Rakesh Sharma vs State of Rajasthan

Narendra Kumar Jain-II, J.—Heard learned counsel for the accused-petitioner as well as learned Public Prosecutor appearing on behalf of the respondent-State. This revision petition u/s 397 read with Section 401 Cr.P.C. has been filed against the judgment and order dated 11.02.2013 passed by Additional Sessions Judge, Kishangarh, District Ajmer (Rajasthan) (hereinafter referred to as ''the Appellate Court'') in Criminal Appeal No. 52/2011, whereby the Appellate Court dismissed the appeal filed by the accused-petitioner and upheld the judgment of conviction and order of sentence dated 05.05.2011 passed by learned Additional Chief Judicial Magistrate, Kishangarh, District Ajmer (hereinafter referred to as ''the Trial Court'') against the accused-petitioner in Criminal Case No. 103/2011, whereby, the learned Trial Court convicted and sentenced the accused-petitioner u/s 379 IPC to undergo three years rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo one month''s simple imprisonment.

The concise facts of the case are that a written report (Exhibit P-1) was submitted by the complainant Akshay Kumar Tapdiya with regard to an incident which occurred on 02.01.2011 at Police Station Madanganj, Ajmer. On the basis of aforesaid report, a case was registered bearing No. 16/2011 at Police Station, Madanganj, Ajmer for the offence u/s 379 IPC and investigation commenced in the matter. After due investigation, charge-sheet was filed against the accused-petitioner. Thereafter, the Trial Court framed charge against the accused-petitioner u/s 379 IPC. Accused-petitioner denied the allegation of commission of aforesaid offence against him, pleaded innocence and claimed trial.

Prosecution supported its case with the aid of 8 witnesses and exhibited 10 documents. In defence no evidence was produced by the accused-petitioner despite grant of opportunity. Statement of accused petitioner was recorded u/s 313 Cr.P.C., wherein he refused the prosecution allegations and pleaded innocence stating that he has been falsely implicated in this case.

After scrutiny of the material on record and evidence produced by the prosecution as well as statement of accused-petitioner u/s 313 Cr.P.C., learned Trial Court vide judgment and order dated 05.05.2011 convicted and sentenced the accused-petitioner as stated hereinabove. Against the said judgment and order, accused-petitioner preferred an appeal before the Appellate Court and the Appellate Court vide judgment and order dated 11.02.2013 dismissed the appeal of the accused-petitioner and maintained the judgment and order passed by the Trial Court.

Being aggrieved with the judgments and orders passed by both the Courts below, the accused-petitioner has preferred this revision petition before this Court.

Learned counsel for the accused-petitioner firstly argued the case on merits and contended that both the Courts below erred in relying upon and appreciating the prosecution evidence for convicting the accused-petitioner as the material available on record does not prove the offences alleged against the accused-petitioner beyond reasonable doubt. It is further contended that the prosecution has failed to prove its case beyond reasonable doubt. There is no witness of place of occurrence and the version of the prosecution is not believable. Learned Appellate Court has dismissed the appeal of the petitioner without considering the merits of the case. The accused-petitioner has been convicted by the Courts below without following the theory of trial and he has been convicted only on the basis of factual aspect. There is no independent witness of the case and the witnesses produced by the prosecution are interested witnesses and their evidence cannot be relied upon. The accused-petitioner has falsely been implicated in the instant case, while he has no role in the commission of alleged offence. It is further contended that learned Trial Court as well as learned Appellate Court both have committed grave error in convicting the accused-petitioner for alleged offences. Impugned judgments and orders passed by the Courts below are based on conjectures, faulty presumption and misreading of evidence.

Finally learned counsel for the accused-petitioner contended that the present case is pending since 2011 and, therefore, the accused-petitioner does not want to press this revision petition on merits. Learned counsel for the accused-petitioner further contended that looking to the age of the accused-petitioner; his family status; further the incidence pertains to year 2011, lenient view may be taken in the present matter by this Court. It is, therefore, prayed by learned counsel for the accused-petitioner that the accused-petitioner may either be granted benefit of probation or in the alternative, the punishment/sentence of imprisonment imposed upon him by the courts below, being too harsh, may be considered sympathetically and may favourably be reduced to the period of imprisonment already undergone by the accused-petitioner.

