http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: RAM KALYAN

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       06/09/2000

BENCH: S. Rajendra Babu J. & Shivaraj V. PAtil, J.

JUDGMENT:

Shivaraj V. Patil J.

Leave granted. L....I..........T.......T.......T.......T.......T.......T..J      This   is  an  appeal   challenging  the  legality  and correctness  of  the  order dated 26.3.1998  passed  by  the learned  single Judge of the Rajasthan High Court :  Jodhpur in S.B.  Criminal Appeal No.  69/1982.

    The  appellant  was prosecuted for the  offences  under Sections  302, 201 and 379 of the Indian Penal Code alleging that  the  appellant  had  stolen the  ornaments  and  other articles,  murdered one Nandu by strangulation and destroyed the  evidence  of murder by throwing the dead body into  the well.  He denied the charges.  The prosecution in support of its  case  examined as many as 19 witnesses.  The  appellant was examined under the provisions of Section 313 Cr.P.C.  He did  not choose to produce any defence witness.  The learned Sessions  Judge,  Bhilwara  (Rajasthan)  having  elaborately considered  the evidence, did not find the appellant  guilty beyond  any doubt under Sections 302, and 201 IPC.   However the  appellant  was found guilty under Section 411  of  IPC. Hence  the  appellant  was convicted for the  said  offence. After   hearing,  he  was   sentenced  to  undergo  rigorous imprisonment  for  two  years  and to pay the  fine  of  Rs. 500/-.   Aggrieved  by  the  said order  of  conviction  and sentence,  the  appellant  filed S.B.  Criminal  Appeal  No. 69/1982  in the High Court of Rajasthan.  The learned Single Judge of the High Court dismissed the appeal by the impugned order.

    As  is  evident  from the order of the  learned  Single Judge,  initially  the  learned counsel  for  the  appellant requested only to reduce the sentence by confining it to the sentence already undergone by the appellant having regard to the fact that the date of alleged offence was 24.4.1981.  In the  order,  the learned Single Judge has recorded that  the leaned  counsel  for the appellant after arguing the  matter requested to issue notice to the appellant-accused to engage other  advocate as the file had come to him from the  office of  late  Shri  M.M.  Singhvi.  The request of  the  learned counsel  was refused.  The learned Single Judge has  further stated  in  the order that the court would  have  definitely reduced  the  sentence but for the facts  and  circumstances stated,  it would not be possible to take a lenient view  so

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

as to reduce the sentence.

    Before  us  also,  the thrust of the  argument  of  the learned counsel for the appellant was to reduce the sentence to   the  period  already   undergone  stating  that   after committing  of  the alleged offence more than 19 years  have passed;   the  appellant has already undergone  imprisonment for  a  period  of about 9 months.  Relying on the  case  of Trimbak  vs.   The  State of Madhya Pradesh  ,  the  learned counsel for the appellant urged that the prosecution did not prove  the case against the appellant for the offence  under Section   411  IPC  in  as   much  as  all  the  ingredients constituting the offence were not established.

    We  have  gone  through the judgments  of  the  learned Sessions Judge as well as of the learned Single Judge of the High Court.  The trial court has looked into the evidence of the  witnesses  and  on  proper appreciation  of  the  same, acquitted  the appellant for the offences under Section  301 and  201  IPC  and convicted and sentenced for  the  offence under  Section 411 IPC.  The learned Single Judge found that there  was  sufficient  evidence on record  to  sustain  the conviction  and  sentence passed against the appellant.   It was  also  observed that Investigating Officer  has  clearly stated in his evidence that at the instance of the appellant only,  articles were recovered just outside the house of the appellant.   It  was not shown to us as to why the order  of conviction passed by the learned Sessions Judge as confirmed by  the  High Court should be disturbed when the  courts  on proper  appreciation  of  evidence have concluded  that  the appellant  was guilty of the offence under Section 411  IPC. The  learned  counsel repeating his submission in regard  to the  reduction of sentence stated that the articles said  to have  been  stolen  and possessed by the appellant  were  of small  value;  the alleged offence had taken place almost 19 years  back;   the appellant was only 27-28 years of age  on the  date of alleged offence;  he has already undergone  the imprisonment  for  a period of 9 months and hence the  court may take a lenient view to reduce the sentence to the period of imprisonment already undergone.  The learned Single Judge of  the  High  Court  in the order  has  observed  that  "In ordinary  circumstances,  this court would  have  definitely reduced  the  sentence, but for the facts and  circumstances stated  above,  it would not be possible for this  court  to take  a lenient view of the matter and reduce the sentence". But the learned Single Judge has not indicated the facts and circumstances  why  lenient  view could not be  taken.   The learned  Single Judge himself in the beginning of the  order has stated that the court would have accepted the submission made  by  the learned counsel for the appellant and  reduced the  sentence to the sentence already undergone.  It appears that  the  learned counsel who argued before the High  Court was  not engaged by the appellant but the brief had come  to him  from  the office of late Shri M.M.  Singhvi,  Advocate; he requested for issuance of notice to the appellant but the same  was  refused as such a request was made after  arguing the  case.   The alleged offence had taken place  almost  19 years back when the appellant was of the age of 27-28 years, obviously  he  is  45-46 years of age now.  He  has  already suffered  imprisonment  for  a period of about 9  months  as stated by the learned counsel for the appellant on the basis of  the  certificate  said to have been issued by  the  jail authorities.   The  appellant  was  granted  exemption  from surrendering by the order of this court dated 27.3.2000.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    Keeping  in view all the facts and circumstances of the case,  the order of conviction passed against the  appellant cannot   be   disturbed  and   the  sentence   of   rigorous imprisonment should be reduced to the period of imprisonment already  undergone while confirming the order of conviction. The  appellant  shall  be released forthwith, if he  is  not required  in  any other case.  The bail bond, if any  given, relating to this case shall stand discharged.  The appeal is ordered in the above terms.