IMPORTANT POINT
The court has the discretion to consider the time already spent in custody and may reduce the sentence accordingly, based on the overall circumstances of the case.

JUDGMENT :

1. Instant revision petition under Section 397/401 Cr.P.C. has been filed by the petitioner challenging the judgment dated 30.11.2002 passed by learned Additional Sessions Judge (Fast Track), Rajsamand in Criminal Appeal No.128/2002 by which the appellate court dismissed the appeal of the petitioner and upheld the judgment dated 05.09.2001 passed by the learned Judicial Magistrate (First Class), Kumbhalgarh in Cr. Case No.358/1999, whereby, the learned trial court convicted the petitioner for offence under Section 411 IPC and sentenced him to undergo two years’ R.I. and imposed a fine of Rs.1,000/- and in default of payment of fine, to further undergo one month’s R.I.

2. Brief facts of the case are that on 25.06.1999, complainant Tarachand Soni lodged a report at PS Charbhuja to the effect that some unknown persons committed theft of gold and silver articles from his jewellery shop situated at Gomati Chauraha. On this report, Police registered a case under Sections 457 & 380 IPC. Initially, Police filed the final report but later on case was reopened on 26.08.1999 and accused persons namely Udai Singh, Gulab Singh, Nathu Singh & Laxman Singh were arrested by the Police. Subsequently, upon the information given by accused Udai Singh, Police recovered the stolen articles from the present petitioner.

3. On completion of investigation, the police filed challan against the accused-petitioner for offence under Section 411 IPC. Thereafter, the trial court framed the charge against the accused-petitioner, who denied the charges and claimed trial.

4. During the course of trial, the prosecution examined eleven witnesses and also exhibited some documents. Thereafter, statement of the accused-petitioner was recorded under section 313 Cr.P.C. In defence, the petitioner examined himself as DW-1.

5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 05.09.2001 convicted and sentenced the accused-petitioner for offence under Section 411 IPC.

6. Aggrieved by his conviction and sentence, the petitioner preferred an appeal before the learned appellate court, which came to be dismissed vide judgment dated 30.11.2002. Hence this revision petition.

7. At the threshold, counsel for the petitioners does not challenge the finding of conviction but it is submitted that the occurrence relates back to year 1999 and the petitioner has so far suffered a sentence of about one month, out of total sentence of two years R.I. In such circumstances, it is prayed that the substantive sentence awarded to the accused-petitioner for the offence under Section 411 IPC may be reduced to the period already undergone by him.

8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the accused-petitioner. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused petitioner nor any compassion or sympathy is called for in the said case.

9. I have perused the evidence of the prosecution as well as defence and the judgment passed by the courts below regarding conviction of the accused-petitioner.

10. It is not disputed that the occurrence has taken place in the year 1999 and the accused-petitioner has so far undergone a period of about one month incarceration, out of total sentence of two years’ R.I., and so also suffered the mental agony and trauma of protracted trial. Thus, looking to the over-all circumstances and the fact that the accused-petitioner has remained behind the bars for considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 411 IPC and affirmed by the appellate court is reduced to the period already undergone by him.

11. Accordingly, the criminal revision petition is partly allowed. While maintaining the petitioner’s conviction for offence under Section 411 IPC, the sentence awarded to him for aforesaid offence is hereby reduced to the period already undergone. The