Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1004 (RAJ)

Om Prakash : Sunder Pal v. State of Rajasthan

2009-04-13

MAHESH CHANDRA SHARMA

body2009
JUDGMENT 1. Both the criminal appeals arise out of common facts and judgment, hence same are being decided together by this common judgment. 2. Both the criminal appeals have been filed by the appellants under Section 374 Criminal Procedure Code against the judgment of conviction and sentence dated 5.4.2003 passed by Additional Sessions Judge (Fast Track), Behror (for short 'the trial Court') passed in Sessions Case No. 6/2002 by which he convicted both the accused appellants for the offence under Section 376(2)(G) for a period of ten years rigorous imprisonment and a fine of Rs.2,000/-. In default of payment of fine each of the accused appellants shall further undergo six months simple imprisonment. 3. Brief facts of the case are that an FIR dated 14.6.2002 came to be lodged by the prosecutrix Sushila with the P.S. Behror under Section 376(2)(G) Indian Penal Code wherein it was alleged that the accused appellants subjected her to rape when she was returning to her village along with Sharmila. The jewellery wore by her was also taken away by the accused persons. 4. The police after investigation, submitted charge-sheet against the accused appellants for the aforesaid offence. 5. The trial Court after hearing framed charges against the accused appellants for the aforesaid offence, who denied the charges, pleaded not guilty and claimed to be tried in the matter. 6. The prosecution in support of its case produced as many as 13 witnesses and certain documents were got exhibited. 7. Thereafter, the statements of the accused appellants under Section 313 Criminal Procedure Code were recorded. In defence they did not produce any evidence. 8. The trial Court after hearing both the parties convicted the accused appellant vide judgment dated 5.4.2003 for the aforesaid offence. 9. The accused appellants being dis-aggrieved (sic 'aggreived'?) with the impugned judgment of conviction and sentence dated 5.4.2003 passed by the trial Court have preferred two separate criminal appeals. 10. I have heard counsel appearing for both the parties and carefully gone through the material available on record. 11. Mr. M.L. Goyal, counsel appearing on behalf of accused appellant - Om Prakash and Mr. V. R. Bajwa , counsel appearing on behalf of accused appellant Sunder Pal submit that the trial court has not appreciated the statements of the prosecution witnesses and erred in passing the impugned judgment of conviction and sentence. There. 11. Mr. M.L. Goyal, counsel appearing on behalf of accused appellant - Om Prakash and Mr. V. R. Bajwa , counsel appearing on behalf of accused appellant Sunder Pal submit that the trial court has not appreciated the statements of the prosecution witnesses and erred in passing the impugned judgment of conviction and sentence. There. is great contradictions, omissions and improvements in the statements of the prosecution witnesses. The prosecution has failed to explain about the delay in not lodging the FIR within the time. The prosecution has suppressed true genesis of the occurrence and has come out with a false and concocted story. The trial Court has also failed to consider that the allegations in the FIR were substantially changed by the prosecutrix in her statements recorded under Section 164 Criminal Procedure Code and in the statement in the Court as PW13 Sushila and the explanation sought to be given by the prosecutrix was quite unplausible. Lastly, both the counsel submit that in this case the accused appellants have been awarded total 10 years imprisonment out of which they have completed near-about 7 years imprisonment. 12. To support their case, both the counsel have drawn attention of the Court to the provisions of Section 432 Criminal Procedure Code which runs as under : "432. Power to suspend or remit sentence : (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever any application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with : Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and (a) where such petition is made by the person sentenced, it is presented through the officer-in-charge of the jail; or (b) where such petition is made by any person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any Section of this Code or of any other law which restricts the liberty of any person or impose any liability upon him or his property. (7) In this Section and in Section 433, the expression 'appropriate Government' means- (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government : (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed." 13. Thus, the impugned judgment of conviction and sentence dated 5.4.2003 passed by the trial Court be quashed and set aside and the accused appellants be acquitted for the aforesaid offence, if not then the accused appellants be released from the judicial lock up after giving them the benefit of remission in view of the provisions of Section 432 Criminal Procedure Code. 14. Mr. Peeyush Kumar, Public Prosecutor controverted the aforesaid submissions of counsel for the accused appellants and submit that the trial Court has rightly convicted the accused appellant for the aforesaid offence and no interference is required to be made in the impugned judgment dated 5.4.2003 passed by the trial Court. 15. From a bare perusal of the facts of the case, statements of the prosecution witnesses as also record of the case, made available to me, it is clear that the trial Court has rightly convicted and sentenced the accused appellants and in my considered view, the judgment dated 5.4.2003 passed by the trial Court needs no interference of this Court. But looking to the fact that the accused appellants have remained in judicial lock up for near-about 7 years out of total 10 years imprisonment, it is in the interest of justice to give them the benefit of provisions of Section 432 Criminal Procedure Code. 16. In the result, both the criminal appeals filed by the accused appellants are devoid of merits and stand dismissed. The impugned judgment of conviction and sentence dated 5.4.2003 passed by the Addl. District & Sessions Judge (Fast Track) Behror is maintained but at the same time and in the interest of justice, the accused appellants are directed to move an application under Section 432 Criminal Procedure Code for remission of their sentence before the appropriate Government. The appropriate Government, after considering the facts of the case 'as also other material made available to it, shall give benefit of remission under Section 432 Criminal Procedure Code and pass an order in this regard, in accordance with law, within a period of one month from the date of moving application by the accused appellants.Appeal dismissed. *******