Nilesh Kumar vs State Of Rajasthan

Instant criminal appeal has been filed by the appellant challenging the judgment dated 07.11.2015 passed by learned Additional Sessions Judge No.3, Jodhpur Metropolitan in Sessions Case No.42/2014 whereby, the learned trial court convicted the appellant for offence under Sections 450, 323 & 394 IPC and sentenced as under :

Sec. 450 IPC: 5 Years' RI and Fine of Rs.10,000/-, in default of fine three months Additional R.I.

Sec. 323 IPC : 6 Months' R.I.

Sec. 394 IPC : 7 Years' RI and Fine of Rs.20,000/-, in default of fine six months Additional S.I.

All the sentences were ordered to run concurrently.

Brief facts of the case are that on 02.11.2013 the complainant Purushottam Rathi submitted a written report at Police Station Mandore, Jodhpur to the effect that on 02.11.2013 he along with his two daughters and son-in-law, went to his son in-laws' house at Village Cherai and his wife Smt. Sushila was alone present in the house. When the complainant returned back to his house from Village Cherai, he saw the doors of his house was opened. When he entered in the house, he found his wife lying on the floor in unconscious condition and blood was oozing from her body. The complainant immediately took his wife to the Hospital and when she got conscious, then she informed that two boys unauthorized entered in the house and tried to snatch the gold chain. Upon her resistance, they caused injury on her head by giving pestle blow and thereafter they snatched gold chain, bangles etc.

On this complaint, the police registered the case against the accused-appellant and accused Manoj Kumar and started investigation. After investigation, the police filed challan against the present accused-appellant and co-accused Manoj Kumar for offence under Sections 323, 394, 350, 454, 307/34 IPC before the court of Metropolitan Magistrate No.5, Jodhpur Metropolitan, thereafter the case was committed for trial in the court of Additional Sessions Judge No.3, Jodhpur Metropolitan, Jodhpur. Thereafter, the charges of the case were framed against the accused-appellant and co-accused. They denied the charges and claimed trial.

During the course of trial, the prosecution examined 18 witnesses and various documents were also exhibited. Thereafter, statement of the accused-appellant under section 313 Cr.P.C was recorded and in defence the appellant examined himself as DW-1.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 07.11.2015 acquitted the co-accused Manoj Kumar from the charges levelled against him but convicted the present appellant for offence under Sections 450, 323, 394 IPC and sentenced as mentioned earlier. Hence this criminal appeal against the conviction of the accused-appellant.

At the threshold, learned counsel for the appellant does not challenge the finding of conviction but it is submitted that the appellant is inside the jail since 13.01.2014 and so far he has suffered a sentence of about five years six months out of total sentence of seven years for offence under Section 394 IPC. Counsel further submits that for offence under Section 450 and 323 IPC, the appellant has already served the sentence. In such circumstances, it is prayed that the substantive sentence awarded to the accused-appellant for the offence under Section 394 IPC 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 accused-appellant. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case.

Since the appellant's counsel does not challenge the appellant's conviction, this Court need not go into the merits of the case and accordingly, the conviction of the accused-appellant as recorded by the learned trial court for the offence under Sections 450, 323, 394 IPC is maintained.

I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-appellant.

It is not disputed that the occurrence has taken place in the year 2013 and the accused-appellant has so far undergone a period of about five years six months incarceration out of the total seven years' rigorous imprisonment for offence under Section 394 IPC so also suffered the agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the accused-appellant has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 394 IPC is reduced to the period already undergone by him while maintaining the amount of fine in the sum of Rs. 20,000/-.

Accordingly, the criminal appeal is partly allowed. While maintaining the appellant's conviction and sentence for offence under Sections 450, 323, 394 IPC, the sentence awarded to him for offence under Section 394 IPC is reduced to the period already undergone, however the amount of fine is hereby maintained. In default of payment of fine, the appellant shall undergo six months' R.I. The sentence for offence under Sections 323 & 450 IPC has already been served by the accused-appellant. The appellant is in Jail. He may be released forthwith on deposition of the fine amount, if not required in any other case.

The record of the trial court be sent back forthwith.