BISHAN SWAROOP Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the parties.

(2.) THIS Criminal Revision arises from a judgment and order dated 31 -1 -1986 in Criminal Appeal No. 113 of 1984, whereby the learned Sessions Judge, Shri Brahma Singh, had dismissed the appeal against the conviction of the applicant under Section 406 IPC recorded by the learned Munsif Magistrate, Shahjahanpur maintaining the sentence of six months rigorous imprisonment passed against the applicant, but, strangely enough, whilst dismissing the criminal appeal, the learned Sessions Judge has, in addition, imposed a fine of Rs. 10,000. This part of the order, whereby, in a criminal appeal against conviction, the learned Sessions Judge has, whilst dismissing the appeal, enhanced the sentence also, by awarding a fine of Rs. 10,000, amounts to a clear travesty of justice, and is in complete violation of the provisions of law. Under Section 386 (b)(iii) Cr. P.C., there is a clear bar on enhancement of sentence in an appeal from conviction. Section 386(b)(iii) Cr. P.C., which pertains to an appeal from conviction, reads as follows: “With or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same”. Accordingly, this part of the order, awarding an additional fine of Rs. 10,000, needs to be set aside straight away.

(3.) THE facts of this case were that the applicant, Bishan Swaroop, who was the cousin brother of Smt. Meera Devi, was taking her from Shahjahanpur to Allahganj on 25 -4 -1982. Smt. Meera Devi was travelling alongwith her trunk, which contained jewellery, clothes etc. The applicant and Smt. Meera Devi changed the bus at Jalalabad and, thereafter, they reached Allahganj bus station at about 3.00 p.m. on 25 -4 -1982. At the bus station, the applicant is said to have told Smt. Meera Devi to go home alone and to send back her servant to collect her luggage. The servant of Smt. Meera Devi went to the bus station, but returned back reporting that the applicant was not present there. Thereafter, the informant, Arvind Kumar Misra, the brother of Smt. Meera Devi, came to the market place in search of the applicant, Bishan Swaroop, who was sitting in the shop of his son, Chandra Shekhar. But, no satisfactory answer was said to have been given by the applicant for having left the bus station. The informant, thereafter, brought back the box and other luggage of Smt. Meera Devi to his house. When Smt. Meera Devi opened the trunk with her keys in the house, it was found that her jewellery, which was contained in three boxes in the trunk, was missing. The informant is said to have gone back to meet the applicant and demanded the jewellery of Smt. Meera Devi, but on his failure to return the same, a report was lodged at the police station against the applicant and his son, and later, charges were framed against the applicant under Section 406 I.P.C., and against Chandra Shekhar, under Section 440 I.P.C. Chandra Shekhar was subsequently acquitted by the learned Munsif Magistrate, Shahjahanpur. However, the applicant was convicted as above.