KAILASH DIMAR Vs. STATE OF M.P

JUDGEMENT

(1.) THE applicant/accused has directed this revision under section 397 read with 401 of the Cr.P.C being aggrieved by the order dated 19.12.2012 passed by the Sessions Judge, Tikamgarh district Tikamgarh in Criminal Appeal No.104/12 affirming the judgment dated 29.2.12 passed by JMFC, Tikamgarh in Criminal Case No.1365/09 whereby he has been convicted and sentenced under section 456 of the IPC for RI 6 months with fine of Rs.500/ - in default of depositing the fine for further jail sentence.

(2.) THE facts giving rise to this revision in short are that on dated 12.9.09, at about 8.30 in the night, the complainant/prosecutrix Rajjo Bai accompanied with her children went to sleep in her residence. At abut 11 O' clock in the night, she heard the noise of some person who was entering in the house, on which, she awoke and saw that the applicant Kailash Dimar was there. She cried then the applicant after pushing the complainant fled away from such place. The incident was witnessed by the elder brother of the prosecutrix and some other family members. Immediately after the incident, the FIR was lodged by the prosecutrix at PS Mohangarh district Tikamgarh, on which, the offence of section 456 of the IPC was registered against the applicant. The applicant was arrested and after holding the investigation he was charge sheeted for the same. After framing the charge by the trial court, the trial was held. On appreciation of the evidence he was held guilty under such section and punished with the above mentioned punishment. On filing the appeal, the same was dismissed by affirming the judgment of the trial court, on which, he has come to this court with this revision.

(3.) SHRI Shashank Upadhyay, learned counsel for the applicants after taking me through the record of the trial court along with the impugned judgment, without challenging the findings of the courts below holding guilty to the applicant under the aforesaid offence, made his limited submission for extending the benefit of Probation of the Offenders Act to the applicant. In alternate prayed to reduce the awarded jail sentence upto the period for which he has already undergone from the date of the impugned judgment of the appellate court till today by enhancing the amount of fine under the discretion of the court. In support of such argument he said that the applicant has already suffered the mental agony of the impugned case and besides this, he did not possess any criminal antecedents so, in such premises, he being first offender, is entitled to extend the above mentioned benefit. He also said that looking to the nature of the offence, this case appears to be the case of consent and prayed for allowing this revision accordingly.