Rajasthan High Court

Devilal And Ors vs State (2024:Rj-Jp:35250) on 21 August, 2024

Author: Ganesh Ram Meena

Bench: Ganesh Ram Meena

[2024:RJ-JP:37085]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

          S.B. Criminal Revision Petition No. 187/2004

Arvind Kumar S/o Ram Swaroop, resident of Jatav Basti,
Hindauncity, District Karoli (Raj.).
                                                   ----Complainant/Petitioner
                                    Versus
    1. Devi Lal, Son of Paramsukh
    2. Balu Ram son of Paramsukh
    3. Smt. Resham widow of Angad,
      residents of Jatav Basti, Hindauncity, District Karoli (Raj.)
                                                 ----Accused Non Petitioners


4. State of Rajasthan through Public Prosecutor

----Non Petitioner Connected With S.B. Criminal Appeal No. 12/2004

1. Devilal S/o Shri Paramsukh

2. Baluram s/o Shri Paramsukh

3. Smt. Resham W/o (late) Shri Angad residents of Jatav Basti, Hindaun City, District Karauli (Raj.) (Accused appellant No.1 is presently in Sub Jail at Hindaun City)

----Accused-Appellants Versus State of Rajasthan through PP

----Respondent

For Petitioner(s) : Mr. Saurabh Yadav for Mr. Pankaj Gupta for the complainant petitioner in Criminal Revision Petition

For Respondent(s) : Mr. Anurag Sharma for accused respondents in Criminal Revision Petition No. 187/2004 and for accused appellants in Criminal Appeal

Mr. Devi Singh, learned Public Prosecutor

HON'BLE MR. JUSTICE GANESH RAM MEENA

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Judgment

21/08/2024

1. Accused respondent No.2-Balu Ram died during the

pendency of the criminal revision petition, therefore, vide order

dated 19.08.2011 passed by the Coordinate Bench of this Court,

the petition against him was abated and now the criminal revision

petition and criminal appeal survives qua accused Devilal and Smt.

Resham.

2. Complainant petitioner Arvind Kumar has filed the

criminal revision petition for conviction of accused respondents

accordingly and the accused appellants namely; Devilal, Baluram

and Smt. Resham have filed the criminal appeal for quashing and

setting the impugned judgment of conviction and sentence dated

20.12.2003 passed by the Court of learned Addl. District &

Sessions Judge (Fast Track), Hindaun City, District Karauli (Raj.)

[for short 'the learned trial court'] in Sessions Case No.10/2003,

hence same are being decided by this common judgment.

3. By filing the criminal revision petition under section 397

read with section 401 CrPC the complainant petitioner has prayed

to call for the record of the Sessions Case No.10/2003 (60/2002)

from the learned trial court, consequently to modify the impugned

judgment passed by the trial court and convict the accused non-

petitioners according to law.

4. Accused appellants namely; Devilal, Baluram and Smt.

Resham have filed the criminal appeal under section 374 CrPC

against the impugned judgment and order dated 20.12.2003

passed by the learned trial court whereby they have been

convicted and sentenced as under:-

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U/s. 307 IPC (Accused appellant-Devilal):

Seven years Simple Imprisonment and a fine of

Rs.1,000/- and in default of payment of fine to undergo three

months additional Simple Imprisonment.

U/s. 323 IPC (Accused appellants Baluram and Smt. Resham):

Benefit of probation under section 4(1) of the Probation of Offenders Act has been given and each of them has been directed to pay Rs.500/- towards cost of prosecution.

5. The facts of the case in nutshell are that on the basis of

a written report submitted by one Ramswaroop Jatav (father of

the complainant) on 08.06.2002, an FIR No.0296/2002 was got

registered at Police Station Hindaun City against the accused

named above wherein he stated that on 07.06.2002 at about 10-

11 PM, the accused started abusing him and when he protested,

they along-with other accused persons started throwing bricks and

stones at their houses. Complainant further mentioned that his

son Arvind sustained an injury on his head by a brick thrown by

accused Devilal and he (Ramswaroop) sustained a head injury by

a brick thrown by accused Balu, as a result of which they fell

down. The complainant further mentioned that upon hearing the

hue and cry rised by them, Dharam Singh, Jagmohan and Siya

came and intervened.

