Mishri vs State of Rajasthan

Mahesh Chandra Sharma, J.—This appeal has been filed by the appellant against the judgment dated 7.12.1988 passed by Additional Sessions Judge, Bharatpur in Sessions Case No. 13/88, whereby the learned trial court convicted the accused appellant for the offence u/s 304 Part II IPC and sentenced him to undergo 4 years RI with fine of Rs. 100, in default of payment of fine, to further undergo 3 months SI. Brief facts of the case are as under:

On 11.2.1987, an FIR was registered against the accused appellant for the offence u/s 302 IPC by Hardev Singh. After completion of investigation, charge sheet was filed before the Magistrate concerned. Thereafter case was committed to the Court of Sessions for trial. Charge was framed against the accused appellant for the offence u/s 302 IPC, who denied for the same and claimed for trial. After hearing the arguments of both the sides, the learned trial court acquitted the accused appellant for the offence u/s 302 IPC, but convicted him for the offence u/s 304 Part II IPC and sentenced him vide his judgment dated 7.12.1988, as indicated above.

Against the said judgment dated 7.12.1988, this appeal has been preferred by the appellant.

Learned counsel for the appellant has contended that he is not challenging the conviction part of the judgment of the court below but he is only requesting to this Court that looking to the fact that occurrence took place in the year 1987 i.e. about 26 years'' ago from today; the appellant is a very old and poor person; he remained in confinement for about 65 days; he is not the habitual offender and it is the first of fence of the accused appellant, either he should be given the benefit of probation and if not, then he should be released for the period already undergone by him in confinement, as indicated here-in-above.

Learned PP appearing for the State has opposed the same.

I have heard learned counsel for the parties and carefully perused the relevant material on record. Looking to the facts and circumstances of the case and keeping in mind the arguments of learned counsel for the appellant, I do not think it proper to release the appellant Mishri on probation, but in my view ends of justice would be met if the sentence awarded to the appellant Mishri is reduced to the period already undergone by him in confinement, as indicated herein-above. Hence, this appeal is disposed of with the following directions:

(i) The appeal filed by appellant is partly allowed and his conviction is maintained

(ii) His sentence is reduced to the period already undergone by him in confinement, as indicated above.

(iii) The sentence of the accused appellant was suspended and he is on bail. He need not to surrender and his bail bonds stand cancelled.

Impugned judgment stands modified, as indicated hereinabove.