Munshi vs State (2023:Rj-Jd:30186)
2023 Latest Caselaw 6893 Raj

[2023:RJ-JD:30186]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 321/2009

Munshi S/o Khama by caste Adivasi, R/o Vakahatpura Davagarh, Police Station Ambupura, District Banswara

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Parikshit Nayak For Respondent(s) : Mr. Abhishek Purohit, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Judgment

06/09/2023

1. The appellant has preferred the instant appeal under Section

374 (2) of the CrPC being aggrieved of the judgment dated

20.04.2008 passed by the learned Additional Sessions Judge (Fast

Track), Banswara in Sessions Case No.95/2008, whereby he has

been convicted and sentenced in the following manner :-

Offence for which Sentence, fine and default sentence convicted Section 459 of the IPC 3 years' simple imprisonment alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo, simple imprisonment of 15 days Section 323 of the IPC 6 months' simple imprisonment Section 325 of the IPC 1 year's simple imprisonment alongwith a fine of Rs.200/- and in default of payment of fine, further to undergo, simple imprisonment of 10 days Section 427 of the IPC 6 months' simple imprisonment

The sentences were ordered to run concurrently.

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2. Briefly stated, facts relevant and essential for disposal of the

case are that on 12.10.2008 at 11.30 a.m., complainant Khema

submitted an oral report at the Police Station Ambapura to the

effect that he was engaged in the work of agriculture and sorcery.

His son Munshi was living separately and he had given him land,

well, cattle etc., still he used to ask for share in the income earned

by sorcery and on refusal, he had threatened to kill the

complainant and his wife. On 11.10.2008, he alongwith his wife

Kali, son-in-law Narayan, daughter Santosh and house-help Nirma

were sleeping in the house. In the night at about 11.00 p.m. his

son Munshi came and asked for money and tractor, but they did

not open the gate due to fear, on which Munshi broke open the

door with a rod and asked for keys of the tractor. When he

refused for the same, the accused started assaulting him, his wife

and son-in-law with kicks and fists. He damaged the house with

iron rod and also broke the cot. When Santosh and Nirma made a

hue and cry, the complainant's brother Heera came there and

upon his intervention, the accused ran away. A damage of

Rs.25,000/- was caused in the incident.

3. On the basis of aforesaid report, FIR No.147/2008 for the

offences under Sections 458, 323, 327 and 427 of the IPC was

registered and after usual investigation, a charge-sheet was filed

against the present appellant for the offences under Sections 459,

327, 329, 427 and 325 of the IPC.

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4. The learned trial court framed charges against the appellant

for the offences under Sections 459, 323, 325 and 329 of the IPC

and upon denial of guilt by him, commenced the trial. During the

course of trial, as many as 11 witnesses were examined and 26

documents were exhibited. Thereafter, an explanation was sought

from the accused-appellant under Section 313 Cr.P.C., in which he

denied the prosecution allegations and claimed that he has been

falsely implicated in the case. No evidence was adduced in

defence. Then, after hearing the learned Public Prosecutor and

the learned Defence Counsel and upon meticulous appreciation of

the evidence, learned trial Judge convicted and sentenced the

appellant in the manner stated above vide judgment dated

20.04.2008, which is under assail before this court in the instant

appeal.

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

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

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 incident pertains to the year 2008. The appellant

is the son of the complainant. The complainant himself has

admitted that he had previously falsely implicated the appellant in

a criminal case in place of his another son Chhagan in order to

save him from punishment and to save himself from MACT claim

and in that case the appellant had been facing trial for 3 years and

this was the reason for the attack made by him. The appellant is

a poor person belonging to Scheduled Tribe and is hailing from a

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remote village. He is the sole breadearner of the family. He

remained in custody for more than 2 months during trial and

thereafter some time after passing passing of the impugned

judgment. He has faced the rigor of criminal case for good 15

years, therefore, taking a lenient view the sentence awarded to

him may be reduced to the period already undergone.

6. Learned public prosecutor has, of course, been able to

defend the case on merits but does not refute the fact that the

appellant has remained in custody for significant time.

7. Heard learned counsel for the appellant and the learned

Public prosecutor and perused the material available on the

record.

8. 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.

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

it is worthwhile to note that the incident is of the year 2008. The

appellant is the son of the complainant. The reason for the

assault was false implication of the appellant at the instance of the

complainant. The appellant was around 35 years of age at the

time of the incident. The right to speedy and expeditious trial is

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one of the most valuable and cherished rights guaranteed under

the Constitution. The appellant has already suffered the agony of

protracted trial, spanning over a period of more than 15 years and

has been in the corridors of the court for this prolonged period.

He has remained in custody for a period of more than 2 months

during trial and for some time after passing of the impugned

judgment. The reformative theory of punishment is in vogue in

our country and since the appellant is living peacefully since last

15 years as no report contrary to that has been received by this

court, thus, it can be assumed that he has been reformed and no

fruitful purpose would be served by sending him to jail at this

stage as much misery has already been inflicted upon him. This

court is also conscious of the fact that the appellant and the

complainant are son and father and sending the appellant in

custody may rejuvenate the old strife.

10. In view of the discussion made hereinabove, the case of the

appellant deserves to be dealt with leniency. The appellant also

deserves the benefit of the consistent view taken by this court in

this regard. Thus, guided by the judicial pronouncements made

by the Hon'ble Supreme Court in the cases 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 and 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 is of the view that ends of

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justice would be met, if sentences imposed upon him for each

count is reduced to the one already undergone by him.

11. Accordingly, the judgment of conviction dated 20.04.2008

passed by the learned Additional Sessions Judge (Fast Track),

Banswara in Sessions Case No.95/2008 is affirmed but the

quantum of sentence awarded by the learned trial court for the

offences under Sections 459, 323, 325 and 427 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 on bail. He need not surrender. His bail

bonds are discharged.

12. The appeal is allowed in part.

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

(FARJAND ALI),J 132-Pramod/-

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