JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 28.01.2000, passed by II Additional Sessions Judge, Dehradun, in Sessions Trial No. 17 of 1999, whereby said court has convicted accused/appellant Setu Thapa under section 376 read with section 511 IPC (i.e., attempt to commit rape), and sentenced him to rigorous imprisonment for a period of five years and directed to pay fine of Rs. 5,000/- . 2. Heard learned Amicus Curiae for the appellant, learned counsel for the State, and also perused the lower court record. 3. Prosecution story in brief is that Smt. Surema Rana (P.W.1) is a widow who lives in Shiv Nagar, Ajabpur Kala, within the limits of Police Station Dalanwala, Dehradun, alongwith her minor daughter Suman Rana (P.W.2). On 23.12.1998, at about 4:00 p.m, accused/appellant Setu Thapa said to have enticed away Suman Rana (P.W.2), aged eight years towards jungle near her house, and attempted to commit rape on her. The girl told about the incident to her mother. Next day, P.W.1 Surema Rana went to the house of accused/appellant Setu Thapa and complained about his conduct to his parents. On 25.12.1998, family members of the accused/appellant Setu Thapa came to the house of Surema Rana and requested her not to complain about the matter to the police and requested for compromise. However, Surema Rana did not agree for compromise, and gave first information report (Ex. A1) on 25.12.1998, to Senior Superintendent of Police, Dehradun. On the basis of said report crime no. 460 of 1998, was registered at Police Station Dalanwala. Investigation was taken up by Sub Inspector G.S. Manola, who interrogated the witnesses, inspected the spot and submitted charge sheet against accused Setu Thapa for his trial in respect of charge of offence punishable under section 376 read with section 511 IPC. 4. The Additional Chief Judicial Magistrate I, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned II Additional Chief Judicial Magistrate, Dehradun, on 23.03.1999, after hearing the parties, framed charge of offence punishable under section 376 read with section 511 IPC, against accused Setu Thapa who pleaded not guilty and claimed to be tried. Learned II Additional Chief Judicial Magistrate, Dehradun, on 23.03.1999, after hearing the parties, framed charge of offence punishable under section 376 read with section 511 IPC, against accused Setu Thapa who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Surema Rana (informant), P.W.2 Suman Rana (victim), P.W.3 Sewa Singh Thapa and P.W. 4 Constable Mahendra Singh. The oral and documentary evidence was put to the accused under section 313 Cr.P.C, in reply to which the accused pleaded that he has been falsely implicated. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused Setu Thapa guilty of charge of offence punishable under section 376 read with section 511 IPC, i.e., attempt to commit rape. Thereafter, the parties was heard on sentence, and the convict was sentenced to rigorous imprisonment for a period of five years, and directed to pay fine of Rs.5,000/-. Aggrieved by said judgment and order dated 28.01.2000, passed by learned II Additional Sessions Judge, Dehradun, in Sessions Trial No. 17 of 1999, this appeal was filed before Allahabad High Court by the convict. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. 5. P.W.2 Suman Rana, a child witness aged nine years told that on the day of incident she was called by accused Setu Thapa from her house and he took her to nearby jungle. The witness has further narrated that the accused took out her under garments, and thereafter put out his underwear. The girl was made to lie down on the ground. It is further stated by P.W.2 Suman Rana as soon as accused attempted to commit rape, she got up whereafter accused asked her not to tell about the incident to anyone. 6. P.W.1 Surema Rana mother of the victim has stated that on 23.12.1998, her minor daughter told about the above incident that accused Setu Thapa attempted to commit rape on her. The witness has further proved FIR (Ex. A1) lodged by her. 7. Learned Amicus Curiae on behalf of the accused/appellant submitted that the first information report is delayed by two days. The witness has further proved FIR (Ex. A1) lodged by her. 7. Learned Amicus Curiae on behalf of the accused/appellant submitted that the first information report is delayed by two days. However, on examining the evidence on record, this Court finds that though there is delay in lodging FIR but same appears to have been sufficiently explained, as the parents of the accused were trying to get the matter hushed up by making the informant to enter into compromise. 