BALBIR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal is directed against the judgment dtd. 12/2/1988 passed by the learned Additional Sessions Judge, Dausa, District Jaipur (for brevity "the learned trial Court") in Sessions Case No.41/1984 whereby, while acquitting the appellant under Sec. 398 IPC, he is convicted and sentenced under Sec. 393 IPC as under:-

(2.) The relevant facts in brief are that Shri Hazari Lal submitted a written report (Exibit P-4) at the Police Station Manpur on 11/8/1982 at about 7.00 AM stating therein that in the intervening night of 10th 11/8/1982 at about 2.30 AM, six persons attempted to commit dacoity in his house after trying to strangulate his aunt who was sleeping in the Varandah. After investigation, initially, Police filed charge-sheet against three accused persons namely Salim, Naim and Rafiq Ahmed and thereafter, supplementary charge-sheet under Sec. 398 IPC came to be filed against the appellant on 28/6/1984. After committal, the learned trial Court framed charges against the appellant under Sec. 393 and Sec. (s) 393-398 IPC. The appellant pleaded not guilty and demanded trial. After trial, the appellant has been convicted and sentenced as stated hereinabove by the learned trial Court vide its judgment dtd. 12/2/1988.

(3.) Assailing the findings recorded by the learned trial Court, learned counsel for the appellant submits that except his identification in the test identification parade conducted almost two years after the date of incident, there is no other incriminating evidence against him available on record. He submits that his wife happens to be resident of the same village in which the incident alleged to have taken place and hence, he was well acquainted with all the witnesses and in view thereof, his identification loses significance. Learned counsel would, however, submit that he shall feel contended if, while maintaining the conviction, in view of mitigating circumstances, substantive sentence awarded is reduced to the period already undergone by the appellant. Learned counsel submits that the incident pertains to the year 1982 when the petitioner was a young boy and at present, he is aged about 70 years and has suffered physical as well as mental trauma of trial as also of conviction for last more than 40 years. Learned counsel submits that while convicting the co-accused persons namely Salim, Naim and Rafiq Ahmed by the learned trial Court vide its judgment dtd. 30/10/1984 under Sec. 393 IPC, they were awarded sentence of 10 months' rigorous imprisonment with hundred rupees' fine and in default, one month' rigorous imprisonment; whereas, the appellant has been sentenced for the same offence with a rigorous imprisonment of one and a half years. He submits that the appellant has already undergone a sentence of 8 months and 2 days and looking to his advance age, his substantive sentence may be reduced to the period already undergone.