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2011 DIGILAW 397 (RAJ)

Bhanwaria v. State of Rajasthan

2011-02-22

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - This revision petition is directed against the judgment dated 04.08.1994 passed by the learned Sessions Judge, Balotra in criminal appeal No.04/1992 whereby the learned appellate Judge dismissed the appeal filed by the petitioner and affirmed the judgment and order dated 24.01.1992 as passed by the learned Addl.Chief Judicial Magistrate, Balotra in Criminal Case No.515/1985, convicting the accused petitioner for offence under section 326 and 324 IPC and sentencing him for offence under section 326 IPC to a period of two years' rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo six months' rigorous imprisonment and for offence under section 324 IPC to six months' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. The accused petitioner along with co-accused persons namely, Phusa Ram and Moola, was charge sheeted by the Station House Officer, Police Station, Balotra for offences punishable under section 307, 326, 324 and 323 IPC. Initially the offence punishable under section 307 IPC, being exclusively triable by the court of Sessions, the case was committed for trial to the learned Sessions Judge, Balotra by the committing court. The learned Sessions Judge Balotra discharged the petitioner from the offence punishable under section 307 IPC and the case was sent back under the provisions of section 228 Cr.P.C. for trial to the learned Addl. Chief Judicial Magistrate, Balotra. 3. The learned Addl. Chief Judicial Magistrate, Balotra proceeded with the trial and recorded the statement of as many as 15 prosecution witnesses. The petitioner and the co-accused got one defence witness examined in their defence. In the statement recorded under section 313 Cr.P.C. the petitioner categorically denied the allegation levelled against him and stated that it was the complainant party who inflicted various injuries on his person and on the body of other co-accused and he simply acted in the right of his private defence. 4. The learned Addl.Chief Judicial Magistrate found charges under section 326 and 324 IPC proved against the petitioner and convicted the accused petitioner as indicated above. 5. Against the judgment of conviction and sentence dated 24.01.1992 recorded by the learned Addl. 4. The learned Addl.Chief Judicial Magistrate found charges under section 326 and 324 IPC proved against the petitioner and convicted the accused petitioner as indicated above. 5. Against the judgment of conviction and sentence dated 24.01.1992 recorded by the learned Addl. Chief Judicial Magistrate, Balotra the petitioner preferred appeal before the learned Sessions Judge, Balotra and the appeal was dismissed by the learned Sessions Judge, vide the impugned order dated 04.08.1994 and being aggrieved by the this order, the petitioner Bhanwaria has preferred this revision petition. 6. Assailing the judgment and order aforesaid, the learned counsel for the accused petitioner has strenuously contended that the findings as recorded by the learned trial court, as well as endorsed by the learned appellate court, cannot be sustained because the prosecution could not prove the charges against the accused beyond all reasonable doubts. 7. The occurrence is alleged to be of 04.03.1984, in which the accused petitioner also sustained injuries. The learned counsel for the petitioner contended that the prosecution has suppressed the genesis of the origin of the occurrence and has not presented the true version of the matter. There is an omission on the part of the prosecution to explain the injuries sustained by the petitioner and there are contradictions on material points because the prosecution witnesses have made an attempt to shield their act against what they have done with the petitioner .The learned counsel further contended that at the time of occurrence, the accused petitioner was of 20 years of age and he has not been previously convicted and the learned courts below have gravely erred in not extending the benefit of Probation of Offenders Act 1958 to the petitioner. 8. The counsel for the petitioner further contended that the incident took place on 04.03.1984 and the trial court convicted the accused petitioner vide order dated 24.01.1992 and the appellate court affirmed the order of conviction vide order dated 04.08.1994, therefore he has prayed for punishing the accused petitioner to the imprisonment already undergone, which is about two and a half months. In this context the learned counsel for the petitioner drew my attention towards the judgment of this Court in Samarth Lal v. State of Rajasthan, 2010(2) Cr.L.R. (Raj.) 1692 . 9. The learned Public Prosecutor has seriously opposed the contention raised by the counsel for the petitioner. 10. In this context the learned counsel for the petitioner drew my attention towards the judgment of this Court in Samarth Lal v. State of Rajasthan, 2010(2) Cr.L.R. (Raj.) 1692 . 9. The learned Public Prosecutor has seriously opposed the contention raised by the counsel for the petitioner. 10. I have perused the judgment of the trial court as well as the learned appellate court. So far as the evidence available against the accused petitioner is concerned, the learned trial court while relying upon the complainant and eye witnesses, rightly convicted the accused petitioner under section 326 and 324 IPC. Therefore, the judgment of conviction passed by the learned trial court against the accused petitioner and affirmed by the learned appellate court is maintained. 11. So far as the sentenced is concerned, in the facts and circumstances of the case, I am inclined to take a lenient view in the matter and this court is of the opinion that no useful purpose could be served with further imprisonment of the petitioner at this length of time and the interest of justice shall be served if the total sentence for imprisonment for the offence aforesaid is reduced to that of the period of imprisonment already undergone, with imposing of fine as imposed by the learned trial court and further affirmed by the learned appellate court. 12. Accordingly, this revision petition is partly allowed to the extend indicated above. While the conviction of the petitioner for the offence under section 326 and 324 is maintained and the sentence awarded to him is modified in the manner that he is awarded the sentence of imprisonment in total of the sentence already served but the sentence of fine as imposed by the learned trial court and the sentence in default of payment of fine is maintained. 13. The petitioner shall make payment of the amount of fine within three months from the date of the judgment, failing which the trial court shall take appropriate steps in accordance with law.Revision petition partly allowed. *******