GOPI ALIAS SOBHA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated April 20, 1989, of the Sessions Judge, Balotra, convicting and sentencing the appellant for the offence Under Section 328, IPC to 5 years RI and a fine of Rs. 100/ - and in default of payment of the one month further RI and Under Section 379, IPC to one years sentence. Both the sentences have been directed to run concurrently. The case relates to the incident which took place on March 21, 1987, in the cattle -fair held at Tilwara. According to the prosecu -Fateh Singh had gone to the catlte fair to horse. He had with him a sum of Rs 2060/ -. Bala was accompanying him. The appellant came to Fatehsingh and remained with him for some time. Thereafter he brought tea and offered it to Fateh Singh. According to the prosecution the tea contained something which dragged Fateh Singh. He lost senses and when he was in such a condition the accused took away his currency -notes. The First Information Report of the occurrence was lodged on March 26, 1987, at 1 p.m. at the Police Station, Balotra. After some days the accused was arrested and a sum of Rs. 1000/ - was recovered from under a Aak -tree on his information and at his instance. The accused was challaned in the court of Additional Chief Judicial Magistrate, Balotra, who committed him to the Court of Sessions to stands trial for the offence Under Section 328, IPC. After trial, the learned Sessions Judge has convicted and sentenced the accused as aforesaid.

(2.) AS regards the factual aspect of the prosecution case, the same stands established by the evidence of Fateh Singh (PW 3) and Balu Ram. Fateh Singh has stated that the accused came to him in the cattle -fair and give him tea to drink. There was something in the drink which dragged him and as he result he lost his senses. When he regained consciousness, he discovered that his money had been taken away and the accused was also gone. The evidence of Fateh Singh is supported by the evidence of Balu PW 11. Both these witnesses have identified the accused correctly in Court Learned Counsel for the accused has contended that it would not be safe to reply on the evidence of these witnesses in the absence of a test identification parade which ought to have been held during the investigation. In my opinion, the evidence of these two witnesses, viz., Fateh Singh and Balu Ram, who had sufficient opportunity to see the accused, as he remained with him for more than 3 hrs. clearly establishes the fact that the accused dragged Fateh Singh and removed money from his possession. There is nothing in their statements to dis -credit their testimony. The statements of these witnesses inspires confidence and conviction of the accused can be safely based on their evidence.

(3.) ACCORDINGLY , it is directed that the appeal shall be partly allowed. The conviction of the appellants Under Sections 328 and 379, IPC is maintained, but the sentence awarded to him for the offence Under Section 328, IPC is reduced to 3 year's RI and a fine of Rs. 100/ - and in default of payment of fine to one months further RI. The sentence of one year RI for the offence 379, IPC is also maintained. Both the sentences shall run concurrently. It is, how ever, directed that the period of detention undergone by the accused during investigation, inquiry or trial shall be given set -off against the term of imprisonment awarded to him.