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2019 DIGILAW 630 (RAJ)

Rakiya v. State of Rajasthan

2019-02-21

MANOJ KUMAR GARG

body2019
JUDGMENT Manoj Kumar Garg, J. - The instant criminal appeal has been filed by the appellants against the judgment dated 17.06.1993 passed by the learned Additional Sessions Judge, Banswara in Sessions Case No.42/1992, by which, the accused-appellant Rakiya was convicted for the offence under Section 325 IPC and sentenced to undergo 2 years rigorous imprisonment and fine of Rs. 500/- with the stipulation that in the event of non-payment of fine, he shall have to further undergo 3 months rigorous imprisonment. Accused-appellant Pradhan was convicted for the offence under Section 304 Part-II IPC and sentenced to undergo 5 years rigorous imprisonment and fine of Rs. 1000/- with the stipulation that in the event of non-payment of fine to further undergo 3 months rigorous imprisonment. 2. The brief facts of the case are that a FIR was lodged on 07.05.1991 by one Dhanji, in which he mentioned that Devji had gone towards Nawa Ganv for some work and after returning home at half past four, he was sitting in his house whereas both the accused were working in the field. It was further stated that some dispute with regard to the land was going on between the accused and Devji. Accused-Rakiya was told by Devji many time to take the amount back towards the land with interest and the same may be released in his favour. When the accused were working in the field, the complainant and Devji, both went there then accused started throwing stone upon them. Accused said that they would be killed today. All of a sudden, accused-Pradhan went inside his house and took out sword. He inflicted sword blow. Due to which, Devji fell down and succumbed to his injuries. Accused-Rakiya gave stone blow to Devji. On this, police registered a case under Section 302 IPC and started investigation. The police arrested the accused-appellants and after thorough investigation filed a challan under Section 302/34 IPC against the appellants. Thereafter, charges of the case were framed. They denied the charges and claimed trial. 3. The prosecution examined as many as 14 witnesses in all and so many documents were exhibited. Thereafter, the statements of the accused under Section 313 Cr.P.C., 1973 were recorded. No witness was examined from the defence side. Thereafter, charges of the case were framed. They denied the charges and claimed trial. 3. The prosecution examined as many as 14 witnesses in all and so many documents were exhibited. Thereafter, the statements of the accused under Section 313 Cr.P.C., 1973 were recorded. No witness was examined from the defence side. After conclusion of the trial, the learned Additional Sessions Judge, Banswara vide judgment dated 17.06.1993 acquitted the accusedappellants for the offence under Section 302 IPC but convicted them for the offences as mentioned above. 4. Learned counsel for the appellants at the threshold submits that he does not want to challenge the conviction of the appellants but submits that accused-appellant Rakiya was arrested on 09.05.1991 and remained in custody upto 05.01.1993. Thus, he already undergone more than 18 months out of total sentence of 2 years rigorous imprisonment. So far as accused-appelalnt Pradhan is concerned, it is submitted that he already undergone about 2 years 2 months (from 09.05.1991 to 15.05.1993, from 04.06.1993 to 17.06.1993 and 17.06.1993 to 23.07.1993) out of total sentence of 5 years rigorous imprisonment. Learned counsel further submits that accused-appellant Rakiya is at present 67 years of age and the age of the accused-appelalnt Pradhan is about 50 years of age. Both are facing the trial since 1991 and suffered mental agony and the trauma during this period. Therefore, it is prayed that the substantive sentence awarded to the accused-appellants may be reduced to the period already undergone by them. 5. On the other hand, the learned Public Prosecutor opposed the prayer made by the learned counsel for the appellants. 6. I have considered the arguments advanced by the learned counsel for the parties and have carefully gone through the record of the case. 7. It is not disputed that the incident took place way back in the year 1991 and it has come on record that appellant-Rakia was not armed with any weapon and he only gave stone blow to the deceased, and accused-appellant Pradhan inflicted sword blow to the deceased. The learned trial court already observed that there was no intention to kill the deceased. The learned trial court already observed that there was no intention to kill the deceased. The accused-appellant Rakiya already undergone about 18 months of imprisonment out of total sentence of 2 years R.I. for the offence under Section 325 IPC and