Rajasthan High Court - Jodhpur

Roop Ji @ Roop Singh And Ors vs State on 19 July, 2022

Bench: Manoj Kumar Garg

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 433/1992

1.Roop Ji @ Roop Singh S/o Shri Maneng, by caste Patel, R/o Village Budwa, District Banswara

2. Arjun Singh s/o Shri Maneng, by caste Patel, R/o Village Budwa, District Banwara

3. Deveng S/o Shri Amreng, by caste Patel, R/o Village Budwa, District Banswara

4. Jagji S/o Shri laleng, by caste Patel, R/o Village Narula, District Banswara

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. D.S. Udawat For Respondent(s) : Mr. Arun Kumar, P.P.

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Order Reserved on : 12/07/2022 Date of pronouncement: 19/07/2022

REPORTABLE

Instant criminal appeal under Section 374(2) Cr.P.C. has

been filed against the judgment and order dated 09.12.1992

passed by learned Sessions Judge, Banswara (hereinafter referred

to as 'the trial Court') in Sessions Case No. 132/1989, whereby

the trial Court has convicted and sentenced the appellants as

under :-

         S.No.      Name              of Offence               Punishment
                    accused
         1.         Roop ji                148 IPC             Two     years'       rigorous
                                                               imprisonment



                                    (2 of 10)               [CRLA-433/1992]


                         147 IPC             One     Year's     rigorous
                                             imprisonment
                         452 IPC             Two     years'  rigorous
                                             imprisonment and fine of
                                             Rs. 100/-, in default of
                                             payment     of fine   to
                                             undergone one month's
                                             R.I
                         307/149 IPC Four    years'  rigorous
                                     imprisonment and fine of
                                     Rs. 200/-, in default of
                                     payment    of  fine   to
                                     undergone two month's
                                     R.I
                         323/149 IPC Six    months              rigorous
                                     imprisonment
2.   Arjun Singh         147 IPC             One     year's     rigorous
                                             imprisonment
                         452 IPC             Two     years'  rigorous
                                             imprisonment and fine of
                                             Rs. 100/-, in default of
                                             payment     of fine   to
                                             undergone one month's
                                             R.I
                         307/149 IPC Four    years'  rigorous
                                     imprisonment and fine of
                                     Rs. 200/-, in default of
                                     payment    of  fine   to
                                     undergone two month's
                                     R.I
                         323/149 IPC Six    months              rigorous
                                     imprisonment
3.   Deveng              147 IPC             One     year's     rigorous
                                             imprisonment
                         307/149 IPC Four    years'  rigorous
                                     imprisonment and fine of
                                     Rs. 200/-, in default of
                                     payment    of  fine   to
                                     undergone two month's
                                     R.I
                         323/149 IPC Six    months              rigorous
                                     imprisonment
4.   Jagji               147 IPC             One     year's     rigorous
                                             imprisonment
                         307/149 IPC Four    years'  rigorous
                                     imprisonment and fine of
                                     Rs. 200/-, in default of
                                     payment    of  fine   to
                                     undergone two month's
                                     R.I


                                          (3 of 10)                   [CRLA-433/1992]


                               323/149 IPC Six    months                  rigorous
                                           imprisonment

The concise facts of the case are that a First Information

Report was lodged by complainant Chandmal, Sarpanch, Badodia

on 10.08.1989 stating therein that in the night at about 10 PM,

Keshrimal was sleeping in his house. At that time, accused Roopji

alongwith other 7-8 persons forcibly entered into the house and

assaulted him. Thereafter, they dragged him to the hotel of Kiran

Singh where he was further beaten by accused persons by lathis,

iron rod etc. When his younger brother Ramesh and Mani lal

intervened, he was also beaten. It was alleged that a day before,

accused Roopji had damaged small part of platform of the house

of Rameshchand and Keshrimal was demanding compensation

from him.

On the basis of aforesaid report, FIR No. 442/1989 was

registered about commission of offences punishable under

Sections 147, 148, 452, 307/149, 323/149 IPC. After due

investigation, police filed charge sheet against nine accused-

persons. The case was transferred to the court of District and

Sessions Judge, Banswara where the charges of the case were

framed. The appellants denied the charges and claimed trial.

During the course of trial, the prosecution examined 14

witnesses and various documents were also exhibited. Thereafter,

statement of appellants under section 313 Cr.P.C was recorded.

