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2009 DIGILAW 1247 (RAJ)

Gopal v. State of Rajasthan

2009-05-06

MAHESH CHANDRA SHARMA

body2009
JUDGMENT 1. - By filing instant criminal appeal under section 374 Cr.P.C., the accused appellants have challenged the judgment of conviction and sentence dated 5.4.2005 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Jhalawar (for short 'the trial Court') passed in Sessions Case No. 36/1999, whereby he convicted and sentenced the accused appellants as under : U/s. 307 IPC: Seven years RI and a fine of Rs. 2,000/-. In default of payment of fine, four months SI. 2. Brief facts of the care that on 28.10.1998 at about 7.30 PM, a report was lodged by Bajranglal, in which it was stated that at about 4.30 PM, when he was working in the field, Kalyan Meena came forwards his field. The field of Gopal Gadri is situated on other side and a stone boundary has been built. Gopal Gadri and Govinda armed with a gandasi, Radhey Shyam and Dhanna armed with a kulhari, Bhanwarlal and Pratap armed with a lakdi and Dhanna armed with a kulhari, all came from the side of stone boundary, stopped Kalyan and started giving beating to him. When informant raised alarm, Lal Chand and Kalyan s/o Narain running and on seeing them the accused persons ran away towards the village. Kalyan sustained injuries on the head, legs and hands. 3. On the basis of the above report, the police registered an FIR No. 315/1998 for the offence under sections 147, 148, 149, 323, 307, 341 IPC and section 3/7 of the SC/ST Act. 4. After investigation the police submitted charge-sheet in the court concerned against the accused-appellants. 5. The trial Court after hearing framed charges against the accused appellants for the offence under sections 147, 148, 307/149 IPC and section 3(2)(5) SC/ST Act, who denied the charges, pleaded not guilty and claimed to be tried in the matter. 6. The prosecution in support of its case produced as many as 10 witnesses and certain documents were got exhibited. 7. Thereafter, the statement of the accused appellant under section 313 Cr.P.C. was recorded. In defence the accused appellants produced one witness and certain documents were got exhibited. 8. The trial Court after hearing both the parties, acquitted other accused persons for all the offences but convicted and sentenced the present accused appellants for the afore-mentioned offence vide judgment dated 5.4.2005. 9. In defence the accused appellants produced one witness and certain documents were got exhibited. 8. The trial Court after hearing both the parties, acquitted other accused persons for all the offences but convicted and sentenced the present accused appellants for the afore-mentioned offence vide judgment dated 5.4.2005. 9. The accused-appellants being aggrieved with the impugned judgment of conviction and sentence dated 5.4.2005 have preferred instant criminal appeal before this Court. 10. Without going into merits of the case Mr. Sanjay Mehrishi, counsel for the accused appellants submits that he is not challenging the conviction part of the judgment of the trial Court of accused appellant No. 1 Gopal but his simple prayer is that he be released for the period already undergone by him, as he has remained in judicial lock up for more than 4 years and if not then he be given the benefit of remission as per the provisions of law looking to his antecedents in jail and his future prospects. 11. So far as accused appellant No. 2 Radhey Shyam is concerned, he is challenging the conviction part of the judgment of the trial Court. According to him, accused-appellant No. 2 Radhey Shyam inflicted injuries on the persons of injured persons by blunt weapon on parietal bone. According to him both the injuries were not sufficient to cause death of injured person in the ordinary course of nature and the case of the accused appellant No. 2 Radhey Shyam does not travel beyond section 326 IPC. Thus, the conviction of accused appellant No. 2 Radhey Shyam be converted from section 307 IPC to 326 IPC, as he has remained in judicial lock for 119 days. Thus, he be released for the period already undergone by him. 12. Learned counsel for the accused appellants in support of his argument has relied upon a judgment delivered by the Apex Court in Naib Singh v. State of Punjab, reported in 1986 Cr.L.J. 2061. The relevant portion of the said judgment reads as under : "Accordingly, the appeal fails and is dismissed. The judgment of the High Court after 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 judgment of the High Court after 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. 5,000/- or in default, to undergo rigorous imprisonment for a period of six months. The amount of fir,a 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. Appeal dismissed." 13. Mr. Sanjay Mehrishi, has lastly urged to this Court that a lenient view be taken in the light of the judgment cited herein above. 14. Mr. Pradeep Shreemal, Public Prosecutor for the State controverted the afore-mentioned submissions and submits that the trial Court has passed the impugned judgment of conviction and sentence after considering all the material made available to it. Thus, impugned judgment of the trial Court is just and proper and needs no interference of this Court. 15. I have heard the learned counsel for the parties, gone through the entire record of case and judgment of the trial Court. Looking to the facts and circumstances of the case, as also the record of the case made available to me it is not a fit case where the accused appellant No. 1 Gopal can be released for the period already undergone by him but but looking to the facts and circumstances of the case as also material available on record as also in the interest of justice, the sentence of the accused appellant No. 1 Gopal can be reduced from 7 years to 5 (five) years. So far as the benefit of remission to the accused appellant is concerned, the State Government can consider the same keeping in view his antecedents in jail and looking to his future prospects. 16. So far as accused appellant No. 2 Radhey Shyam is concerned, from the statements of the prosecution statements as also statement of the doctor it is clear that the case of accused appellant No. 2 Radhey Shyam does not travel beyond section 326 IPC. 17. In the result this criminal appeal is partly allowed and I maintain the conviction of accused appellant No. 1 Gopal under section 307 IPC but I do not think proper that it is a case where the accused appellant No. 1 Gopal can be released for the period already undergone by him but looking to the facts and circumstances of the case also in the interest of justice, the sentence of the accused appellant No. 1 Gopal is reduced from 7 year to 5 (five) years. 18. The State Government/Jail Authorities are directed to give the accused appellant No. 1 Gopal benefit of remission in accordance with law, looking to his antecedents in jail and his future prospects. 19. In the light of the judgment rendered in the case of Naib Singh (supra) and looking to the facts and circumstances of the case I am inclined to take a lenient view in the matter and I do not think it desirable to send, the accused appellant No. 2 Radhey Shyam back to jail. 20. So far as appeal filed on behalf of accused appellant No. 2 Radhey Shyam is concerned, looking to the facts and circumstances of the case and the fact that he (accused appellant No. 2 Radhey Shyam) has remained in judicial lock up for 119 days, the ends of justice would be met in sentencing him for the period already undergone by him in confinement, as his case does not travel beyond section 326 IPC. Thus, the accused appellant No. 2 Radhey Shyam is convicted for the offence under Section 326 IPC instead of section 307 IPC. 21. The accused appellant No. 2 Radhey Shyam has remained in judicial lock up for a period of 119 days. He is on bail, his bail bonds shall stand cancelled. The accused appellant No. 2 Radhey Shyam need not to surrender before the trial Court. 22. 21. The accused appellant No. 2 Radhey Shyam has remained in judicial lock up for a period of 119 days. He is on bail, his bail bonds shall stand cancelled. The accused appellant No. 2 Radhey Shyam need not to surrender before the trial Court. 22. Rest part of the judgment of the trial Court is maintained. 23. The judgment of the trial court is modified to the extent as indicated above.Appeal Partly Allowed. *******