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2018 DIGILAW 1738 (RAJ)

Subhash Chander Arora v. State of Rajasthan

2018-08-16

MANOJ KUMAR GARG

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JUDGMENT Manjod Kumar Garg, J. - Instant revision petition has been filed by the petitioner under Section 397/401 Cr.P.C. against the judgment dated 19.7.1999 passed by learned Addl. Sessions Judge, Raisingnagar (for short 'the Appellate Court') in Criminal Appeal No. 54 of 1998 whereby, the learned Appellate Court dismissed the appeal filed by the petitioner and upheld the judgment dated 29.6.1998 passed by learned Judicial Magistrate, Srivijainagar in Criminal Case No. 167 of 1996 convicting the petitioner for offence under Section 326 I.P.C. and sentenced to one year rigorous imprisonment with fine of Rs. 1,000/-, in default of payment of fine further undergo three months R.I. 2. Briefly stated, the prosecution case as set up is that on 11.4.1989, complainant Malkeet Singh gave oral report at the Police station, Srivijainagar that he and his brother Manjeet Singh were preparing for 10th Board examination and they had rented a room near Gurudwara. Some boys of their village had also rented room near the complainant's room. It is stated that at about 3:00 PM, Subhash Chandra and one Jagdish called the brother of Complainant outside the room and started beating him with a hockey stick. When the complainant intervened, Subhash Chander inflicted knife blow on his hand. Upon raising hue and cry, neighbourers came and the accused persons fled away. 3. On the basis of the above report, police registered a case for offence under Sections 324, 323/34 I.P.C. On completion of investigation, a charge-sheet was filed against the present petitioner alongwith Satish Kumar, Om Prakash and Jagdish for the offences under Sections 326, 323, 34 I.P.C. Thereafter, charges of the case were framed against the accused persons who denied the charges and claimed trial. 4. During the course of trial, the prosecution examined as many as 6 witnesses and exhibited various document. The statement of the accused were recorded in which they claimed innocence and examined two witnesses in their defence. 5. After considering the testimonies of the prosecution witnesses and the material available on record, the learned Trial Court convicted the accused Subhash Chander and Jagdish for the offence under Sections 326 and 326/34 I.P.C. respectively and passed sentence as mentioned earlier but acquitted Satish Kumar and Om Prakash from the offence under Sections 323, 326/34 I.P.C. while giving benefit of doubt. 6. 6. Aggrieved by the judgment and order dated 29.6.1998 passed by the learned Trial Court, an appeal was preferred by the petitioner Subhash Chandar and Jagdish before the learned Addl. Sessions Judge, Raisinghnagar which came to be partly allowed vide judgment dated 19.7.1999 whereby, Jagdish was acquitted of the charges for offence under Section 326/34 I.P.C. but the conviction and sentence recorded against the petitioner Subhash Chander for offence under Section 326 I.P.C. was upheld. 7. At the threshold, learned Counsel for the petitioner submits that the petitioner is not challenging the finding of both the Courts below but it is submitted that all the other coaccused have been acquitted of the charges levelled against them. The petitioner has already remained in custody for 21 days and the occurrence relates back to year 1989. At the time of incident petitioner was young man aged about 23 years and now he is about 52 years of age, therefore, it is prayed that after lapse of so many years, it would not be proper to send tie petitioner to custody and accordingly, the substantive sentence awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by them. 8. On the other hand, the learned Public Prosecutor opposed the submission made by the learned Counsel for the petitioner. The learned Public Prosecution submitted that there is neither any occasion to interfere with the sentence awarded to the accused-petitioner nor any compassion or sympathy is called for in the said case. I have perused the evidence of the prosecution as well as defence and the judgment passed by both the Courts below regarding conviction of the accused-petitioner. Since the Counsel for the petitioner does not challenge the conviction recorded against the petitioner, therefore, the order of conviction recorder by the Trial Court for offence under Section 326 I.P.C. is liable to be upheld, However, undisputedly, the petitioner has so undergone a period of 22 days in custody and has also suffered he agony and trauma of protracted trial. Injured Malkeet Singh has received single injury on his left forearm, thus, looking to the over-all circumstances and the fact that the petitioner has remained behind the bars for some time, it will be just and proper if the sentence awarded by the Trial Court for offence under Sections 341, 326 I.P.C. is reduced to the period already undergone while enhancing the amount of fine imposed for offence under Section 326 I.P.C. from Rs. 1000/- to Rs. 6000/-. 9. The Co-ordinate Bench of this Court in the case of Damodar Prasad vs. State of Rajasthan reported in RLW 1988 (2) Raj. 451 held as under:- "Looking to the facts and circumstances of the case as mentioned hereinabove, and in the light of the observations made in the case of Naib Singh (supra) by Hon'ble the Supreme Court, the appeal is partly allowed. The accused-appellant is not found guilty under Section 307, I.P.C. His conviction and sentence under this section, are therefore set aside. He instead, is convicted under Section 326, I.P.C., and sentenced to imprisonment already undergone by him and a fine of Rs. 1,000/-and in default of payment of fine, he shall undergo rigorous imprisonment for one month. Two months' time is granted to the accused-appellant for deposition the fine" 10. According, the revision petition is partly allowed. While maintaining the petitioner's conviction and sentence for offence under Section 326 I.P.C., the sentence awarded to him is reduced to the period already undergone. However, while maintaining the conviction, the amount of fine is enhanced from 1000/-to Rs. 6000/-. The aforesaid fine shall be deposited by the petitioner in the Trial Court within three months from the date of this order, an on such deposit, the sum of Rs. 6,000/- shall be disbursed to the injured Malkeet Singh. In default of such deposit within the stipulated period, this revision petition shall stand dismissed and the petitioner shall be sent to jail to serve remaining sentence. 11. The record of Trial Court be sent back forthwith.