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2015 Supreme(Raj) 708
(Rajasthan High Court)
Jaipur Bench
Kanhaiya & Anr. Vs. State of Rajasthan (Sharma, J.)
HON'BLE MAHESH CHANDRA SHARMA, J.
Kanhaiya & Anr.
Versus
State of Rajasthan
S.B. Criminal Appeal No. 24 of 2004, decided on 27.08.2015
Dr. Mahesh Sharma, for Accused-Appellants;
Dr. R.S. Shehawat, P.P., for State
Headnote:Penal Code, Secs. 452, 323, 325, 325/34; Probation of Offenders Act, 1958, Sec. 4 — Giving benefit of probation — Offence u/S. 452, 323, 325, 325/34 IPC — `K' Remained in custody for 8 days and `S' was granted anticipatory bail — Facing trial for last 13 years — Held — In the ends of justice `K' is released for the period already undergone by him in custody and `S' is released giving benefit of probation u/S. 4 of the Act — Conviction maintained — Judgement modified. (Paras 4, 5, 8, 9)
Appeal partly allowed.
n.M lafgrk] /kkjk 452] 323] 325] 325@34( vijk/kh ifjoh{kk vf/kfu;e] 1958] /kkjk 4 & ifjoh{kk dk ykHk nsuk & Hkk-n-la- dh /kkjk 452] 323] 325] 325@34 ds rgr vijk/k & ^K* vkB fnu vfHkj{kk esa jgk vkSj ^S* dks vfxze tekur eatwj dh xbZ & fiNys 13 o"kksZ ls fopkj.k dk lkeuk dj jgs gS & vfHkfu/kkZfjr & U;k; fgr esa ^K* dks mlds }kjk vfHkj{kk esa Hkqxrh xbZ ltk vof/k ij fjgk fd;k tkrk gS & vkSj ^S* dks vf/kfu;e dh /kkjk 4 ds rgr ifjoh{kk dk ykHk nsrs gq, fjgk fd;k & nks"k flf) cgky j[kh & fu.kZ; mikUrfjr fd;kA ¼in la[;k 4] 5] 8] 9½
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u/S. 452 IPC: Each of them has been sentenced to undergo 1 years' RI with a fine of Rs. 500/-; in default of payment of fine to further undergo 15 days imprisonment.
u/S. 323 IPC: Each of them has been sentenced to undergo 3 months' RI
Accused Kanhaiya convicted for the offence under Section 325 IPC and accused Satya Narain convicted for the offence under Section 325/34 IPC and each of them has been sentenced to undergo 2 years' RI with a fine of Rs. 1000/-; in default of payment of fine, to further undergo 1 months' imprisonment.
2. Brief facts of the case are that on 20.8.2002, the complainant submitted a written report at Police Station, Bonli. On the basis of said report, an FIR No. 132/2002 was registered at Police Station, Bonli for the offence under Sections 143, 452, 323, 308 IPC and investigation was commenced. After completion of investigation, the police filed the challan against the accused persons for the offence under Sections 452, 323, 308 and 325/34 IPC in the court of Magistrate, who committed the case to the Court of Sessions from where the case was transferred to the trial court for trial. The trial court framed charges against the accused Kanhaiya for the offence under Sections 452, 308/34, 325, 323 IPC and against accused Satya Narain for the offence under Sections 452, 308, 325/34 and 323 IPC, who denied for the same and claimed for trial. The prosecution produced its witnesses and got exhibited some documents. Thereafter the statements of accused persons were recorded under Section 313 CrPC. After hearing both the sides, the learned trial court vide his judgment and order dated 5.12.2003 convicted and sentenced the accused persons as indicated here-in-above.
3. Against the said judgment of the trial court this has been filed by the accused persons.
4. Learned counsel for the appellants has contended that he is not challenging the conviction part of the judgment of the Court below, but he is only requesting to this Court that looking to the fact that the incident is said to have taken place in the year 2002 i.e. 13 years ago; accused appellant Kanhaiya has remained in custody for about 8 days, he is married person and having the children of marriageable age, it is the first offence of his life; he is not previously convicted person; he is facing the trial since the last 13 years; the appellant Kanhaiya was young at the time of commission of offence and now he is old aged person; he is agriculturist and poor person, hence accused appellant Kanhaiya should be released for the period already undergone by him in custody.
5. So far as the accused appellant Satya Narayan is concerned, he has contended that he is not the habitual offender nor previously convicted person; he is facing the trial since the last about 13 years; it is the first offence of his life; he belongs to a respectable family; he is married person, having the children of marriageable age; he was released on anticipatory bail, hence he should be released on probation under Section 4 of the Probation of Offenders' Act.
6. Learned PP appearing for the State has opposed the same. He has contended that the trial court on the basis of evidence submitted by both the parties, rightly convicted that accused persons, hence no interference is requi-red by this Court and thus, the appeal filed by the accused persons should be dismissed after confirming the judgment and order passed by the trial court.
7. I hav
