The court may reduce a sentence to the period already served, considering the time spent in incarceration and the circumstances of the case.

JUDGMENT :

Manoj Kumar Garg, J.

1. It has been informed to this Court that Mr. Mahendra Solanki, Adv., counsel appearing for the petitioners, has expired.

2. Thus, this Court appoints Mr. Pradeep Shah, Adv. as Amicus curiae to represent case of the petitioners before this Court.

3. Instant revision petition under Section 397/401 Cr.P.C. has been filed by the petitioners challenging the judgment dated 03.05.2007 passed by learned District and Sessions Judge, Balotra (hereinafter referred to as 'the appellate court') in Criminal Appeal No. 06/2007 by which the appellate court dismissed the appeal of the petitioners and upheld the judgment dated 16.12.2006 passed by the learned Judicial Magistrate, Balotra (hereinafter referred to as 'the trial court') in Criminal Original Case No. 288/2005, whereby, the learned trial court convicted and sentenced the present petitioners as under:

4. Both the sentences were ordered to run concurrently.

5. Brief facts of the case are that on 13.02.2005, complainant Mohanlal submitted a written report before Police Station Samdari to the effect that a temple of Prajapat community is situated at Karmawas Bas stand and he is the cashier in the said temple. In the intervening night of 12.02.2005, 3-4 unknown persons unlawfully entered in the temple and committed theft of money, gold and silver ornaments etc. On this report, the police registered the case against unknown accused persons for offences under Sections 457, 380 IPC and started investigation. During the course of investigation, the Police arrested the accused-persons including the present petitioners.

6. On completion of investigation, the police filed challan against the accused persons including the petitioners. Thereafter, the charges of the case were framed against the accused-persons including the petitioners, who denied the charges and claimed trial.

7. During the course of trial, the prosecution examined thirteen witnesses and also exhibited various documents. Thereafter, statements of the accused persons including the petitioners were recorded under section 313 Cr.P.C.

8. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 16.12.2006 convicted and sentenced the accused-petitioners for offences as mentioned earlier.

9. Aggrieved by their conviction and sentence, the petitioners preferred an appeal before the learned appellate court, which came to be dismissed vide judgment dated 03.05.2007. Hence this revision petition.

10. 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 2005 and the petitioner No. 1 has so far suffered a sentence of about one year and three months and petitioner No. 2 has suffered a sentence of about seven months, out of total sentence of three years' R.I. In such circumstances, it is prayed that the substantive sentence awarded to the accused-petitioners for the offence under Sections 457, 380 IPC may be reduced to the period already undergone by them.

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

12. 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-petitioners.

13. It is not disputed that the occurrence has taken place in the year 2005 and the accused-petitioner No. 1 has so far undergone a period of about one year and three mo