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Madhya Pradesh High Court · body

2011 DIGILAW 1069 (MP)

Mukesh Kumar v. State of M. P.

2011-09-09

U.C.MAHESHWARI

body2011
ORDER (Oral) 1. This revision is directed on behalf of the applicant/accused under section 397/401 of the CrPC, being aggrieved by the judgment dated 14.7.2011 passed by the Sessions Judge, Dindori in Criminal Appeal No. 16/11 whereby the judgment dated 4.2.2011 passed by the JMFC Dindori in Criminal Case No. 855/10 convicting and sentencing the applicant under sections 354 and 451 of the IPC for RI six months in the earlier section while RI six months with fine of Rs.200/- in the latter section, has been affirmed. 2. The facts giving rise to this revision in short are that the on 31.7.2010 between 5-6 O'clock in the evening, the prosecutrix Kavita after alighting from the bus in her village, was going towards her home. On the way, the applicant who was standing with his bicycle, in front of some shop, came near to her and started funny activities with her. In continuation, he asked to do some bad act with her. She refused the same and went away to her home, where she narrated the incident to her mother Savitri Bai. At the same time, the applicant accompanied with his brother Sukhchain, came there and after entering in their house started quarreling, also gave threat to kill them. On shouting by the prosecutrix as well as by her mother, Sunil Kumar and Rukmani Bai came to resuce them. Thereafter the applicant and his brother fled away from the place. Immediately, after the incident the prosecutrix accompanied with her mother, went to Police Station Dindori and loged the report Ex.P/1, on which, after registration of the offence of sections 452, 354 read with section 34 and section 506 of the IPC against the applicant and his brother Sukhchain, the investigation was held. On completion of the same, the applicant accompanied with other accused, were charge sheeted for the offence of sections 452, 354/34 and 506 of the IPC. 3. On framing the charges of sections 452, 354 and 506 of the IPC, the applicants abjured the guilt, on which, the trial was held. On appreciation of the same, both the accused were convicted only under sections 451 and 354 of the IPC and punished with the above-mentioned sentence by the trial Court. 3. On framing the charges of sections 452, 354 and 506 of the IPC, the applicants abjured the guilt, on which, the trial was held. On appreciation of the same, both the accused were convicted only under sections 451 and 354 of the IPC and punished with the above-mentioned sentence by the trial Court. On filing the appeal, by allowing the same in part, the other co-accused was acquitted while, dismissing the appeal of the present applicant, his conviction and sentence has been affirmed, on which, he has come to this Court with this revision. 4. Applicant's counsel after taking me through the papers of the charge-sheet and the deposition of the prosecution witnesses said that in the lack of any positive evidence proving the ingredients of the alleged offence, the applicant has been convicted and sentenced under the wrong premises. In view of the deposition of the prosecutrix and the other available evidence, on making certain query, the applicant's counsel restricted his arguments and argued the case, without challenging the findings of the Court below holding conviction against the applicant under the aforesaid section, for reducing the jail sentence awarded to him. In the background of such submission, he said that on the date of incident, the applicant was aged 19 years and in such premises, he being first offender, without any criminal antecedents, was entitled for extending the benefits of the mandatory provision of section 6 of the Probation of Offenders Act but the same was not extended by both the Courts below. So, firstly he prayed to extend such benefit to the applicant. In alternate, he said that if such benefit is not extended to the applicant then considering his age 19 years on the date of incident and the period suffered by him in jail since 14.7.2011 from the date of impugned judgment of the appellate Court till today, his jail sentence be reduced upto such period for which he has already undergone by enhancing some amount of fine under the discretion of the Court and prayed to decide this revision accordingly. 5. 5. On the other hand, responding the aforesaid argument of the counsel, learned Panel Lawyer by justifying the impugned judgment of conviction and sentence said that the same bing based on proper appreciation of the evidence and also in conformity with law, does not require any interference at this stage either for acquittal or reduction of the jail sentence. He also said that looking to the nature of the offence and the manner in which it has committed in the open market by the applicant, he does not deserve for extending the benefit of Probation of Offenders Act and prayed to dismiss this revision. 6. Having heard the counsel, I have carefully gone through the record of both the Courts below along with the impugned judgment. After perusing the record, I have not found any infirmity, illegality or anything against the propriety of the law in the impugned judgment holding conviction against the applicant for the offence under sections 354 and 541 of the IPC, therefore, till this extent, the findings of the impugned judgments are hereby affirmed. 7. Coming to consider the first prayer of the applicant's counsel to extend the benefit of mandatory provision of section 6 of Probation of Offenders Act to the applicant, after going through the deposition of the prosecutrix Kavita, the other available evidence and the manner in which the alleged offence was committed by the applicant in the open market with the prosecutrix, I do not find fit to extend the benefit of Probation of Offenders Act to the applicant, hence such prayer is hereby rejected. 8. Coming to consider the alternate prayer of the applicant for reduction of his jail sentence, I have found some substance in it. Taking into consideration, his age 19 years on the date of the incident as stated by the prosecution as well as by the subordinate Courts, instead to keep him in jail for a longer period, I deem fit to reduce his jail sentence from the period of six months in aforesaid both the sections up to the period for which he has already undergone between 14.7.2011 till today but by enhancing the amount of fine with a direction to give the same to the prosecutrix. 9. 9. Therefore, by maintaining the conviction of the applicant under sections 354 and 451 of the IPC, this revision is allowed in part and the awarded jail sentence under sections 354 and 451 of the IPC are reduced from six months to the period for which he has already undergone from 14.7.2011 till today but by enhancing the amount of fine under section 451 from Rs.200/- to Rs.1000/-. Failing in depositing the enhanced amount of fine, the applicant has to suffer, further two months SI in such section. It is further directed that on depositing the aforesaid enhanced amount of fine, the same be given to the prosecutrix Kavita by calling her in the Court through summons. Till this extent, the impugned judgment is hereby modified while the other findings of the same are hereby affirmed. Subject to depositing the enhanced amount of fine, the applicant be set at liberty, otherwise, the trial Court is directed to take appropriate steps to serve the sentence which has been given in alternate on non-depositing the enhanced fine amount. 10. Accordingly, this revision is allowed in part as indicated above. Ramprakash Shivhare for applicant; Geetesh Singh Thakur, Panel Lawyer for respondent.