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2010 DIGILAW 1148 (MP)

Vinod Kumar Dubey v. State of M. P.

2010-11-18

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. The Appellant No. 2 has preferred this appeal against the judgment dated 27.8.1996, passed by learned Additional Sessions Judge, Umaria, District Shahdol in S.T. No. 141/1993, by which he was convicted for offence punishable under Section 411 of I.P.C. and inflicted with the sentence of rigorous imprisonment for three years with fine of Rs. 5000/-; The Appellant No. 2 was to undergo for a further period of one year rigorous imprisonment in default of payment of fine. 2. It is admitted that due to death of Appellant No. 1 Vinod Kumar Dubey, appeal filed by Appellant No. 1 is dismissed being abated. 3. The prosecution story in short is that, in the midnight of 19th-20th March, 1993 the Appellants went inside the house of one Sonia Bai to commit robbery. It was know to everyone that Sonia Bai was in habit of wearing silver and golden ornaments in bulk. After entering in the house they committed murder of Sonia Bai by throttling and took various ornaments from her house and person and left away. In the morning of 20.3.1993 the neighbors found Sonia Bai to be dead and therefore, they intimated various relatives of the deceased including her daughter Meena Bai P.W.5. In investigation Police found that the Appellants had sold some ornaments to one Ganesh Prasad Soni and some ornaments were seized from Appellant No. 1 Vinod Kumar Dubey. One silver 'dorra' (Kardhani) was seized from the Appellant No. 2. Meena Bai, daughter of the deceased, identified the ornaments seized before Parshad Mehndi Hasan in Higher Secondary School on 4.8.1993. After due investigation Police had submitted a charge sheet before the committal Court against the Appellants for offence punishable under Section 460 of I.P.C. 4. The Appellant No. 2 abjured his guilt. He did not take any specific defence but, he has alleged that he was falsely implicated by the Police. However, he did not adduce any evidence from his side. 5. On considering the evidence adduced by the prosecution, learned Additional Sessions Judge, Jabalpur acquitted the Appellants from the charges of offence under Section 460 of I.P.C but, convicted the Appellants for offence punishable under Section 411 of I.P.C and inflicted the aforesaid sentence. 6. I have heard the learned Counsel for the parties. 7. 5. On considering the evidence adduced by the prosecution, learned Additional Sessions Judge, Jabalpur acquitted the Appellants from the charges of offence under Section 460 of I.P.C but, convicted the Appellants for offence punishable under Section 411 of I.P.C and inflicted the aforesaid sentence. 6. I have heard the learned Counsel for the parties. 7. Learned Counsel for the Appellants has submitted that the Appellant No. 2 does not challenge the conviction directed against him but, he prays that he remained in custody for five months and 12 days and therefore, he may not be sent further to the jail. 8. Learned Additional Sessions Judge inflicted rigorous imprisonment for three years on the Appellant No. 2, though he found that the Appellant was not involved in the murder of Sonia Bai and he simply received one Kardhani, then the sentence inflicted by the trial Court seems to be harsh. It appears that the trial Court gave the maximum sentence of that offence to the Appellant No. 2 though he was nowhere connected with the murder of Sonia Bai. 9. As per charge sheet the age of the Appellant No. 2 was 21 years at the time of incident. It is also clear that no criminal past of the Appellant No. 2 was shown to the trial Court. Looking to his age it was not mandatory to give an advantage of Probation of Offenders Act. There is no ground by which he may be enlarged on probation but, looking to his age whereas he does not have any criminal past and also only one silver ornament was found with the Appellant No. 2, it would be proper that he may not be sent to the jail again. In this context judgment of Hon'ble the Apex Court in the case Ramkalyan v. State of Rajasthan AIR 2000 SC 3157 may be referred in which Hon'ble the Apex Court has observed that the incident took place almost 19 years back and at the time accused was 28 years old. He had already suffered imprisonment for a period of about nine months and therefore, it was directed that he may not be sent again to the jail and his sentence was reduced to the period already undergone by him. 10. In the present case, incident took place 12 years ago and Appellant was of 21 years of age at time of incidence. 10. In the present case, incident took place 12 years ago and Appellant was of 21 years of age at time of incidence. Out of so many ornaments only one silver ornament was found with the Appellant and therefore, in the light of aforesaid judgment of Hon'ble the Apext Court, it appears that when the Appellant has undergone the imprisonment of five months and 12 days then he may not be sent to jail again. 11. On the basis of the aforesaid discussion, the appeal of the Appellant No. 2 can be partly accepted. Therefore, appeal of the Appellant No. 2 is hereby partly allowed. Conviction of the Appellant for offence punishable under Section of I.P.C. is hereby maintained but, jail sentence imposed on the Appellant is hereby reduced to the period which he has already undergone in custody but, there is no change in the fine amount. The Appellant is directed to deposit the fine amount before the trial Court within two months from today if he has not deposited the fine in past. If the Appellant does not deposit the fine amount within the stipulated period then trial Court is free to take him into custody and to execute the default sentence. 12. At present the Appellant No. 2 is on bail and therefore, his bail bonds will stand discharged.