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2016 DIGILAW 876 (RAJ)

Dhanna Ram v. State of Rajasthan

2016-06-15

GOVERDHAN BARDHAR

body2016
JUDGMENT 1. - This criminal revision petition has been filed under Section 397/401 Cr.P.C. against the judgment and order dated 23.07.2001 passed by Additional Sessions Judge No.2, Hanumangarh (for short "the appellate court") in Criminal Appeal No.87/1999 whereby the learned appellate Court dismissed the appeal filed by the accused-petitioners and upheld the conviction and sentence of the accused-petitioners recorded by the learned Judicial Magistrate First Class, Pilibanga (for short "the trial court") vide judgment and order 26.05.1999 passed in Criminal Case No.57/1997. By the said judgment, the learned trial Court convicted the accused-petitioners for offences under Sections 325/34, 457/34, 323/34, 336 I.P.C. The sentence awarded to accused-petitioners is as under:- Offence Sentence awarded by the trial court U/s 325/34 IPC To undergo one and half year's simple imprisonment and to pay a fine of Rs.400/- and in default of payment of fine to further undergo fifteen days' simple imprisonment. Offence Sentence awarded by the trial court U/s 457/34 IPC To undergo one year's simple imprisonment and to pay a fine of Rs.300/- and in default of payment of fine to further undergo ten days' simple imprisonment. U/s 323/34 IPC To undergo three months' simple imprisonment and to pay a fine of Rs.300/- and in default of payment of fine to further undergo ten days' simple imprisonment. U/s 336 IPC To undergo one month simple imprisonment 2. As per the case set up by the prosecution, a case was initiated on the statement of one Anil Kumar in which he stated that on 04.11.1996 at about 7:30 p.m. he was in his house. In the lane, Devi Lal and his two sons and three more persons were abusing with filthy languages and they were armed with lathi, Kasia, Saria and bricks. Thereafter all the aforesaid persons came inside the house and caused injuries to the complainant and his wife. It was further alleged that the accused-petitioners were also taken away gold chain and Rs.1,500/- from his pocket. 3. On the said statement, the Police registered the FIR No.138/1996 for offences under Sections 458, 336, 323, 382, 147, 148, 149 IPC against the accused-petitioners. After investigation, the police filed challan against the accused-petitioners for offences under Sections 452, 336, 323 IPC. Thereafter the trial court took cognizance against the accused-petitioners for offences under Sections 458, 336, 323/34 IPC. 4. On the said statement, the Police registered the FIR No.138/1996 for offences under Sections 458, 336, 323, 382, 147, 148, 149 IPC against the accused-petitioners. After investigation, the police filed challan against the accused-petitioners for offences under Sections 452, 336, 323 IPC. Thereafter the trial court took cognizance against the accused-petitioners for offences under Sections 458, 336, 323/34 IPC. 4. After hearing the arguments and considering the material on record, the learned trial court framed charges against accused-petitioners for offences under Sections 458/34, 336, 323/34 IPC, they pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined 16 witnesses and produced documentary evidences viz Exb-P/1 to Exb-P/17 in support of its case. Thereafter the statement of the accused-petitioners was recorded under section 313 Cr.P.C. In defence, 4 witnesses were examined and six documents were got exhibited. Subsequently Section 325/34 IPC was also added by the trial court. 6. At the conclusion of the trial, the learned trial Court vide judgment and order dated 26.05.1999 instead of Section 458/34 IPC convicted the accused-petitioners for offences under Sections 457/34 and under Sections, 323/34, 325/34, 336 IPC. 7. Being aggrieved by their conviction and sentence, the accused-petitioners preferred appeal before the learned Additional Sessions Judge No.2, Hanumangarh, who by his judgment dated 23.07.2001 upheld the conviction of the accused-petitioners recorded by the learned trial Court, as aforesaid. Hence, this revision. 8. Mr. M.K. Garg, appearing for the accused-petitioners has submitted that judgments passed by the courts below are incorrect, improper and illegal and therefore the same deserve to be quashed and set aside. It is further submitted that after closing of the evidence, the APP made a prayer for amendment of charges which was accepted by the trial court and the charges were ordered to be amended. After the amendment of charges, the accused-petitioners made a prayer for recalling the witnesses for further cross-examination but the trial court rejected the said prayer which has gorssly prejudiced the case of the accused-petitioners for the reason that when the cross-examination was done there was no charge for offence under Section 325/34 IPC and therefore the judgments passed by the courts below are contrary to the provisions of law. It has been further submitted that the injuries received by the injured are not on vital part of his body. It has been further submitted that the injuries received by the injured are not on vital part of his body. It has been submitted that the courts below fell into error of law in not taking into consideration that in the FIR the injured Anil Kumar merely stated that there were Devi Lal and his sons and one of them was Jai Narayan. No other names of sons of Devi Lal were ever mentioned in the FIR. But the Police filed challan against Devi Lal, Ved Prakash and Raju Ram were are his sons but who were not named in the FIR. The learned counsel for the accused-petitioners has therefore prayed for acquittal of the accused-petitioners for the aforesaid offences. In the alternative, the learned counsel for the accused-petitioners has submitted that considering the facts and circumstances of the case, the sentence awarded to the accused-petitioners be reduced to the period already undergone by them. 9. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the accused-petitioners. The learned PP submitted that neither there is any occasion to interfere with the concurrent findings and the sentence awarded to the accused petitioners by the learned Courts below nor any compassion or sympathy is called for in the said case. 10. I have heard the counsel for the parties and perused the judgments of the courts below as also the evidence on record. 11. In view of the over all facts and circumstances of the case, this Court is of the view that the courts below have appreciated the evidence which came before them in proper and correct perspective and there is no reason to interfere with the said findings of Courts below and set aside the conviction recorded by the learned Courts below. The conviction of the accused-petitioners recorded by the trial court and affirmed by the appellate court below is confirmed and upheld. 12. However, taking into account the fact that the incident is of the year 1996 and the petitioners had remained in custody for two months, this Court is of the opinion that the ends of justice would be met if the substantive sentence of imprisonment awarded by the trial court and affirmed by the appellate court is reduced to the period of imprisonment already undergone by the accused-petitioners. 13. In the result, the revision is partly allowed. 13. In the result, the revision is partly allowed. While maintaining the conviction of accused-petitioners for offences under Sections 457/34, 323/34, 325/34, 336 IPC, their sentence is reduced to the period already undergone by them. However, the fine imposed by the learned court below shall stand increased to Rs. 4,000/- each, upon same condition imposed by the learned trial court in case of default of payment of fine. The said amount of fine shall be deposited in the trial Court within a period of 90 days which may be disbursed to the injured Anil Kumar by way of issuing notice. *******