1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Alla Bux & Anr. vs. State of Rajasthan S.B. Criminal Appeal No.373/1988 u/s 374 (2) Cr.P.C. against the judgment dated 25.08.88 passed by the Addl.Sessions Judge, Bikaner in Sessions Case No.48/1986. Date of Judgment : 01st May, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.Doongar Singh for the appellants. Mr.O.P.Rathi, Public Prosecutor, for the State. BY THE COURT: This judgment governs adjudication of criminal appeal No.373/1988 directed against the judgment dated 25th of August, 1988 passed by the Addl.Sessions Judge, Bikaner, whereby he has 2 convicted the accused appellant Rahim Bux in the offence under sections 325 and 324/34 of Indian Penal Code and Alla Bux in the offence under section 324, 325/34 of IPC and sentenced each of them in the offence under section 325 and 325/34 of IPC to a rigorous imprisonment of two years and six months along with a fine of Rs. 500/- and in the offence under section 324 and 324/34 of IPC to a period of two years' rigorous imprisonment , along with a fine of Rs.500/- and in default of payment of fine, each of them to undergo in each offence, a further rigorous imprisonment of four months. All the sentences were ordered to run concurrently. The prosecution case succinctly runs as under : That on 12th of March 1986 at 09.00 PM, the complainant PW/2 Bakhu Khan went to the house of his partner Dina Khan to collect some money. He was talking to Fatima the wife of Dina Khan, meanwhile, the accused appellant Alla Bux and Rahim, armed 3 with axe and clubs came there and started beating, with an intention to kill him. It has been alleged that the accused Alla Bux assaulted with an axe on his head and the accused Rahim attacked on his back with clubs, as a result of which he fell on the ground. With the successive attacks of club made by the accused Rahim, the complainant sustained injuries at the wrist , arm and finger of left hand. The complainant raised an alarm “Mare-re, mare-re”. Having heard the screams of the complainant Yaru Khan Bakhta Ram and others came on the spot. Bakhu Khan was admitted in PHC, Chhatargarh for the treatment of his injuries where Mohan Lal , Head Constable , Incharge Police Station, Chhatargarh recorded his statements Ex.P/2, whereupon the FIR Ex. P/7 was registered. After completion of the usual investigation, police submitted the charge sheet in the offence under section 307, 324 and 325 /34 and 447 of IPC against the accused appellant Alla Bux and Rahim in the court of Judicial Magistrate No.2, 4 Bikaner who committed the same for trial to the court of Sessions, Bikaner. Heard Mr.Doongar Singh, advocate , appearing one behalf of the accused appellants 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 appellants has not questioned the conviction of the accused appellants in the aforesaid offences. He has rather confined his arguments on the quantum of sentence. The learned counsel has submitted that the offence under section 307 of IPC has not been proved against the appellants and they have been acquitted of this charge accordingly. So far as the sentence of imprisonment awarded to the appellants is concerned, it is very excessive. The 5 learned counsel has further submitted that the occurrence of this case took place as early as on 13th of March 1987 and the appellants have been facing the trial of this case for the last 21 years. At the time of occurrence, the accused Alla Bux was 55 years old and the accused Rahim Bux was of the age of 25 years. The accused Allabux today, must be around 76 years old and the accused Rahim must have turned grey. After a lapse of a period of 21 years, it was not justiciable to ask the appellants to serve the aforesaid sentence of imprisonment. Hence, keeping in view the age of the appellants and the fact that the appeal has been pending for the last 20 years in this Court, appellants may be released on probation of good conduct under section 4 (1) of Probation of Offenders Act 1958, as no previous conviction against them is proved and they have not acted in any manner prejudicial to law and order, after their release on bail. The learned Public Prosecutor, Mr.O.P.Rathi, has 6 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 them. Undisputedly, the accused Alla Bux must have attained the age of 76 years today, as the age of Alla Bux has been recorded as 55 years, in the statements recorded under section 313 of Cr.P.C. The accused Rahim also must be 46 or 47 years of age. 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 persons have 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 persons are old and their antecedents have no blemish . No previous conviction has been found to be proved against them and they have also not been found to be 7 involved in any other criminal activities after their release on bail. Hence, keeping in view the age of the accused appellants and the fact that the case has been pending for the last 21 years, I deem it just and proper to release both the accused appellants Alla Bux and Rahim on probation of good conduct. As a result of above, the criminal appeal is partly allowed. The conviction of the accused Rahim Bux in the offence under section 325 and 324/34 of IPC and Alla Bux in the offence under section 324 and 325/34 of IPC, is maintained but the sentence of imprisonment and fine detailed above awarded to them are set aside and instead of sentencing them I direct both the appellants Rahim Bux and Alla Bux to be released under section 4 (1) of the Probation of Offenders Act, 1958, each of them entering into a personal bond of Rs.10,000/- along with one surety of like amount, to the satisfaction of learned Addl. Sessions Judge, Bikaner, within a period of one month 8 from today with the stipulation that they 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