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2013 DIGILAW 1246 (RAJ)

Om Prakash v. State of Rajasthan

2013-07-11

MAHESH CHANDRA SHARMA

body2013
JUDGMENT 1. - This appeal has been filed by the appellant against the judgment dated 28.6.1989 passed by Additional Sessions Judge, Baran in Criminal Case No. 33/1987, whereby the learned trial Court convicted the accused appellant for the offence under Section 326 I.P.C. and sentenced to undergo 4 years' R.I. with fine of Rs. 200/-; in default of payment of fine, to further undergo 1 month's simple imprisonment. 2. Brief facts of the case are as under : "On the basis of Parcha Bayan of injured Satvender Singh Sikh, on 23.12.1986 an F.I.R. No. 69/1988 was registered at Police Station, Bhanwargarh against the accused appellant for the offence under Section 307 I.P.C. After investigation, the police submitted a challan against the accused appellant before the Court concerned for the offence under Section 307 I.P.C., who committed the case for trial before the trial Court. The trial Court framed charges against the accused appellant for the offence under Section 307 I.P.C., who denied for the same and claimed for trial. Thereafter the prosecution has submitted the witnesses and produced some documents. The statement of accused appellant was recorded under Section 313 Cr.P.C. After hearing both the sides, the learned trial Court has convicted the accused appellant for the offence under Section 326 I.P.C.. instead of Section 307 I.P.C., vide judgment dated 28.6.1989, as indicated above." 3. Against the said judgment dated 28.6.1989, this appeal has been preferred by the accused appellant. 4. Learned counsel for the appellant has contended that he is not challenging the conviction part of the judgment of the Court below, but he is only requesting to this Court that looking to the fact that matter is related to 27 years' ago from today; the appellant is not the habitual offender; he is in old age and having the children; he belongs: to a respectable family; it is the first offence of his life and accused appellant has remained in confinement for about 21 days, hence, either he should be given the benefit of probation and if not, then he should be released for the period already undergone by him in confinement, as indicated here-in-above. 5. In support of his contentions, he has placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Guhib Das & Ors. v. State of Madhya Pradesh, (2011) 10 SCC 765 . 5. In support of his contentions, he has placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Guhib Das & Ors. v. State of Madhya Pradesh, (2011) 10 SCC 765 . He has further placed reliance on the judgment rendered in the case of Rajendra Harakchand Bhandari & Ors. v. State of Maharashtra & Anr., AIR 2011 SC 1821 . The appeal Court in Rajendra Harakchand Bhandari (supra) in para 16 observed as under: "16. We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and therefore, compounding of the offence in the present case is out of question. However, the circumstances pointed out by the learned senior counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on 17.5.1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants' surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two and a half years. Having regard to these circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine." 6. He has further showed me a judgment of Hon'ble Apex Court rendered in the case of Naib Singh v. State of Punjab reported in 1986 Cri.L.J. 2061 , wherein their Lordships observed as under: "Accordingly, the appeal fails and is dismissed. The judgment of the High Court convicting the appellant under Section 326 of the Indian Penal Code is upheld. As to the sentenced, 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 22.4.1973/some 13 years back, we do not think it desirable to send the appellant back to jail. 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 22.4.1973/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 raising 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 fine shall be deposited in the Court of 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." 7. Learned Public Prosecutor appearing for the State has opposed the same. 8. I have heard learned counsel for the parties and carefully perused the relevant material on record. 9. Looking to the facts and circumstances of the case and keeping in mind the arguments of learned counsel for the appellant, I do not think it proper to release the accused appellant on probation, but looking to the aforesaid judgments delivered by Hon'ble Apex Court in my view, ends of justice would be met if the sentence awarded to appellant is reduced to the period already undergone by him in confinement, as indicated here-in-above. Hence, this appeal is disposed of with the following directions: (i) The appeal filed by appellant is partly allowed. (ii) His conviction is maintained. (iii) His sentence is reduced to the period already undergone by him in confinement, as indicated above. (iv) The sentence of the accused appellant was suspended and he is on bail. He need not to surrender and his bail bonds stand cancelled. Impugned judgment stands modified, as indicated here-in-above. Appeal partly allowed. *******