1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Hajari Lal vs. State of Rajasthan S.B. Criminal Appeal No.353/1988 u/s 374 (2) Cr.P.C. against the judgment dated 19.08.88 passed by the Addl.Sessions Judge No.1, Hanumangarh , in Sessions Case No.67/1987. Date of Judgment : 01st May, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Doongar Singh for the appellant. Mr.O.P.Rathi, Public Prosecutor, for the State. BY THE COURT: This criminal appeal has been preferred against the judgment and order dated 19th of August 1988 passed by the learned Addl.Sessions Judge No.1, Hanumangarh. The appellant Hajari Lal has been 2 convicted in the offence under section 324 of Indian Penal Code and section 27 of Arms Act and sentenced to a period of three years' rigorous imprisonment and a fine of Rs.250/-, and sentenced to a period of six months' rigorous imprisonment and a fine of Rs.100/-in the offence under section 27 of Arms Act and in default of payment of fine to undergo a further imprisonment of one month and 15 days respectively. Both the sentences have been ordered to run concurrently. As per the prosecution case, the accused person Hajari Lal is alleged to have attempted to commit murder of complainant Gopa Ram and his mother Smt.Parmeshwari on 07th of April, 1987 at 11.00 AM in the village Mokhram-ki-Dhani situated at 29 KSD. It is also alleged that in furtherance of the common intention accused Hajari Lal fired a gun shot on both Gopi Ram and his mother Parmeshwari, as a result of which Smt. Parmeshwari sustained gun shot wound on right arm and the elbow joint of right arm. The 3 accused appellant was charged for the offence under section 307 of the Indian Penal Code and section 27 of the Arms Act. The trial court did not find the offence under section 307 of IPC proved against him. Since the accused Hajari Lal has been convicted and sentenced as aforesaid, this appeal has been preferred. Heard Mr.Doongar Singh, advocate , appearing on behalf of the accused appellant and Mr.O.P.Rathi, Public Prosecutor appearing for the State and perused the impugned judgment of the lower court, as also the prosecution evidence and relevant material available on record. Mr. Doongar Singh, advocate, appearing for the appellant has not questioned the conviction of the accused appellant in the aforesaid offences. He has rather confined his arguments on the quantum of sentence. The learned counsel has submitted that the 4 offence under section 307 of IPC has not been proved against the appellant and he has been acquitted of this charge accordingly. So far as the sentence of imprisonment awarded to the appellant is concerned, it is very excessive. The learned counsel has further submitted that the occurrence of this case took place as early as on 07th of April, 1987 and the appellant has been facing trial of this case for the last 21 years. At the time of occurrence, the accused Hajari Lal was 58 years old . The accused Hajari Lal today, must be around 79 years old. After a lapse of a period of 21 years, it is not justiciable to ask the appellant to serve the aforesaid sentence of imprisonment. Hence, keeping in view the age of the appellant and the fact that the appeal has been pending for the last 20 years in this Court, appellant may be released on probation of good conduct, under section 4 (1) of Probation of Offenders Act 1958, as no previous conviction against him is proved and he has not acted in any manner 5 prejudicial to law and order, after his release on bail. The learned Public Prosecutor, Mr.O.P.Rathi, has fairly conceded the submissions of the learned counsel for the appellant and has agreed that the benefit of the provisions of probation of offenders Act may be extended to him. Undisputedly, the accused Hajari Lal must have attained the age of 79 years today, as the age of Hajari Lal has been recorded as 58 years, in the statements recorded under section 313 of Cr.P.C. Here I must emphasis 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 the accused person has suffered a long tiring trauma of trial for 21 years, the court should be mindful of variant factors, at the time of exercising this discretion. The accused person is of the age of 79 6 years and his antecedents have no blemish . No previous conviction has been found to be proved against him and he has also not been found to be involved in any other criminal activity after his release on bail. Hence, keeping in view the age of the accused appellant and the fact that the case has been pending for the last 21 years, I deem it just and proper to release the accused appellant Hajari Lal on probation of good conduct. As a result of above, the criminal appeal is partly allowed. The conviction of the accused Hajari Lal in the offence under section 324 of IPC and section 27 of the Arms Act is maintained but the sentence of imprisonment and fine detailed above, awarded to him is set aside and instead of sentencing him, I direct the appellant Hajari Lal to be released under section 4(1) of the Probation of Offenders Act, 1958, on his entering into a personal bond of Rs.10,000/- along with one surety of like amount, to the satisfaction of learned 7 Addl. Sessions Judge No.1, Hanumangarh , within a period of one month from today, with the stipulation that he will appear and receive sentence when called upon by the court, during a period of 2 years and in the meantime, to keep the peace and be of good behaviour. (MAHESH BHAGWATI), J. l.george