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2012 DIGILAW 2079 (RAJ)

Moti Ram v. State of Rajasthan

2012-10-04

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant criminal appeal has been filed by the appellant under Section 374, Cr.P.C. Against judgment dated 20.5.1995 passed in Criminal Case No. 59/1994 by Addl. Sessions Judge, Nohar (Camp Bhadra), by which, accused-appellant was convicted for offence under Section 354, I.P.C. and trial Court acquitted the accused-appellant from charge under Section 376/511, I.P.C. 2. As per facts of the case, an F.I.R. was registered against the appellant upon statement of PW-1 Murti at Police Station Bhirani on 18.4.1994, in which, it is alleged that in the night in between 11-12 P.M. when the complainant was sleeping in her house, at that time, the accused jumped over the wall of the house and tried to outrage modesty of the complainant. Upon her shouts, her husband and father-in-law woke up and came to her rescue and the accused-appellant ran away from the place of the occurrence. 3. In the investigation, the accused was arrested and after completion of the investigation, challan was filed before the Court of Judl. Magistrate (First Class), Bhadra, from where, the case was committed to the Court of Addl. Sessions Judge, Nohar for trial. 4. In the trial, statements of five prosecution witnesses were recorded and, thereafter, statement of the accused-appellant under Section 313, Cr.P.C. was recorded. Finally, the trial Court acquitted the accused-appellant from charge under Section 376/511, I.P.C. but convicted the appellant for commission of offence under Section 354 I.P.C. and passed sentence of rigorous imprisonment for one year vide judgment dated 20.5.1995. 5. Learned counsel for the appellant vehemently argued that due to enmity the appellant has been implicated falsely in this case which is evident from the fact that as per statement of Murti herself her husband refused to file F.I.R. for the said incident, therefore, on this fact alone it can be said that whole prosecution story is false. 5. Learned counsel for the appellant vehemently argued that due to enmity the appellant has been implicated falsely in this case which is evident from the fact that as per statement of Murti herself her husband refused to file F.I.R. for the said incident, therefore, on this fact alone it can be said that whole prosecution story is false. It is also argued that the statement of Murti should have been disbelieved when her husband refused to lodged F.I.R. and no other corroborative evidence is on record to prove the fact of the alleged occurrence, therefore, it is abundantly clear that there is no cogent evidence on record for convicting the accused-appellant, however, the trial Court while ignoring material aspect of the case convicted the appellant for offence under Section 354, I.P.C. It is, therefore, prayed by the learned counsel for the appellant that the impugned judgment and conviction may be quashed and set aside. 6. In the alternative, learned counsel for the appellant submits that if this Court comes to the conclusion that the finding arrived at by the trial Court does not require any interference, then, the sentence awarded to the petitioner may be reduced to the period of imprisonment already undergone by the appellant because the incident dated back to the year 1994 and appellant remained in police and judicial custody for near about 40 days, therefore, in view of the judgment of Hon'ble Supreme Court the sentence of imprisonment may be reduced to the period of imprisonment already undergone by the accused-appellant. 7. Learned Public Prosecutor vehemently opposed the prayer of counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt for commission of offence under Section 354, I.P.C. at the hands of the accused-appellant by way of leading evidence of the prosecutrix PW-1 Murti and, for such type of offence, the testimony of the prosecutrix cannot be disbelieved, therefore, the finding arrived at by the trial Court does not suffer from any illegality on the ground that husband of the prosecutrix refused to file F.I.R. for the incident and did not give his statement to the police as well as in the Court. Learned Public Prosecutor prays that this appeal may be dismissed. 8. After hearing learned counsel for the parties, I have perused the entire evidence on record as well as the judgments impugned. Learned Public Prosecutor prays that this appeal may be dismissed. 8. After hearing learned counsel for the parties, I have perused the entire evidence on record as well as the judgments impugned. In my opinion, no woman would make such false allegations in which her own modesty is involved, therefore, in my considered opinion, the testimony of PW-1 Murit cannot be discredited solely on the ground that her husband is not corroborating the incident, therefore, the contention of the appellant's counsel to disbelieve the testimony of PW-1 Murit is hereby rejected. 9. However, it is true that the offence is related to April 1994 and this appeal filed in the year 1996 has come up for final hearing in the months of October 2012, after near about more than 18 years and, as per record, the appellant remained in police and judicial custody for almost 40 days. 10. In my opinion, the circumstances of this case loudly speak that case of the appellant for reducing sentence falls under the adjudication made by the Hon'ble Supreme Court in the case of Rajendra Harakchand Bhandari & Ors. v. State of Maharashtra & Ors., reported in AIR 2011 SC 1821 , in which, following adjudication has been made by.the Hon'ble Supreme Court: ' "16. We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence in the present case is out of question. However, the circumstances pointed out by the learned senior counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on 17.5.1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants' surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two and a half years. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants' surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two and a half years. Having regard to these circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine." In view of above, I deem it appropriate to reduce the sentence of the appellant from one year to the period already undergone by him while maintaining the fine imposed by the trial Court.Hence, this appeal is partly allowed. While upholding the finding of guilt arrived at by the trial Court for commission of offence under Section 354, I.P.C. against the accused-appellant, sentence of one year rigorous imprisonment passed against the appellant is reduced to the period of imprisonment already undergone by the accused-appellant. The appellant shall pay fine as ordered by the trial court within a period of one month from the date of receiving certified op f this judgment.The appellant is on bail. His bail bonds are hereby discharged.Appeal partly allowed. *******