Learned counsel for the accused-petitioner further submitted that the accused-petitioner was in custody from 07.01.2011 to 15.04.2011, i.e. three months and eight days and thereafter, he is behind the bars from 11.02.2013 till today, i.e. three months and nine days; thus the accused-petitioner has remained behind the bars for more than 61/2 months in all.

Learned Public Prosecutor appearing on behalf of the respondent-State vehemently opposed the prayer made by learned counsel for the accused-petitioner and submitted that looking to the facts and circumstances of the present case, sentence awarded to the accused-petitioner by the courts below may be maintained by this Court.

From the scrutiny of prosecution evidence and the findings recorded by both the Courts below, I am satisfied that learned counsel for the accused-petitioner is right in not pressing this revision petition on merits. So far as reduction of sentence of imprisonment awarded to the accused-petitioner is concerned, there is no doubt that the incident in the present case took place in the year 2011. During pendency of this revision petition and at the time of investigation, trial and appeal, the accused-petitioner has remained behind the bars for more than 6 1/2 months. The punitive theory of punishment and deterrent theory of punishment have to left their force considering the fact that the incident in the present matter took place in the year 2011. Jurists have formulated some principles regarding punishments and these recent trends have been recognized and approved by Hon''ble Supreme Court also for ordinary crimes, although some special crimes have been excluded. A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. The sentence should neither be too lenient nor disproportionately severe. The former looses its deterrent effect and the latter has a tendency to tempt the offenders to commit a more serious offence. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Punishment to be effective must be sufficient, an insufficient punishment is a greater evil than an excess or rigour; for an insufficient punishment is an evil wholly thrown away. No good results can be expected either from the public who are left exposed to the like offences nor to the offender whom it makes no better. Punishment to be proper, effective and purposeful must fit not only the crime but also the criminal. A Court should weigh the sentence with reference to the crime committed and the circumstances of the case and the fact whether the criminal is a first offender or a habitual or professional offender, but not with reference to anything which may happen subsequently.

So far as reduction of sentence of imprisonment is concerned, it is not in dispute that in the present case the incident occurred as back as in the year 2011. The accused-petitioner had been facing trial for quite long time; he has remained in jail for near about 61/2 months also. The purpose of the Court is not merely to punish the accused-persons, but also to ensure that harmony be maintained with the society, therefore, it will not be proper for the accused-petitioner to remain in custody for a long period. In the facts and circumstances of the present case and in the interest of justice, I want to give one more chance to reform the accused-petitioner. Thus, considering the fact that further incarceration of the accused-petitioner would not achieve any beneficial purpose, it would be in the interest of justice to reduce the sentence of imprisonment awarded to the accused-petitioner by the Trial Court and maintained by the Appellate Court to a period of imprisonment already undergone by him.

In the result, I maintain the judgments and orders of conviction passed by the Courts below against the accused-petitioner but, looking to the facts and circumstances of the present case, and the fact that the accused-petitioner has already undergone imprisonment of near about 6 1/2 months, as aforesaid mentioned, the ends of justice would be met in sentencing the accused-petitioner to a period of imprisonment already undergone by him. Consequently, the revision petition filed by the accused-petitioner is partly allowed. The conviction of the accused-petitioner namely Rakesh Sharma S/o. Shri Durgaprasad Sharma u/s 379 IPC is maintained, but the sentence of imprisonment awarded to the accused-petitioner is modified/reduced to the period of imprisonment already undergone by him. The fine imposed by the learned Trial Court and affirmed by the learned Appellate Court is maintained. The accused-petitioner is in jail. The Trial Court is directed to release the accused-petitioner forthwith in this case, in case he is not required in any other case. Registry is directed to sent the record of both the Courts below along with copy of this judgment for compliance forthwith. Application for suspension of sentence also stands disposed of.