1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT S.B. Cr. Appeal No. 58/89 Sona Ram Vs. State Under Sec. 374 Cr.P.C. against the order dated 31.1.1989 passed by the learned Addl. Sessions Judge No. 1 Jodhpur Date of judgment : 28.4.2008 HON'BLE MR. MAHESH BHAGWATI, J. Mr. J.S. Choudhary, for the appellant. Mr. J.P.S. Choudhary, P.P. BY THE COURT: This judgment governs an adjudication of criminal appeal no. 58/89 directed against the judgment and order dated 31.1.1989 passed by the learned Addl. Sessions Judge, Jodhpur whereby the learned Addl. Sessions Judge convicted the accused appellant Sona 2 Ram in the offence under Sec. 354 IPC and sentenced him to a period of 6 months R.I. The accused appellant Sonaram alongwith co accused Devla is alleged to have committed rape upon Ranki daughter of Dhanji on 3.9.1986 at about 8 a.m. without her consent and against her will. On the report of Ranki Ex. P/6, FIR Ex. P/13 was registered at police station Pipar City and after completion of the investigation, the police report was submitted by the police against the accused person namely Devla and Sonaram in the offence under Sec. 341 and 323 of IPC in the court of Judicial Magistrate Pipar city. During trial of the case, the learned Judicial Magistrate examined the prosecutrix Ranki before framing the charges of the alleged offence. Learned Judicial Magistrate having gone through the statements of prosecutrix, medical evidence and other relevant material found that the accused persons had 3 committed an offence under Sec. 376 IPC committing rape upon the prosecutrix Ranki and the case was committed in the court of Sessions, Jodhpur for trial. After trial the learned Addl. Sessions Judge No. 1 Jodhpur did not find the accused persons guilty in the offence under Sec. 376-G IPC and found that they had committed an offence under Sec. 354 IPC which was proved beyond doubt. From the perusal of the impugned judgment, it is also found that the co accused Devla was ordered to be released on probation of good conduct as he was below 21 years of age at the time of occurrence but since the accused Sonaram was of the age of 40 years, it was not deemed proper by the learned Addl. Sessions Judge to release him on probation of good conduct and was sentenced to a period of six months RI against which this criminal appeal has been preferred. Heard learned counsel for the parties, perused the impugned judgment and relevant material available on record. 4 Learned counsel for the appellant Mr. Choudhary has contended that the lower court has not assigned any reason not to release the accused appellant Sonaram on probation of good conduct. On the date of occurrence he was of the age of 40 years and now he has turned grey and attained the age of 60 years and keeping in view his old age sending him behind the bars and asking him to serve the sentence as aforesaid shall not meet the ends of justice. The accused appellant has already suffered a tiring trauma of trial of 20 years and if he is released on probation of good conduct, the ends of justice shall be meted out as no previous conviction is proved against him and further he has not been found to be involved in any other criminal case thereafter. Mr. J.P.S. Choudhary, learned counsel appearing for the State has not controverted the submission of the learned counsel for the appellant. 5 Unequivocally and undisputedly, today the accused appellant must have attained the age of 60 years. Here I must emphasize that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on a hunch. In a case where one co accused has already been released on probation of good conduct by the learned trial court and the occurrence took place as early as on 3.9.1986, the duty is cast upon the sentencing court to keep in mind all variant factors and to be activist enough in awarding the sentence. The case has been pending for last 22 years. The accused Sona Ram is above the age of 60 years and his antecedents have no blemish. No previous conviction has been found to be proved against him and he has not also been found to be involved in any other criminal activity thereafter. Hence, keeping in view the age of the accused appellant and the fact that the case has been pending for last 22 years, I deem it just and 6 proper to release the accused appellant Sonaram too on probation of good conduct. As a result of above, the criminal appeal No. 58/89 is partly allowed. The conviction of Sona Ram in the offence under Sec. 354 of IPC is maintained and sentence awarded to him is set aside and instead of sentencing him, I direct the appellant Sona Ram to be released under Sec. 4 (1) of Probation of Offenders Act, 1958 on his entering in to a personal bond of Rs. 10,000/- along with one surety of like amount to the satisfaction of the learned Addl. Sessions Judge No. 1 Jodhpur within the period of one month from today with this stipulation that he will appear and receive sentence when called upon by the court during a period of two years and in the meantime to keep the peace and be of good behavior. (MAHESH BHAGWATI), J. ns.