JUDGMENT 1. - Heard learned counsel for the accused-appellant as well as learned Public Prosecutor appearing on behalf of the respondent. This criminal appeal under Section 374(2) Cr.P.C. has been filed against the judgment and order dated 21.08.2010 passed by Special Judge(Dacoity Effected Area), Dholpur(Raj.) (hereinafter referred to as 'the Trial Court') in Sessions Case No. 21/2009, whereby the Trial Court, while acquitting the accused-appellant from the charges under Section 11, R.D.A. Act, has convicted and sentenced the accused-appellant Ballo @ Balveer under Section 307/34 IPC to undergo seven years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months simple imprisonment. 2. The concise facts of the case are that on dated 26.04.2008, complainant Hari Charan Sharma (P.W.14), S.H.O., P.S. Basaidang lodged a report in Rojnamcha (Exhibit P14), which reads as under:-- 3. On the basis of aforesaid report, FIR No. 37/2008 (Exhibit P15) was registered about commission of offences punishable under Sections 307, 353 read with Section 34 IPC, Section 11 RDA Act and Section 3/25 Arms Act at Police Station Basaidang, District Dholpur. After due investigation, police filed charge sheet against the accused-persons namely Rambabu and Ballo under Sections 307, 353 read with Section 34 IPC and Section 11 RDA Act before the Judicial Magistrate, Badi wherefrom the case was committed to the Trial Court. Against remaining two accused-persons namely Rakesh and Vakil investigation was kept pending under Section 173(8) Cr.P.C. Learned Trial Court after hearing arguments of the parties, framed charges against accused-persons Rambabu and Ballo @ Balveer under Sections 307 IPC, in alternate under Section 307/34 and under Section 11 RDA Act. Both the accused denied the charges and claimed trial. Against remaining two accused-persons namely Rakesh and Vakil investigation was kept pending under Section 173(8) Cr.P.C. Learned Trial Court after hearing arguments of the parties, framed charges against accused-persons Rambabu and Ballo @ Balveer under Sections 307 IPC, in alternate under Section 307/34 and under Section 11 RDA Act. Both the accused denied the charges and claimed trial. " eu ,l0,p0vks0 gfjpj.k 'kekZ e; gejkgh tkCrk thi ljdkjh ,0Mh0,Q0 ikVhZ ds Jh egkohj flag ,0,l0vkbZ0 e; gejkgh ,0Mh0,Q0 ikVhZ e; ftIlh ljdkjh e; vkElZ ,E;wusd'ku cgpkys jiV la0 887 jkst0 vke dk x;k gqvk e; nLr;kc'kqnk Jh txnh'k S/o xksdqy izlkn R;kxh o tIr'kqnk ,d flaxy lksVZ iapQsjk 315 cksj] ,d 12 cksj nqukyh cUnqds e; pkj ftUnk dkjrwl o ikap [kkyh [kksdk 12 cksj ds okil Fkkuk vk;k o ntZ jgs fd le; 9 A.M. ij tfj;s eq[kfcj bryk feyh fd uxj ds chgM+ksa esa gfFk;kj cUn cnek'kksa ds ikl ,d ;qod dh idM+ gSA bl lwpuk dks Jheku~ ,Mh'kuy ,0lh0 ;k@lh0vks0 lkgc ckM+h dks voxr djkdj eu ,l0,p0vks0 e; tkCrk thi ljdkjh e; Jh egkohj flag ,0,l0vkbZ0 e; ,0Mh0,Q0 ikVhZ e; ftIlh ds jokuk gksdj dLck uxj esa ljdkjh okguksa dks NksM+dj iSny&iSny taxy esa ryk'k o ADF djrs gq, le; 11-30 ,0,e0 ij taxy esa igqaps rks rhu pkj cnek'kku iqfyl ikVhZ dks ns[kdj tku ls ekjus dh uh;r ls iqfyl ikVhZ ds mij Qk;j djus yxsA iqfyl ikVhZ us iksth'ku ysdj cnek'kkuksa ij jcfjax Qk;j fd;sA ,0Mh0,Q0 ikVhZ ds Jh egkohj flag ,0,l0vkbZ0 us ,ds 47 ls pkj jkm.M Qk;j fd;s ftuesa ls rhu xqe gq;s] foey dqekj ,0,l0vkbZ0 us fjokYoj ls nks jkm.M Qk;j fd;s] yk[ku flag ,p0lh0 720 us ,l0,y0vkj0 ls lkr jkm.M Qk;j fd;s ftuesa ls nks xqe gq;s] lksuohj dkfu0 389 us ,l0,y0vkj0 ls 18 jkm.M Qk;j fd;s 13 [kkyh [kksdk xqe gq;s] dkfu0 jksfgrk'k 827 us ,l0,y0vkj0 ls 12 jkm.M Qk;j fd;s ftuesa 6 [kkyh [kksdk xqe gq;s o dkfu0 yky flag ua0 463 ,l0,y0vkj0 ls rhu jkm.M Qk;j fd;sA cnek'kku ncko c<+rk ns[k ,d [kkyh gkFk okys O;fDr dks NksM+dj rFkk ,d&,d 12 cksj nqukyh cUnwd e; dkjrwlksa dk iV~Vk NksM+dj o ,d flaxy lksVZ ipQsjk 315 cksj dks iVddj mcM+&[kkcM+ taxy esa Hkkxus yxs ftudk dkQh ihNkA fd;k exj nLr;kc ugha gks ldsA Jheku~ ,Mh'kuy ,l0ih0lkgc o lh0vks0 lkgc ckM+h Hkh ekSds ij mifLFkr gq;s [kkyh gkFk okys O;fDr us viuk uke txnh'k S/o xksdqy izlkn tkfr R;kxh mez 33 lky fuoklh gkj xaxkyh Fkkuk ckxphuh ftyk eqjSuk ( ,e0ih0 ) crk;k o txnh'k us crk;k fd mDr pkjksa cnek'k eq>s fnukad 7@8-4-2008 dh jkf= esa esjs V~;qcSy ls tcjnLrh vigj.k dj iSlksa dh fQjkSrh ds fy;s ykuk crk;k o cnek'kkuksa dk uke ( 1 ) jkeckcw S/o txUukFk xqtj] ( 2 ) cYyks S/o e/kqcu xqtj fuoklhx.k ojhiqjk Fkkuk clbZ Mkax 3 jkds'k S/o tlcUr xqtj fuoklh Hkxriqjk etjk uxj ( ih0,l0 ) clbZ Mkax 4 odhy S/o gFkqvk xqtj fuoklh xq<+k Fkkuk nsox<+ eqjSuk ,e0ih0 crk;kA cnek'kkuksa }kjk NqVs x;s 12 cksj nqukyh cUnwd e; pkj ftUnk o ikap [kkyh [kksdk 12 cksj] ,d flaxy 'kksVZ ipQsjk 315 voS/k gksus ij rFkk cnek'ku dk ;g d`R; /kkjk 307] 353 I.P.C. 11 RDA Act o 3@25 Arms Act ds vUrxZr n.Muh; vijk/k gksus ij crkSj otg lcwr ,d 12 cksj nqukyh cUnwd e; dkjrwlksa o flaxy 'kksVZ ipQsjk 315 