Judicature For Rajasthan Bench High Court · 2011

Mr. Govind Choudhary, for accused petitioner Mr. Mahendra Meena, Addl. Govt. Advocate, for State The accused petitioner had been convicted by the Court of Additional Chief Judicial Magistrate (Communal Riots), Kota in Criminal Case No.1119/2004, vide order dated 30.10.2007 for offence under Section 379 IPC and was sentenced to 2 years' simple imprisonment along with a fine of Rs.1000/-, in default whereof to further undergo 6 months' simple imprisonment. Sentences were to run concurrently and the benefit of Section 428 CrPC was granted to him. As against this judgment, he filed appeal, being Appeal no.44/2009, which was partly allowed and while maintaining conviction of the petitioner for offence punishable under Section 379 IPC, modification in the sentence part was made and instead of 2 years' simple imprisonment, he was punished with imprisonment of 6 months, whereas while maintaining the sentence of fine, the period to undergo in default of payment of fine, was reduced from 6 months to 1 month.

It is these orders which have been challenged before this Court by way of this revision petition. - 2 - Briefly stated facts of the case relevant for the purpose of disposal of this petition are that on 28.4.2003, complainant Madhusudan submitted a report with the facts that his Hero Honda CD-100 RJ 20/7M 3300 was parked at 10 a.m. on the GPF Office stand. However, after finishing his office hours when he came to the stand, he did not find his motorcycle and that some unknown person has stolen it. On this report, a case was registered for offence under Section 379 IPC and after usual investigation, charge-sheet was filed against him. The learned trial court, after conducting the whole trial, found him guilty for offence under Section 379 IPC. As mentioned herein-above, the appeal filed against the said order was partly allowed. The learned trial court has recorded the finding of conviction stating that the accused petitioner was caught red-handed while starting the motorcycle by a duplicate key soon after the occurrence, and that said duplicate key has been recovered from him.

Although there was no eye witness, however, the circumstantial evidence was sufficient to prove the guilt of accused. The revision was filed assailing both the orders, however, the learned counsel for the petitioner, without pressing the petition on merits, prayed for mercy, on the ground that this was first offence of the petitioner and the incident pertained to the year 2003. He has already faced mental and financial agony by facing trial for such a long time. He is a familied man and has settled in life. It was prayed that he be sentenced to the period already undergone. As per nominal - 3 - roll, he has suffered incarceration since 4.7.2011, meaning thereby he has already remained in jail for nearly 2½ months. Learned Public Prosecutor has filed antecedents of the petitioner in compliance of the order of this court, which show that the petitioner had no previous offence or conviction and is not facing or faced any other trial before or after this occurrence.

In my considered view, interest of justice would be served if the sentence of fine awarded by the learned Trial Court and upheld by the learned First Appellate Court, be maintained, whereas the sentence of imprisonment of 6 months be reduced to the period already undergone i.e. 2½ months. If not required in any other case, the petitioner be released after he deposits fine of Rs.1000/- before the Trial Court, failing which he will have to undergo simple imprisonment for 1 month. Ordered accordingly. The revision petition stands disposed. The application seeking suspension of sentence, also stands dismissed. (Dr. Meena V. Gomber) J. [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS