Rajasthan High Court - Jaipur
Rajbahadur And Ors vs State on 28 July, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR
JUDGMENT
S.B.CRIMINAL APPEAL No.326/2009
Rajbahadur & Ors. vs. State of Rajasthan
DATE: 28.07.2011
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN
Mr.D.G. Chaturvedi & Mr.Ravi Shankar Sharma,
for appellants.
Mrs.Rekha Madnani, PP for State.
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Heard learned counsel for the parties.
2. Four accused appellants, namely, Rajbahadur, Ram Vilas, Chandra Shekhar & Avnesh Kumar have preferred S.B.Criminal Misc. Application for Suspension of Sentence No.442/2011 and accused appellant Radheshyam has preferred S.B.Criminal Misc. Application for Suspension of Sentence No.219/2011. The matter has come up for orders on above applications, but during the course of arguments, learned counsel for appellants did not press the applications and submitted that they are not challenging the order of conviction of the appellants and their only prayer is to reduce the sentence of imprisonment under Section 395 IPC from ten years rigorous imprisonment to seven years rigorous imprisonment as appellants have already undergone imprisonment of more than six years till now, therefore, appeal itself may be heard and decided finally.
3. The prayer of appellants is not opposed by learned public prosecutor seriously, in view of the fact that appellants are not challenging their order of conviction.
4. At the request of parties, the appeal was heard and is being disposed of finally.
5. Eight accused appellants, namely, (1)Rajbahadur S/o.Ramchandra, (2) Radheshyam S/o.Nekram, (3) Shrikishan S/o.Bhajanlal, (4) Gangadhar @ Gajadhar S/o.Siyaram, (5) Ramvilas S/o.Mahendra Singh, (6)Chandrashekhar S/o.Kanwarpal, (7)Deepu @ Deepchand S/o.Tejpal & (8)Avnesh Kumar S/o.Pyarelal,, have preferred this appeal under Section 374(2) of the Code of Criminal Procedure against impugned judgment and order dated 21st November, 2007 passed by Additional Sessions Judge, Gangapurcity, District Sawai Madhopur in Sessions Case No.44/2005, whereby all the accused appellants named above have been convicted and sentenced as under :-
Under Section Sentence 395 IPC To undergo 10 years' rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine to further undergo one months' additional imprisonment.
397 IPC To undergo 7 years' rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine to further undergo one months' additional imprisonment.
398 IPC To undergo 7 years' rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine to further undergo one months' additional imprisonment.
141 of the Indian Railway Act To undergo 3 months' simple imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo fifteen days' additional imprisonment.
145 of the Indian Railway Act To undergo 2 months' simple imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo five days' additional imprisonment.
6. In addition to above, four appellants, namely, Rajbahadur, Chandra Shekhar, Deepu @ Deepchand and Avnesh Kumar were also convicted and sentenced under Section 3/25 of the Arms Act to undergo two years rigorous imprisonment and a fine of Rs.1,000/- in default of payment of fine to further undergo one months' additional imprisonment. All the sentences were ordered to run concurrently.
7. Brief facts of the case are that on 19th May, 2005 at about 1.40 a.m., one Dharm Chand Dixit and his other colleagues informed SHO Gangapurcity at Railway Station about incident took place with them in train No.2307 Down Hawra Jodhpur Express and on that basis FIR No.26/05 was registered under Sections 395, 397 & 398 IPC, under Section 3/25 of the Arms Act and under Sections 141 and 145 of the Railways Act. During investigation of the case, the accused persons were arrested and on their information, certain articles were recovered and thereafter their identification parade also took place. After completion of investigation, a charge sheet was submitted in the case against all the accused appellants. Learned trial court framed charges against accused appellants for the above offences. Accused appellants denied the charges and claimed trial. Prosecution in support of its case examined PW.1 to PW.41 and produced documentary evidence Ex.P1 to P203 and Article 1 to Article 22. Thereafter, statements of the accused persons were recorded under Section 313 CrPC. No evidence was led in defence. Learned trial court, after considering the submissions of parties and examining the record of the case, convicted and sentenced the accused appellants as mentioned above.
8. Since learned counsel for appellants have not challenged the order of conviction of the appellants passed by trial court, therefore, it is not necessary to refer and discuss the facts of the case and evidence in detail. However, I examined impugned judgment and record of the trial court particularly the statement of PW.3 Smt.Parveen, PW.4 Amir, PW.6 Kunti Bahan, PW.7 Ramovtar, PW.8 Vinod Kumar, PW.9 Jetu Singh and PW.17 Virendra, PW.18 Dharmendra Gupta, PW.28 Moola Ram, PW.37 Bharat Kumawat and other documentary evidence and after considering the same I am of the view that finding of learned trial court about conviction of appellants in above offences is absolutely based on proper appreciation of evidence and the same does not call for any interference by this Court. In view of above referred overwhelming prosecution evidence, the learned counsel for appellants were right in not challenging the order of conviction of the appellants.
