1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT GOPAL SINGH vs. THE STATE OF RAJASTHAN. D.B. Criminal Appeal No.600/2009 under section 374 (2) Cr.P.C. against the judgment and order dated 29.07.2009 passed by the Additional Sessions Judge, (Fast Track) No.1 ,Pali , H.Q.Jaitaran, in Sessions Case No.42/2001. Date of Judgment: 23rd July, 2010 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. D.S.Udawat for the appellant. Mr. K.R.Bishnoi , Public Prosecutor. BY THE COURT (PER HON'BLE JOSHI, J.): This is an appeal filed by one of the accused persons, who have been held guilty by the trial court for committing an offence under section 395, 396 and 460 of the Indian Penal Code. Three accused persons, namely, Yakub Khan, Mohan Lal and Prabhu Singh were tried separately. Out of them, accused Yakub Khan was acquitted of the charges levelled against him, i.e. Under section 395, 396 and 460 IPC and accused Prabhu Singh and Mohan Lal were tried and were convicted under 2 section 395, 396 and 460 of the Indian Penal Code, vide judgment dated 16.03.1992 of District & Sessions Judge, Pali. Further, on appeal in DB Cri. Appeal Nos. 145/1992, 316/1993 and 82/1992, the appeal against the acquittal of Yakub Khan was rejected and while deciding the criminal appeal No.145/1992 and 316/1993 the Division Bench of this Court affirmed the order of the learned District & Sessions Judge, Pali regarding the conviction and sentence awarded to both the accused appellant Prabhu Singh and Mohan Lal. Thereafter, the two accused persons were tried separately, namely, Vikram Singh and Sharifa and both of them were convicted by the court of Addl.District & Sessions Judge (Fast Track), Pali dated 28.06.02, out of which Sharifa did not chose to appeal and accused Vikram Singh preferred an appeal as DB Criminal Appeal No.525/2002, which was decided by the Division Bench of this Court vide judgment dated 17.08.05. The brief facts of the case are that on 11.02.1987 at about 3.30 AM, complainant Bhanwarlal submitted a written report at Police Station, Marwar Junction , District Pali to the effect that at about 12 .00PM, in the night, five to six persons entered his house and his wife made loud hue and cry, which attracted neighbours as a result, the neighbours came on the scene of occurrence, along with the complainant. The accused person fired shot at one Mohan Singh and threatened the villagers to kill them and thereafter entered into the house of one Ghisu Lal Mahajan, after breaking open the door of that house, where the accused persons beated the daughter of 3 Ghisu Lal and fired a pistol shot over one Shiv Singh and further looted some ornaments from that house. On the basis of the above report, FIR No.13/1989 was registered at Police Station, Marwar Junction, District Pali and the investigation commenced. During the course of investigation, the accused were arrested and in pursuance to the information of present appellant, recorded under section 27 of the Evidence Act a 'sariya' was recovered by PW/52 Ganga Charan, Circle Officer and, after usual investigation a charge sheet was filed in the court of Munsiff cum- Judicial Magistrate, Sojat, from where the case was committed to the court of Sessions Judge, Pali. The accused appellant absconded for a very long period and ultimately was produced before the court, after arrest by Delhi Police on 15.10.2007. A report was produced in the court of Sessions Judge, Pali that accused Gopal Singh had absconded from the judicial custody. He had been in the judicial custody from the date of arrest, to the date of absconding, in the month of September, 1994. Vide judgment dated 29.07.09, the accused appellant was convicted for the commission of offence under section 395, 396 and 460 IPC and was awarded sentence as under: 1. For the commission of offence under section 395 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to 4 further undergo three months' simple imprisonment. 2. For the commission of offence under section 396 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo three months' simple imprisonment and, 3. For the commission of offence under section 460 IPC sentenced to life imprisonment and fine of Rs.5,000/- and in default of payment of fine, to further undergo three months' simple imprisonment. Aggrieved by this order of conviction and recording of sentence, the present accused appellant has preferred this appeal. Learned counsel for the accused appellant, does not assail about the recording of the order of conviction by the learned trial Judge and, therefore, he has not argued about the merit of the case. To us the learned counsel for the appellant has rightly chosen not to assail the finding of conviction as the same is based on proper and thorough appreciation and analysis of evidence available on record. The learned counsel for the accused appellant prays, in the facts and circumstances of the case, to consider the question of sentence only. 5 The learned Public Prosecutor admits that the accused appellant has already served more than ten years' of sentence. During the course of argument, the learned counsel for the accused appellant placed before us a judgment of the coordinate Bench passed in DB Cri. Appeal No.525/2002, arising out of the same First Information Report of Police Station Marwar Junction, District Pali, in which the sentence of the accused appellant Vikram Singh was reduced to the sentence already served, while considering the facts and circumstances of the case. We have perused the judgment of the Coordinate Bench dated 17.08.05, in which, looking to the fact of the age of the accused appellant which was 75 years, Vikram Singh, accused appellant was sentenced to the period already undergone and the sentence of fine was maintained. We have considered the contentions of the learned counsel for the accused appellant and perused the record of the learned trial Judge. From the date of arrest, to the date of absconding, in the year 1994, the accused remained in judicial custody and he again was arrested on 15.10.07 and, thereafter, he is in judicial custody. Thus, he had already served more than 10 years' imprisonment. On the same facts and circumstances, 6 looking to the age of the accused appellant, Vikram Singh, he was punished only for the sentence already undergone. There is no reason to take a different view in the present case. Learned Public Prosecutor has also not brought to our notice any subsequent criminal conduct of appellant. The incident is about 25 years old and the present age of accused appellant is about 62 years. In view of the aforesaid discussion, the appeal filed by accused appellant deserves to be partly allowed, while maintaining the conviction of the accused appellant, the substantive sentence of the accused appellant Gopal Singh is reduced and is hereby sentenced on each count as under : 1. For the commission of offence under section 395 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of the fine to further undergo three months' rigorous imprisonment. 