8. It is also submitted on behalf of the accused/appellant by learned Amicus Curiae that the girl was not got medically examined as such the prosecution story cannot be said to have been proved beyond reasonable doubt. However, this Court is of the view had the commission of rape taken place the medical examination would have been relevant, but it is a case of attempt to commit rape, and it is nowhere stated by the girl or her mother that the accused had suffered any injury on any part of his body as such even if no medical examination was got conducted, it does not create any reasonable doubt in the prosecution story. It is pertinent to mention here that there appears no enmity between the informant and the accused on the basis of which it can be said that he has been falsely implicated. 9. Therefore, having reassessed the evidence on record, this Court is of the view that there is no illegality committed by the trial court in holding that the prosecution has successfully proved charge of attempt to commit rape as against accused Setu Thapa. However, on the point of sentence this Court is conscious of the fact that accused/appellant Setu Thapa had remained in jail during trial. Had it been a case of commission of rape it could have been said that the convict must be sentenced to rigorous imprisonment for a period of seven years which is the minimum sentence for commission of rape but it is a case of attempt to commit rape as such there is no such minimum limit of the sentence. Had it been a case of commission of rape it could have been said that the convict must be sentenced to rigorous imprisonment for a period of seven years which is the minimum sentence for commission of rape but it is a case of attempt to commit rape as such there is no such minimum limit of the sentence. Considering the fact and circumstances of the case, this Court is of the view that since the accused/ appellant has already been in jail for more than one year and two months, as such if the sentence awarded by the trial court is reduced to the period already undergone it would meet the ends of justice. 10. Accordingly, the appeal is dismissed on the point of conviction. However, on the point of sentence, the sentence awarded against the accused/appellant Setu Thapa by the trial court is reduced to the period already undergone during the trial. He is on bail. He need not to surrender. Lower court record be sent back. 2013 (1) N.C.C. 159 UTTARAKHAND HIGH COURT Hon’ble Mr. Justice Prafulla C. Pant Criminal Appeal No. 685 of 2001 (Old No. 2139 of 2000) PRATIPAL & ORS. – Appellants Versus STATE OF U.P. (NOW STATE OF UTTARAKHAND) – Opposite Party Decided on : 05.09.2012 For the Appellants : Mr. K.S. Verma, Adv., and Mr. S.K. Shandilya, Adv. For the Respondent : Mr. Vinod Sharma, Dy. Adv. General, and Mr. Vipul Painuly, A.G.A. Cases referred : 1. Om Prakash vs. State of Haryana (2001) 10 SCC 477 . 2. State of Karnataka vs. Muddappa (1999) 5SCC 732. Indian Penal Code, 1860, Sec. 307 and U.P. Reorganization Act 2000 (Central Act 29 of 2000), Sec. 35 — Offence punishable under — Trial court found that the charge of offence punishable u/s 326/34 I.P.C. proved against the accused/appellants — Reappreciation of evidence — Proved that accused/appellant no. 1 had caused grievous hurt by a deadly weapon (spade) while the accused/appellant no. 2 caught hold of arms of the injured — This act on the part of the accused/appellant no. 1 had caused grievous hurt by a deadly weapon (spade) while the accused/appellant no. 2 caught hold of arms of the injured — This act on the part of the accused/appellant no. 2 proves that he had common intention with accused/appellant in commission of crime — The evidence of injured witness, PW2/star eye witness cannot be doubted, when medical report had also corroborated the prosecution — Also, under the provisions of Sec. 326, I.P.C. punishment