SRIRAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been directed against the judgment, dated 7 -3 -1989, of the Additional Sessions Judge, Bundi partly allowing the appeal of the petitioners against the judgment dated 8 -2 -1984 of the Judicial Magistrate No. 2, Bundi. Learned Addl. Sessions Judge altered the conviction of petitioners from one under Section 379, IPC sentence of one year's rigorous imprisonment and a fine of Rs. 500/ - each to one under Section 411, IPC and each of them to undergo six months' rigorous imprisonment, while maintaining the amount of fine. How ever, the sentence in default of payment of fine was reduced from 5 months' rigorous imprisonment each to 2 months' rigorous imprisonment each.

(2.) LEARNED counsel for the petitioners argued this case for some time on merits, then conceded and in my opinion rightly so there are no grounds for interference in concurrent findings of fact arrived at by both the court below. He how ever, submits that learned Addl. Sessions Judge, while altering the conviction from one under section, 379, IPC to Section 411, IPC and considering the case under Section 360, Cr.P.C. without any reason discriminated between the case of accused Suwa and accused petitioners Sriram and Chandra. Appellate court has erred in not considering the provisions of Section 360, Cr.P.C. No reasons have been assigned for refusal of benefit under Section 360, Cr.P.C. when the legislature has cast an imperative duty to assign special reasons for not giving the benefit of the provisions of Section 360, Cr.P.C. Once the court was of the opinion that case under Section 379, IPC is not made out and if the court was considering it to be a mitigating circumstance for reduction of the sentence, fact of benefit should not have been considered for refusing the benefit.

(3.) I have considered the circumstances of the case. It is true that lifting of the goods in running bus cannot be appreciated and is a serious circumstance. But that alone cannot be a circumstance for not considering the case under Section 360, Cr.P.C. muchless when the court has not accepted the prosecution story that the accused had removed the goods from a running bus. To use that circumstance after acquitting the accused of the offence under Section 379, IPC is not a correct approach and, therefore, the case of the petitioners deserve to be considered for benefit under Section 360, Cr.P.C.