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2008 DIGILAW 1263 (RAJ)

Kailash v. State of Rajasthan

2008-05-07

MAHESH CHANDRA SHARMA

body2008
JUDGMENT 1. - This appeal is arising out of the judgment dated 08th passed by the Additional Sessions Judge, Kishangarh Bas, in # No. 23/85 by which he has convicted and sentenced the ` Section 435 I.RC. to one year rigorous imprisonment and fine of Rs. 2000/-. in default of the payment of fine further R.l. for 6 months. 2. The brief facts of the case are that on 17.12.1984 at about 4.00 P.M. a type copy of First Information Report (Ex.P-1) was lodged by complainant Durga Ram (PW-2) and Gopi Chandra (PW-1) in Police Station, Tijara with this fact that on 17.12.1984 in the morning at about 10-11 A.M., when they came in Kishangarhbas from their Village Sahabad then in their absence accused-respondent Kailash fired their residential Chappar. In the Chappar of Gopi (PW-1) there were five sets of beds, five coats, Bajara and Rs. 200/- cash, leather and one child-goat, all were fired. In the Chappar of Durga Ram (PW-2) there were five sets of beds, coats, four hen, Bajara and Rs. 130/- cash were also fired. 3. Lakh Ram (PW. 5) and Kanwar Singh (P.W.-4) had seen the accused-respondent fired their residential Chappar. They informed by Data Ram (P.W. 3) that accused-respondent fired their residential chappar.Upon the said report, the police registered the case under Section 436 I.RC. After investigation the police filed a challan before the Magistrate concerned and the Magistrate concerned has committed the case to the Court of Additional Sessions Judge, Kishangarh Bas, Alwar.The learned Additional Sessions Judge, Kishangarh Bas, Alwar has framed the charge for the offence under Section 436 I.RC. and same was read over and explained to the accused-respondent who denied for the same and demanded for trial.The prosecution in support of his case examined as many as 7 witnesses and got exhibited certain documents.The statement of accused appellant was recorded under Section 313 Cr.RC. 4. The learned trial court after hearing both the parties vide the impugned judgment dated 08th of May 1986 convicted the accused appellant for the offence under Section 435 I.RC. instead of Section 436 I.RC. and sentenced him one year R.l. and a fine of Rs. 2000/-, in default of the payment of fine further R.1. for 6 months.Aggrieved by the impugned judgment of conviction and sentence dated 8th of May, 1986 passed by the learned trial Court, the accused appellant has preferred his appeal. 5. instead of Section 436 I.RC. and sentenced him one year R.l. and a fine of Rs. 2000/-, in default of the payment of fine further R.1. for 6 months.Aggrieved by the impugned judgment of conviction and sentence dated 8th of May, 1986 passed by the learned trial Court, the accused appellant has preferred his appeal. 5. During the course of arguments, learned counsel Mr. S.S. Sunda who is appearing on behalf of the accused appellant has stated that he is not challenging the conviction. But, his only prayer to release the accused appellant on probation or on the confinement which the accused appellant has already remained in judicial lock up for a period of 4 days. 6. He has also drawn the attention of this Court that accused appellant is trial from the last 24 years which is tentamount to a punishment. He has contended that the time of occurrence the age of the accused 'ant was 27 years and now he is more than 50 years, he has eligible children.The learned counsel for the accused appellant in support of his 10 it, relied upon a judgment delivered by the Apex Court in 1986 Court to Naib Singh v. State of Punjab which reads as under: "Accordingly, the appeal fails and is dismissed. The judgment of the High Court convicting the appellant under Section 326 of the Indian Penal Code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5000 or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation." 7. 5000 or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation." 7. The learned counsel for the accused appellant has stated that his case should also be decided in the light of the aforesaid judgment.The learned Public Prosecutor and counsel for the complainant has controverted the arguments advanced by the learned counsel for the accused appellant. 8. In my view, the aforesaid submissions of the learned counsel for the accused appellant appears to be reasonable.Consequently, the appeal of the accused appellant is partly allowed. Looking to the fact that the appellant has already undergone confinement for a period which is indicated hereinabove, the ends of justice would be met in sentencing him to the period already undergone by him in the confinement and he is directed to deposit Rs. 2000/- as a fine in the trial court and same should be given to the complainant Durga Ram and Gopi Chandra of this case equally within a period of three months from today. 9. The order of the trial court is modified as indicated herein above and appeal is partly allowed. *******