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2023 DIGILAW 1692 (RAJ)

Munshi Adivasi v. State of Rajasthan

2023-09-06

FARJAND ALI

body2023
JUDGMENT : FARJAND ALI, J. 1. The appellant has preferred the instant appeal under Section 374(2) of the Cr.P.C. being aggrieved of the judgment dated 20.04.2008 passed by the learned Additional Sessions Judge (Fast Track), Banswara in Sessions Case No. 95/2008, whereby he has been convicted and sentenced in the following manner: Offence for which convicted Sentence, fine and default sentence Section 459 of the IPC 3 years’ simple imprisonment alongwith a fine of Rs. 500/- and in default of payment of fine, further to undergo, simple imprisonment of 15 days Section 323 of the IPC 6 months’ simple imprisonment Section 325 of the IPC 1 year's simple imprisonment alongwith a fine of Rs. 200/- and in default of payment of fine, further to undergo, simple imprisonment of 10 days Section 427 of the IPC 6 months’ simple imprisonment The sentences were ordered to run concurrently. 2. Briefly stated, facts relevant and essential for disposal of the case are that on 12.10.2008 at 11.30 a.m., complainant Khema submitted an oral report at the Police Station Ambapura to the effect that he was engaged in the work of agriculture and sorcery. His son Munshi was living separately and he had given him land, well, cattle etc., still he used to ask for share in the income earned by sorcery and on refusal, he had threatened to kill the complainant and his wife. On 11.10.2008, he alongwith his wife Kali, son-in-law Narayan, daughter Santosh and house-help Nirma were sleeping in the house. In the night at about 11.00 p.m. his son Munshi came and asked for money and tractor, but they did not open the gate due to fear, on which Munshi broke open the door with a rod and asked for keys of the tractor. When he refused for the same, the accused started assaulting him, his wife and son-in-law with kicks and fists. He damaged the house with iron rod and also broke the cot. When Santosh and Nirma made a hue and cry, the complainant's brother Heera came there and upon his intervention, the accused ran away. A damage of Rs. 25,000/- was caused in the incident. 3. He damaged the house with iron rod and also broke the cot. When Santosh and Nirma made a hue and cry, the complainant's brother Heera came there and upon his intervention, the accused ran away. A damage of Rs. 25,000/- was caused in the incident. 3. On the basis of aforesaid report, FIR No. 147/2008 for the offences under Sections 458, 323, 327 and 427 of the IPC was registered and after usual investigation, a charge-sheet was filed against the present appellant for the offences under Sections 459, 327, 329, 427 and 325 of the IPC. 4. The learned trial court framed charges against the appellant for the offences under Sections 459, 323, 325 and 329 of the IPC and upon denial of guilt by him, commenced the trial. During the course of trial, as many as 11 witnesses were examined and 26 documents were exhibited. Thereafter, an explanation was sought from the accused-appellant under Section 313 Cr.P.C. in which he denied the prosecution allegations and claimed that he has been falsely implicated in the case. No evidence was adduced in defence. Then, after hearing the learned Public Prosecutor and the learned Defence Counsel and upon meticulous appreciation of the evidence, learned trial Judge convicted and sentenced the appellant in the manner stated above vide judgment dated 20.04.2008, which is under assail before this court in the instant appeal. 5. After arguing on merits to some extent, learned counsel for the appellant does not wish to press the present appeal in respect of the judgment of conviction passed by the learned trial court and preferred to make submissions on the point of sentence only. He submits that the incident pertains to the year 2008. The appellant is the son of the complainant. The complainant himself has admitted that he had previously falsely implicated the appellant in a criminal case in place of his another son Chhagan in order to save him from punishment and to save himself from MACT claim and in that case the appellant had been facing trial for 3 years and this was the reason for the attack made by him. The appellant is a poor person belonging to Scheduled Tribe and is hailing from a remote village. He is the sole bread earner of the family. The appellant is a poor person belonging to Scheduled Tribe and is hailing from a remote village. He is the sole bread earner of the family. He remained in custody for more than 2 months during trial and thereafter some time after passing passing of the impugned judgment. He has faced the rigor of criminal case for good 15 years, therefore, taking a lenient view the sentence awarded to him may be reduced to the period already undergone. 6. Learned public prosecutor has, of course, been able to defend the case on merits but does not refute the fact that the appellant has remained in custody for significant time. 7. Heard learned counsel for the appellant and the learned Public prosecutor and perused the material available on the record. 8. Since the appeal against conviction is not pressed and after perusing the record, nothing is noticed which requires interference in the finding of guilt reached by learned trial court, this court does not wish to interfere in the judgment of conviction. Accordingly, the judgment of conviction is maintained. 9. As far as the question of quantum of sentence is concerned, it is worthwhile to note that the incident is of the year 2008. The appellant is the son of the complainant. The reason for the assault was false implication of the appellant at the instance of the complainant. The appellant was around 35 years of age at the time of the incident. The right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. The appellant has already suffered the agony of protracted trial, spanning over a period of more than 15 years and has been in the corridors of the court for this prolonged period. He has remained in custody for a period of more than 2 months during trial and for some time after passing of the impugned judgment. The reformative theory of punishment is in vogue in our country and since the appellant is living peacefully since last 15 years as no report contrary to that has been received by this court, thus, it can be assumed that he has been reformed and no fruitful purpose would be served by sending him to jail at this stage as much misery has already been inflicted upon him. This court is also conscious of the fact that the appellant and the complainant are son and father and sending the appellant in custody may rejuvenate the old strife. 10. In view of the discussion made hereinabove, the case of the appellant deserves to be dealt with leniency. The appellant also deserves the benefit of the consistent view taken by this court in this regard. Thus, guided by the judicial pronouncements made by the Hon'ble Supreme Court in the cases of Haripada Das v. State of West Bangal, (1998) 9 SCC 678 and Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 and considering the facts and circumstances of the case, age of appellant, his criminal antecedents, his status in the society and the fact that he faced financial hardship and had to go through mental agony, this court is of the view that ends of justice would be met, if sentences imposed upon him for each count is reduced to the one already undergone by him. 11. Accordingly, the judgment of conviction dated 20.04.2008 passed by the learned Additional Sessions Judge (Fast Track), Banswara in Sessions Case No. 95/2008 is affirmed but the quantum of sentence awarded by the learned trial court for the offences under Sections 459, 323, 325 and 427 of the IPC is modified to the extent that the sentence he has undergone till date would be sufficient and justifiable to serve the interest of justice. The appellant is on bail. He need not surrender. His bail bonds are discharged. 12. The appeal is allowed in part. 13. Pending applications, if any, are disposed of.