IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1814 of 2009 FATE OJHA @ FATEH OJHA SON OF LATE GUPTESHWAR OJHA, RESIDENT OF VILLAGE DEOKULI, P.S.- BRAHMPUR IN THE DISTRICT OF BUXAR. Versus THE STATE OF BIHAR For the petitioner : Mr. Akhileshwar Prasad Singh, Advocate. For the State : Mr. Raj Ballav Singh, A.P.P. ----------- 6 02.07.2010 Heard both sides. This application in revision is directed against the judgment and order dated 20th August, 2009 passed by learned Sessions Judge, Buxar in Cr. Appeal no. 09 of 2009 whereby the appeal preferred by the petitioner herein was dismissed. Petitioner was made accused in a case instituted under Section 392 IPC. P.W. 1, the informant lodged an F.I.R. alleging therein that he was going to his house after closing the shop. As soon as he reached near Purva (near Dhan-chapra) riding on his motorcycle, all of a sudden, three (03) accused persons appeared and intercepted the vehicle. At gun point, he was initially assaulted and thereafter relieved of his motorcycle, the mobile phone and cash. At the trial, the prosecution examined as many as four (04) witnesses. On a consideration of their evidence, it has been found and held by the learned Trial Court that the prosecution has been able to conclusively prove the case and accordingly he was held guilty under Section 392 IPC and convicted for a term of three (03) years R.I. It is to be recorded here that along with the present petitioner, one Rajendra Ojha was also tried. Learned 2 Trial Court found the evidence insufficient so far as aforesaid Rajendra Ojha is concerned and accordingly, he was acquitted of the charge. Aggrieved by the aforesaid judgment and order of conviction recorded by the learned Trial Court (Judicial Magistrate, 1st Class, Buxar), petitioner herein preferred the aforesaid appeal which was considered and dismissed. Learned Appellate Court rescanned the evidence available on record and has come to the conclusion that P.W. 1 (informant) has consistently supported the prosecution case. It has also been found that P.Ws 2 and 3 have also supported the prosecution case and the informant on material aspects giving credence to the testimony of the informant. While dealing with the submission of the appellant-petitioner this is what the learned appellate court has observed: “…….I find not helpful to the appellant because there is no question of two views arising on consideration of materials available on the record because after robbery of motorcycle information was lodged and investigation started, recovery of motorcycle has been made and nothing has come in cross-examination to doubt the credibility of the testimony of the prosecution and nothing has been shown to the court to discard the evidence of prosecution and identity of the appellant has also been established. So there is consistency in the evidence and nothing material contradiction has been shown and apart from that the court has not come to the conclusion on the basis of even suspicion much less on a strong suspicion rather by the evidence of prosecution case has been substantiated. So I find nothing discrepancy and evidence is not worthy to discard the credence and therefore the appellant does not get help as the fact of the present case is not only different but also trust worthy to rely on the same and accordingly I 3 find no force in the contention of the learned counsel for the appellant as contended before this Court and hence I find that the charge has also been proved by the prosecution.” It is next submitted that the petitioner has been found to be of middle age by the learned trial court. With reference to the judgment of the learned trial court, it is submitted that the petitioner was not found to have been proceeded against and convicted on any previous occasion in any criminal case. Learned counsel further highlights that he was made to undergo the ordeal of trial and thereafter the appeal for nearly three years. It is thus submitted that a lenient view so far as imposition of sentence should be taken by this court. This court, on a consideration of the two judgments rendered by the learned courts below, is of the view that they do not suffer from any patent illegality and/or perversity. The conclusions arrived at by them cannot, therefore, be interfered with. So far as the last submission of the learned counsel for the petitioner is concerned, this court finds some force. Imposition of sentence, once the guilt is proved, is a sensitive exercise. All relevant factors have to be kept in mind. Petitioner was found aged about 38 years at the time of recording conviction. It appears from the record that he was engaged in a profession and was, therefore, providing livelihood to the family. In my view, the petitioner has made out a case for consideration so far as imposition of lesser sentence is concerned. In that view of the matter, this court is satisfied that a sentence of R.I. for two (02) 4 years shall sub-serve the cause of justice. Accordingly the sentence so awarded by the learned trial court under Section 392 is reduced to 02 years R.I. With this modification in sentence only, this application is dismissed. pkj ( Kishore K. Mandal, J. )