[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 984/2005 KRISHAN KUMAR Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 31.03.2003 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK), BEHROD, DISTRICT ALWAR IN SESSIONS CASE 47/2002 (39/2001). Date: 08/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. N.S. Shekhawat for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the judgment dated 31.03.2003 passed by the Additional District & Sessions Judge (Fast Track), Behrod, District Alwar, whereby the accused- appellant has been convicted for the offence under Section 397 IPC and Section 3/25 of the Arms Act and sentenced to undergo rigorous imprisonment for 8 years and a fine of Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for three months under Section 397 IPC and to undergo rigorous imprisonment for three years and a fine of Rs. 200/-, in default of payment of fine to further undergo simple [2] imprisonment for one month. Both the sentences were ordered to run concurrently. Briefly stated the facts of the case are that on 06.12.1996 a case for the offence under Sections 458 and 382 was registered at Police Station Madhan on the basis of the report lodged by one Birju Singh with regard to the incident allegedly taken place in the intervening night on 06.12.96 at 12.30 a.m. and investigation commenced. After completion of the investigation, the police submitted charge-sheet for the offence under Sections 392, 397 IPC and Section 3/25 of the Arms Act. Thereafter charges for the offences under Sections 392, 397 IPC and Section 3/25 of the Arms Act were framed against the accused-appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 16 witnesses and exhibited 17 documents. After hearing rival submissions of the respective parties, the Additional District & Sessions Judge (Fast Track), Behror, District Alwar vide its impugned judgment dated 31.03.2003, convicted and sentenced the accused-appellant as mentioned herein above. Learned counsel for the accused-appellant without challenging the impugned judgment dated 31.03.2003 on merit, only submits that since the maximum sentence awarded to the accused-appellant [3] is rigorous imprisonment for 8 years under Section 397 IPC and he has already served out the sentence of about 7 years, 2 months and 18 days in custody, therefore, the sentence awarded to the accused- appellant be reduced and he be sentenced to the period already undergone by him in custody. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 31.03.2003 passed by the Court below as well as the relevant material available on the record. It is true that vide impugned judgment dated 31.03.2003, the accused has been convicted for the offence under Section 397 IPC and Section 3/25 of the Arms Act and sentenced to undergo rigorous imprisonment for 8 years and a fine of Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for three months under Section 397 IPC and to undergo rigorous imprisonment for three years and a fine of Rs. 200/-, in default of payment of fine to further undergo simple imprisonment for one month. It is also not disputed that the accused-appellant has already undergone the sentence of about 7 years, 2 months and 18 days in custody. Upon careful perusal of the record of the case as well as the statements of the witnesses and [4] the evidence recorded, it is no doubt that the prosecution is able to prove the offence under Section 397 IPC and Section 3/25 of the Arms Act against the accused-appellant beyond doubt and, therefore, he has rightly been convicted by the Court below for the aforesaid offences vide its impugned judgment dated 31.03.2003, but looking to the facts and circumstances of the case and in view of the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau, reported in JT 2008 (4) SC 523, interest of justice would be subserved if the accused-appellant is sentenced to the period already undergone by him in custody. Consequently, the impugned judgment dated 31.03.2003 passed by the Additional Sessions Judge (Fast Track), Behrod, District Alwar is upheld so far as convicting the accused-appellant under Section 397 IPC and Section 3/25 of the Arms Act is concerned, but the sentence of rigorous imprisonment for 8 year awarded to the accused- appellant under Section 397 IPC is reduced to the period already undergone by him in confinement. Accused-appellant Krishan Kumar S/o Jagmal, who is in Sub-Jail Behrod, District Alwar, shall be set at liberty forthwith, if not required to be detained in any other case. [5] In the result, the present criminal appeal is partly allowed and the impugned judgment dated 31.03.2003 passed by the Additional Sessions Judge (Fast Track) Behrod, District Alwar is modified to the extent as mentioned herein above. (K.S. RATHORE), J. /KKC/ (Reserved)