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2010 DIGILAW 178 (PNJ)

Jitender v. State Of Haryana

2010-01-08

KANWALJIT SINGH AHLUWALIA

body2010
Judgment Kanwaljit Singh Ahluwalia, J. 1. By this common order, three Criminal Appeals bearing Nos.602-SB of 1997 preferred by Jitender son of Sureshdev Sharma, 665- SB of 1997 preferred by Shiva Kant son of Ramdarsh Pandey and 788- SB of 1997 preferred by State of haryana for enhancement of sentence, shall be decided together. 2. Shiva Kant and Jitender, were named as accused in case FIR No.345 dated 3.8.1995 registered at Police Station City Panipat, under Sections 363, 366, 376, 506 and 120-B IPC. They were tried by the Court of Additional sessions Judge, Panipat. Additional Sessions Judge came to the conclusion that jitender, accused, is liable for the offence under Sections 366 and 506 IPC and shiva Kant, accused, guilty under Sections 366, 376 and 506 IPC. No conviction of Jitender was recorded for the offence under Sec.376 IPC. After recording of the conviction, trial Judge sentenced Shiva Kant under Sec.376 ipc to undergo eight years rigorous imprisonment and to pay a fine of rs.2,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. He was further sentenced under Sec.366 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months. He was further sentenced to undergo rigorous imprisonment for six months under Sec.506 IPC. 3. Accused Jitender was sentenced under Sec.366 IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months. He was also sentenced under Sec.506 ipc to undergo rigorous imprisonment for six months. All the sentences were ordered to run concurrently. 4. In the present case, Geetu alias Geeta Rani, daughter of Deepak Raj, left her house on 1.8.1995 at 4.00 P. M. Deepak Raj, on 2.8.1995 sworn an affidavit Ex. PH and submitted the same in the Police Station City, Panipat. In the affidavit, he stated that his daughter Geeta Rani is minor. On 1.8.1995 at 4.00 P. M. she told the family members that she was going to the house of her friend to fetch a book and thereafter she did not return. PH and submitted the same in the Police Station City, Panipat. In the affidavit, he stated that his daughter Geeta Rani is minor. On 1.8.1995 at 4.00 P. M. she told the family members that she was going to the house of her friend to fetch a book and thereafter she did not return. In the affidavit, he further averred that he has no suspicion against anybody and as and when any information is received and he has any doubt regarding anybody, the information would be given to the police. On the basis of affidavit, Daily Diary Report was recorded at the Police Station. Subsequently, Daily Diary Report was converted into FIR on 3.8.1995. 5. Nobody has caused appearance in Criminal Appeal No.665- SB of 1997 preferred by Shiva Kant. 6. This Court thought of appointing Amicus Curiae to defend Shiva Kant, appellant, but an information has been received from the Superintendent, central Jail, Ambala, that Shiva Kant son of Ram Darsh, who was admitted in the central Jail, Ambala, on transfer from District Jail, Karnal, on 31.7.2007 was released on 12.3.2005 on expiry of his sentence. It explains as to why nobody is coming forward to defend the appeal preferred by Shiva Kant as it seems that he has accepted his conviction and sentence. 7. Mr. S. S. Narula, Advocate, appearing for appellant Jitender has stated that as per the affidavit submitted by the father of prosecutrix, his daughter had left the house at her own violation on the pretext of going to the house of a friend for getting a book. Therefore, he sates that the story later coined by the prosecution that jitender had facilitated elopement of Geeta Rani with accused Shiva Kant cannot be sustained. As per the story of prosecution, Jitender is used to be a tenant in the house of Deepak Raj, complainant, and had taken Geeta Rani to his house where Shiva Kant raped her and took her to Shamli and then from Shamli, Shiva kant along with prosecutrix came at Railway Station, Panipat. Geeta Rani and shiva Kant were apprehended, while they were sitting in waiting hall of the railway Station, Panipat. Mr. Geeta Rani and shiva Kant were apprehended, while they were sitting in waiting hall of the railway Station, Panipat. Mr. S. S. Narula has drawn my attention to the cross-examination of PW.6 Geeta Rani, in which she stated that from Panipat, in the bus, they went to Shamli and at Shamli they stayed in a rented house for five days and Shiva Kant, appellant, used to go to fetch meal twice a day and prosecutrix had made no attempt to inform anybody during her journey in the bus and stay at Shamli. She even made no attempt to run away from the house. Even thereafter they travelled in the train from Shamli to Panipat and no information was divulged to any co- passenger. Furthermore, they were sitting at Railway Station, Panipat, when they were apprehended. There also no attempt was made by Geeta Rani to disclose to anybody that that she has been kidnapped or raped by Shiva Kant. 8. Mr. S. S. Narula, Advocate, after reading the testimony of Geeta Rani and her father, has stated that it was a case of love affair between Geeta Rani and Shiva Kant and they had eloped and unnecessarily appellant Jitender has been dragged in the present litigation. Counsel has further drawn my attention to Mark a i. e. ossification test conducted by Dr. K. L. Batra where age of prosecutrix has been determined between 151/2 to 17 years. Counsel for appellant Jitender has further stated that he has also undergone about nine months of his actual sentence and the occurrence in the present case had taken place in the year 1995. He has referred to the evidence where prosecutrix has stated that appellant Jitender is a married man having his children. Mr. Narula states that after 14 years sending the appellant behind the bars will serve no purpose. Therefore, he submits that he will not assail conviction of Jitender, appellant, if his sentence is reduced to nine months rigorous imprisonment. 9. In the present case, main accused Shiva Kant has already undergone his sentence. Even though the evidence suggests that Shiva Kant and geeta Rani may have eloped, this Court, at moment, shall refrain to adjudicate whether Shiva Kant was guilty of rape or not. He has already undergone eight years of his actual sentence. 9. In the present case, main accused Shiva Kant has already undergone his sentence. Even though the evidence suggests that Shiva Kant and geeta Rani may have eloped, this Court, at moment, shall refrain to adjudicate whether Shiva Kant was guilty of rape or not. He has already undergone eight years of his actual sentence. Since counsel for the appellant has opted not to assail his conviction, taking into consideration the fact that he is a married man and has suffered protracted trial for more than 15 years, this Court is inclined to reduce sentence awarded to appellant Jitgender from two years to nine months. Mr. Deepak Jindal, Deputy Advocate General, Haryana, appearing for the State, has stated that sentence should be enhanced as the State has filed appeal for enhancement. This Court has already expressed its mind that the incident took place 15 years ago and the appellant has suffered protracted trial. This Court has opted not to determine the guilt of Jitender, appellant, on the ground that counsel for the appellant has accepted his conviction. Therefore, no interference is warranted in the appeal for enhancement preferred by the State as taking into consideration the mitigating circumstances, this Court has already reduced the sentence from two years to nine months. With the observations made above, all the three criminal appeals are disposed of.