JUDGMENT : Heard Mr. Ram Chandra Prasad Sah, learned counsel appearing on behalf of the petitioner. 2. Heard Ms. Priya Shrestha, learned A.P.P. appearing on behalf of the opposite party- State. 3. This criminal revision application has been filed against the judgement of conviction and order of sentence dated 29.08.2014 passed by learned Additional Session Judge-I Seraikella Kharswan in Criminal Appeal No. 70/13 who has upheld and confirmed the order passed by learned Sub Divisional Judicial Magistrate at Seraikella on 23.04.2013 passed in Chandil P.S. Case No. 40/11 dated 09.04.2011 (G.R. No. 264/11) corresponding to T.R. No. 259/13 convicting the petitioner section 452 of Indian Penal Code. The petitioner was sentenced to undergo Rigorous Imprisonment for three years and he was fined Rs. 5,000/-. 4. The learned trial court had also convicted the petitioner for offence under Sections 354 and 323 of Indian Penal Code which were compounded at the appellate stage and the conviction and sentence of the petitioner under these two sections were set-aside by exercise of power under Section 320(8) of Code of Criminal Procedure by the learned lower appellate court. Arguments on behalf of the petitioner 5. The learned counsel for the petitioner has submitted that the petitioner was convicted under Sections 452, 354 and 323 of Indian Penal Code by the learned trial court and was punished to undergo Rigorous Imprisonment under Section 452 Indian Penal Code for a period of three years along with fine of Rs. 5,000/-, Rigorous Imprisonment under Section 354 of Indian Penal Code for a period of two years and Rigorous Imprisonment under Section 323 of Indian Penal Code for a period of one year and the sentences were directed to run concurrently. 6. The learned counsel for the petitioner further submits that before the learned lower appellate court, the petitioner has been ultimately convicted only under Section 452 of Indian Penal Code and thus, the order of conviction and sentence under Section 452 of Indian Penal Code is only under challenge in the present case. 7. The learned counsel for the petitioner, while advancing his argument, submits that the time of incident is 2 ‘O’ Clock at night and there is serious doubt about identification of the petitioner due to the reason that as per the First Information Report, the laltern was lightening but was not seized and therefore, existence of laltern is not proved by the prosecution. He submits that in pitch darkness the petitioner could not have been identified and therefore the petitioner is entitled for benefit of doubt. The learned counsel for the petitioner submits that this aspect of the matter has not been properly appreciated by the learned courts below while convicting the petitioner under Section 452 of Indian Penal Code. 8. Learned counsel for the petitioner also submits that the petitioner has remained in custody for about eight months and around 9 years has elapsed from the date of incident, so some lenient view may be taken in the present case on the point of sentence. Arguments on behalf of the opposite party- State 9. Learned counsel for the opposite party- State, on the other hand, opposes the prayer and submits that so far as the offences under Sections 354 and 323 of Indian Penal Code are concerned, the petitioner was convicted by the learned trial court but at the stage of appeal one compromise petition was filed and the offence being compoundable, the conviction and sentence of the petitioner under these sections were set-aside by exercise of power under Section 320(8) of Code of Criminal Procedure by the learned appellate court. She submits that the conviction and sentence of the petitioner under Section 452 of Indian Penal Code was upheld by the learned lower appellate court after due appreciation of the materials on record and the offence under section 452 of Indian Penal Code is not compoundable. 10. The learned counsel for the opposite party- State submits that under such circumstances, the petitioner cannot contend that he should be given the benefit of doubt for offence under section 452 of Indian Penal Code by arguing that he was not present at the time of occurrence because in the same incident, all the offence under Sections 354, 323 and 452 of Indian Penal Code had taken place. She also submits that so far as the offence under section 452 IPC is concerned , the learned courts below have arrived at concurrent findings which do not suffer from any illegality or perversity and merely because the laltern was not seized and exhibited before the learned trial court, the same does not create any doubt in the prosecution case as the petitioner has been convicted on the basis of materials available on record .However, she does not dispute the fact that the incident of the present case had taken place in the night of 09.04.2011 and more than 9 years has elapsed from the date of incident and in the trial court judgement, it has come that the present offence of the petitioner is the first offence. Findings of this Court 11. The case of prosecution in brief is that in the night of 09.04.2011 at 02 a.m., the petitioner alongwith his three associates came to the house of the informant and entered therein and caught the hand of informant’s wife with bad intention and started molestation with her. The informant woke up and then the blow was made upon him. The said persons had come with sword and farsa. The informant sustained hurt. The informant snatched the said arms and raised alarm. The accused made a fist blow on the face of informant’s son Raja Kumar and fled away. The petitioner had committed the such type of act on earlier occasion also. He threatened for dire consequences if it is informed to anyone. The informant could not identify the three associates due to night. 12. The police case was instituted, inter alia, against the petitioner under Sections 452, 354, 323/34 of Indian Penal Code on the basis of written report of the informant. The police submitted charge sheet against the petitioner under Sections 452, 354, 323, 324 /34 of Indian Penal Code and accordingly, cognizance of the offence was taken and the case record was transferred to the court of learned Judicial Magistrate for trial and disposal. 13. Prosecution examined altogether eight witnesses in this case and thus all the charge-sheeted witnesses were examined. The statement of petitioner was recorded under Section 313 of Code of Criminal Procedure in which he has stated that he is innocent and said that due to dues amount of cow, informant filed the false case. The defence has not given any evidence. Prosecution examined altogether eight witnesses in this case and thus all the charge-sheeted witnesses were examined. The statement of petitioner was recorded under Section 313 of Code of Criminal Procedure in which he has stated that he is innocent and said that due to dues amount of cow, informant filed the false case. The defence has not given any evidence. 