IMPORTANT POINT
The court has the discretion to consider the time already served and the circumstances of the case in deciding the appropriate sentence for an offence.

JUDGMENT :

MANOJ KUMAR GARG, J.

1. Application (1/2023) for early listing of the case is allowed for reasons stated therein.

2. The matter is being heard and decided today itself.

3. Instant revision petition has been filed by the petitioner challenging the judgment dated 02.04.2004 passed in Cr. Appeal No. 33/2002 by learned Additional Sessions Judge, Barmer, by which the appellate court partly allowed the petitioner’s appeal and while affirming the conviction of the petitioner for offence under Section 457 IPC, reduced his sentence passed by learned Addl. Chief Judicial Magistrate, (Fast Track), Barmer, vide judgment dated 24.09.2002 in Cr. Case No. 299/2002. Details of the sentence as reduced by the appellate court for offence under Section 457 IPC are as under:

4. Brief facts of the case are that on 05.04.1999, complainant Baksh Khan submitted a written report at P.S. Baytu, District Barmer to the effect that in the intervening night of 03.04.1999, when he along with his family members was sleeping in the house, the accused-petitioner unlawfully entered in the house. On this report, Police registered a case against the accused-petitioner for offence under Section 457 IPC and started investigation.

5. After completion of investigation, the police filed challan against the accused-petitioner. Thereafter, the trial court framed charges against the accused-petitioner, who pleaded not guilty and claimed trial.

6. During the course of trial, the prosecution examined as many as seven witnesses in support of its case and exhibited some documents. Thereafter, statement of the accused-petitioner was recorded under section 313 Cr.P.C.

7. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 24.09.2002 convicted and sentenced the accused-petitioner for aforesaid offence.

8. Being aggrieved by his conviction and sentence, the petitioner preferred an appeal before the learned appellate court. The learned appellate court partly allowed the appeal vide its judgment dated 02.04.2004 and while maintaining the conviction of the petitioner for offence under Section 457 IPC, reduced his sentence. Hence, this revision petition.

9. At the threshold, counsel for the petitioner does not challenge the finding of conviction but it is submitted that the occurrence relates back to year 1999 and the petitioner has as so far suffered a sentence of nine days, out of total sentence of one month’s S.I. In such circumstances, it is prayed that the substantive sentence awarded to the accused-petitioner for the offence under Section 457 IPC may be reduced to the period already undergone by him.

10. 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.

11. 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.

12. 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 nine days incarceration, out of total sentence of one month’s S.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 457 IPC and affirmed by the appellate court is reduced to the period already undergone by him.

13. Accordingly, the criminal revision petition is