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2009 DIGILAW 1001 (RAJ)

Birdhi v. State of Rajasthan

2009-04-10

MAHESH BHAGWATI

body2009
Judgment Hon'ble BHAGWATI, J.—Challenge in this appeal is to the judgment dated 29.9.1086 rendered by District Sessions Judge, Jhalawar, whereby he convicted the accused appellants Birdhi, Kana, Nanda, Kalu, Dhanna, Babulal, Ram Gopal, Kallu, Prem Narain, Panchu Lal, Nathulal, Jagannath, Bhura and Bheron lal in the offences under Sections 147, 326, 325, 324 and 323 read with Section 149 of IPC and sentenced as under: u/S. 147 of IPC: One year Rigorous Imprisonment to each of the accused-appellants. u/S. 326 IPC read with Section 149: Three years Rigorous Imprisonment to each of the accused-appellants and a fine of Rs. 50/- to each of them; and in default of payment of fine each to further undergo one month's rigorous imprisonment. u/S. 325 read with Section 149 of IPC: Two years Rigorous Imprisonment to each of the accused-appellants. u/S. 324 read with Section 149 of IPC: Six months Rigorous Imprisonment to each of the accused-appellants. u/S. 323 read with Section 149 of IPC: Six months Rigorous Imprisonment to each of the accused appellants. All the sentences were ordered to run concurrently. 2. The appellants were indicted for the offences under Sections 147, 307 and 323 of IPC. They are alleged to have constituted an unlawful assembly on 9.2.1982 at A.M. in village Gaadiya Jaymal to give a beating to Bajrang Lal, Ramchandra, Jagannath, Bhuli Bai and others. It is further alleged that appellants assaulted upon Bajrang and Ramchandra with gandasi and clubs and caused grievous injuries to them and simple injuries to Jagannath and Bhuli Bai. The police lodged First Information Report Ex. P/1 on the complaint of Nand Kishore and commenced investigation. 3. During investigation, the police prepared site plan Ex. P/3, recorded the statements of the witnesses acquainted with the facts and circumstances of the case u/S. 161 of Cr.P.C., got the injured persons Bajrang, Jagannath, Ramchandra, Bhuli Bai, Dev lal medically examined and after usual investigation, the Station House Officer, police station Akhlera, District Jhalawar submitted the charge-sheet against them in the court of Magistrate having jurisdiction, who later on sent them for trial to Sessions Judge, Jhalawar. 4. Heard the submissions advanced by the learned counsel for the accused-appellants, learned Public Prosecutor appearing for the State and scanned the relevant material on record. 5. The learned counsel for the accused-appellants has not assailed nor questioned the conviction of the accused-appellants. 4. Heard the submissions advanced by the learned counsel for the accused-appellants, learned Public Prosecutor appearing for the State and scanned the relevant material on record. 5. The learned counsel for the accused-appellants has not assailed nor questioned the conviction of the accused-appellants. He has focused his submissions merely on the quantum of sentence. The learned Counsel Shri Biri Singh has further submitted that the appellants Nanda and Dhanna have remained in confinement for about 2 months and 8 days, the appellants Jagannath, Prem Narain and Nathulal for about 5 months and rest of the appellants have remained in custody for about 23 days. Learned counsel has further submitted that the occurrence of this case took place way back on 9.2.1982. They have already suffered the trauma of criminal proceedings for about 27 years. Hence, they may be sentenced to a period of imprisonment already undergone in confinement. In support of his arguments, he has cited one Judgment titled Naib Singh vs. State of Punjab reported in Cr.L.R. (SC) 1986 468. 6. The learned Public Prosecutor appearing for the State has fairly conceded to the submissions made by the learned counsel for the appellants and urged that if the conviction of the appellants is maintained they may be sentenced to a period already undergone during trial. 7. A birds eye view of the judgment of Naib Singh vs. State of Punjab, reveals that the accused appellant was a teacher in a Government School. The occurrence in this case took place 13 years back. Hence, Hon'ble Supreme Court did not think it proper to send the appellant back to jail and he was awarded the imprisonment only till rising of the Court together with a fine of Rs. 5,000/-. 8. In the case of Ved Prakash vs. State of Harayan ( AIR 1981 SC 643 ) the Hon'ble Apex Court has held that "sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. Even if Section 360 of Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant." 9. Even if Section 360 of Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant." 9. Now adverting to the submissions made by the learned counsel for the appellants with regard to quantum of sentence, it is found that the occurrence of this case took place way back on 9.2.1982. All the appellants have been suffering a trauma of criminal proceedings for the last 27 years. It is also noticed that the appellants were ranging in between the age of 30-60 years at the stage of trial. Undeniably and undisputedly the appellants by now must have turned gray. Their antecedents are found to unblemished and no previous conviction is found to have been proved against them. Nor they are found to have been involved in any other criminal case thereafter. Hence, if the appellants are sentenced to a period already undergone during the period of trial, I feel that the ends of justice shall be meted out as after 27 years neither it is found just nor proper to send the appellants back to jail to suffer the sentences. 10. Hence, keeping in view all the factors and the principle of awarding sentence as propounded by the Hon'ble Supreme Court, I feel inclined to take a lenient view with regard to quantum of sentence and I am of the opinion that the ends of justice would be meted out if the appellants are sentenced to a period already undergone in confinement. 11. For these reasons, criminal appeal filed by the appellants is partly allowed. Their conviction under Sections 147, 326, 325, 324 and 323 read with Section 149 of IPC is maintained but their sentence of imprisonment awarded to them by the learned trial Court is reduced to a period already undergone in confinement. Their conviction vide impugned order dated 29.8.1986 is maintained. The appellants are on bail. They need not surrender. Their bail bonds stand discharged.