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2002 DIGILAW 1360 (RAJ)

Om Prakash v. State of Rajasthan

2002-08-02

H.R.PANWAR

body2002
JUDGMENT 1. - This criminal revision application under section. 397/401 Criminal Penal Code is directed against the judgment and order of conviction dated 13.6.1991 passed by learned Sessions Judge, Bikaner in Criminal appeal No. 62/89, whereby the appellate Court partly allowed the appeal filed by the petitioner against the judgment and order dated 26.10.1989 passed by Munsif and Judicial Magistrate, Nokha in Criminal Case No. 32/85. The appellate Court acquitted the petitioner for the offence under section. 379 Indian Penal Code but maintained the conviction and sentence for offences under sections. 354, 341 & 323 IPC. The trial Court held the petitioner guilty for the aforesaid offences and the petitioner was convicted and sentenced as under : Under See, 354 IPC 6 months' S.I. and fine of Rs. 100/-, in default of payment of fine, to further undergo 15 days' S.I. Under Sec 323 IPC 3 months' S.I. Under Section 341 IPC : Fine of Rs. 100/-, in default of payment of fine, to further undergo 15 days' S.I. 2. Aggrieved by the judgment of the appellate Court, the accused - petitioner has preferred this revision application. The petitioner was tried for offences under sections. 392, 354, 341 & 323 IPC on the allegation that on 5.1.1985, the petitioner assaulted complainant-Seema and inflicted injury on her person by using Chappal and the petitioner caught hold the neck of the complainant by which she sustained abrasions. It was alleged that she had a handkerchief, which the petitioner took away. It was also alleged that the petitioner outraged her modesty. In order to prove the charges, the prosecution examined as many as 12 witnesses and proved "Parcha Bayan" Ex. 1, site map Ex. 3, site inspection note Ex.3-A, identification of handkerchief Ex. 4, investigation report Ex. 6, arrest memo Ex. 8, FIR Ex. 10, letter Ex. 11 and handwriting expert's opinion Ex. 13. The statement of the petitioner was recorded under section. 313 Cr.P.C., wherein he made the statement that he has been falsely implicated in this case. On appreciation of the evidence, the trial Court found the petitioner guilty of offences under sections. 354, 323, 341 & 379 IPC. However, the petitioner was not found guilty for the offence under section. 392 Indian Penal Code and convicted as noticed above. 313 Cr.P.C., wherein he made the statement that he has been falsely implicated in this case. On appreciation of the evidence, the trial Court found the petitioner guilty of offences under sections. 354, 323, 341 & 379 IPC. However, the petitioner was not found guilty for the offence under section. 392 Indian Penal Code and convicted as noticed above. On appeal before the learned Sessions Judge, on re-appreciation of the evidence, the appellate Court came to the conclusion that the prosecution failed to establish the guilt of the petitioner for the offence under section. 379 Indian Penal Code and accordingly, the petitioner was acquitted for the charge of Section 379 IPC. However, the appellate Court observed that the trial Court on sound appreciation of the evidence by a reasoned order, reached to the conclusion that the prosecution succeeded in establishing the guilt of the petitioner for the offences under sections. 354, 323 & 341 IPC beyond any manner of doubt and accordingly affirmed the finding of guilt and sentence awarded by the trial Court for these offences. 3. I have heard Mr. Shanker Lal, learned counsel for the petitioner and Mr. A.R. Nikub, learned Public Prosecutor for the State. Perused the record and the other of trial Court as well as of the appellate Court. 4. Learned counsel for the petitioner has rightly not challenged the concurrent findings of fact of both the Courts below as well as the petitioner's conviction for offences under section. 354, 323 & 341 Indian Penal Code, which stands well proved beyond any manner of doubt from the evidence recorded by the trial Court. 5. Learned counsel for the petitioner contended that on the relevant date of occurrence, the petitioner was below 21 years of age. A transfer certificate issued by the Headmaster, Government Rathi Middle School, wherein the date of birth of the petitioner is shown to be 3.4.1965 is on record and the date of occurrence is 5.1.1985. Thus, from the school certificate, it is evident that on the date of occurrence, the petitioner was below 21 years of age. Learned counsel for the petitioner submitted that more than 17 years have elapsed from the date of occurrence and the petitioner has faced the trial as also litigating for such a long period. Therefore, he underwent ordeal and harassment. Learned counsel for the petitioner submitted that more than 17 years have elapsed from the date of occurrence and the petitioner has faced the trial as also litigating for such a long period. Therefore, he underwent ordeal and harassment. The petitioner has already undergone imprisonment for a period of 15 days which is evident from the record. Under these circumstances, learned counsel for the petitioner submitted that the ends of justice would be met if the sentence awarded to the petitioner is reduced to the period already undergone. 6. On the other hand learned Public Prosecutor has seriously contended that there are no mitigating circumstances in this case. The allegation against the petitioner is that he has assaulted and outraged the modesty of a school girl and as such, the quantum of punishment imposed on him by the Courts below cannot be said to be excessive. 7. I have given my thoughtful consideration to the rival submissions. Complainant - Seema and the petitioner on the relevant date of the incident were of similar age and were below 21 years of age. The allegation against the petitioner is that he had assaulted the complainant with Chappal and caused abrasions. Allegation of theft is with regard to handkerchief, which was not found to be proved by the appellate Court. The petitioner has been facing trial since 1985 and during trial and after the decision of the appeal, the petitioner remained in custody altogether for 15 days. The petitioner has undergone mental agony, harassment and financial burden in facing the investigation, trial of the case and in prosecuting the appeal and this revision. 8. Learned Public Prosecutor did not controvert the age of the petitioner on the relevant date of occurrence to be less than 21 years as is evident from the school certificate noticed above. Keeping in view the aforesaid mitigating circumstances, in my opinion, ends of justice would be secured if the sentence awarded to the petitioner is reduced to the period of sentence already undergone by him and the fine is enhanced from Rs. 100/- to Rs. 2,000/- for the offence under section. 354 Indian Penal Code. 9. In the result, this revision application is partly allowed. The conviction on the petitioner for the offences under sections. 100/- to Rs. 2,000/- for the offence under section. 354 Indian Penal Code. 9. In the result, this revision application is partly allowed. The conviction on the petitioner for the offences under sections. 354, 323 & 341 Indian Penal Code is maintained but the sentence of imprisonment passed by the trial court and affirmed by the appellate Court is reduced to the sentence for the period already undergone by the petitioner. However, fine imposed by the trial Court for the offence under section. 354 Indian Penal Code is enhanced to Rs. 2,000/-. The petitioner is directed to deposit the fine within a period of 3 months from the date this order. In default of payment of fine, the petitioner shall undergo simple imprisonment for the remaining period as awarded by the trial Court and affirmed by the appellate Court. The fine so recovered shall be paid to the complainant - Seema Methil daughter of Krishanc - hand Methil, resident of Rani Bazar, Bikaner.Revision partly allowed *******