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2011 DIGILAW 1401 (RAJ)

Dinesh Kumar v. State of Rajasthan

2011-07-15

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Although matter is listed for orders on second application for suspension of sentence of appellant Dinesh Kumar and third application for suspension of sentence of appellant Ganesh Ram, but during the course of arguments, learned counsel for both the parties prayed that final arguments may be heard and appeal be disposed off. 2. At the request of parties, arguments were heard and appeal is being disposed off finally. 3. Appellants Dinesh Kumar and Ganesh Ram have preferred this criminal appeal under Section 374 of the Code of Criminal Procedure against the impugned judgment and order dated 02.08.2005 passed by the Special Judge, SC/ST(Prevention of Atrocities) Cases, Jhalawar in Sessions Case No.114/97, whereby appellants have been convicted and sentenced as under:- Accused-appellant Under Section Sentence Ganesh Ram 366 IPC To undergo 10 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo 3 months' rigorous imprisonment. 376(2)(G) IPC To undergo 10 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo 3 months' rigorous imprisonment. Both the sentences were ordered to run concurrently. Dinesh Kumar 376(2)(G) IPC To undergo 10 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo 3 months' rigorous imprisonment. 4. Brief facts of the case are that in respect of an occurrence dated 20.01.1997, an oral report was lodged on 27.01.1997 at Police Station Khanpur by complainant Mohan Lal, father of prosecutrix Manju, aged 16 years, wherein it was alleged that accused Ganesh has abducted her daughter to marry with her forcefully. On the basis of this report, FIR No.37/1997 was registered under Sections 366, 363, and 379 IPC and under Section 3 of the SC/ST(Prevention of Atrocities) Act, 1989. After completion of investigation, police filed a charge-sheet against five accused persons, namely, Pappu @ Narendra Singh, Suraj, Sukkha, Dinesh Kumar and Ganesh Ram for the offence under Sections 363, 366, 376 and 379 IPC on 18.03.1997 in the Court of Judicial Magistrate, Khanpur, who committed the case for trial to the Court of Sessions Judge, from where the case was transferred for disposal to the trial Court.5. Learned trial Court framed charges against the accused-persons for the offence under Sections 366, 376(2)(G), 379 IPC and under Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, 1989. Learned trial Court framed charges against the accused-persons for the offence under Sections 366, 376(2)(G), 379 IPC and under Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act, 1989. Accused-persons denied the charges and claimed trial. The prosecution, in support of its case, examined PW1 to PW11 and produced documentary evidence Ex.P1 to Ex.P22. Thereafter, statements of accused-persons were recorded under Section 313 Cr.P.C. No oral evidence was led in defence, but the statement of Manju, the prosecutrix, recorded under Section 161 Cr.P.C. was exhibited as Ex.D1.6. Learned trial Court, after considering the submissions of the learned counsel for the parties and examining the record of the case, convicted and sentenced all the five accused-persons under Section 376(2)(G) IPC to 10 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo 3 months' rigorous imprisonment. Accused Ganesh Ram was further convicted and sentenced under Section 366 IPC to 10 years' rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo 3 months' rigorous imprisonment.7. Being aggrieved with the order of conviction and sentence of imprisonment, the appellants have preferred this appeal.8. Learned counsel for appellants, initially, argued the case at length and submitted that there was delay of 7 days in the case in lodging the FIR, which has not been explained properly, prosecutrix was consenting party, age of prosecutrix, as per medical report Ex.P10, is 18 to 19 years, statement of prosecutrix PW1 Manju Bai is self contradictory in nature and is not corroborated by any other oral or documentary evidence. He also referred the cross-examination of PW1 Smt. Manju at Page-4 and submitted that she specifically admitted that she was not knowing to any of the accused persons and no identification parade of accused was conducted in the case. Other contradictions were also pointed out, but during the course of arguments, in view of entire statement of PW1 Manju Bai and the statements of other prosecution witnesses and also the medical evidence available in the case, he did not press the appeal on merits and prayed that looking to the facts and circumstances of the case and for the reasons mentioned above, it is a fit case wherein sentence of imprisonment of 10 years awarded to the accused-appellants may be reduced to a period of imprisonment already undergone by them.9. He submitted that accused-appellant Ganesh Ram remained in jail for about 3 months during trial and further remained in custody for about 5 years, 11 months and 13 days after his conviction by the trial Court, therefore, he has remained in jail for about 6 years, 2 months and 13 days. Similarly, accused-appellant Dinesh Kumar remained in custody for about 3 months and 16 days during trial and further remained in custody for about 5 years, 11 months and 13 days after his conviction by the trial Court, therefore, he has also remained in jail for about 6 years and 3 months. He, therefore, submitted that both the appellants have already undergone the substantive sentence of imprisonment, therefore, their term of imprisonment may be reduced to a