminal Case No. 4965 of 2001, vide crime No. 692 of 2001, for offences under Sections 380/411 IPC, relating to Police Station Gajraula District J. P. Nagar and was convicted only for offence under Section 411 IPC and was sentenced to under go two years imprisonments. Vide impugned judgment and order dated 19- 11-2003. He was however acquitted for offences under Section 380 IPC. The appeal of the revisionist, being Criminal Appeal No. 11 of 2003, challenging his aforesaid conviction and sentence too failed and FTC 1st/additional Session's Judge, Court No. 4, J. P. Nagar confirmed his conviction and sentence for the said offence vide his impugned judgment and order dated 11-10-2006. The aforesaid two judgments and orders are under challenge in this revision.
(2.) THE short allegations against the revisionist are that he was found to be in possession of the two stolen buffalos belonging to the informant Iqramuddin resident of village Papsara Khadar. His aforesaid cattles were stolen on 6/7-8-2001 at about 1. 00 a. m. in night and he was informed by Kamal Khan and Raja Khan that it was the revisionist who had stolen his cattle. THE recovery of the cattles were made on 8-8-2001 at 4. 30 p. m. by the Investigating Officer from village Sunpura from the possession of the revisionist. I have heard Sri R. K. Verma, learned Counsel for the revisionist and the learned AGA in opposition. Learned Counsel for the revisionist did not challenge the conviction part of the order and fairly conceeded that the findings of facts recorded by both the Courts below does not suffer from any error of law and cannot be commented on. He, therefore, while conceeding to the conviction part of the revisionist contended that the sentence of imprisonment of two years awarded on the revisionist is too sever and should be altered to fine. He contended that the revisionist did not have any criminal history nor he had committed theft. He contended that the two Courts below did not give adequate reasons for not giving benefit of Probation of First Offenders Act to the revisionists nor they complied with Section 360 Cr. P. C. in true spirit. He further contended that the revisionist is in jail since 30-11-2006 and nearly for two months he is in jail. He submitted that because it was first offence of the revisionists, therefore, he should have been dealt with in a more lenient manner.
(3.) LEARNED AGA, contrarily submitted that the sentence is not too sever and is commensurate with the guilt of the accused and therefore, should not be interfered with by this Court under Section 397/401 Cr. P. C. I have considered the submissions of the rival sides. It is not in dispute that the accused revisionist does not have any criminal history. It is also not in dispute that the prosecution allegation of committing of theft was not proved against the revisionist and therefore, a substantial part of the prosecution story in respect of the revisionist was found to be false. It is also not in dispute that the Chief Judicial Magistrate, J. P. Nagar has not assigned adequate reasons for not giving benefit of Section 360/361 Cr. P. C. to the revisionist. It is also not in dispute that the revisionist during the trial had denied the recovery of the cattles from his possession and had taken a defence that the recovery is false.;