No witness was examined on the defence side.

After scrutiny of the material on record and evidence

produced by the prosecution as well as statement of accused

under Section 313 Cr.P.C., learned trial Court vide judgment dated

(4 of 10) [CRLA-433/1992]

09.12.1992 convicted and sentenced the appellants as stated

hereinabove.

Being aggrieved with the judgment and order passed by the

Trial Court, the accused-appellants have preferred this criminal

appeal before this Court.

Learned counsel for the accused-appellants contended that

the prosecution story is exaggerated and does not find

corroboration from medical evidence. As per injury report of both

injured namely Keshrimal and Ramesh chand, the injuries were

found to be simple in nature. The doctor who examined the

injured has categorically stated that none of the injuries were

dangerous to life and they were simple in nature, therefore, no

case u/s. 307 I.P.C. was made out and the offence, if any, does

not travel beyond section 323 I.P.C. Learned counsel further

submits that the learned trial Court, on the same set of evidences,

has disbelieved the witnesses in respect of the charges levelled

against other co-accused persons, and acquitted them of all the

charges leveled against them. Learned counsel for the appellant

however, makes a submission that the incident relates back to

year 1989 and the appellants have remained in custody from

11.08.89 to 16.08.89 and thereafter from 09.12.90 to 16.12.90. If

this Court does not deem it a case fit for acquittal, then without

making any interference on merits/conviction, the sentence

awarded to the present appellants may be substituted with the

period of sentence already undergone by them.

Learned Public Prosecutor appearing on behalf of the

respondent-State vehemently opposed the prayer made by

learned counsel for the accused-appellants and submitted that

there is no reason to disbelieve the prosecution evidence and

(5 of 10) [CRLA-433/1992]

learned Trial Court has rightly convicted and sentenced the

accused-appellants. He prayed that the impugned judgment and

order passed by the Trial Court may be sustained and sentence

awarded to the accused-appellants by the learned Trial Court be

maintained by this Court.

I have considered the submissions of the learned counsel for

the accused-appellants as well as learned Public Prosecutor and

also gone through the entire record.

I have perused the statements of prosecution witnesses and

find that they have categorically and in unequivocal terms

deposed about the incident. However, PW/9 Dr. Bajrang Singh

Shekhawat who had examined injured Keshrimal and Ramesh

Chand mentioned that injuries received by both the injured were

simple in nature and none of the injuries were dangerous to life.

Looking into the medical record of the case, this Court finds that

the nature of injury creates a doubt as to whether there was any

intention of causing death, or causing attempt to murder.

Therefore, the conviction recorded by the trial court for offence

under Section 307/149 IPC cannot be sustained but the conviction

of the appellants as recorded by the learned trial court for other

offences is maintained. So far as the sentence part is concerned, a

sentence should neither be too lenient nor disproportionately

severe. The former looses its deterrent effect and the latter has a

tendency to tempt the offenders to commit a more serious

offence. It is the duty of the court to impose a proper punishment

depending upon the degree of criminality and desirability to

impose such punishment as a measure of social necessity as a

means of deterring other potential offenders. Punishment to be

(6 of 10) [CRLA-433/1992]

proper, effective and purposeful must fit not only the crime but

also the criminal.

Since it is case of causing injuries by blunt weapon and

appellants have remained behind the bars for some time so also

undergone mental as well as physical agony of protracted trial for

last thirty three years, leniency can be shown to some extent,

provided the appellants pay adequate compensation to the

injured.

Hon'ble Apex Court in Surinder Singh Vs. State (Union

Territory of Chandigarh) : 2022 (1) BLJ 366 wherein it was

observed as under:-

"Appellant-Surinder Singh has laid challenge to the judgment dated 19th May 2010 of the High Court of Punjab & Haryana, whereby, the order of his conviction and sentence dated 25th July 2006 passed by Learned Additional Sessions Judge, Chandigarh was confirmed. The Appellant has been convicted Under Section 307 of the Indian Penal Code, 1860 (hereinafter 'IPC') and Section 27 of the Arms Act, 1959 (hereinafter, 'Arms Act'), and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.

We are thus of the considered opinion that whilst motive is infallibly a crucial factor, and is a substantial aid for evincing the commission of an offence but the absence thereof is, however, not such a quintessential component which can be construed as fatal to the case of the prosecution, especially when all other factors point towards the guilt of the Accused and testaments of eye-witnesses to the occurrence of a malfeasance are on record.