the accused-appellant Pradhan already undergone about 2 years and 2 months sentence out of total 5 years imprisonment for offence under Section 304 Part-II IPC. Moreso, the accusedappellant Rakiya is at present about more than 67 years of age and accused-appellant Pradhan is more than 50 years of age. In these circumstances, this Court is of the opinion that ends of justice would be met if the substantive sentence of imprisonment awarded by the trial court is reduced to the period of imprisonment already undergone by the appellants. However, taking into account the fact that the accused-appellant Pradhan was having sword and inflicted a sword-blow to the deceased, the amount of fine awarded by the learned trial court is liable to be enhanced from Rs. 1000/- to Rs. 3000/-. 8. In the case of Tej Mal v. State of Rajasthan, reported in 2009 (1) ILR (Raj) 10 , the coordinate Bench of this Court at Jaipur Bench while enhancing the fine amount reduced the sentence of two years awarded to the accused-appellant for a period already undergone i.e. 2 years to 9 months. The operative portion of the said judgment reads as under:- "In the present case, the period of the sentence that has been awarded is only two years and the substantive part of the sentence i.e. nine months and ten days has already been served by the accused appellant. The accused-appellant was 22 years of age when the incident took place and now 25 more year have gone by then. He is now 46 years of age and well settled in the life. In totality of the circumstances, ends of justice would be met if the sentence of two years awarded to the accused-appellant is reduced for a period already undergone by him but at the same time the amount of fine Rs. 200/- is enhanced to Rs. 5,000/-. It is accordingly ordered. If the appellant fails to make payment of the enhanced amount of the fine then he shall have to undergo remaining sentence. However, the amount of fine deposited by the appellant shall be paid to the widow of the deceased by the trial Court. 200/- is enhanced to Rs. 5,000/-. It is accordingly ordered. If the appellant fails to make payment of the enhanced amount of the fine then he shall have to undergo remaining sentence. However, the amount of fine deposited by the appellant shall be paid to the widow of the deceased by the trial Court. In the result, this criminal appeal is accordingly allowed in part." 9. In the case of Kuldeep Sign v. State of Haryana, reported in AIR 1996 (SC) 2988 also the accused-appellant was convicted for offence under Section 304-II and sentenced to undergo rigorous imprisonment for four years with a fine of Rs. 5000/-, the Supreme Court while maintaining the conviction reduced the sentence to the period already undergone by the accused-appellant as he had already served imprisonment of two years. 10. In the case of Venkatesh v. State of Tamil Nadu, reported in 1993 Cri LJ 99, 61 , the accused-appellant was convicted for offence under Section 304-II and was sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 3,000/-. The Supreme Court taking note of the fact that the accused-appellant after being released on bail tried to commit suicide and he realized his mistake; the accused-appellant was a young graduate; he hails from a very respectable family, he had no criminal antecedents; he committed the offence in the heat of the moment and finally that he had already remained in jail for about 7 months and 5 days out of the sentence of 5 years, directed that the sentence originally awarded be substituted by the period already undergone by enhancing the fine of Rs. 3000/- to Rs. 1,00,000/- and directed that the same be paid to the widow of the deceased. 11. In view of the above discussion, the criminal appeal is partly allowed. While maintaining the conviction of the appellants Rakiya and Pradhan for offence under Sections 325 and 304 Part-II IPC respectively, the sentence awarded to them is hereby reduced to the period already undergone by them. However, the amount of fine imposed upon the accused-appellant Pradhan is enhanced from Rs. 1000/- to Rs. 3000/-, in default of payment of fine, he will undergo additional 3 months rigorous imprisonment. The fine amount in respect of the accused-appellant Rakiya for offence under Section 325 IPC is maintained with default stipulation. However, the amount of fine imposed upon the accused-appellant Pradhan is enhanced from Rs. 1000/- to Rs. 3000/-, in default of payment of fine, he will undergo additional 3 months rigorous imprisonment. The fine amount in respect of the accused-appellant Rakiya for offence under Section 325 IPC is maintained with default stipulation. Two months time is granted to deposit the amount of fine before the trial court. They were on bail. They need not surrender. Their bail bonds stand discharged.