Kesha Ram @APPELLANT@Hash State of Rajasthan & Ors.

Accused-appellant has preferred this appeal under Section 374(2) Cr.P.C. to challenge impugned judgment dated 24th of August, 2015, passed by

Addl. Sessions Judge No.4, Udaipur (for short, 'learned trial Court’), whereby appellant has been convicted for offence under Sections 447 and

326 IPC. The learned trial Court, by the impugned judgment, while indicting appellant for offence under Section 447 IPC has handed down sentence

of three months’ simple imprisonment with fine of Rs.500/- and in default of payment of fine to further undergo fifteen days’ simple

imprisonment. Likewise, for offence under Section 326 IPC, appellant has been sentenced to simple imprisonment of four years with fine of

Rs.5,000/- and in default of payment of fine to further undergo three months’ simple imprisonment. The learned trial Court has ordered to run

both the sentences concurrently.

In brief, facts of the case are that, on 19.04.2014, complainant Nathuram submitted an oral information before Police Station Sayra stating that at

about 5:00 PM, while he was working at his home, on hearing shout/cry of his cousin Hanklaram, he rushed towards his house. On the way,Â

Malaram and Gunjaram informed him that accused-appellant had given axe blow on the head of Hankla.  When he reached to the house of

Hanklaram, he saw him lying on floor and blood oozing from his head and left hand.   On the basis of said information, FIR No.64/2014 for

offence under Sections 447 and 307 IPC was registered and after investigation, the police filed charge-sheet against accusedappellant under Section

447, 326 & 307 IPC before the Court concerned wherefrom the case was committed to the learned trial Court. The learned trial Court heard on

charge and framed charge against accused appellant for the said offence.Â

 During trial, in order to prove charge against accusedappellant, prosecution examined as many as eleven witnesses and exhibited twenty-one

witnesses. On conclusion of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C., however, he produced no

witness in his defence.

The learned trial Court, upon appreciation of evidence and examining material available on record, found the charge under Section 307 IPC not proved

against the appellant but indicted him for rest of the offences and awarded sentences, as aforesaid.

Learned Amicus Curiae submits that the appellant has served total sentence awarded by the learned trial Court and out of the concurrent sentence of

three and half months’ imprisonment awarded in default of payment of fine, he has already undergone sentence for 20 days. It is also submitted

by learned Amicus Curiae that appellant is a poor fellow with insane mind, as such, a benevolent view may be taken in the matter of sentence of

imprisonment in default of payment of fine by reducing the same to the extent he has undergone.  Learned Amicus Curiae would contend that

looking to penury condition of appellant’s family and his mental instability, he deserves some reprieve in the sentence of imprisonment in default of

fine.

Learned Public Prosecutor has produced a custody certificate of the appellant wherein it is mentioned that the appellant has served 3 years, 11 months

and 16 days as on 05.04.2018 and as such till today he has served total sentence of 4 years and 20 days. Â

I have bestowed my consideration to the arguments advanced at Bar, perused materials available on record and also examined the custody certificate

furnished by learned Public Prosecutor.

In view of the fact that learned counsel for the appellant has abandoned challenge to the conviction recorded by learned trial Court and the appellant

has already served substantive sentence handed down to him, the only question which survives is grant of reprieve in sentence of imprisonment in

default of fine.Â

As per custody certificate produced by the learned Public Prosecutor, appellant has undergone sentence for 4 years and 20 days and the concurrent

sentence of imprisonment in default of fine is three months.    It is also borne out from the connected State Criminal Appeal bearing

No.202/16 that considering penury condition of the appellant and his mental instability, he is provided assistance of Amicus Curiae to plead his cause,

therefore, I feel persuaded to examine his limited afflictions benevolently. Admittedly, appellant has undergone sentence of imprisonment in default of

fine for 20 days out of three months, and therefore, in the backdrop of peculiar facts and circumstances of the instant case his prayer appears to be

genuine. Â

Supreme Court, in Shahejadkhan Mahebubkhan Pathan Vs. State of Gujarat [(2013) 1 SCC 570], an NDPS matter, while considering the prayer of

accused, reduced three years’ sentence of imprisonment in default of fine to six months. The Court held:

 “For the reasons stated above, both the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the

Appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs. 1.5 lakhs each is also upheld but the order that in

default of payment of fine, the Appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the Appellants have already served nearly

12 years in jail, we are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to

continue in prison. The Appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any

reasons, if the Appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over.â€​

The same view is also reiterated by learned Single Judge of this Court in S.B. Criminal Appeal No.107/2008 (Girdhari Vs. State of Rajasthan, decided

on 29th of September 2015).

In view of foregoing discussion and law laid down by the Supreme Court, the instant appeal is partly allowed and while maintaining conviction of the

appellant for the charged offences, three months’ sentence of imprisonment in default of fine handed down to him by learned trial Court is

reduced to the sentence he has already undergone, i.e. 20 days. The appellant is in jail and therefore he may be released forthwith, if not wanted in

any other case.