IMPORTANT POINT
The court can reduce a sentence based on the time already served, especially in cases of prolonged trials, while maintaining the conviction.

JUDGMENT :

MANOJ KUMAR GARG, J.

1. Instant revision petition under Section 397/401 Cr.P.C. has been filed by the petitioner challenging the judgment dated 24.06.2005 passed by learned Additional Sessions Judge No. 3, Jodhpur (hereinafter referred to as ‘the appellate court’) in Criminal Appeal No. 49/2003 by which the appellate court dismissed the appeal of the petitioner and upheld the judgment dated 01.08.2003 passed by the learned Additional Chief Judicial Magistrate, Bilara, in Cr. Case No. 59/1997, whereby, the learned trial court convicted the petitioner for offence under Section 408 IPC and sentenced him for two years SI with fine of Rs. 2,000/- and in default of payment of fine, to further undergo two months’ SI.

2. Brief facts of the case are that on 17.05.1996, PW-2 Bhanwar Singh, Auditor, Sahakari Samiti, Jodhpur submitted a written report (Ex-P/3) at Police Station Bilara to the effect that the petitioner Hapu Ram was working as Manager, Gram Seva Sahakari Samiti, Ransi Gaon and according to the audit report for the year, 01.04.1994 to 31.03.1995 & 01.04.1995 to 30.06.1995, the petitioner misappropriated the amount by depositing less amount in Bank and made false entries in balance sheet. Upon which, Police registered a case against the accused-petitioner for offence under Section 408 IPC and started investigation.

3. On completion of investigation, the police filed challan against the accused petitioner for offence under Section 408 IPC. Thereafter, the trial court framed the charge. The accused petitioner denied the charge and claimed trial.

4. During the course of trial, the prosecution examined as many as 12 witnesses and exhibited some documents. Thereafter, statement of the accused petitioner was recorded under section 313 Cr.P.C.

5. Upon conclusion of the trial, the learned trial court vide impugned judgment dated 01.08.2003 convicted and sentenced the accused-petitioner for offence under Section 408 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 24.06.2005. Hence this revision petition.

7. At the threshold, counsel for the appellant does not challenge the finding of conviction but it is submitted that the occurrence relates back to year 1996 and the petitioner has so far suffered a sentence of about eleven months, out of total sentence of two years S.I. In such circumstances, it is prayed that the substantive sentence awarded to the accused-petitioner for the aforesaid offence 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 1996 and the accused-petitioner has so far undergone a period of about eleven months incarceration, out of total sentence of two years 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 a considerable time, it will be just and proper if the sentence awarded by the trial court for offence under Section 408 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 408 IPC, the sentence awarded to him for aforesaid offence is hereby reduced to the period already undergone. The fine amount is hereby maintained. Three months’ tim