Movana vs State Of Rajasthan
2023 Latest Caselaw 4348 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No.375/2023

Movana S/o Shri Thawara, Aged About 62 Years, B/c Garasiya, R/o Village - Khila - Fali, Basantgarh, Police Station Pindwara, District Sirohi (Rajasthan) (Presently Lodged In Central Jail, Jodhpur)

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Shambhoo Singh For Respondent(s) : Mr. Gaurav Singh, P.P.

HON'BLE MR. JUSTICE FARJAND ALI

Judgment

JUDGMENT PRONOUNCED ON : 10/05/2023 JUDGMENT RESERVED ON : 03/05/2023

1. By way of filing the instant Criminal Appeal, challenge has

been made to the judgment dated 15.02.2023 passed by the

learned Additional Sessions Judge, Pindwara in Sessions Case

No.10/2020, whereby the learned trial court convicted and

sentenced the appellant as under :-

Offence for which convicted Sentence awarded Section 304 Part II IPC 10 Years S.I.

Section 323 IPC 1 Year S.I.

2. Briefly stated, the facts of the case are that on 17.05.2015,

an FIR No.153/2015 for the offences under Sections 302, 341,

323 and 143 of the IPC came to be lodged at the Police Station

Pindwara at the instance of the complainant - Jhumaram, wherein

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it was alleged that on that day at about 10.00 a.m., he, his father

Lumbaram and mother Motki were going to inform one Minda

regarding distribution of wheat seeds. On the way the present

appellant Movana alongwith his family members assaulted them

with axe and lathis due to previous enmity. Movana inflicted a

blow from the backside of an axe on the head of his father, due to

which he got injured and fell down and later on succumbed to the

injury. Other persons from the complainant party also received

numerous injuries. During investigation, the accused-appellant

was arrested and after usual investigation, charge-sheet came to

be submitted against him under Sections 147, 148, 149, 341, 323

and 302 IPC.

3. The learned trial court framed charges against the appellant

and upon denial of guilt by the accused, commenced the trial.

During the course of trial, as many as 20 witnesses were

examined and 55 documents were exhibited. Thereafter, an

explanation was sought from the accused-appellant under Section

313 Cr.P.C. and then, after hearing the learned counsel for the

accused appellant and meticulous appreciation of the evidence,

learned trial Judge has convicted the accused for offences under

Sections 304 Part II and 323 of the IPC vide judgment dated

15.02.2023, which is under assail before this court in the instant

appeal.

4. After arguing on merits to some extent, learned counsel for

the appellant does not wish to press the present appeal in respect

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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 dispute erupted on a very trivial issue and in the

heat of the moment, the appellant inflicted injury on the head of

the deceased, but since only backside of an axe was used, which

reflects that the accused was not intending to kill the deceased,

rather wanted to hurt him only. The incident is of the year 2015.

The petitioner is 63 years old person. There is no criminal

antecedent of the present appellant. It was the first criminal case

registered against him. No adverse remark has been passed over

his conduct in the impugned judgment. He faced trial for good 8

years and is languishing in jail for a period more than 7 years and

11 months, therefore, the sentence awarded to the appellant may

be reduced to the period already undergone.

5. Learned public prosecutor though opposed the submissions

made on behalf of the appellant but does not refute the fact that it

was the first criminal case registered against him and he had no

criminal antecedents as well as the fact that he has remained

behind the bars for more than 7 years and 11 months. He has

placed on record the antecedent report and the information

regarding the period undergone by the appellant.

6. Heard learned counsel for the appellant and the learned

Public prosecutor and perused the record and other material

available on the record.

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7. 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.

8. As far as the question of quantum of sentence is concerned,

it is worthwhile to note that the incident is of the year 2015. The

dispute arose on a very trivial issue of distribution of wheat seeds,

that too in a spur of moment and without pre-meditation. As per

the allegations, he inflicted the injury on the victim from the

backside of an axe, which means that he did not want to kill the

deceased. At the time of the incident, the accused appellant was

55 years of age and now he is around 63 years of age. He has

faced the rigour of trial for a long period of 7 years and more. He

belongs to a tribal area and is a weaker person of the society.

9. The learned Public Prosecutor has placed on record the

antecedent report of the appellant procured from the Station

House Officer, Police Station, Pindwara, District Sirohi, as per

which, the appellant has no criminal antecedents and other than

the present one, no case was ever registered against him.

10. The petitioner was awarded sentence of 10 years' simple

imprisonment for the offence under Section 304 Part-II of the IPC

and 1 year's simple imprisonment for the offence under Section

323 of the IPC. Learned Public Prosecutor has placed on record a

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report received from the Superintendent, Central Jail, Jodhpur, as

per which, the appellant has already undergone a period of 7

years, 11 months and few days, i.e. almost 8 years, out of the

maximum sentence of 10 years. No material has been placed on

record to show that his conduct and behaviour within jail was not

good.

11. In this background and in the light of the judgments passed

by the Hon'ble Supreme Court in the case of Haripada Das Vs.

State of West Bangal reported in (1998) 9 SCC 678 and

Alister Anthony Pareira vs. State of Maharashtra reported in

2012 2 SCC 648 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 deems it appropriate to reduce

the sentence to the term of imprisonment that the appellant has

already undergone till date.

12. Accordingly, the judgment of conviction passed by the

Additional Sessions Judge, Pindwra, District Sirohi in Sessions

Case No.10/2020 (82/2015) (CIS No.10/2020) dated 15.02.2023

is affirmed but the quantum of sentence awarded by the learned

trial court for the offence under Section 304 Part II 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 in judicial custody. He shall be released

from prison forthwith, if not wanted in any other case.

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13. The appeal is allowed in part.

14. Pending applications, if any, are disposed of.

15. Record be sent back to the trial court.

(FARJAND ALI),J Pramod/-

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