Criminal Appeal against conviction under sections 148, 307/149, and 323 IPC. Court reduced substantive sentence to period already undergone due to age and long pendency, maintaining conviction. Appellant granted two months to deposit fine.
Sentence reduced to period already undergone; two months granted to deposit fine; bail bond of 25,000/- directed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Appeal No. 477/1988
All Resident Of Sukh Singh Ka Pura, P.S. Basai Dang, District Dholpur.
----Appellants
Versus
State Of Rajasthan Through P.P.
----Respondent
For Appellant(s) : Mr. Sarthak Rastogi For Respondent(s) : Mr. Riyasat Ali, P.P.
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
01/07/2024
Five accused appellants preferred this criminal appeal against the judgment dated 30.11.1988 passed by learned Additional Sessions Judge, Dholpur (for brevity, “the learned trial Court”) in sessions case No.125/1985; however, as per order of this Court dated 23.04.2024, four out of five accused appellants, i.e., appellants No.1, 2, 3 and 5 namely Bharat Singh, Dhan Singh, Durg Singh and Jawan Singh respectively, have expired during pendency of the appeal and it survives only qua accused-appellant No.4 Nihal Singh (for brevity, “the appellant”) who has been convicted and sentenced as under:-
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(i) Under Section 148 IPC :- one year’s rigorous imprisonment with fine of Rs.200/-; in default whereof, one month’s simple imprisonment.
(ii) Under Section 307/149 IPC:- two years nine months’ rigorous imprisonment with fine of Rs.500/-; in default whereof, three months’ simple imprisonment.
(iii) Under Section 323 IPC:- three months’ simple imprisonment.
The relevant facts in brief are that Shri Deewan Singh (PW3) lodged a written report (exhibit P-11) with the SHO Police Station Basai Dang wherein, it was stated that when he requested Vrandawan and Durg Singh to remove their illegal encroachment on the pasture land, the appellant alongwith co-accused person attacked them on 29.08.1984 with deadly weapons. It was alleged that co-accused Bharat Singh opened gun fire resulting into injuries on the person of his brother Kammod and the appellant inflicted a lathi blow on his left shoulder. On the aforesaid written report, an FIR (exhibit P-12) came to be registered. Police after investigation filed charge-sheet against co-accused Bharat Singh under Sections 148, 307, 323 read with Section 149 IPC and against the appellant and other co-accused persons under Sections 148, 307/149, 323, 149 and 323 IPC. Charges were framed against the appellant under the aforesaid Sections. The appellant pleaded not guilty and demanded trial. After trial, he has been convicted and sentenced as stated hereinabove by the learned trial Court vide judgment dated 30.11.1988.
Eschewing merits of the case, learned counsel for the appellant Shri Sarthak Rastogi submits that the appellant, aged
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about 60 years, has been facing mental trauma on account of pendency of this criminal case for last about forty years. He further submits that the gun fire was opened by the co-accused Bharat Singh and the allegation against him is of inflicting a lathi blow on the left shoulder of the complainant Deewan Singh which has resulted into a simple injury. Inviting attention of this Court towards the findings recorded by the learned trial Court, he submits that although, the gun shot injury is on the left hand of Shri Kammod Singh (P.W.-5), i.e., on non-vital part of the body; but, conviction under Section 307 IPC was recorded as the gun was used as the weapon of offence otherwise, a specific finding has been recorded that none of the injuries was dangerous to life. Shri Rastogi submits that appellant has already undergone a sentence for a period of more than a month, he has no criminal antecedent after his conviction in the instant case and it is in the interest of justice that his sentence be reduced to the period already undergone. He, therefore, prays that while maintaining the conviction, sentence awarded to the appellant be reduced to the period already undergone.
Per contra, learned Public Prosecutor opposed the prayer. Heard. Considered.
This Court finds force in the submissions made by the learned counsel for the appellant, who is aged about 60 years (in the charge-sheet filed in the year 1984, his age is reflected as 20 years) and has been facing mental agony on account of pendency of this criminal case for about 40 years. Further, as per the prosecution case, the lathi blow inflicted by the appellant on the left shoulder of the complainant Deewan Singh resulted into a
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simple injury; but, since, he was a member of the unlawful assembly, he was also convicted under Section 307 IPC read with Section 149 IPC alongwith the co-accused. Further, although, as per the findings recorded by the learned trial Court, the gun injury caused by the co-accused was not found to be dangerous to life; but, the appellant and other co-accused persons were convicted under Sections 307 or 307/149 IPC only because the gun was used as the weapon of offence, although, the gun shot injury was on the left hand of injured Kambod Singh, i.e., non-vital part of the body. Further, after suspension of his sentence by this Court vide order dated 22.12.1988, the appellant has been living peacefully and has no criminal antecedents during the last forty years. In the considered opinion of this Court, all the factors can be taken into consideration as the mitigating circumstances to reduce the sentence.