2. For the commission of offence under section 396 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment and, 3. For the commission of offence under section 460 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to 7 further undergo three months' rigorous imprisonment. Further it is ordered that the substantive sentence of each offence, shall run concurrently. Resultantly, the appeal preferred by accused appellant Gopal Singh is partly allowed and the judgment of conviction passed by the learned Addl. Sessions Judge ( Fast Track) No.1, Pali, Head Quarter Jaitaran, District Pali, is maintained. However, the sentenced awarded by the learned trial court is modified as above. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george 8 .............. house of complainant, on which the wife of the complainant went out of the house and made loud cries, on which neighbors, including the complainant, reached the spot, whereupon the accused persons fired shot at one Mohan Singh and threatened the villagers to kill them and thereafter entered into the house of one Ghisu Lal Mahajan , after breaking the door of that house, where the accused persons beated the daughter of Ghisu Lal and fired pistol shot over one Shiv Singh and further looted some ornaments from that house. On the basis of above report, FIR No.13/1989 was registered at Police Station, Marwar Junction , District Pali and the investigation commenced. During the course of investigation, the accused were arrested and in pursuance to the information recorded under section 27 of the Evidence Act a 'sariya ' was recovered by PW/52 Ganga Charan, a Circle Officer and, after usual investigation a charge sheet was filed in the court of Munsiff cum-Judicial Magistrate, Sojat , from where the case was committed to the court of Sessions Judge, Pali. The accused appellant remained absconded for a very long period and ultimately was produced before the court, after arrest by Delhi Police on 15.10.2007. On 05.09.1994 a report was produced in the court of Sessions Judge, Pali that accused Gopal Singh absconded from judicial custody. He was in the judicial custody from the date of arrest, to the date of absconding, in the month of September , 1994. 9 Vide judgment dated 29.07.09, the accused appellant was convicted for the commission of offence under section 395, 396 and 460 IPC and was awarded the sentence as under : For the commission of offence under section 395 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo three months' simple imprisonment, for the commission of offence under section 396 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo three months' simple imprisonment and for the commission of offence under section 460 IPC sentenced to life imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo three months' simple imprisonment. Aggrieved by this order of conviction and recording of sentence, present accused appellant appealed. Learned counsel for the accused appellant, does not dispute about the recording of the order of conviction by the learned trial Judge and, therefore, he has not argued about the fact of the conviction. However, we have perused the record of the trial court and the judgment dated 29.07.09 of the learned trial Judge. The learned trial Judge, while appreciating each and every point of the evidence available against the accused, held him guilty for the commission of offence under section 395, 396 and 460 IPC and awarded the sentence as above. The learned counsel for the accused appellant prays , in the facts and circumstances of the case , to consider the 10 question of sentence only. The learned Public Prosecutor admits that the accused appellant has already served more than ten years' of sentence. During the course of argument, learned counsel for the accused appellant placed before us a judgment of the coordinate Bench passed in DB Cri. Appeal No.525/2002 , arising out of the same first information report of Police Station Marwar Junction, District, Pali, in which the sentence of the accused appellant Vikram Singh was reduced, while considering the facts and circumstances of the case. We have perused the judgment of the Coordinate Bench dated 17.08.05, in which looking to the fact of the age of the accused appellant as 75 years, Vikram Singh accused appellant was sentenced to the period already undergone and maintained the sentence of fine. We have considered the contentions of the learned counsel for the accused appellant and perused the record of the learned trial Judge. From the date of the arrest, to the date of absconding, in the year 1994, the accused remained in judicial custody and again he surrendered in the year 15.10.07 and presently he is in judicial custody. Thus, he has served more than 10 year's imprisonment. On the same facts and circumstances, looking to the age of the accused appellant, Vikram Singh , he was 11 punished for the sentence already undergone. There is no reason to take a different view in this case also. In view of the aforesaid discussion, the appeal filed by accused appellant is partly allowed, while maintaining the conviction of the accused appellant, the substantive sentence of the accused appellant Gopal Singh is reduced and is sentenced as under : For the commission of offence under section 395 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment , for the commission of offence under section 396 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment and for the commission offence under section 460 IPC sentenced to 11 years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo three months' rigorous imprisonment. Further it is ordered that the substantive sentence of each offence shall run concurrently. (KAILASH CHANDRA JOSHI),J. (PRAKASH TATIA), J. l.george