ARIF Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioner has filed this Revision Petition against the judgment and order passed by the learned Additional Sessions Judge on 18.4.2006 partly allowing the appeal filed by the petitioner and partly upholding the order of conviction passed by the Metropolitan Magistrate.

(2.) The petitioner was tried for the offences under Sections 454, 380 read with Section 411 of the Indian Penal Code. After trial, the learned Metropolitan Magistrate convicted the petitioner under Sections 454 and 380 by an order dated 2.9.2004. By virtue of an order dated 9.9.2004 the learned Metropolitan Magistrate sentenced the petitioner to three years rigorous imprisonment for the offence under Sections 454 and 2 years rigorous imprisonment with fine of Rs. 3500/- in respect of the offence under Section 380, IPC. The petitioner, being aggrieved, filed an appeal and the learned Additional Sessions Judge by the impugned order dated 18.4.2006 confirmed the conviction under Section 454 and also upheld the sentence of three years rigorous imprisonment in respect of this offence. However, with regard to the offence under Section 380, IPC, the learned Additional Sessions Judge acquitted the petitioner. Being aggrieved by the conviction under Section 454, IPC, the petitioner has preferred this Revision Petition.

(3.) The learned Counsel for the petitioner submitted straightaway that the petitioner at the time of passing of the judgment and/order dated 2.9.2004 by the learned Metropolitan Magistrate had already been in custody for one year and twenty-two days. Thereafter, the petitioner had been on bail during the period of appeal and after the dismissal of the appeal, the petitioner has consequently surrendered and in custody for over a month or so. Essentially, what the learned Counsel for the petitioner was submitting was that the petitioner has undergone a sentence of more than one year. His basic grievance with regard to the impugned order was that once the petitioner was acquitted of the offence under Section 380, IPC, he should not have been convicted under Section 454 thereof without the Court coming to a definite finding as to the motive for the lurking house trespass. According to him, therefore, on the basis of the facts found by the Courts below, the offence in any event would fall either under Section 443 or 445 which would be punishable under Section 453 and not under Section 454. The learned Counsel for the petitioner submitted that the sentence of three years awarded by the appellate Court as well as the trial Court cannot be sustained and it is on this ground that he is seeking revision.