“Their Lordships have held in the cases of Alister Anthony Pareira Vs. State of Maharashtra MANU/SC/0015/2012: (2012) 2 SCC 648 and Haripada Das Vs. State of W.B. MANU/SC/1627/1998: (1998) 9 SCC 678 as under:-
Alister Anthony Pareira (Supra)
"There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."
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Haripada Das (Supra)
"...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will be met in the facts of the case if the sentence is reduced to the period already undergone..."
A Division Bench of This Court has, in the case of Nagia Vs. State of Rajasthan:RLW 1990(1) 99 wherein, the appellant was convicted inter alia under Section 302 IPC and was awarded a sentence of life imprisonment, while altering his conviction to Section 304-II IPC, had reduced his sentence to the period already undergone, held as under:
“6. Now we take up the question what sentence should be awarded to the appellants. The incident, in the present case, took place in the year 1977, and now we are in the year 1990, and more than 13 years have elapsed. All the four accused remained behind the bars for 153 days and it will not be proper to send these accused persons in jail after a lapse of 13 years. We, therefore, think it proper that instead of sending accused Narsingha, Lumbia and Mahadeva to jail again, we reduce the substantive sentence imposed on them to that of already undergone and a fine of Rs. 1000/each, and in default of payment of fine, the
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accused-appellants Narsingha, Lumbia and Mahadeva will further to Undergo six months R.I. Accused appellant Nagia is convicted under sec. 304 Part II IPC and sentence to undergo the imprisonment already undergone and a fine of Rs. 5000/- and in default of payment of fine he has to undergo 2 years' RI.
Recently, a co-ordinate Bench of this Court has, in the case of Nawal Kishore and Anr. Vs. State of Rajasthan in S.B. criminal Appeal No.483/1993 wherein, the accused appellants were convicted inter alia under Sections 307 IPC and 323 read
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with Section 34 IPC respectively and were sentenced for a period of five years rigorous imprisonment with fine, vide judgment dated 19.02.2024 extended than the benefit of probation under the Probation of Offenders Act, 1958 in view of the fact after suspension of their sentence by this Court, they have been living in the society peacefully with no criminal antecedent to their discredit.
In the backdrop of aforesaid presedential law and in the facts and circumstances of the case, this Court deems it just and proper to partly allow the appeal. While maintaining the conviction of the appellant recorded by the learned trial Court vide judgment dated 30.11.1988, the sentence awarded to him is reduced to the period already undergone. However, for depositing the fine, if not already deposited, he is granted two month’s time failing which he shall be liable to serve the default sentence.
In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 the appellant namely Nihal Singh Son Of Bhogi Ram is directed to furnish a personal bond in the sum of ₹25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of two months, with the stipulation that in the event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof shall appear before the Hon’ble Supreme Court.
(MAHENDAR KUMAR GOYAL),J
GAURAV/1
2 issues framed by the court
Whether the sentence awarded to the appellant should be reduced to the period already undergone considering age and long pendency.
Whether the appellant is entitled to bond relief under Section 481 Bharatiya Nagarik Suraksha Sanhita 2023 pending appeal to Supreme Court.
Colour shows how this judgement treated each authority
Alister Anthony Pareira Vs. State of MaharashtraExplained¶37
Alister Anthony Pareira Vs. State of Maharashtra MANU/SC/0015/2012: (2012) 2 SCC 648 · Who else cites this
Haripada Das Vs. State of W.B.Explained¶3743
Haripada Das Vs. State of W.B. MANU/SC/1627/1998: (1998) 9 SCC 678 · Who else cites this
Nagia Vs. State of RajasthanApplied¶45
Nagia Vs. State of Rajasthan:RLW 1990(1) 99
Nawal Kishore and Anr. Vs. State of RajasthanReferred¶52
Nawal Kishore and Anr. Vs. State of Rajasthan in S.B. criminal Appeal No.483/1993
4 provisions across 2 enactments
Nihal Singh Son Of Bhogi Ram
State Of Rajasthan Through P.P.
Mahendar Kumar Goyal
Gaurav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