9. So far as reduction of sentence of appellants under Section 395 IPC is concerned, it is contended by learned counsel for the appellants that offence punishable under Sections 397 and 398 IPC were of more serious nature than the offence under Section 395 IPC, but learned trial court has awarded only minimum sentence of seven years under Sections 397 and 398 IPC, whereas trial court has awarded punishment of ten years rigorous imprisonment under Section 395 IPC to appellants. They also submitted that there is no minimum sentence prescribed under Section 395 IPC. Therefore, they submitted that looking to all the facts and circumstances of the case, the sentence of rigorous imprisonment of ten years under Section 395 IPC is liable to be reduced and may be reduced to seven years rigorous imprisonment. It is further contended that no person sustained any kind of injury in the incident, which shows that there was no intention of any of the accused to inflict any simple or grievous injury. They further submitted that the identification parade of appellants was conducted after recovery of the articles and two months of their arrests. The articles, recovered on the basis of information of the appellants, are only Watch, Golden Chain etc., therefore, looking to the delay in identification parade of the accused, nature of article recovered in the case, it will be just and proper in the interest of justice to reduce the sentence of appellants under Section 395 IPC.
10. After considering all the facts and circumstances of the case, I am of the view that this is a fit case wherein sentence of imprisonment under Section 395 IPC should be reduced.
11. Hon'ble Supreme Court in Ram Sunder Mahto And Others Vs. State of Bihar, (2009) 16 SCC 191 reduced the sentence of imprisonment under Section 395 IPC to three years rigorous imprisonment. The relevant paras of the judgment are reproduced as under, .......This appeal is filed by the four accused persons who have been convicted for the offence punishable under Section 395 of the Penal Code, 1860 (in short IPC) and have been sentenced to suffer rigorous imprisonment for five years.....
......Considering the evidence, we find that all these accused persons might have been present during the dacoity but have not caused any injury to any witnesses. In that view of the matter we reduce the sentence which has been awarded by the High Court to that of three years.....
12. In Gedda Raminaidu And Others Vs. State of Andhra Pradesh, (1980) 1 SCC 676, the Hon'ble Apex Court reduced the sentence of imprisonment under Section 395 IPC to three years rigorous imprisonment. The relevant portion of the judgment is reproduced as under :-
........We, therefore, while maintaining the conviction of the appellants 4 to 12 under Section 395 of the IPC, reduce the sentence to three years' RI........
13. In Kusho Mahton And Another Vs. State of Bihar, 1980(Supp) SCC 344, the Hon'ble Apex Court reduced the sentence of imprisonment under Section 395 IPC to one and half year already undergone by accused persons. The judgment of Hon'ble Apex Court is reproduced as under :-
After hearing counsel for the parties, we are of opinion that the appellants have been rightly convicted under Section 395, IPC because while carrying away the stolen property they exploded cracker to frighten the inmates of the house who wanted to pursue them. All the appellants are youngmen and it is stated that they have already served a sentence of about one and half years. There was no attempt to cause injury to any of the inmates of the house or other persons at the time of the commission of the offence or even thereafter. Taking into consideration all the circumstances of the case we are of opinion that the ends of justice will be served if the sentence is reduced to imprisonment already undergone. Subject to this reduction in the sentence the appeal is dismissed. The bail bonds are discharged.
14. After considering all the facts and circumstances of the case as well as above referred judgment of the Hon'ble Apex Court and for the reasons mentioned above, I am of the view that ends of justice will meet in case sentence of imprisonment of appellants under Section 395 IPC is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment.
15. Consequently, appeal is partly allowed. The conviction and sentence of the appellants 1.Rajbahadur S/o.Ramchandra, 2. Radheshyam S/o.Nekram, 3. Shrikishan S/o.Bhajanlal, 4. Gangadhar @ Gajadhar S/o.Siyaram, 5. Ramvilas S/o.Mahendra Singh, 6.Chandrashekhar S/o.Kanwarpal, 7.Deepu @ Deepchand S/o.Tejpal & 8.Avnesh Kumar S/o.Pyarelal under Sections 397, 398 IPC, under Section 141, 145 of the Indian Railway Act and under Section 3/25 of the Arms Act passed by trial court is upheld. The conviction of all the above named eight appellants under Section 395 IPC is also upheld, but their sentence of imprisonment under this Section is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo fifteen days simple imprisonment. All the sentences will run concurrently.
16. Since, appeal has been disposed of finally, therefore, both the applications for suspension of sentence stand disposed off.
(NARENDRA KUMAR JAIN),J.
Sanjay