1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL REVISION PETITION NO. 589/2007 (Birbal Ram @ Balla V/s State of Rajasthan) Date of Order : 02/08/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. H.K.Jain for the petitioner. Mr. V.R.Mehta, P.P. BY THE COURT:- This criminal revision petition under Section 397/401 Cr.P.C. is directed against the judgment and order dated 28.6.2007 passed by Additional Sessions Judge, No.1, Sri Ganganagar (for short 'the appellate court' hereinafter) whereby the appeal filed by the petitioner against the judgment and order dated 4.8.2005 passed by Judicial Magistrate, First Class, Sri Ganganagar (for short 'the trial court' hereinafter) was dismissed. I have heard learned counsel for the petitioner and the public prosecutor for the State. Carefully gone through the judgment and order passed by the trial court as well as by the appellate court. I have also carefully gone through the record of the trial court. 2 Learned counsel for the petitioner does not want to challenge the conviction of the petitioner, however, contended that both the courts below fell in error in not extending the benefit of Probation of Offenders Act, 1958 to the petitioner. It is further contended that by now the petitioner has already suffered the imprisonment of 72 days and therefore, the sentence of imprisonment may be reduced to the period of imprisonment already undergone. Learned public prosecutor supported the judgment and order of both the courts below and contended that the trial court as well as the appellate court noticed that number of theft cases have been registered against the petitioner and therefore, according to learned public prosecutor in view of the statement of PW-6 Pushpendra Singh there are number of theft cases registered against the petitioner and as such the petitioner is habitual in committing the offence of theft and therefore, is not entitled to the benefit of probation as also no lenient view deserves to be taken in such matters with regard to the quantum of sentence. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. The petitioner was put to trial for the offence under Section 379 IPC for committing a theft of Motor-cycle Hero Honda being No. RJ 13-2M-6535 from Sihag Hospital, Sri 3 Ganganagar. The petitioner was arrested, he furnished information under Section 27 of the Evidence Act. In pursuance of the information under Section 27 of the Evidence Act, the motorcycle which was stolen by the petitioner was recovered from the personal possession of the petitioner. Before the trial court, the prosecution produced as many as six witnesses and established the case beyond reasonable doubt. PW-6 Pushpendra Singh who is Investigating Officer stated that the petitioner was arrested vide Ex.P-6. While in custody, the petitioner furnished voluntarily information under Section 27 of the Evidence Act for getting the motorcycle Hero Honda recovered from his house. The information was recorded vide Ex.P-7, in pursuance thereof, the petitioner while in custody got the motorcycle recovered from his personal possession from his house. The site inspection, site map of the place from where the recovery was effected were prepared vide Ex.P-4 and Ex.P- 4A. While cross-examining the witness, the petitioner himself put a question to the investigating officer that there are many cases of theft registered against him. On the question put by the petitioner, the investigating officer Stated that it is correct to say that there are many theft cases registered against the present petitioner apart from the case of that particular police station, there are cases registered at different police stations. Thus, it is the case of the petitioner himself that number of theft cases 4 have been registered against him. Though in one of the case in which the petitioner has been acquitted was a case of theft of a Car but it has been placed on record showing the involvement of the petitioner in committing theft of the vehicles may be of motorcycle, car or any other vehicle of the nature. The trial court as well as the appellate court both have taken this material fact in consideration while denying benefit of Section 360 Cr.P.C. as well as the Probation of Offenders Act. In my view, both the courts below were justified in not extending the benefit of probation. The special reasons for not extending such benefit have been recorded by the courts below as envisaged under Section 361 Cr.P.C. In the circumstances, therefore, the contention raised by the learned counsel for the petitioner to the extent denial of probation cannot be accepted. So far as the quantum of sentence is concerned, it is not that the petitioner is involved for the first time in the case of committing theft of motorcycle, according to the petitioner himself, he has been indulged in committing theft of vehicles and it is the case of the petitioner that many cases have been registered against him for committing theft of the vehicles and one of the case though petitioner has been acquitted but it was a case of theft of Car. In the circumstances, therefore, it is not in the interest of justice to reduce the sentence of imprisonment to the period already undergone by the petitioner. However, having 5 regard to the facts and circumstances of the case and the fact that the sentence awarded by both the courts below is three years rigorous imprisonment which appears to be on higher side. In this view of the matter, while maintaining the conviction of the petitioner for the offence under Section 379 IPC, the sentence of imprisonment is reduced from three years to one year rigorous imprisonment. With this modification, the revision petition stands disposed of. Since the revision petition itself has been decided, the application seeking suspension of sentence stands dismissed. (H.R.PANWAR),J. rp