The Appellant, namely Accused No.2 in S.C.No.643 of 2003 before the Special Judge, XXXV Additional City Civil and Sessions Judge, at Bengaluru is aggrieved by the Judgment and Order of conviction dated 14.09.2010 and the order of conviction dated 18.09.2010 sentencing him to undergo rigorous imprisonment of five years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment of three months for each of the offences punishable under Sections 259 read with Section 120-B of IPC and under Section 256 read with Section 120-B of IPC. The sentences were ordered to run concurrently.
2. The trial court while passing the judgment in respect of set off under Section 428 Cr.P.C., so far as accused No.2 is concerned, has discussed in detail at page
957 and 958 and has observed at page 980, as follows,-
1. Accused Nos.1, 2, 11, 21 to 24 and 26 are not entitled for set off under Section 428 Cr.P.C..
3. It is relevant to extract the findings of the trial court while passing the judgment in S.C. No.9/2001, so far as this accused, who is accused No.1 in the said case has discussed in detail at page 744 in respect of set off under Section 428 Cr.P.C. and has observed in pages 756 757, as follows,- The accused No.1/Badruddin is entitled for set off for a period from 19.8.2000 to 17.5.2001 and from 6.10.2002 to till this date. (In all comes to 8 years 1 month and 12 days. However set off period limited to 7 years i.e., total period of sentence of imprisonment required to undergo by him as above for all the above offences on account of ordering to run such period of imprisonment concurrently)..
4. Learned counsel for the appellant contends that the appellant was arrested on 06.10.2002 and was in custody during the trial. The judgment of conviction and sentence was pronounced on 14.09.2010 and 18.09.2010 respectively. He preferred the instant appeal on 05.07.2011. He was thereafter granted bail on 11.08.2011 by this Court provided he was not required to be in custody in connection with any other cases. Therefore, it is contended by the appellant that the period of five years, which was awarded by the Trial Court, has already been undergone, including the default sentence, nothing further survives for consideration in the appeal.
5. The learned Special Public Prosecutor does not dispute the above facts.
6. The counsel for the appellant restricts his arguments only to the plea of set off and not on merits.
7. The appellant has already undergone the sentence awarded on him, including the default sentence, albeit in S.C.9/2001.
8. In view of the above facts and following the judgment of the Honble Supreme Court in the case of STATE OF MAHARASHTRA & ANOTHER VS. NAJAKAT ALIA MUBARAK ALI REPORTED IN (2001) 6 SCC 311, the Appeal is disposed off. The appellant/accused shall be set at liberty forthwith in this case, if not required in any other case/s. The bail bond shall stand cancelled and the surety stands discharged. Registry is directed to communicate this order to the Jail authorities to do the needful. SD/- SD/- JUDGE JUDGE
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