cksj dks i`Fkd&i`Fkd tIr dj eqrkfcd QnZ tIrh lhy eksgj fd;k o Jh txnh'k S/o xksdqy izlkn dks eqrkfcd QnZ nLr;kc fd;k o iqfyl eqyftekuksa }kjk Qk;j fd;s x;s [kkyh [kksdksa dks crkSj otg lclwr tIr dj 'khy eksgj dj eu ,l0,p0vks0 e; gejkgh tkIrk o nLr;kc 'kqnk txnh'k ds okil Fkkuk vk;k okilh ij eq0u0 37@2008 /kkjk 307] 353@34 I.P.C. 11 RDA Act o 3@25 Arms Act ds dk;e dj eqrkfcd funsZ'k Jheku Adl.SP lk ds vuqla/kku Jh cPpw flag SI PS ckM+h ds lqiqnZ fd;k x;kA izfr;k F.I.R. gLc dk;nk tkjh gqbZ o tIr'kqnk eky eqrkfcd QnkZr tek eky[kkuk djk;kA dke Fkkuk Lo;a tqEes fy;kA " 4. Prosecution supported its case with the aid of 14 witnesses and exhibited 17 documents. In defence no evidence was produced by the accused. Statements of the accused including the present appellant Ballo @ Balveer were recorded under Section 313 Cr.P.C. wherein they refused the prosecution allegations and pleaded innocence stating that they have been falsely implicated in this case. 5. After scrutiny of the material on record and evidence produced by the prosecution as well as statements of accused-persons under Section 313 Cr.P.C., learned Trial Court vide judgment and order dated 21.08.2010 acquitted the accused Rambabu S/o. Jagannath from the charges under Sections 307/34 read with Section 11 RDA Act, but while acquitting the present accused-appellant Ballo @ Balveer S/o. Madhuvan from the charge under Section 11 RDA Act, convicted and sentenced him as stated hereinabove. 6. Being aggrieved with the judgment and order passed by the Trial Court, the accused-appellant has preferred this criminal appeal before this Court. 7. Learned counsel for the accused-appellant firstly argued the case on merits and contended that the impugned judgment and order passed by the Trial Court is perverse, illegal, against the material available on record and not sustainable in the eye of law, being contrary to the provisions of law. No body has stated that assailants have opened fire at police party aimingly and no weapon is recovered from the possession of the accused-appellant or on information under Section 27 of Evidence Act, no cartage of 306 bore rifle is recovered at the incident place whereas as per the case of prosecution, present appellant was having the 306 bore rifle, but nothing is recovered, therefore, case under Section 307 read with Section 34 IPC is not made out against the appellant. Learned counsel further contended that interpretation of the statements of the witnesses have wrongly been drawn by the Trial Court in relation to prosecution case and the story of the prosecution must be corroborated with statements of the witnesses as well as FIR. It is further contended that for the purpose of encounter during inspection, documentary evidence as regard to departure of team must be shown on Record/Rojnamcha and it must be produced on record before Trial Court, but in the present case neither evidence nor logbook of vehicle was produced before the Trial Court, therefore, it is crystal clear that case has been prepared in the filmy manner. It is also contended that co-accused Rambabu, who was also the member of the gang, opened fire, as per the prosecution evidence, has been acquitted by the Trial Court and the case of the accused-appellant stands on the same footing, because no identification parade has been conducted in this case and identification at the time of trial has no evidentiary value in the eye of law. Hence, in the interest of justice, the accused-appellant too deserves to be acquitted. Learned Trial Court has committed an error by not considering the fact that all the witnesses were not examined in the Trial Court by the prosecution. There are several infirmities and contradictions in the statements of the prosecution witnesses. The statements are self contradictory, therefore, learned Trial Court has committed an error by believing those statements. Learned Trial Court has committed an error by believing the story of prosecution because in the duration of ½ hour encounter, no body sustained injury whereas, the assailants were having deadly weapons viz., 306, 315, 312 bore rifles and only 2 cartages were also recovered. Hence, the case has been prepared only for he purpose of maintaining the record. Learned counsel for the appellant further contended that the learned trial Court has ignored an important fact that only one witness has stated in the FIR as well as 161 statement that assailants were the members of Gang while no identification parade has been conducted, therefore, identification at the time of trial was not trustworthy. Hence, learned Trial Court has committed an error by believing on the case of the prosecution. It is further contended that the prosecution has failed to prove its case beyond reasonable doubt. Impugned judgment and order passed by the learned Trial Court is based on conjectures, faulty presumption and misreading of evidence, therefore, the same is liable to be quashed and set aside. 