Naru, Nariya, Narayan @APPELLANT@Hash State of Rajasthan & Ors.

Instant revision petition has been filed by the petitioner under Section 397/401 Cr.P.C. against the judgment dated 27.07.2016 passed by learned Addl.

Sessions Judge, Nathdwara, District Rajsamand (for short ‘the appellate court’) in Criminal Appeal No. 9/2016 whereby, the learned appellate

Court partly allowed the appeal filed by the petitioner and acquitted him for offence under Section 392 IPC but maintained the conviction and sentence

recorded under Section 457 IPC by the learned Additional Chief Judicial Magistrate, Nathdwara, District Rajsamand vide judement dated 15.01.2016

in Criminal Case No. 801/2014. For offence under Section 457 IPC, the learned trial court awarded sentence of four years R.I. with fine of

Rs.500/and in default of payment of fine, ordered to further undergo one month simple imprisonment.

Briefly stated, the prosecution case as set up is that on 09.09.2014 the complainant Magannath lodged a written report to the SHO, P.S. Nathdwara

alleging therein that in the midnight when he and Mitthainath were sleeping in the Ashram, three persons entered in the Ashram. After threatening

Mitthainath, they took his watch and Rs.500-700. On hearing the hue and cry, the complainant woke up. Then these three persons also entered in the

complainant’s room and snatched his mobile, gold ring, silver ornaments and also Rs.5,700/-. He further alleged that they also took other articles

from the Ashram and thereafter ran away.

On the basis of the above report, police registered a case for offence under Sections 458, 380 IPC. On completion of investigation, a charge-sheet

was filed against the accusedpetitioner and other co-accused for the offences under Sections 458, 392, 394, 401, 427 IPC. Thereafter, charges of the

case were framed against the accused persons who denied the charges and claimed trial.

During the course of trial, the prosecution examined as many as 13 witnesses and exhibited various documents. The statements of the accused

were recorded under Section 313 Cr.P.C. in which they claimed innocence and examined three witnesses and exhibited various documents in their

defence.

After considering the testimonies of the prosecution witnesses and the material available on record, the learned trial court convicted the accused

petitioner for offence under Sections 392 and 457 IPC and passed sentence of four years R.I. along with fine of Rs.500/-, in default thereof, to further

undergo one month S.I.

Aggrieved by the judgment and order dated 15.01.2016, passed by the learned trial court, an appeal was preferred by the petitioner before the learned

Addl. Sessions Judge, Nathdwara, District Rajsamand which came to be partly allowed vide judgment dated 27.07.2016 whereby, the petitioner was

acquitted of the charges for offence under Section 392 IPC but the conviction and sentence recorded for offence under Section 457 IPC was

upheld.Â

At the threshold, learned counsel for the petitioner submits that the petitioner is not challenging the finding of both the Courts below. The petitioner is

in custody since 07.10.2014 and he is about to complete his sentence passed by the courts below. Therefore, it is prayed that the substantive sentence

awarded to the petitioner for the aforesaid offence may be reduced to the period already undergone by him.

On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted

that there is neither any occasion to interfere with the sentence awarded to the accused petitioner nor any compassion or sympathy is called for in the

said case.

I have perused the evidence of the prosecution as well as defence and the judgments passed by both the courts below regarding conviction of the

accused-petitioner. Since the counsel for the petitioner does not challenge the conviction recorded against the petitioner, therefore, the order of

conviction recorded by the courts below for offence under Section 457 IPC is liable to be upheld. However, undisputedly the petitioner has served

more than three years of sentence out of total sentence awarded by the courts below and has also suffered the agony and trauma of protracted trial.

Thus, looking to the over-all circumstances and the fact that the petitioner has served more than three years of sentence out of total sentence awarded

by the courts below, it will be just and proper if the sentence awarded by the courts below for offence under Section 457 IPC is reduced from four

years R.I. to three and half years R.I. while maintaining the amount of fine of Rs.500/-.

Accordingly, the revision petition is partly allowed. While maintaining the petitioner’s conviction and sentence for offence under Sections 457 IPC,

the sentence awarded to him is reduced from four years R.I. to three and half years R.I. So far as the amount of fine is concerned, the same is

maintained.

The record of trial Court be sent back forthwith. The modification of the judgment be informed immediately to the concerned Jail.