IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1272 of 2010 TARKESHWAR PANDEY @ TARKESHWAR PANDIT SON OF CHHOTE PANDIT, R/O- VILLAGE AMAWAN, P.S. ASTHAWAN (BIND), DISTRICT- NALANDA. Versus 1. THE STATE OF BIHAR 2. YADU YADAV, S/O- KISHUN YADAV, R/O- VILLAGE AMAWAN, P.S. ASTHAWAN (BIND), DISTRICT- NALANDA. For the petitioner : Mr. Anjani Kumar, Advocate. For the State : Mr. Fahimuddin , Advocate ----------- 3 01.09.2010 I.A. no. 1723 of 2010 Heard both sides. It is stated that the delay involved in filing the present application is more than 06 years. Learned counsel submits that neither the appellant nor his counsel was heard while disposing of the appeal. He referred to the order passed by learned lower appellate Court. Learned counsel has also pressed into service the averments made in paragraphs 3, 5 and 6 of the limitation application. Learned counsel for the State does not dispute the submission that the appeal preferred by the petitioner was heard and disposed of without giving adequate/reasonable opportunity to the appellant. For all these reasons, this Court is satisfied that sufficient cause has been shown for not filing the application within time. I.A. no. 1723 of 2010 is allowed. Delay is condoned. 2 Petitioner assails the order dated 15.7.2004 passed in Cr. Appeal no. 41 of 1988 by learned Addl. Sessions Judge, F.T.C.-V, Nalanda at Bihar Sharif whereby the conviction and sentence recorded by learned trial court has been affirmed. Petitioner along with others was tried for offences punishable under diverse sections of Indian Penal Code including Section 326/34 by learned trial court in Tr. No. 1170 of 1988. On a consideration of the evidence of the 04 witnesses adduced on behalf of the prosecution, it was found and held that the petitioner was guilty for having committed offence under Section 323 and 326/34 IPC. Accordingly, he was sentenced to undergo rigorous imprisonment for 01 year under Section 323 IPC and rigorous imprisonment for 02 years under Section 326/34 IPC. As noted above, the appeal of the petitioner failed. Learned counsel for the petitioner submits that there is/are contradictions in the evidence of the P.Ws namely P.W. 1, 2 and 3. It is also contended that the prosecution has tried to develop the prosecution case. Learned counsel submits with reference to the impugned judgment that admittedly there is no allegation that this petitioner inflicted any injury on Sakaldip Yadav (P.W. 2). So far the informant (P.W. 2) is concerned, it is said that the injuries sustained were simple in nature. Learned counsel also contends that learned appellate court considered the appeal in absence of the counsel and disposed of the same. It is stated that the order of the appellate court stands vitiated on 3 that ground also. It is also contended that both the courts below have not considered the application of Sections 360 and 361 of Code which again render the order(s) unsustainable in the eye of law. It is stated that the occurrence had taken place on 14.8.1979 whereas learned trial court recorded its judgment and order of conviction on 22.3.1988. Referring to the prosecution case, it is contended that admittedly the occurrence had taken place on a trivial issue. Learned A.P.P., on the other hand, simply supported the impugned order. I have considered the submissions advanced on behalf of the parties. It appears that learned trial court placed reliance on the evidence of P.Ws 1, 2 and 3 who had received injuries in the occurrence at the instance of the prosecution side including the petitioner. It has also been found that the evidence of the Doctor (P.W. 4) supports the injuries sustained by the accused persons in the manner alleged by them. Learned lower appellate Court considered all the grounds taken in the memorandum of appeal and thereafter reappraised/rescanned the evidence available on record and came to the conclusion that the findings of guilt recorded in the impugned order did not require any interference. The appellate court thus concurred with the findings recorded by learned trial court. A bare perusal of the order of learned trial court would show that all factors necessary to be considered while imposing punishment have been taken 4 into consideration inasmuch as having regard to the age and the allegations, some of the accused have been let off under the provisions of Probation of Offenders Act. Considering the allegations levelled against the petitioner, he was sentenced to undergo rigorous imprisonment for 02 years under Section 326/34 as also rigorous imprisonment for 01 year under Section 323 of Indian Penal Code. In my view, the orders impugned cannot be challenged on the ground that there have been complete non-application of mind so far as relevant provisions of the Code as well as Probation of Offenders Act is/are concerned. The findings of guilt is based on critical analysis of the evidence of P.Ws. 1, 2 and 3 who all are injureds. Learned lower appellate Court kept in focus grounds set out in appeal and thereafter re- scanned the evidence on record and came to the conclusion that the findings of guilt do not require any interference. The submission of learned counsel for the petitioner that the petitioner was made to undergo excruciating circumstances in fighting out litigation for a very long time and as such this aspect of the matter requires consideration is some force. Admittedly the petitioner was found 41 years old when the learned trial court recorded the conviction i.e. on 22.3.1988. The petitioner was not previously found convicted. Having regard to this aspect of the matter, this Court is satisfied that a lesser punishment in the facts and circumstances would sub-serve the 5 cause of justice. Consequently, the sentence of rigorous imprisonment for 02 years under Section 326/34 is reduced to rigorous imprisonment for 1 ½ years. The other parts/conditions of the sentence recorded by learned trial Court and confirmed by the learned lower appellate Court is/are not touched. With this modification in sentence, the application is dismissed. pkj ( Kishore K. Mandal, J. )