Vs. State of Rajasthan  INSC 469 (6 September 2000)
Babu J. & Shivaraj V. PAtil, J. Shivaraj V. Patil J.
This is an appeal challenging the legality and correctness of the order dated
26.3.1998 passed by the learned single Judge of the Rajasthan High Court : Jodhpur in S.B. Criminal Appeal No.
appellant was prosecuted for the offences under Sections 302, 201 and 379 of
the Indian Penal Code alleging that the appellant had stolen the ornaments and
other articles, murdered one Nandu by strangulation and destroyed the evidence
of murder by throwing the dead body into the well. He denied the charges. The
prosecution in support of its case examined as many as 19 witnesses. The
appellant was examined under the provisions of Section 313 Cr.P.C. He did not
choose to produce any defence witness. The learned Sessions Judge, Bhilwara
(Rajasthan) having elaborately considered the evidence, did not find the
appellant guilty beyond any doubt under Sections 302, and 201 IPC. However the
appellant was found guilty under Section 411 of IPC.
the appellant was convicted for the said offence. After hearing, he was
sentenced to undergo rigorous imprisonment for two years and to pay the fine of
Aggrieved by the said order of conviction and sentence, the appellant filed
S.B. Criminal Appeal No.
in the High Court of Rajasthan. The learned Single Judge of the High Court
dismissed the appeal by the impugned order.
evident from the order of the learned Single Judge, initially the learned
counsel for the appellant requested only to reduce the sentence by confining it
to the sentence already undergone by the appellant having regard to the fact that
the date of alleged offence was 24.4.1981. In the order, the learned Single
Judge has recorded that the leaned counsel for the appellant after arguing the
matter requested to issue notice to the appellant-accused to engage other
advocate as the file had come to him from the office of late Shri M.M. Singhvi.
The request of the learned counsel was refused. The learned Single Judge has
further stated in the order that the court would have definitely reduced the
sentence but for the facts and circumstances stated, it would not be possible
to take a lenient view so as to reduce the sentence.
us also, the thrust of the argument of the learned counsel for the appellant
was to reduce the sentence to the period already undergone stating that after
committing of the alleged offence more than 19 years have passed; the appellant
has already undergone imprisonment for a period of about 9 months. Relying on
the case of Trimbak vs. The State of Madhya Pradesh , the learned counsel for
the appellant urged that the prosecution did not prove the case against the
appellant for the offence under Section 411 IPC in as much as all the
ingredients constituting the offence were not established.
have gone through the judgments of the learned Sessions Judge as well as of the
learned Single Judge of the High Court. The trial court has looked into the
evidence of the witnesses and on proper appreciation of the same, acquitted the
appellant for the offences under Section 301 and 201 IPC and convicted and
sentenced for the offence under Section 411 IPC. The learned Single Judge found
that there was sufficient evidence on record to sustain the conviction and
sentence passed against the appellant. It was also observed that Investigating
Officer has clearly stated in his evidence that at the instance of the
appellant only, articles were recovered just outside the house of the
appellant. It was not shown to us as to why the order of conviction passed by
the learned Sessions Judge as confirmed by the High Court should be disturbed when
the courts on proper appreciation of evidence have concluded that the appellant
was guilty of the offence under Section 411 IPC.
learned counsel repeating his submission in regard to the reduction of sentence
stated that the articles said to have been stolen and possessed by the
appellant were of small value; the alleged offence had taken place almost 19
years back; the appellant was only 27-28 years of age on the date of alleged
offence; he has already undergone the imprisonment for a period of 9 months and
hence the court may take a lenient view to reduce the sentence to the period of
imprisonment already undergone. The learned Single Judge of the High Court in
the order has observed that "In ordinary circumstances, this court would
have definitely reduced the sentence, but for the facts and circumstances
stated above, it would not be possible for this court to take a lenient view of
the matter and reduce the sentence".
the learned Single Judge has not indicated the facts and circumstances why lenient
view could not be taken. The learned Single Judge himself in the beginning of
the order has stated that the court would have accepted the submission made by
the learned counsel for the appellant and reduced the sentence to the sentence
already undergone. It appears that the learned counsel who argued before the
High Court was not engaged by the appellant but the brief had come to him from
the office of late Shri M.M. Singhvi, Advocate;
requested for issuance of notice to the appellant but the same was refused as
such a request was made after arguing the case. The alleged offence had taken
place almost 19 years back when the appellant was of the age of 27-28 years,
obviously he is 45-46 years of age now. He has already suffered imprisonment
for a period of about 9 months as stated by the learned counsel for the
appellant on the basis of the certificate said to have been issued by the jail
authorities. The appellant was granted exemption from surrendering by the order
of this court dated 27.3.2000.
in view all the facts and circumstances of the case, the order of conviction
passed against the appellant cannot be disturbed and the sentence of rigorous
imprisonment should be reduced to the period of imprisonment already undergone
while confirming the order of conviction.
appellant shall be released forthwith, if he is not required in any other case.
The bail bond, if any given, relating to this case shall stand discharged. The
appeal is ordered in the above terms.