Arvind Kumar, J.@mdashAccording to the prosecution allegations, on 2.6.1990 all the Appellants formed an unlawful assembly and in
prosecution of the common object of that unlawful assembly, armed with lathis and iron pipes, committed the offence of rioting and further caused
injuries to P Ws Kuldeep Singh and Rishi Pal. It is further the say of the prosecution that Appellant Buta Ram committed mischief by setting on fire
the residential chappar belonging to Kuldeep Singh. The Appellants were accordingly charge-sheeted under Sections 148, 323, 324, 325, 436
read with Section 149 IPC. A trial was held against all the Appellants and on conclusion thereof the learned trial Court held all the Appellants guilty
under Sections 148, 323, 324 read with Section 149 IPC and sentenced them to undergo rigorous imprisonment for one year. For committing an
offence u/s 325 read with Section 149 IPC, the trial Court imposed sentence of rigorous imprisonment for three years on all the Appellants and
directed them to pay fine of Rs. 500/- each and in default thereof further imprisonment for a period of six months was awarded. The trial Court
further held the Appellant Buta Ram guilty u/s 436 IPC and sentenced him to undergo rigorous imprisonment for a period of four years with a fine
of Rs. 500/- and to further undergo imprisonment for six months, in case the fine is not paid under this head. The remaining Appellants namely
Arjun Singh, Lila Ram, Jarnail Singh and Baka Ram were also convicted u/s 436 IPC with the aid of Section 149 IPC and similar sentence as that
of Appellant Buta Ram was awarded to them. All the sentences except the one awarded in lieu of fine were ordered to run concurrently. Feeling
aggrieved with the same, the Appellants have preferred the instant appeal.
2. I have heard learned Counsel for the parties and have gone through the paper-book carefully. Learned Counsel for the Appellants has argued
that Chhab (thatched-roof) does not come within the definition of building and as such, it does not attract the provision of Section 436 IPC, but
has frankly conceded that he does not contest the case on merits. His argument is that the Appellants have already suffered an agony of protracted
trial since 1990. In relation of the instant case, the Appellants Buta Singh and Jarnail Singh have already undergone sentence of about 6 months
each whereas the Appellants Arjan and Lila Ram have undergone more than four and a half months each and it would not be appropriate to send
them behind the bars after a lapse of about 17 years. In support of his argument, he has referred to Habbalappa Dundappa Katti and Ors. v. State
of Karnataka, 2004 SCC (Cri.) 463, to urge that u/s 326 IPC, for which maximum sentence of life imprisonment has been prescribed, as in
Section 436 IPC, on the ground that the occurrence had taken place far back, the sentence of imprisonment was reduced to the period already
undergone, which was about two months. He has further referred to Nand Singh v. State of Punjab, 2007(1) RCR(Cri.) 801 (P&PH). I find
substance in the submission made by counsel for the Appellants. The present case relates to the year 1990 and the present Appellants have
already undergone the agony of about 17 years during the pendency of trial/appeal. They have not touched the merits of the appeal and has left
themselves at the mercy of the court. This shows their sense of repentance. The learned State counsel has not referred to a single instance of their
involvement in any criminal activities during all these years. It would be inequitous to send them to the jail after passing of more than one and a half
decades. There is also nothing to suggest that he continued to have strained relations with the complainant party. Moreover, the complainant party
can very well be compensated with the grant of monetary benefits.
3. Therefore, keeping in view the above discussion, the order of conviction of the Appellants, passed by the courts below is upheld. However,
their sentence is set aside and the same stands reduced to the period already undergone by them, for the offence to which they have been
convicted subject to their depositing the fine which stands enhanced to Rs. 3,000/- each, before the Chief Judicial Magistrate, Ambala, within a
period of three months, to be paid equally to Kuldeep Singh and Rishi Pal.
4. With the above modifications, the instant appeal stands disposed of.