6. After investigation the police submitted charge-sheet

against the above-named three accused persons for the offfences

punishable under sections 307, 323, 336 read with section 34 IPC

in the Court of learned Addl. Chief Judicial Magistrate, Hindaun

City.

[2024:RJ-JP:37085] (4 of 11) [CRLR-187/2004]

7. After taking cognizance the learned trial court

separately framed charges against accused Devilal for the offences

under sections 307 and 323 IPC and against remaining accused

for the offences punishable under sections 307/34 and 324 IPC.

The accused persons denied the charges, pleaded not guilty and

claimed to be tried.

8. The prosecution to prove its case, got examined 14

witnesses and exhibited certain documents. Thereafter the

statements of the accused persons were recorded under section

313 CrPC and in defence five documents were got exhibited.

9. The learned trial court vide its impugned judgment

dated 20.12.2003 convicted the accused Devilal for the

aforementioned offence and gave benefit of probation to

remaining accused persons under section 4(1) of the Probation of

Offenders Act and each of them was directed to pay Rs.500/-

towards cost of prosecution.

Aggrieved with the above, complainant filed the

criminal revision petition for enhancement of sentence to the

convicted and the accused appellants have filed the criminal

appeal for quashing and setting aside the impugned judgment

passed by the trial court.

9. Mr. Saurabh Yadav appearing for Mr. Pankaj Gupta,

counsel appearing for the complainant petitioner in criminal

revision submits that the impugned Judgment dated 20.12.2003,

passed by the learned trial court is absolutely illegal, perverse to

the facts and material on record, improper and unjustified and

same is liable to be modified according to law and the accused

[2024:RJ-JP:37085] (5 of 11) [CRLR-187/2004]

non- petitioners may be sentenced for the offence under Section

307 at least for Life imprisonment. Counsel further submits that

the learned trial court has ignored the evidence on record and on

her own whims and perception has acquitted the non petitioners

No. 2 and 3 from the offence under Section 307 I.P.C. This

method of the learned trial court is absolutely unjustified and as

such the impugned judgment dated 20.12.2003 deserves to be

modified according to law. Counsel also submits that the learned

court below has not properly considered the facts and

circumstances of the case as also the nature of injuries received

by injured Arvind Kumar and acquitted the non petitioners No. 2

and 3 from the charge under Section 307/34 I.P.C. and also while

convicting the non petitioner No.1, Devi Lal under Section 307

I.P.C. has sentenced him only for 7 years simple imprisonment.

Counsel further submits that the learned court below

has not properly considered the evidence on record because in all

facts and circumstances of the case Section 34 I.P.C. is absolutely

applicable, hence acquittal under Section 307/34 I.P.C. of accused

non petitioners No. 2 and 3 is illegal and deserves to be quashed

and set aside. Counsel further submits that the learned trial court

has not properly considered the statement of P.W.4 Jag Mohan

who is the neighbour of complainant and accused party and he

has categorically stated that all the non petitioners started to

quarrel and caused injuries to the complainant party, hence

acquittal under Section 307/34 I.P.C. is liable to be quashed and

set aside by this Court.

[2024:RJ-JP:37085] (6 of 11) [CRLR-187/2004]

Counsel further submits that the learned trial court has

not properly appreciated that the accused non petitioners had

previous enmity at the time of occurrence and they have also

faced proceedings under Section 107/116 Cr.P.C. Hence in the

view of previous enmity and conduct and participation in the

crime, provision of Section 34 I.P.C. clearly attracts against the

accused non petitioners No. 2 and 3, hence acquittal under

Section 307/34 I.P.C. is liable to be quashed and set aside.

Counsel further submits that the learned trial court has

also convicted the non petitioners No. 2 and 3 under Section 323

I.P.C. but contrary findings for conviction for the offence under

Section 307/34 I.P.C. has been given.

He further submits that the learned court below has not

properly appreciated the statement of P.W.6 Arvind Kumar which

is also supported by P.W.3 Ram Swaroop, P.W.4 Jag Mohan, P.W.5

Siya Ram, who have specifically stated each and every act of the

accused non petitioners, hence in view of the statements, the

ingredients of Section 34 I.P.C. clearly made out against the

accused non petitioners.