for causing voluntarily grievous hurt by dangerous weapon provides punishment of imprisonment for life or imprisonment for ten years and fine — Trial court just and proper in awarding sentence to the convicts. (Paras 10, 11) Hkkjrh; n.M lafgrk] 1860] /kkjk 307 vkSj ;w-ih- fjvkxsZukbts’ku ,DV] 2000 ¼2000 dk 29 dsUæh; vf/kfu;e½] /kkjk 35 & n.Muh; vijk/k & ijh{k.k vnkyr }kjk vihykFkhZ@vijk/kh dk s u/s 326/34 I.P.C. nks”kh ik;k x;k & lk{;ksa dh iqu% foospuk & lkfcr fd vijk/kh@vihykFkhZ ua- 1 us [krjukd gfFk;kj ¼Qjlk½ ls geyk fd;k Fkk tcfd vijk/kh@vihykFkhZ ua- 2 us ?kk;y ds gkFk idMs+ Fks & ;g ÑR; lkfcr djrk gS fd nksuksa vijkf/k;ksa dk vijk/k dkfjr djus esa lkekU; vk’k; Fkk & ?kk;y lk{; & PW2 tks ,d eq[; p’enhn xokg gS dk lk{; lansgiw.kZ ugha] tc fd fpfdRlk lk{; ls Hkh vfHk;kstu iq”V & vkSj /kkjk 326 I.P.C. ds izko/kkuksa eas fdlh [krjukd gfFk;kj ls geyk djus dk n.M vkthou dkjkokl gS ;k nl o”kZ dk dkjkokl vkSj tqekZuk & ijh{k.k vnkyr }kjk fn;k x;k n.M U;k;ksfprA ¼izLrj 10] 11½ JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 21.08.2000, passed by IIIrd Additional Sessions Judge, Hardwar, in Sessions Trial No. 95 of 1996, whereby said court has convicted the accused/appellant no.1 Pratipal under section 326 of I.P.C., and sentenced him to rigorous imprisonment for a period of four years and directed to pay fine of Rs. 500/-. Accused/appellant no.2 Salekh Chand has been convicted by the same judgment under section 326 read with section 34 of I.P.C, and sentenced to rigorous imprisonment for a period of four years and directed to pay fine of Rs. 500/-. 2. Heard learned counsel for the parties. 500/-. Accused/appellant no.2 Salekh Chand has been convicted by the same judgment under section 326 read with section 34 of I.P.C, and sentenced to rigorous imprisonment for a period of four years and directed to pay fine of Rs. 500/-. 2. Heard learned counsel for the parties. (The lower court record of this old appeal was available till the last date fixed for hearing, but after the case was adjourned at the request of the counsel for appellants before lunch break, it was reported at 4.00 p.m. that during lunch hours the lower court record of this appeal has been picked up by someone from the court room. On this, the Court directed that immediately record to be reconstructed with the help of the copies of paper books available with the Government Advocate and counsel for the appellants. And from the reconstructed record, photo copies of the statements of the witnesses and other papers were read out by the counsel for the parties). 3. Prosecution story, in brief, is that on 20.12.1993, at about 13.00 hours PW1 Anil Kumar gave a report at Police Station Ranipur, stating that when his uncle Dev Raj (PW2) was irrigating his field in village Garh Meerpur, accused/appellant no.1 Pratipal armed with a spade alongwith accused/appellant no.2 Salekh Chand came there and accused/appellant no.1 Pratipal assaulted Dev Raj (PW2) with a spade on his head, who suffered injuries. It was also mentioned in the report given to the police that the incident took place at 8.30 a.m. on that day. It is also mentioned that the injured was taken to government hospital for treatment. It appears that initially said report was registered as non cognizable report no. 160 of 1993, by the police but after receiving the injury report which disclosed grievous hurt on the head of the injured, the case was converted relating to offence punishable under section 307 of I.P.C., and investigated upon. After investigation, PW5 Sub Inspector Allah Baksh Saifi, who investigated the crime, submitted charge sheet against the accused/appellants Pratipal and Salekh Chand, for their trial in respect of offences punishable under section 307, 323 and 324 of I.P.C. 4. The Chief Judicial Magistrate, Hardwar, on receipt of the charge sheet, after giving necessary copies to the accused appears to have committed the case to the court of Sessions for trial. The Chief Judicial Magistrate, Hardwar, on receipt of the charge sheet, after giving necessary copies to the accused appears to have committed the case to the court of Sessions for trial. On 17.09.1996, learned Additional Sessions Judge, Hardwar, after hearing the parties framed charge of offences punishable under section 307 read with section 34 of I.P.C., and one relating to offence punishable under section 504 of I.P.C., against the two accused Pratipal and Salekh Chand who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Anil Kumar (informant), PW2 Dev Raj (injured), PW3 Dr. O.P. Sharma (who medically examined the injured), PW4 Dr. Vipin Chandra Premi (Radiologist, who reported fractures), PW5 Sub Inspector Allah Baksh Saifi (Investigating Officer) and PW6 Constable Surendra Kumar. