1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.224/1986. Devlal & Ors. Vs. State of Rajasthan. WITH S.B. CRIMINAL APPEAL No.226/1986. Ajit Singh & Ors. Vs. State of Rajasthan. : : Date of Order 8.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Rinesh Gupta for the appellants in Appeal No.224/86. Mr.S.C.Gupta for the appellants in Appeal No.226/86. Mr.B.S.Chhaba, P.P. for the State. These two appeals have been preferred against the judgment dated 9.4.1986 and 11.4.1986 whereby the learned trial Court convicted the accused-appellants for offence under Section 411 IPC and sentenced them to undergo two years rigorous imprisonment with a fine of Rs.500/- each, with the stipulation that in default of making payment of fine they will be required to further undergo rigorous imprisonment of four months. 2 Learned counsel for the appellants have assailed the judgment by arguing that there was no evidence on the record which shows that the articles were found recovered from the appellants inasmuch as when the same articles were subject matter of offence under Sections 395 and 397 IPC for which the appellants were acquitted their conviction for offence under Section 411 IPC is perverse on facts. It was argued that recovery was doubtful because almost all the articles were such as are commonly used in the families and the recovery has not been supported by independent witnesses. Such recovery could not be taken as proved only on the evidence of PW.22 Krishan Gopal, the Investigating Officer particularly when motbir witnesses have not supported the same. Recovery of most of the articles have been shown from the houses of the appellants whereas it has not been proved that the appellants had exclusive possession of such articles. They being members of the joint family, they could not be presumed in exclusive possession in the house. When same set of evidence was not believed for conviction of appellants for offence under Section 395 and 397 IPC, such evidence of prosecution could not hold good for conviction of the offence of receiving stolen articles. 3 Learned counsel submitted that conviction of the appellants was recorded way back on 9.4.1986 and a long period of 22 years have gone by since then. The appellants were not granted bail during the trial. All the accused- appellants were granted bail by the High Court during trial at a late stage. They have already served the period ranging from the period of 16 to 20 months. It is submitted that after grant of bail by this Court the appellants were released few days thereafter upon their furnishing bail bonds and sureties. In this manner, they have already served substantial part of the sentence awarded to them. The learned counsel argued that most of the appellants were in middle age and now the period of 24 years have gone by since then they have grown old enough. They have been reformed and are well settled in the society. Now at this lapse of time it will be too harsh if they will be sent back to undergo sentence. It was, therefore, submitted that the sentence may be modified from the period of two years and the period already undergone by them. Learned Public Prosecutor opposed the appeal and submitted that since the offence under Section 411 IPC has been proved against the appellants, they are not entitled to any indulgence merely because the matter is pending 4 before this Court since long. Having heard the learned counsel for the parties, I have perused the impugned judgment and also the other material available on record including the statements of prosecution witnesses, and found that the evidence which has come on record though did not prove the offence under Section 395 and 397 IPC against the appellants beyond reasonable doubt but the learned trial Court found that recovery of large number of articles which are mostly stolen jewelry, was proved. It was also proved that such recovery was made at the instance and possession of the appellants. The learned trial Court has made discussions as to what articles have been recovered from possession of which of the accused. Evidence has supported the findings of the learned trial Court on this aspect available on record in the shape of various recovery memos and statements are PW.32 Jogendra Singh, PW.35 Satya Prakash, PW.3 Shanker , PW.6 Chandalal, PW.7 Laluram, PW.11 Jagdish, PW.13 Prem Narain, PW.2 Bholaram, PW.15 Madanlal, PW.28 Bhagwanlal. In the case of overlapping evidence, I am not inclined to uphold the arguments of the learned counsel for the appellants that offence under Section 411 IPC is not proved against the 5 appellants. Following is the period of sentence served by them :- In SB Criminal Appeal No.224/1986 : Jankilal arrested on 23.1.1980 bail granted on 1.7.1981 Lalji arrested on 23.1.1980 bail granted on 1.7.1981 Amralal arrested on 26.1.1980 bail granted on 1.7.1981 Devlal arrested on 25.1.1980 bail granted on 1.7.1981 In SB Criminal Appeal No.226/1986 : Ajit Singh arrested on 21.1.1980 bail granted on 19.6.1981 Channi arrested on 24.3.1980 bail granted on 12.5.1981 Harlal arrested on 23.1.1980 bail granted on 12.5.1981 Devlal arrested on 21.1.1980 bail granted on 12.5.1981 Nanda arrested on 21.1.1980 bail granted on 12.5.1981 Gangaram arrested on 22.1.1980 bail granted on 12.5.1981 Harisingh arrested on 23.1.1980 bail granted on 4.11.1981 Taking into consideration the arguments aforesaid and the fact that incident pertains to the year 19.1.1980 and the conviction was recorded of the year 1984-86 and the appellants have already served substantial part of sentence as indicated above, it will be appropriate to suitably modified the sentence while maintaining the conviction. 6 In the result, the appeal is allowed in part while the conviction is maintained and the sentence of two years as awarded by the learned trial Court is modified to the period already undergone by the appellants. (MOHAMMAD RAFIQ)J. A.Arora/-