Counsel also submits that the learned trial court has

not properly considered the statements of P.W.9 Dr. Achal Sharma,

P.W.13 Dr. Aishwarya Mehra and P.W.14 Dr. Ram Lal Meena. They

all have stated that injuries received by injured Arvind Kumar are

grievous in nature and dangerous to life and he received fracture

of partial bone. But the learned trial court after convicting the

accused non petitioner No.1 has sentenced him only for 7 years

simple imprisonment, whereas there is provision of Life

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Imprisonment which is against the law and latest judgment of the

Apex Court. Hence the order of sentence passed by the trial court

may be modified and accused non petitioners may be awarded the

sentence of life imprisonment.

Counsel also submits that the learned trial court has

not appreciated the material evidence in true and right

prospective and in a general and routine manner has discussed

the same. The method in which the accused non petitioners have

been convicted is absolutely against the provisions of criminal

jurisprudence.

10. Mr. Anurag Sharma, Counsel appearing for the accused

non-petitioners in criminal revision and the counsel appearing for

the accused appellants in criminal appeal submits that sentence

awarded to the accused Devilal was suspended by the Coordinate

Bench of this Court vide order dated 27.04.2004 and remaining

accused was granted the benefit of probation under section 4(1) of

the Probation of Offenders Act. Counsel submits that accused

Devilal is 61 years of age and accused Smt. Resham is 65 years of

age and they have remained in judicial lock up for approx. four

months. Counsel submits that the alleged incident is of

07.06.2002 and since then the accused persons are facing mental

agony and harassment. Counsel makes only a limited prayer that

without making any interference on merits/ conviction, the

sentence awarded to the accused persons may be substituted with

the period of sentence already undergone by them.

11. Learned Public Prosecutor has opposed the criminal

revision petition and appeal and has submitted that there is

[2024:RJ-JP:37085] (8 of 11) [CRLR-187/2004]

no material irregularity or illegality committed by the learned

trial court and keeping in view the evidence on record, the

accused persons have been rightly convicted.

12. Considered the submissions made by learned

counsel for the complainant and counsel appearing for the

accused persons, learned Public Prosecutor and examined the

material made available to the Court.

13. In Mohd. Firoz Vs. State of Madhya Pradesh

(Criminal Appeal No.612/2019, decided on

19.04.2022), wherein the Hon'ble Apex Court, owing to the

special facts & circumstances of the case, while reducing the

sentence for offences under the relevant Section of the

concerned Statute, observed as under:-

"43.............we are reminded of what Oscar Wilde has said -"The only difference between the saint and the sinner is that every saint has a past and every sinner has a future". One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender."

(Emphasis supplied)

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This Court, therefore, observes, as is revealed from

here-in-above, that the Hon'ble Apex Court, in Mohd. Firoz

(supra), held that the Court may, in the interest of justice,

reduce the sentence awarded to the accused. More so, this

would be directed when the matter is an old one, and a

deserving case at that, to reduce the sentence awarded to an

accused person, to the time/sentence already served by him.

Similarly, in special acts, with regard to the age/pendency of

the matter, depending on the facts & circumstances of the

case, this Court may deem it a fit case for applying the same

aforementioned principle to reduce the sentence awarded to

the period already undergone by them.

14. This Court is conscious of the judgments rendered

in, Alister Anthony Pareira Vs. State of Maharashtra

(2012) 2 SCC 648 and Haripada Das Vs. State of W.B.

(1998) 9 SCC 678 wherein the Hon'ble Apex Court observed

as under:-

"Alister Anthony Pareira (Supra)

"There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the

[2024:RJ-JP:37085] (10 of 11) [CRLR-187/2004]

crime, motive for the crime, nature of the offence and all other attendant circumstances."

Haripada Das (Supra)

"...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..."

15. The present matter pertains to an incident which

occurred in year 2002 and this revision petition and the

criminal appeal have been pending since year 2004.

16. Hence, in light of the limited prayer made on behalf

of the counsel appearing for the accused appellants and

keeping in mind the aforementioned precedent laws, the

present criminal appeal is partly allowed. Accordingly, while

maintaining the conviction of the accused appellant-Devilal

for the offence under Section 307 I.P.C., the sentence

awarded to him is reduced to the period already undergone

by him. The accused appellant Devilal is not in judicial

custody as his sentence has already been suspended by the