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2008 DIGILAW 2117 (RAJ)

Raj Kumar v. State of Rajasthan

2008-09-09

MAHESH CHANDRA SHARMA

body2008
Judgment Hon'ble SHARMA, J.—Since both these revision petitioners are arising out of the common judgment and order dated 20.4.2006 passed by the Additional District & Sessions Judge (Fast Track), Behror (Alwar) hence, they are disposed of by a common judgment. (2). These two revision petitions have been filed by the accused-petitioners under Section 397 readwith Section 401 Cr.P.C. against the judgment dated 20.4.2006 passed by Additional District & Sessions Judge (Fast Track), Behror (Alwar) in Criminal Appeal No. 40/2005 (4/1998) by which he dismissed the appeal filed by the petitioners and upheld the judgment and order dated 29.1.1998 passed by the learned Civil Judge (Sr. Division) and Additional Chief Judicial Magistrate, Behror District Alwar in Criminal Case No. 229/1997 by which he has convicted and sentenced the accused petitioners for offence under Section 394 IPC to 7 years R.I. Each with fine of Rs. 1000/- each and in default of payment of fine 6 months additional R.I. Each. (3). The brief facts of the present case are that on 20.3.1997 complainant Devendra Singh lodged a written report at Police Station Mandhan in which it is alleged on 19th of March 1997 his white colour Maruti Car bearing No. HR-026 was hired by 3 persons who were about 25-30 years of age. They told that their well is situated in Dhani Khundroth, from where they are to go to Basai Village near Sehlang District Mahendragarh. He started at 6-7 from Ateli to Dhani Khundroth and when they reached near the Dhani then the said persons asked him to stop the care and he stopped the car. On this two persons went in the Dhani and he remained sitting in the car. After sometime they came back. Thereafter they again started and on reaching at some distance they again got stopped the car on the pretext of call of nature. Then they started dragging him from the car on the point of knife and gave beatng. Thereafter he was thrown in the mustard crop field after tying his hands and feet and these persons decamped with the car. Anyhow he freed himself and went to the dhani. He received the injury and was blood stained. Thereafter he came to Village Ganiyara and from where after taking a Tata vehicle went to Ateli Police Station where he narrated the incident. (4). Anyhow he freed himself and went to the dhani. He received the injury and was blood stained. Thereafter he came to Village Ganiyara and from where after taking a Tata vehicle went to Ateli Police Station where he narrated the incident. (4). On this the police registered a first information report No. 33/1997 for offence under Section 394 IPC and investigation commenced. (5). After investigation the police has filed the challan for offence under Section 394 IPC against the accused petitioners and a one Kuldeep before the learned trial Court. (6). The learned trial Court framed the charge for the offence under Section 394 IPC. (7). The same was read over and explained to the accused-petitioners who denied the same and claimed trial. (8). The prosecution produced as many as 12 witnesses alongwith certain documents in support of its case. (9). Thereafter the statement of the accused-petitioners under Section 313 Cr.P.C. was recorded. (10). After hearing both the parties the learned trial Court (learned Civil Judge (Sr. Division) and Additional Chief Judicial Magistrate, Behror District Alwar vide his judgment and order dated 29.1.1998 convicted and sentenced the accused petitioners as indicated above. (11). Thereafter the petitioners have preferred the appeal before the learned appellate Court who vide his judgment and order dated 20.4.2006 dismissed the appeal and upheld the judgment and order passed by the learned trial Court. (12). Aggrieved against the judgment of the learned court below the accused-petitioners have preferred this revisions petition. (13). During the course of arguments, the learned counsel for the petitioners Mr. Harendra Singh and Mr. Deepak Kumar Soni appearing on behalf accused petitioners made a request to this Court that they are not challenging the conviction part of the judgment passed by the learned appellate Court but they are only requested that their sentence should be reduced for the period already undergone by them in confinement. (14). The learned counsel further submits that incident took place on 20.3.1997 which is 11 years ago from today approximately and the accused-petitioners are facing the trial from last 11 years which is tentamounts to punishment and mental agony. (15). The learned counsel further draw the attention of this Court that all the accused-petitioners are remained in judicial lock up from the last 3 years and 3 months and the accused-petitioners are not hardened criminals. (16). (15). The learned counsel further draw the attention of this Court that all the accused-petitioners are remained in judicial lock up from the last 3 years and 3 months and the accused-petitioners are not hardened criminals. (16). The learned counsel further requested to the Court that their case is wholly based upon the judgment delivered by Hon'ble the Apex Court reported in AIR 1536 SC titled as Sunil vs. State of Haryana in which the Hon'ble Apex Court reduced the sentence awarded to the petitioner from 7 years to 4 years. Hence, in view of the judgment of the Hon'ble Apex Court the sentence of the accused-petitioners is also reduced from 7 years to 4 years. The relevant part of the judgment runs as under:- "Penal Code (45 of 1860), S. 394- Offence under - Evidence of prosecution witnesses- Evidentiary value- Not detracted by the accused not participating in identification parade when ample opportunity existed for witnesses who witnessed the occurrence to identify assailants- Non-existence of any other ground to doubt evidence- Evidence corroborated by recovery of pistol and firearm from accused-Conviction maintained- However in view of extenuating circumstances, sentenced reduced to 4 years R.I." (17). On the other hand. The learned Public Prosecutor has controverted the arguments advanced by the learned counsel for the petitioners. (18). I have heard learned counsel for the parties and also perused the material available on record. (19). In the light of the judgment of Hon'ble Apex Court (supra), now I maintained the conviction of the accused-petitioners awarded by the appellate Court. But, coming to the point of sentence, the learned appellate Court himself has noted that at the time of occurrence the age of the accused petitioner namely Rajkumar is 22 years, Sanjay is 21 years and Kuldeep is 21 years and the circumstances also show that several persons alongwith them participated in the occurrence. (20). In view of the aforesaid circumstances I maintain the order of conviction passed by the court below but looking to the facts and circumstances of the case, I reduced the sentence from 7 (seven) years to 4 (four) years rigorous imprisonment awarded by the court below. (21). Further, I impose a fine of Rs. 5000/- (Five thousand only) upon each of the accused-petitioners which comes a total Rs. 15,000/- (fifteen thousand only) and Rs. 15,000/- shall be deposited in the Court of Civil Judge (Sr. (21). Further, I impose a fine of Rs. 5000/- (Five thousand only) upon each of the accused-petitioners which comes a total Rs. 15,000/- (fifteen thousand only) and Rs. 15,000/- shall be deposited in the Court of Civil Judge (Sr. Division) & Additional Chief Judicial Magistrate, Behror, District:- Alwar (Rajasthan). In default of fine, they shall further undergo six months rigorous imprisonment. The amount of fine shall be deposited by the accused-petitioners before releasing from custody. The amount, if recovered, shall be paid to the complainant (Devendra Singh) of this case by way of compensation. (22). The judgment and order dated 20.4.2006 passed by the Additional District & Sessions Judge (Fast Track), Behror (Alwar) and judgment and order dated 29.1.1998 passed by the learned Civil Judge (Sr. Division) and Additional Chief Judicial Magistrate, Behror District Alwar is modified to the extent as indicated above. (23). These revision petitions are partly allowed and disposed of accordingly.