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which it was stated by the accused that they have been falsely implicated due to enmity and the evidence adduced against them was false. However, no evidence in defence was given. The trial court after hearing the parties, found that the charge of offence punishable under section 326 I.P.C., is proved against the accused/appellant no.1 Pratipal and one relating to offence punishable under section 326/34 of I.P.C., is proved against the accused/appellant no. 2 Salekh Chand and convicted them accordingly. After hearing on sentence each one of the convicts was sentenced to rigorous imprisonment for a period of four years and directed to pay fine of Rs. 500/-. Aggrieved by said judgment and order dated 21.08.2000, passed by IIIrd Additional Sessions Judge Hardwar, in Sessions Trial No. 95 of 1996, the two convicts filed Criminal Appeal No. 2139 of 2000 (new no. 685 of 2001) before Allahabad High Court from where it is received under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. 5. Before further discussion this Court thinks it just and proper to mention the injury suffered by PW2 Dev Raj, recorded by PW3 Dr. O.P.Sharma in the injury report (Ex A-3). The same being reproduced below : Lacerated wound 7.5 cm x 0.7 cm x bonedeep on right parietal prominence clotted blood present. On cleaning the wound it was found that the margins were clear cut, well defined and the wound was obliquely tailing towards ear. PW3 Dr. O.P.Sharma in the injury report (Ex A-3). The same being reproduced below : Lacerated wound 7.5 cm x 0.7 cm x bonedeep on right parietal prominence clotted blood present. On cleaning the wound it was found that the margins were clear cut, well defined and the wound was obliquely tailing towards ear. PW3 Dr. O.P.Sharma advised x ray on the above mentioned injury at the time of preparing the report (Ex A-3) at 11.20 a.m. on 20. 12. 1993. 6. PW4 Dr. Vipin Chandra Premi, the radiologist of District Hospital, Hardwar, has stated that on 21.12.1993, he prepared X ray films of the head of the injured (PW2 ) Dev Raj, and it was found that there was fracture in temporal and parietal bones of the head. He proved his report ( Ex A-5). From the evidence as above, it is clearly established on the record that PW2 Dev Raj suffered head injury on 20.12.1993. Now, this Court has to examine whether the two accused with common intention assaulted on the head of the injured, with a spade as suggested by the prosecution or not. 7. PW2 Dev Raj is the star eye witness of this case, who suffered injury in the incident. He has stated that on 20.12.1993, at about 8.30 a.m., he was irrigating his field. The witness further stated that accused/appellants Salekh Chand and Pratipal came there, and expressed their desire to irrigate their field. On which PW2 Dev Raj told them that only after his field is irrigated he would let them irrigate their fields. This enraged the two accused who started hurling abuses. And accused/appellant no.2 Salekh Chand caught hold of the witness (PW2) Dev Raj and accused/appellant no.1 Pratipal assaulted with a spade on his head. The witness further narrates that after receiving injury he fell down on the ground and after sometime got unconscious. He further stated that he shouted for help, before getting unconscious. 8. The testimony of injured witness PW2 Dev Raj is natural and trustworthy. He has no reason to falsely implicated the accused/appellants. The injury suffered by him is not superficial or simple in nature. Rather as discussed above the injury is grievous in nature and that too on the vital part of the body. 9. PW1 Anil Kumar is informant of the incident, who gave report (Ex-A1) at Police Station Ranipur, on 20.12.1993. He has no reason to falsely implicated the accused/appellants. The injury suffered by him is not superficial or simple in nature. Rather as discussed above the injury is grievous in nature and that too on the vital part of the body. 9. PW1 Anil Kumar is informant of the incident, who gave report (Ex-A1) at Police Station Ranipur, on 20.12.1993. He is equally related to the two accused as well as the injured. 