14. The learned trial court considered the evidence and materials on record and recorded its findings at para 18 of the judgement as under: - “18. Upon going through the fact, evidences and circumstances of the case, it appears that the prosecution has examined all charge-sheeted witnesses in this case. The witnesses have stated that the accused entered into the house of informant Ram Naresh Rai and started molestation with the informant’s wife. The informant woke up and he was assaulted by the accused by means of sword. The witnesses have stated also that the informant's son Raja Kumar was also assaulted by the accused with fist blow. It transpires that the fact regarding injury caused to the informant by means of sword blow is not corroborated by the evidence of Doctor. The Doctor examined the injured Ram Naresh Rai and found lacerated would and swelling on his person. The nature of injury is simple caused by hard and blunt object as per the opinion of the Doctor. It transpires that no any sharp cutting injury was found by the Doctor on the hand of the informant. The charge has been framed against the accused U/S 324 I.P.C. The said charge has not been proved on behalf of the prosecution. It further appears that the witnesses have corroborated the fact as the informant sustained injury and they have also corroborated the fact as informant's son was assaulted by accused by means of fist. The all material witnesses have narrated the said fact in their evidence. Certainly, there is a some contradiction in their evidence but overall, the said fact has not been contradicted by the defence. It transpires that the witnesses namely Ram Naresh Rai and Raja Kumar have been examined as injured witnesses and they have categorically stated the said fact in their evidence. It also appears that the material witnesses are relatives of the informant. However, the statement of these witnesses may not be discarded on this score. It transpires that the witnesses namely Ram Naresh Rai and Raja Kumar have been examined as injured witnesses and they have categorically stated the said fact in their evidence. It also appears that the material witnesses are relatives of the informant. However, the statement of these witnesses may not be discarded on this score. The relatives may not be said to be a interested person. It transpires that there is no any direct interest of the witnesses against the accused. Witness Namita Rai and other material witnesses have stated and corroborated the fact as the accused entered into the house in night and started molestation. The informant and his wife and his son identified the accused at the time of the occurrence. The informant's wife has specifically stated in her evidence as the accused was raising her cloths with bad intention. The said fact has been corroborated by the informant. The other witnesses examined on behalf of the prosecution are certainly hearsay witnesses but they have stated the fact alleged against the accused. They have stated that they came to know about the occurrence, in next morning. Some of the witnesses went to police station along with informant. Therefore, I find that the prosecution has not been able to prove the charge U/S 324 I.P.C. against the accused beyond shadow of all reasonable doubt. Hence, accused is acquitted U/S 324 I.P.C. At the same time I find that the prosecution has been able to prove the charge U/S 452, 354, 323 I.P.C. against the accused. Therefore, the accused is held guilty under the aforesaid Sections. The bail bonds is canceled and accused is taken into judicial custody.” 15. The learned trial court recorded that the witnesses have stated that the petitioner entered into the house of informant and started molestation with the informant’s wife. The informant woke up and he was assaulted by the accused by means of sword. The witnesses have stated also that the informant's son Raja Kumar was also assaulted by the petitioner with fist blow. The informant woke up and he was assaulted by the accused by means of sword. The witnesses have stated also that the informant's son Raja Kumar was also assaulted by the petitioner with fist blow. This Court finds that the entry of the petitioner in the house of the informant and the commission of alleged offence has been consistently supported by the evidence of the witnesses as recorded by the learned court below and accordingly the laltern having not been seized and exhibited before the learned court below has no bearing in the case and does not call for any interference particularly when the learned lower appellate court has given concurrent finding of fact . The learned trial court as well as the learned lower appellate court, after carefully scrutinizing the materials on record, convicted the petitioner under section 452 of IPC. The petitioner was acquitted by the learned trial court for alleged offence under section 324 of IPC holding that the prosecution has not been able to prove the offence under the said section beyond shadow of all reasonable doubts. 16. In view of the consistent findings with regards to the conviction of the petitioner under section 452 IPC by both the courts below after scrutinizing all the materials on record , there being no illegality or perversity in the impugned judgements , no interference is call for in this revision petition so far as the conviction of the petitioner under section 452 IPC is concerned. 17. However, in the peculiar facts and circumstances of this case and considering the fact that the case was filed on 09.04.2011 and the petitioner has faced the rigorous of the trial for more than 9 years, this Court is of the considered view that the ends of justice would be served if the sentence is modified by reducing the sentence under Section 452 of Indian Penal Code to two years Rigorous Imprisonment and enhancing the fine amount to Rs.10,000/-. The total fine amount of Rs.10,000/- is directed to be deposited before the learned court below before completion of the period of sentence. It is directed that on account of failure to deposit the fine amount, the petitioner would serve the sentence as imposed and directed by the learned court below. 18. The bail bond furnished by the petitioner is hereby cancelled. 19. It is directed that on account of failure to deposit the fine amount, the petitioner would serve the sentence as imposed and directed by the learned court below. 18. The bail bond furnished by the petitioner is hereby cancelled. 19. This criminal revision petition is hereby disposed of with modification of sentence. 20. Pending interlocutory application, if any, is dismissed as not pressed. 21. Let the Lower Court Records be immediately sent back to the court concerned. 22. Let a copy of this order be communicated to the learned court below through “FAX/email”.