Balbir Singh vs State
2023 Latest Caselaw 583 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

               S.B. Criminal Appeal No. 121/1988

Balbir Singh son of Shri Bhanwar Singh, Resident of Bada
Rajpura, Police Station Garhmora, District Sawai Madhopur.
                                                         ----Accused-Appellant
                                   Versus
State of Rajasthan.
                                                                ----Respondent

For Appellant(s) : Mr. Rajendra Singh Tanwar For Respondent(s) : Mr. Imran Khan, P.P.

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

17/01/2023

This criminal appeal is directed against the judgment dated

12.02.1988 passed by the learned Additional Sessions Judge,

Dausa, District Jaipur (for brevity "the learned trial Court") in

Sessions Case No.41/1984 whereby, while acquitting the appellant

under Section 398 IPC, he is convicted and sentenced under

Section 393 IPC as under:-

"Section 393 IPC:- One and a half year' rigorous imprisonment and ₹500/- fine; in default, three months' rigorous imprisonment."

The relevant facts in brief are that Shri Hazari Lal submitted

a written report (Exibit P-4) at the Police Station Manpur on

11.08.1982 at about 7.00 AM stating therein that in the

intervening night of 10th 11th August, 1982 at about 2.30 AM, six

persons attempted to commit dacoity in his house after trying to

strangulate his aunt who was sleeping in the Varandah. After

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investigation, initially, Police filed charge-sheet against three

accused persons namely Salim, Naim & Rafiq Ahmed and

thereafter, supplementary charge-sheet under Section 398 IPC

came to be filed against the appellant on 28.06.1984. After

committal, the learned trial Court framed charges against the

appellant under Section 393 and Section(s) 393-398 IPC. The

appellant pleaded not guilty and demanded trial. After trial, the

appellant has been convicted and sentenced as stated hereinabove

by the learned trial Court vide its judgment dated 12.02.1988.

Assailing the findings recorded by the learned trial Court,

learned counsel for the appellant submits that except his

identification in the test identification parade conducted almost

two years after the date of incident, there is no other incriminating

evidence against him available on record. He submits that his wife

happens to be resident of the same village in which the incident

alleged to have taken place and hence, he was well acquainted

with all the witnesses and in view thereof, his identification loses

significance. Learned counsel would, however, submit that he shall

feel contended if, while maintaining the conviction, in view of

mitigating circumstances, substantive sentence awarded is

reduced to the period already undergone by the appellant.

Learned counsel submits that the incident pertains to the year

1982 when the petitioner was a young boy and at present, he is

aged about 70 years and has suffered physical as well as mental

trauma of trial as also of conviction for last more than 40 years.

Learned counsel submits that while convicting the co-accused

persons namely Salim, Naim & Rafiq Ahmed by the learned trial

Court vide its judgment dated 30.10.1984 under Section 393 IPC,

they were awarded sentence of 10 months' rigorous imprisonment

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with hundred rupees' fine and in default, one month' rigorous

imprisonment; whereas, the appellant has been sentenced for the

same offence with a rigorous imprisonment of one and a half

years. He submits that the appellant has already undergone a

sentence of 8 months and 2 days and looking to his advance age,

his substantive sentence may be reduced to the period already

undergone.

Learned Public Prosecutor did not seriously oppose the

prayer in view of life of the case, age of the appellant and

sentence awarded to the co-accused persons convicted for the

same offence.

Heard. Considered.

This Court finds substance in the submissions made by the

learned counsel for the appellant. The incident took place on

11.08.1982 and the appellant was convicted by the learned trial

Court in the year 1988. Undeniably, he has been facing trauma of

trial as also of conviction for last more than 40 years and as per

his Aadhar Card submitted by the S.H.O. Manpur, District Dausa

along with his report dated 13.07.2022, at present, the appellant

is aged about 70 years. The co-accused persons namely Salim,

Naim & Rafiq Ahmed who were also convicted by the learned trial

Court under Section 393 IPC vide its judgment dated 30.10.1984,

were substantively sentenced for a rigorous imprisonment of 10

months.

Section 393 IPC reads as under:-

"393. Attempt to commit robbery.--Whoever

attempts to commit robbery shall be punished with

rigorous imprisonment for a term which may extend

to seven years, and shall also be liable to fine."

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Thus, there is no minimum mandatory sentence prescribed

under Section 393 IPC. Their Lordships have, in case of Sk.

Sakkar versus State of West Bengal: (2021) 4 SCC 483,

held as under:-

"11. It is manifest from Section 20(i) of NDPS Act (as it stood in 1997), that even though a maximum sentence of five years RI and a fine of upto Rs. 50,000/- was prescribed but there was no minimum mandatory sentence. The Legislature had in its wisdom left it to the judicious discretion of a court to award the minimum sentence albeit guided by the well known principles on the proportionality of sentence. Taking into consideration the peculiar facts and circumstances of this case, it appears to us that the ends of justice would be adequately met if the appellant's sentence is reduced to the extent of the period he has already undergone. We order accordingly."

In case of V.K. Verma versus CBI: (2014) 3 SCC 485, it

was held as under:-

"9. Thus, as far as punishment under the old Section 161 of IPC is concerned, there is no mandatory minimum punishment. The question is whether the sentence could be reduced for any special reason. Under the old Prevention of Corruption Act, 1947, there is a mandatory minimum punishment of one year. It may extend to seven years. However, under the proviso, the court may, for special reasons, impose a sentence of imprisonment of less than one year.

10. In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of commission of an offence by a person and the mitigating factors, if any,

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the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent.

11. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the FIR was registered by the CBI in 1984. The matter came before the sessions court only in 1994. The sessions court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.

12. In Ashok Kumar v. State (Delhi Administration) MANU/sc/0105/1980: (1980) 2 SCC 282, the commission of offence of theft was in 1971 and the Judgment of this Court was delivered in 1980. The conviction was under Section 411 of IPC. This Court having regard to the purpose of punishment and "the long protracted litigation", reduced the sentence to the period already undergone by the convict.

13. In Sharvan Kumar v. State of Uttar Pradesh MANU/SC0105/1985: (1985) 3 scc 658, the commission of offence was in 1968 and the judgment was delivered in 1985. The conviction was under Sections 467 and 471 of IPC. In that case also, the long delay in the litigation process was one of the factors taken into consideration by this Court in reducing the sentence to the period already undergone.

14. In Ajab and others v. State of Maharashtra MANU/SC/0015/1989: 1989 Supp (1) SCC 601 also, this Court had an occasion to examine the similar situation. The offence was committed in 1972 and this Court delivered the Judgment in 1989. The conviction was under Section 224 read with Section 395 of IPC. In that case also "passage of time was reckoned as a factor for reducing the sentence to the period already undergone". This Court in that case, while reducing the substantive sentence, increased

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the fine holding that the same would meet the ends of justice.

15. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction."

In the aforesaid factual & legal backdrop, this Court deems it

just and proper, while maintaining the conviction of the appellant

under Section 393 IPC recorded by the learned trial Court vide it

judgment dated 12.02.1988, to reduce the substantive sentence

to the period already undergone, i.e., 8 months 2 days. However,

the appellant is directed to pay the fine part if not already paid

within a period of a month from today failing which he shall

undergo the default sentence.

The appeal stands disposed of in aforesaid terms.

(MAHENDAR KUMAR GOYAL),J

Manish/68

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