1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER MUMTAJ ALI Vs. STATE OF RAJASTHAN S.B. Criminal Revision Petition No.843/2010 under section 397 read with section 401 Cr.P.C. against the judgment and order dated 18.03.2009 passed by the learned Addl.Sessions Judge (Fast Track) No.1 Hanumangarh in Criminal Appeal No.67/2005 (Mumtaj Ali Vs. State of Rajasthan). ............... Date of Judgment: 13 December, 2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr.D.K.Gaur for the petitioner. Mr.Anil Upadhyaya, Public Prosecutor. BY THE COURT: This revision petition has been filed by the accused petitioner Mumtaj Ali, s/o Shah Mohammed, b/c Musalman, r/o Nabbuwala Chak, Tehsil Pilibanga, 2 District Hanumangarh, against the judgment and order dated 18.03.2009 passed by the learned Addl.Sessions Judge ( Fast Track) No.1, Hanumangarh in Criminal Appeal No.67/2005 ( Mumtaj Ali Vs. State of Rajasthan) by which he dismissed the appeal filed by the petitioner and upheld the judgment and order dated 05.04.2005 passed by the learned Judicial Magistrate, First Class , Pilibanga, District Hanumangarh in Criminal Regular Case No.482/2003 State of Rajasthan Vs. Satish @ Lal Bahadur & Ors., whereby he convicted the accused petitioner and two others for the offences under sections 341 and 382 IPC and sentenced the accused petitioner as under :- Name of the accused Offence under section Sentence Mumtaj Ali 341 IPC One month's simple imprisonment 382 IPC Two years' rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine to further undergo three months' simple imprisonment. All the sentences were ordered to run concurrently. The brief facts of the case are that on 08.12.2002 3 complainant Jagdish Kumar lodged a report at Police Station , Pilibanga ,stating inter alia that his shop is situated at Pilibanga in the name and style of 'Rahul Medical Store' and on 28.11.2002 at about 07.30 PM he started towards his village 'Jakhadwali' on his Motorcycle. When he reached near 18 S.P.D. at about 08.00PM a D.I.Jeep came from behind and stopped near him and two persons came out of the jeep, one of them was having a pistol and they told him to keep quite, otherwise they will shoot him and then they took away Rs.5,500/- , his wrist watch, one golden ring, one golden “Kada' and two lady's suits. Seeing another jeep coming from front side they ran away. On this report, police registered a case bearing FIR No.434/2002 at Police Station , Pilibanga for offences under section 341, 382 and 34 IPC and started investigation. After usual investigation , police submitted chargesheet against the petitioner and two others under section 341 and 382 IPC before the learned Judicial Magistrate First Class , Pilibanga. Learned trial court framed charges against the present petitioner and two others. The petitioner pleaded not guilty and claimed to be tried. 4 The prosecution examined as many as 11 witnesses and got exhibited 17 documents in support of its case. In defence, no evidence was produced. The trial court recorded the statement of the accused petitioner under section 313 Cr.P.C. The learned Judicial Magistrate, First Class, Pilibanga, vide order dated 05.04.2005, convicted the petitioner under section 341 and 382 IPC and sentenced him as stated above. Dissatisfied by the impugned judgment and order dated 05.04.2005 passed by the learned trial court, the petitioner and the co-accused, filed separate appeals before the learned Addl. Sessions Judge, ( Fast Track) No.1, Hanumangarh. The learned appellate court, vide judgment dated 18.03.2009, dismissed the appeals and upheld the judgment and order dated 05.04.2005 passed by the learned trial court. Being aggrieved by the judgment and order dated 18.03.2009 passed by the learned Addl. Sessions Judge, ( Fast Track) No.1, Hanumangarh in Appeal No.67/2005, as well as the order dated 05.04.2005, passed by the learned Judicial Magistrate, First Class, 5 Pilibanga, in Criminal Regular Case No.482/2003, the present petitioner has preferred this revision petition. At the very outset, the learned counsel for the accused petitioner is not pressing the impugned judgment to the extent of the recording of conviction by the learned trial court and he only contended regarding the quantum of sentence passed against the accused petitioner. The learned counsel for the accused petitioner contended that in pursuance to the order of the appellate court, the petitioner was arrested on 18.09.2010 and was produced before the trial court on 23.09.2010 and he was sent to judicial custody for serving the sentence awarded by the appellate court. As per the submissions made by the learned counsel, the accused remained behind the bars for more than two and a half months, therefore, he may be released for the above offence for the period of substantive sentence already undergone. The Learned Public Prosecutor left the matter to the discretion of the court. 6 I have perused the record and considered the contention of the learned counsel for the petitioner for awarding of sentence to the petitioner. Looking to all the facts and circumstances of the case, I deem it fit that the accused be awarded the sentence for the commission of offence under sections 341 and 382 IPC, to the extent of sentence already undergone. So far as fine part is concerned, the sentence of fine imposed by the learned trial court, as well as the appellate court, is maintained. Accordingly, the revision petition of petitioner Mumtaj Ali is partly allowed and the substantive sentence awarded to the petitioner is set aside and it is modified to the extent of sentence the petitioner has already undergone and the sentence of fine and in default of payment of fine to further undergo three months' simple imprisonment, is maintained. (KAILASH CHANDRA JOSHI),J. l.george