CRLRP1665/2009 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Cr. Revision Petition No.1665/2009 Vijay @ Mota Vs. State of Rajasthan through P.P. Date of Order ::: 25.10.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Lakhan Singh Tomar, Counsel for petitioner Shri Piyush Kumar, PP for State #### By the Court:- This revision petition has been filed by petitioner against judgment dated 27.06.2009 of Additional Chief Judicial Magistrate No.3, Ajmer in Criminal Case No.496/2008, whereby he was convicted for offence under Section 224 of Indian Penal Code and Section 3 of Prevention of Damage to Public Property Act and sentenced to undergo simple two years simple imprisonment for each of offence and was also punished with fine of Rs.500/-; in default of payment of fine, he was ordered to further under go one month simple imprisonment. Both sentences were ordered to run concurrently. Petitioner filed criminal appeal No.189/2009 against aforesaid judgment before Sessions Judge, Ajmer, which was dismissed by order dated 26.08.2009. Hence, this revision petition. Learned counsel for petitioner has argued that offence alleged against petitioner was not made out beyond reasonable doubt and that evidence that CRLRP1665/2009 // 2 // is recorded did not prove the offence so as to sustain his conviction. Allegation against petitioner is that he broke judicial lock-up whereas fact is that construction of wall of judicial lock up made by Public Works Department was so inferior that it fell down at its own. There is no role of petitioner in breaking the wall. Moreover courts below have failed to take into consideration this aspect of the matter. Had there been any intention of petitioner to run away by breaking wall of jail, it was very easy for him to do so by catching bus from nearby bus stand. Petitioner actually came out of lock up because he was frightened by police. Petitioner is innocent and liable to be acquitted. Neither offence under Section 224 of IPC nor under Section 3 of Prevention of Damage to Public Property Act was made out. It was also argued that petitioner has already served two years simple imprisonment and beyond that he remained in jail few more days. Substantive sentence of two years under both offence has already been served by petitioner. Only sentence remains to be served out by petitioner is the sentence in lieu of default in payment of fine and that may be reduced to the period already undergone. Petitioner was arrested on 22.10.2008 and after completing substantive sentence of two years under both offences, he further remained behind bar for few more days. Learned Public Prosecutor opposed revision petition and argued that order passed by learned CRLRP1665/2009 // 3 // court below do not suffer from any illegality. Petitioner is habitual offender. Petitioner with many other accused had indulged in breaking wall of judicial lockup. They tried to run away from jail. All equipments used in breaking the wall were also recovered at their instance. Argument that the wall fell down at its own due to its poor quality construction, is totally baseless. It is therefore prayed that revision petition may be dismissed. I have given my anxious consideration to rival submissions. Argument of petitioner that wall of jail fell down at its own because of its poor quality construction, cannot be accepted in the light of specific evidence of PW-1 Bherulal, PW-2 Banwarilal, PW-3 Brijmohan, PW-4 Ramniwas and PW-5 Ramnarain. PW-10 Santosh Singh is recovery witness of iron rod, which was used for breaking the wall. Evidence of all these witnesses proved the offence against petitioner beyond reasonable doubt. Learned trial court and learned appellate court have thus concurrently held the offence fully proved against him. Petitioner was not granted bail in this case and ever since his arrest in the present matter on 22.10.2008 he remained behind bars. He has in this manner completed sentence of more than two years in jail. This may justify consideration of alternative argument made by learned counsel for petitioner. Now petitioner has completed substantive sentence of two years imprisonment for both offences under Sections 224 of the IPC and 3 of PDPP Act and only one month CRLRP1665/2009 // 4 // simple imprisonment is to be served out by him which has been awarded in lieu of default in making payment of fine. Petitioner is not in a position to make payment of fine. In the facts of present case when petitioner has already served out sentence of two years simple imprisonment, I deem it appropriate to partly accept prayer of petitioner by directing that sentence of one month SI awarded in lieu of default in making payment of fine, should be reduced to seven days. Revision Petition is partly allowed. Order of conviction and sentence against petitioner passed trial court and affirmed by appellate court, is upheld. However, sentence of one month simple imprisonment awarded in lieu of default in payment of fine is reduced to seven days. Petitioner be set at liberty immediately on completion of sentence of seven days simple imprisonment awarded in lieu of default in payment of fine. The Deputy Registrar (Judicial) to send a communication in this respect of Central Jail, Ajmer. (Mohammad Rafiq) J. //Jaiman//