10. Learned counsel for the appellants argued that the appellants have been falsely implicated in this case due to enmity with PW2 Dev Raj who has admitted that he was under litigation with the accused. In the opinion of this Court enmity is a double edged weapon where it can be said that someone from among the accused has been falsely added or implicated, it is also true that the enmity reflects the motive of commission of crime on the part of the accused. The present case is a case of day light incident, in which the injury suffered by the injured as mentioned above, speaks in the manner the injured was assaulted. The medical report fully corroborates the prosecution story narrated by PW2 Dev Raj that a blow with a spade was given on his head. And this role is assigned to accused/appellant Pratipal. The injured has no reason not to name the real culprit. Had it been a case taken in the darkness of night it could have been said that the two accused might have been implicated on suspicion. But in a day light incident where the injured was medically examined immediately after the incident and First Information Report is not delayed, this Court finds no reason to disagree with the view taken by the trial court that it is proved on the record that accused/appellant no.1 Pratipal caused grievous hurt by a deadly weapon (spade) and the accused/appellant no.2 Salekh Chand, caught hold of arms of the injured, before Pratipal gave a blow on the head of the injured with a spade. This act on the part of the accused/appellant no.2 Salekh Chand proves that he had common intention with accused/appellant Pratipal in commission of crime. Their meeting of minds could have taken place at the spot after PW2 Dev Raj asked them to irrigate their fields only after he had completed his work. This act on the part of the accused/appellant no.2 Salekh Chand proves that he had common intention with accused/appellant Pratipal in commission of crime. Their meeting of minds could have taken place at the spot after PW2 Dev Raj asked them to irrigate their fields only after he had completed his work. The evidence of injured witness PW2 Dev Raj cannot be doubted. 11. Learned counsel for the appellants drew attention of this Court to the case of Om Prakash vs. State of Haryana (2001) 10 SCC page 477 and State of Karnataka vs. Muddappa (1999) 5SCC page 732, and it is argued that the two appellants can be given benefit of Probation of Offenders Act 1958. I have gone through the cases referred on behalf of the appellants. The case of Om Prakash (SUPRA) pertains conviction relating to offences punishable under section 323, 325, 148 and 149 of I.P.C., and the case of State of Karnataka vs. Muddappa (SUPRA) pertains to offence punishable under section 304 part IInd. None of these offences are punishable with imprisonment for life. Section 326 of I.P.C., which provides that punishment for causing voluntarily grievous hurt by dangerous weapon provides punishment of imprisonment for life or imprisonment for ten years and fine. As such, the trial court has awarded just and proper sentence proportionate to the guilt proved on the record by the prosecution, against each one of the convicts i.e. rigorous imprisonment for four years and fine of ‘ 500/-. 12. For the reasons as discussed above, this appeal has no force and the same is liable to be dismissed. Accordingly, the appeal is dismissed. Accused/appellants Pratipal and Salekh Chand, both sons of Pitamber, residents of Garh Meerpur, Police Station Ranipur, Hardwar, are on bail. Their bail is cancelled. They shall serve the remaining part of the sentence awarded by the trial court and affirmed by this court. Photo copy of the reconstructed lower court record be sent to the trial court to make the accused/appellants Pratipal and Salekh Chand surrender before the court concerned, and serve out the remaining part of the sentence.