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2011 DIGILAW 81 (RAJ)

Arvind v. State of Rajasthan

2011-01-11

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - The appellant Arvind s/o Bheemaji , b/c Meena, r/o Ghodi-Fala-Bihari, Police Station Rishabhdev, District, Udaipur has filed this appeal against the judgment of conviction and order of sentence dated 11.01.2007 passed by the learned Addl. Sessions Judge (Fast Track) No.3, Udaipur Camp Salumber in Sessions Case No. 28/2006 and sentenced the accused appellant for the commission of offence under section 366 IPC to five years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months' simple imprisonment and for offence under section 376 IPC, to seven years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further under go six months' simple imprisonment. Both the sentences were ordered to run concurrently. 2. The facts of the case, arising out of this appeal are that the appellant has been made an accused in FIR No.95/2006 lodged by Babu Lal complainant, on the allegation that the appellant Arvind has kidnapped his daughter forcibly and thereafter committed rape along with one Mohan. After investigation, charge sheet was filed against the accused appellant before the competent court and the case was committed to the court of Sessions for trial. Since co-accused Mohan being below 18 years, he has been charge sheeted in the Juvenile Court. 3. The learned trial court framed charges against the accused appellant under section 363, 366 and 376 IPC and case prosecution produced oral as well as documentary evidence. The accused was examined under section 313 Cr.P.C. The learned trial court acquitted the appellant under section 363 IPC but convicted the appellant for the offence under section 366 and 376 IPC and sentenced him as indicated above. 4. Being aggrieved by the order dated 11.01.2007 passed by the learned Addl. Sessions Judge (Fast Track) No.3, Udaipur Camp Salumber the appellant has preferred this criminal appeal. 5. The counsel for the appellant does not want to press this appeal on the point of finding of conviction arrived at by the learned trial court and the learned counsel only contended that the accused appellant was arrested on 20.03.2006 and since then he is in judicial custody and the learned trial court has awarded the sentence to the accused appellant for the commission of offence under section 366 IPC to five years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months' simple imprisonment and for offence under section 376 IPC to seven years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further under go six months' simple imprisonment. Both the sentences were ordered to run concurrently. 6. The learned counsel for the appellant contended that the present accused has already served for about 5 years' substantive rigorous imprisonment, therefore, he may be released on the sentence already undergone. 7. The learned Public Prosecutor left the matter to the discretion of the court. 8. I have perused the record. 9. There is an evidence of the struggle or resistance on the part of PW/2 Kali because there being injuries on the body of the prosecutrix, the resistance can very well be inferred on the part of the prosecutrix, therefore, looking to all the facts and circumstances of the case, for offence under section 366 IPC, I deem it fit and proper to award the sentence of 5 years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months' simple imprisonment and for the offence under section 376 IPC to five and a half years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo six months' simple imprisonment. It is further ordered that both the sentences shall run concurrently. 10. Accordingly, order of conviction dated 11.01.2007 passed by the learned Addl. Sessions Judge (Fast Track) No.3, Udaipur Camp Salumber is maintained and the appeal is partly allowed in terms of sentence as indicated above.Revision partly allowed. *******