Rajasthan High Court - Jodhpur

Rajaq @ Raju And Ors vs State (2023:Rj-Jd:40664) on 24 November, 2023

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2023:RJ-JD:40664]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
             S.B. Criminal Revision Petition No. 527/2014

1. Rajaq @ Raju S/o Rahman Bux
2. Anis Khan S/o Mohd. Hussain
3. Aslam S/o Abdul Aziz
   by caste Muslim, r/o Mawli, District Udaipur
                                                                   ----Petitioner
                                    Versus
State of Rajasthan
                                                                 ----Respondent


For Petitioner(s)         :     Mr. J.V.S. Deora
For Respondent(s)         :     Mr. Mukesh Trivedi, PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

24/11/2023

By this revision, the petitioner-convicts are challenging the

judgment and order dated 05.05.2014 passed by the learned

Additional Sessions Judge No.1, Udaipur Camp Mawli, District

Udaipur whereby, the learned Judge dismissed the appeal filed by

the petitioners and upheld the the conviction and sentence passed

by learned Judicial Magistrate, First Class, Mawli, District Udaipur,

as under:-

Under Section 457 IPC = Two years simple imprisonment and fine of Rs.2000/- each in default of payment of fine to further undergo one month additional S.I. Under Section 380 IPC = Two years simple imprisonment and fine of Rs. 2000/- each in default of payment of fine, to undergo two months S.I. Both the sentences were ordered to run concurrently.

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Briefly stated, the prosecution case as set up is that the

complainant Rajaq submitted a written report before the Police

station stating therein that he and his family members had gone

to their uncle's house. When they came back in the morning, they

found that some unknown persons had broke open locks of two

rooms and stole jewellery, cash, electronic items etc.

On the basis of the above report, FIR No. 109/2007 was

registered by the police for offence under Sections 457, 380 IPC

and the police started investigation. On completion of

investigation, a charge-sheet was filed against the present

petitioners. Thereafter, charges of the case were framed against

the petitioners for offence under Sections 457, 380 IPC. They

denied the charges and claimed trial.

During the course of trial, the prosecution examined as many

as twelve witnesses and got exhibited various documents. After

examining the accused petitioner under Sec. 313 Cr.P.C.,

opportunity was also given to them to lead defence evidence.

However, no witness was examined on the defence side.

After considering the testimonies of the prosecution

witnesses and the material available on record, the trial court vide

judgment dated 11.01.2013 convicted and sentenced the

petitioners for offence under Section 457, 380 IPC as mentioned

above.

Aggrieved by the judgment and order dated 11.01.2013,

passed by the learned Judicial Magistrate First Class, Mawli,

District Udaipur, an appeal was preferred before the learned

Additional Sessions Judge No.1, Camp Mawli, District Udaipur,

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however, the appeal filed by the petitioner was dismissed and the

conviction and sentence of the petitioners-convict was upheld.

At the outset, learned counsel for the accused-petitioners

makes a submission that the incident relates back to year 2007

and the petitioners has suffered incarceration of about two months

period, therefore, without making any interference on

merits/conviction, the sentence awarded to the present petitioners

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 petitioners and submitted that there is no

reason to disbelieve the prosecution evidence and learned Trial

Court has rightly convicted and sentenced the accused-petitioners.

He prayed that the impugned judgment and order passed by the

Courts below may be sustained and sentence awarded to the

accused-petitioners by the Court below be maintained by this

Court.

I have considered the submissions of the learned counsel for

the accused-petitioners as well as learned Public Prosecutor and

also gone through the entire record.

From the findings recorded by the trial Court, I am satisfied

that learned counsel for the accused-petitioners is right in not

pressing this revision petition on merits. So far as reduction of

sentence of imprisonment awarded to the accused-petitioners is

concerned, it is not disputed that all the petitioners have remained

behind the bars for about two months and have also suffered the

agony and trauma of protracted trial as the occurrence relates

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back to the year 2007. Since the petitioners have remained

behind the bars for some time so also undergone mental as well

as physical agony of protracted trial for last sixteen years,

leniency can be shown to some extent.

Thus, looking to the over-all circumstances and the fact that

the petitioners have remained behind the bars for considerable

time, it will be just and proper if the sentence awarded by the trial

court for offence under Sections 457, 380 IPC is reduced to the

period already undergone by them while maintaining the amount

of fine.

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

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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.

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.

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..... 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:

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

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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.

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

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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 revision petition is partly allowed. While

maintaining the petitioners' conviction for offence under Sections

457, 380 IPC, the sentence awarded to them is hereby reduced to

the period already undergone, however the amount of fine is

hereby maintained. Three months time is granted to deposit the

fine before the trial court. Petitioners are on bail. Their bail bonds

stand discharged on deposition of fine.

The record of the trial court be sent back forthwith.

(MANOJ KUMAR GARG),J 140-BJSH/-