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2000 DIGILAW 454 (PAT)

Kameshwar Sao v. State Of Bihar

2000-03-23

ANIL KUMAR SINHA

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Judgment ANIL KUMAR SINHA, J. 1. The present revision application has been directed against the judgment and order, dated 25.4.1992 passed in Cr. Appeal No. 18 of 1986 by the 4th Additional Sessions Judge, Hazaribagh, whereby he dismissed the appeal, which was preferred against the judgment and order dated 15.10.1985 passed by the 2nd Assistant Sessions Judge, Hazaribagh, in S.T. No. 36 of 1980 whereby the appellant-petitioner was convicted and sentenced to undergo RI for 2 years under Section 366 of the Indian Penal Code. 2. The learned counsel appearing for the petitioner has confined his submission on the point of sentence only on the premises that there has been concurrent finding on facts by the trial Court as also by the appellate Court. 3. I have also examined the record and there does not appear anything either in the judgment of the trial Court or in the judgment of the appellate Court which may show that there has been any flagrant miscarriage of justice so as to require any interference by this Court on the question of facts. Therefore, the conviction of the petitioner under Section 366 of the Indian Penal Code is well established from the judgment recorded by two courts below and the same is, hereby, upheld. 4. So far as the question of sentence is concerned, it appears that the learned trial Court has sentenced the petitioner to undergo RI for a period of 2 years without awarding any sentence of fine which was mandatory, in view of the provisions of Section 366 of the Indian Penal Code. The admitted position as would be revealed from the judgments of the learned courts below is that the alleged occurrence took place in the night of 18.2.1979 and the learned trial Court convicted the petitioner by his judgment and order dated 15.10.1985. The appellate Court dismissed the appeal preferred by the petitioner against the order of conviction and sentenced passed by the trial Court on 25.4.1992. It would, thus, appear that a period of 21 years elapsed since the date of the alleged occurrence and much water has flown from the Gangesby lapse of time, inasmuch as the victim girl got married in usual form having been blessed with son, which can be easily by borne out from the judgments recorded by the courts below itself. 5. 5. The learned counsel for the petitioner submitted before me that the petitioner is an employee working in CCL and at the time of the alleged occurrence, he was minor aged only 17 years and without understanding the consequences, he committed the alleged offence, when he was himself a minor boy aged 17 years. It was further submitted that the petitioner has already remained in jail custody for a period of about 6 months in course of trial and the revision filed before this Court. As such, it was submitted that it would meet the ends of justice if the sentence of imprisonment is modified and reduced to the period of imprisonment already undergone by the petitioner during the trial. In addition, the petitioner may be sentenced to pay a fine which the learned trial Court missed to impose, which the petitioner is willing to deposit. 6. Having considered the submissions of the learned counsel for the petitioner as also the facts and circumstances of the case as also the fact that the period of 21 years has already elapsed since the date of occurrence, I also feel it expedient in the ends of justice to accede to the submissions of the learned counsel because after lapse of such a long period, no useful purpose can be served by sending the petitioner to jail to serve out the remaining part of the sentence. Therefore, the substantive punishment of 2 years RI awarded to the petitioner is modified and reduced to the period already undergone by him in jail custody during the trial. The petitioner, however, is sentenced to pay a fine of Rs. 5,000/- (Five thousand) which shall be deposited by him before the trial Court or in default of payment of fine to undergo RI for 6 months. If the petitioner deposits the fine as stated above, the trial Court shall issue notice to victim girl through the informant and if the victim girl appears before him, the amount cf fine, so deposited by the petitioner, shall be paid to her. 7. In the result, therefore, this revision application is dismissed subject to the modification indicated above.