(7 of 10) [CRLA-433/1992]

The Appellant was admittedly a police official at the time of the incidence and the arms and ammunitions used for the commission of the offence, were placed in his possession under the sanction accorded by the Competent Authority. The Appellant being in authorised possession of the weapon, cannot be said to have used an unlicensed weapon, as prohibited Under Section 5 of the Arms Act. It appears that the Trial Court was swayed by irrelevant considerations such as illegal use of the weapon, and lost track of the objective of the Statute, which has been enacted to provide a licensing/regulatory regime, to enable law-

abiding citizens to carry arms, and also to prohibit the possession, acquisition, manufacture, etc. of certain categories of firearms, unless authorized by the Central Government. In other words, illegal use of a licensed or sanctioned weapon per se does not constitute an offence Under Section 27, without proving the misdemeanour Under Section 5 or 7 of the Arms Act. At best, it could be a 'misconduct' under the service rules, the determination of which was not the subject of the trial. 31. In light of the afore-stated discussion, we find that the order of the Trial Court in convicting the Appellant or of the High Court in maintaining such conviction Under Section 27 of the Arms Act, is unwarranted and unjust. Accordingly, the Appellant is acquitted of the charge Under Section 27 of the Arms Act.

..... Adverting to the facts of the case, in hand, we are of the considered view that at this stage, the sentence awarded to the Appellant is no longer in degree to the crime which he has committed. Remitting the Appellant to the rigors of imprisonment at this juncture of his life would not serve the ends of justice due to following mitigating factors:

(8 of 10) [CRLA-433/1992]

a. No motive or element of planning has been proved by the Prosecution in the present case which indicates the possibility that the offense could have been committed on impulse by the Appellant. Hence, the culpability of the offender in such situations is less than that which is ascribed in premeditated offenses as the commission of planned illegal acts denotes an attack on societal values with greater commitment and continuity in comparison to spontaneous illegal acts.

b. Even though the factum of injury may not have a direct bearing on a conviction Under Section 307 Indian Penal Code, the same may be considered by a Court at the time of sentencing. No doubt, the offence committed by the Appellant squarely falls within the four corners of Section 307 Indian Penal Code, but fortunately neither the complainant nor any other person was hurt by the untoward act of the Appellant.

c. Appellant has already undergone a sentence of 3 months and 19 days. Additionally, despite the occurrence taking place in 1999, there is no indication that Appellant has been involved in any untoward activity before or after the incident. This highlights the Appellant's good character and indicates that the incident can be interpreted as an isolated lapse of judgment. Further, the Appellant's clean post- incident behaviour suggests that he is rational individual who is capable of responding to the social censure associated with the offence. Hence, the passage of a long time period coupled with a clean record, both before and after the incident is definitely a factor that calls for mitigation of sentence.

(9 of 10) [CRLA-433/1992]

d. Barring this particular incident wherein he was under the influence of alcohol, the Appellant had an unblemished service record with sixteen good citations in his favour. This indicates that he was a valuable member of society than the present criminal incident might lead one to assume. This is not to say that courts should draw up a social balance sheet when sentencing, but only to take these positive social contributions as a factor for mitigation of sentence.

e. Lastly, it is to be noted that the Appellant was suspended in the year 1999 and has also been subsequently dismissed from service in the year 2007. Hence, this should also be considered as a reasonable factor for mitigation because the dismissal and the consequent loss of social security benefits such as pension, also construes as a form of social sanction."

Hon'ble Apex Court in the case of 'Haripada Das Vs. State of

W.B. : (1998) 9 SCC 678 has observed as under:-

"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"

Accordingly, the appeal is partly allowed. While setting aside

the conviction and sentence for offence under Section 307/149

IPC and maintaining the appellants' conviction and sentence for

(10 of 10) [CRLA-433/1992]

offence under Sections 147, 148, 452, 323/149 IPC, the sentence

awarded to them is reduced to the period already undergone by

them, however, the amount of fine is enhanced to Rs. 4,000/-

each. Three month's time is granted to deposit the fine before the

trial court. Appellants are on bail. Their bail bonds shall stand

discharged on deposition of fine. Upon realization of fine amount,

a sum of Rs.10,000/- shall be paid to the injured Keshrimal and

Rs. 6,000/- shall be paid to injured Ramesh chand. If the