period of imprisonment already undergone by them.10. Learned Public Prosecutor, in view of the fact that appellants are not challenging their order of conviction, has not seriously opposed the submission of the learned counsel for appellants to reduce the sentence of imprisonment.11. I have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment as well as record of the trial Court.12. I myself examined the statements of prosecutrix Pw1 Manju Bai, PW2 Mohan Lal, father of prosecutrix, PW3 Lekhraj, brother-in-law of prosecutrix, PW6 Dr. Gauri Shanker Chouhan, PW7 Dr. Hemant Sharma and PW8 V.R. Dahiya, Additional Superintendent of Police (Investigating Officer) and after considering their statements as a whole, I am satisfied that learned counsel for appellants has rightly not pressed the appeal on merits. Since the order of conviction has not been challenged, therefore, it is not necessary to refer and discuss the facts and evidence of the case in detail. The finding of the learned trial Court about conviction of appellants for the above offences, is based on proper appreciation of evidence and the same does not call for any interference by this Court.13. So far as reduction of sentence of imprisonment from 10 years to a period of imprisonment already undergone by the accused-appellants is concerned, I am not inclined to accept the prayer of the learned counsel for appellants, but in the facts and circumstances of the case, particularly the number of contradictions in the statement of the prosecutrix and her age, as per medical report Ex.P10. I am of the view that this is a fit case wherein sentence of imprisonment can be reduced.14. In Prem Chand v. State of Haryana, AIR 1989 SC 937 , in the peculiar facts and circumstances of that case, the Hon'ble Supreme Court reduced the sentence of imprisonment of ten years awarded under Section 376 (2) IPC, to a period of sentence of imprisonment of five years. The State of Haryana filed review petition before Hon'ble the Supreme Court in the above case and the same was dismissed. The decision of the Hon'ble Supreme Court in that review petition is reported in (1990) 1 SCC 249 (State of Haryana v. Prem Chand & Others). 15. In Ram Kumar v. State of Haryana, (2006) 4 SCC 347 , their Lordships of the Hon'ble Apex Court reduced the sentence of seven years under Section 376, IPC, to a period of three years imprisonment. Para No.3 of the judgment reads as under:- "3. The appellant, aggrieved by the order passed by the High Court has filed the above appeal by way of appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned counsel for the appellant drew our attention to the statement of the girl Bimla (PW-5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient evidence was tendered by the prosecution to prove the guilt of the accused. However, at the time of hearing it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under Sections 366 and 376 of the Penal Code is on the high side. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly." 16. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly." 16. In the case of State of Chhattisgarh v. Lekhram, (2006) 5 SCC 736 , the Hon'ble Apex Court reduced the minimum sentence under Section 376, IPC, of seven years to a sentence of one-and-half-year imprisonment, already undergone by accused therein. Para 16 of the judgment reads as under:- "16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws' place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the respondent again may not arise. She lived for some time with the respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The respondent preferred an appeal before the High Court in the year 1987. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one-and-a-half years. In the peculiar facts and circumstances of this case and having regard to the facts that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison." 17. In the above referred cases, the Hon'ble Apex Court has reduced the minimum sentence of imprisonment under Section 376 IPC to a period of 5 years, 3 years and in one case 11/2 years imprisonment.18. After considering all the facts and circumstances of the case, I am of the view that ends of justice will meet, in case the sentence of imprisonment of ten years, awarded to the accused-appellants in each offence, is reduced to a period of seven years' rigorous imprisonment with fine, as imposed by the trial Court.19. After considering all the facts and circumstances of the case, I am of the view that ends of justice will meet, in case the sentence of imprisonment of ten years, awarded to the accused-appellants in each offence, is reduced to a period of seven years' rigorous imprisonment with fine, as imposed by the trial Court.19. Consequently, appeal of appellants is partly allowed. Order of conviction of appellant Dinesh Kumar under Section 376(2)(G) IPC and appellant Ganesh Ram under Sections 366 and 376(2)(G) IPC is maintained. However, sentence of imprisonment of appellant Dinesh Kumar under Section 376(2)(G) IPC and appellant Ganesh Ram in both the offences is reduced to a period of seven years' rigorous imprisonment with fine, as imposed by the trial Court, with the same condition that in default of payment of fine, as awarded under Sections 376(2)(G) and 366 IPC, accused-appellants will further undergo three months rigorous imprisonment. The sentence of imprisonment of appellant Ganesh Ram, in both offences, shall run concurrently.20. Since appeal has been disposed off finally, therefore, both the applications for suspension of sentence stand disposed off.Appeal Partly Allowed. *******