IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Dalala & Ors. vs.The State of Rajasthan S.B. Criminal Appeal No.271/1988 u/s 374 Cr.P.C. against the order dated 31.05.88 passed by the Addl.Sessions Judge No.2, Udaipur in Criminal Case No.53/1986. Date of Judgment : 17th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH CHANDRA BHAGWATI Mr.Vishal Saraswat for the appellants. Mr.O.P.Rathi, Public Prosecutor. BY THE COURT: This Criminal appeal has been preferred by the accused appellants namely Dalala, Hawa and Ratta against the judgment and order of sentence dated 31st of May 1988, passed by the Addl.Sessions Judge No.2, Udaipur, in Sessions Case No.53/1986 whereby the accused appellant Hawa has been convicted for the offence under section 344 Indian Penal Code and sentenced to one year's R.I. and a fine of Rs.100/-, in default of payment of fine to further undergo one month's R.I. ; convicted for the offence under sections 448, 147 and 323/149 of IPC and sentenced in each offence to a period of two months' simple imprisonment and a fine of Rs.200/-; in default of payment of fine the accused to further undergo one month's simple imprisonment in each offence, the accused Ratta has been convicted for the offence under sections 448 and 147 IPC and sentenced in each offence to a period of two months' simple imprisonment and convicted for the offence under sections 323/149 IPC and sentenced to a period of two months' simple imprisonment and a fine of Rs.200/-, in default of payment of fine to further undergo one month's simple imprisonment and Dalala has been convicted for the offence under sections 448, 147 and 323/149 IPC and sentenced in each offence to a period of two months' simple imprisonment. The nub of the prosecution story is that four years prior to January 1986 Smt.Logary was married to the accused appellant Hawa r/o Padma-Khera. After marriage, Smt. Logary was living with her husband but after a brief stay of two to four days, she used to come back to her parent's house. Two to three years prior to the date of occurrence, Smt.Logary had been living in the house of her father situated at Manoharpura. On account of her continuous long stay with her parents, the accused persons namely Dalala, Hawa, Ratta and Jotha constituted an unlawful assembly in the night at 1.00 AM on the 28th of January, 1986 and approached the house of PW/2 Geba. At the time of occurrence , all these accused persons were armed with deadly weapons like that of 'lathi' and 'kans' etc. Smt.Logary was sleeping inside the house but the accused persons forcibly entered into the house and assaulted her and forcibly dragged her to their house where she was confined under lock and key. The complainant Geba lodged the first information report, Ex.P/2, with the police Station Kheroda. The police, having registered the case, commenced investigation and during investigation, recorded statements of the witnesses under section 161 of Cr.P.C., got the injured Geba medically examined , got Smt.Logary also medically examined and after usual investigation, filed a police report against the said accused persons for the offences under Sections 147,323/149, 448, 368 and 344 IPC. During trial, the Addl.Sessions Judge, Udaipur framed charges for the offence under Sections 147,323/149,448,368/344 IPC and read them to the accused persons who denied their guilt and claimed trial. The prosecution examined as many as 13 witnesses in support of its case and exhibited 13 material documents . All the accused persons were asked to explain the circumstances appearing against them in evidence under section 313 Cr.P.C. but each of them denied the guilt and submitted that they have been falsely implicated in the case. The learned Addl.Sessions Judge No.2, Udaipur decided this case on 31st of May 1988 , convicted the aforesaid accused appellants in the aforesaid offences, against which the accused appellants have preferred this appeal. Heard Mr.Vishal Saraswat, appearing on behalf of the accused appellants, Mr.O.P.Rathi, learned Public Prosecutor for the State and perused the relevant record of the lower court. The learned counsel for the accused appellants has not assailed the conviction of the accused appellants in the aforesaid offences. He has simply prayed that this criminal appeal has been pending for the last 20 years in this Court and all the accused persons have turned grey. Apart this, in last 20 years they have not repeated or committed any offence. The offence in which the lower court has convicted the accused appellants are also not of grave nature , hence keeping in view the facts that the accused have turned very old and they being the first offenders and thereafter, there being no record of their involvement in any other offence, they be released on probation of good conduct, instead of asking them to serve out the sentence of imprisonment. The learned Public Prosecutor has not controverted the arguments of learned counsel for the appellants. A perusal of the police report reveals that the occurrence took place on 28th of January 1986 and thereafter more than 22 years have passed but the accused appellants have yet been facing the trauma of untiring trial . There has been no previous conviction of these appellants, nor thereafter they have been found to be involved in any other criminal case. Hence, regard being had to the age,character or antecedents of the accused appellants and further keeping in view the fact that they have been bearing with the trauma of untiring trial for the last 22 years, I feel it just and proper to release them on probation of good conduct. In view of the above, this criminal appeal filed by the accused appellants is partly allowed. The conviction of the accused appellants namely Dalala, s/o Gautam Dangi, Hawa, s/o Vasa and Ratta , s/o Kala in the aforesaid offences, is maintained but the sentence awarded to them by the learned lower court is ordered to be set aside. All the three accused appellants, namely, Dalala, s/o Gautam Dangi, Hawa, s/o Vasa and Ratta , s/o Kala are ordered to be released on probation of good conduct, directing them to furnish a personal bond in the sum of Rs.5,000/- each, together with a surety of like amount, to the satisfaction of learned Addl.Sessions Judge No.2, Udaipur with the condition to appear and receive the sentence when called upon, during a period of two years and in the meantime, to keep peace and be of good behavior. (MAHESH CHANDRA BHAGWATI), J. l.george