8. Finally learned counsel for the accused-appellant contended that the present case is pending since 2008 and, therefore, the accused-appellant does not want to press this appeal on merits. Learned counsel for the accused-appellant further contended that looking to the age of the accused-appellant; his family status; further the incidence pertains to year 2008, i.e. five years and three months ago, lenient view may be taken in the present matter by this Court. Learned counsel for the accused-appellant further contended that looking to the age of the accused-appellant; his family status; further the incidence pertains to year 2008, i.e. five years and three months ago, lenient view may be taken in the present matter by this Court. It is, therefore, prayed by learned counsel for the accused-appellant that the accused-appellant may either be granted benefit of probation or in the alternative, the punishment/sentence of imprisonment imposed upon him by the learned Trial Court, being too harsh, may be considered sympathetically and may favourably be reduced to the period of imprisonment already undergone by the accused-appellant. Learned counsel for the accused-appellant further submitted that the accused-appellant is behind the bars from 02.12.2008 till today i.e. near about five years in all. 9. Learned Public Prosecutor appearing on behalf of the respondent-State vehemently opposed the prayer made by learned counsel for the accused-appellant and submitted that the accused-appellant is a habitual offender and two other cases are also registered against the accused-appellant and there is no reason to disbelieve the prosecution evidence and there is neither any improvement nor any material contradiction or omission in the statements of prosecution witnesses and they are natural and reliable witnesses in the facts and circumstances of the present case. Learned Public Prosecutor further submitted that the case is fully proved by the prosecution and guilt is proved beyond any shadow of doubt against the accused-appellant. Learned Trial Court has elaborately considered all the prosecution evidence and rightly convicted and sentenced the accused-appellant. The case of the accused-appellant is distinguishable from the co-accused Rambabu because present appellant was clearly identified by P.W.13, Jagdish Tyagi. He, therefore, prayed that the impugned judgment and order passed by the Trial Court may be sustained and sentence awarded to the accused-appellant by the learned Trial Court be maintained by this Court. 10. I have considered the submissions of the learned counsel for the accused-appellant as well as learned Public Prosecutor and also gone through the entire evidence adduced by the prosecution as well as the statement of the accused-appellant and the record of the Trial 11. Present case mainly rests upon the evidence of P.W.13, Jagdish Tyagi and P.W.14, Haricharan Sharma. I have perused the statements of other prosecution witnesses also and find that they have categorically and in unequivocal terms deposed about the incident. Present case mainly rests upon the evidence of P.W.13, Jagdish Tyagi and P.W.14, Haricharan Sharma. I have perused the statements of other prosecution witnesses also and find that they have categorically and in unequivocal terms deposed about the incident. There is no reason to disbelieve the testimony of the prosecution witnesses, P.W.13, Jagdish Tyagi, who has been kidnapped by the accused-appellant and P.W.14, Haricharan Sharma, because the evidence of these two witnesses does inspire confidence and faith. Minor discrepancies, contradictions, omissions, or improvements are bound to occur. 12. Looking to the facts and circumstances of the present case and the evidence of prosecution witnesses, I do not find any force in the argument advanced by the learned counsel for the accused-appellant that co-accused Rambabu has been acquitted and the evidence against the accused-appellant also stands on the same footing and the accused-appellant also deserves to be acquitted, because P.W.13, Jagdish Tyagi has clearly identified the accused-appellant, whereas he has not identified other co-accused Rambabu. 13. From the scrutiny of prosecution evidence and the findings recorded by the Trial Court, I am satisfied that learned counsel for the accused-appellant is right in not pressing this appeal on merits. So far as reduction of sentence of imprisonment awarded to the accused-appellant is concerned, there is no doubt that the incident in the present case took place in the year 2008, i.e. more than five years. During pendency of this appeal and at the time of investigation and trial, the accused-appellant has remained behind the bars for near about five years. The punitive theory of punishment and deterrent theory of punishment have to left their force considering the fact that the incident in the present matter took place in the year 2008. Jurists have formulated some principles regarding punishments and these recent trends have also been recognised and approved by Hon'ble Supreme Court in the case of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh & Others, AIR 1964 SC 1140 for ordinary crimes, although some special crimes have been excluded. Relevant portion of the decision rendered by the Hon'ble Apex Court in the case of Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh & Others, AIR 1964 SC 1140 for ordinary crimes, although some special crimes have been excluded. Relevant portion of the decision rendered by the Hon'ble Apex Court in the case of Indo-China Steam Navigation Co. Ltd. (Supra) reads as under: "...It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals, because the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the administration of Criminal law. But it must be remembered that ordinary offences with which the normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who, in many cases, deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure.... 14. A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. The sentence should neither be too lenient nor disproportionately severe. The former looses its deterrent effect and the latter has a tendency to tempt the offenders to commit a more serious offence. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Punishment to be effective must be sufficient, an insufficient punishment is a greater evil than an excess or rigour; for an insufficient punishment is an evil wholly thrown away. No good results can be expected either from the public who are left exposed to the like offences nor to the offender whom it makes no better. Punishment to be proper, effective and purposeful must fit not only the crime but also the criminal. A Court should weigh the sentence with reference to the crime committed and the circumstances of the case and the fact whether the criminal is a first offender or a habitual or professional offender, but not with reference to anything which may happen subsequently. 15. A Court should weigh the sentence with reference to the crime committed and the circumstances of the case and the fact whether the criminal is a first offender or a habitual or professional offender, but not with reference to anything which may happen subsequently. 15. So far as reduction of sentence of imprisonment is concerned, it is not in dispute that in the present case the incident occurred as back as in the year 2008, i.e. about five years and three months ago. The accused-appellant had been facing trial for quite long time; he has remained in jail for near about five years. The purpose of the Court is not merely to punish the accused-persons, but also to ensure that harmony be maintained with the society, therefore, it will not be proper for the accused-appellant to remain in custody for a long period. In the facts and circumstances of the present case and in the interest of justice, I want to give one more chance to reform the accused-appellant. Thus, considering the fact that further incarceration of the accused-appellant would not achieve any beneficial purpose, it would be in the interest of justice to reduce the sentence of imprisonment awarded to the accused-appellant by the Trial Court to a period of imprisonment already undergone by him. 16. In the result, I maintain the judgment and order of conviction passed by the learned Trial Court against the accused-appellant, but, looking to the facts and circumstances of the present case, and the fact that the accused-appellant has already undergone imprisonment for near about five years, as aforesaid mentioned, the ends of justice would be met in sentencing the accused-appellant to a period of imprisonment already undergone by him. Consequently, the appeal filed by the accused-appellant is partly allowed. The conviction of the accused-appellant namely Ballo @ Balveer S/o. Madhuvan under Section 307/34 IPC is maintained, but the sentence of imprisonment awarded to the accused-appellant is modified/reduced to the period of imprisonment already undergone by him(since 02.12.2008 till now). The fine imposed by the learned Trial Court is maintained. The accused-appellant is in jail. The Trial Court is directed to release the accused-appellant forthwith in this case, in case he is not required in any other case. Registry is directed to sent the record of the Trial Court along with copy of this judgment for compliance forthwith.Appeal partly allowed. *******