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2015 DIGILAW 402 (JHR)

Chhotu Gorain v. State of Jharkhand

2015-03-25

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
Judgment : Virender Singh, J. At the very outset, it needs to be mentioned here that when the appellant could not engage any lawyer of his own on account of financial constraint, he made a request to Jharkhand State Legal Services Authority for defending his cause in the present appeal. It is how JHALSA has entrusted this case to Mr. Ram Prakash Singh, Advocate. 2. Appellant-Chhotu Gorain (hereinafter to be referred as the 'accused' only) along with his two co-accused, namely, Anil Goswami and Ashok Rawani faced the trial for the charge of Section 376(2)(g) of the Indian Penal Code and vide impugned judgment dated 8.5.2009/12.5.2009 of learned Additional Sessions Judge, XIII, Dhanbad stands convicted for the said charge and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, in default thereof rigorous imprisonment for three months. He was also charged along with his other co-accused under Section 342 of the Indian Penal Code and convicted accordingly for the said charge, for which sentence of rigorous imprisonment for one year is slapped upon him and his co-accused. Both the sentences have been ordered to run concurrently. 3. It needs to be mentioned here that aforesaid two co-accused, namely, Anil Goswami and Ashok Rawani filed their separate Criminal Appeals being Criminal Appeal (SJ) no. 485 of 2009 and Criminal Appeal(SJ) No.625 of 2009, questioning their conviction and sentence and both the appeals have been allowed vide judgment dated 7th January, 2010 . Records of the said appeals have been tagged with the instant appeal. 4. Mr. Ram Prakash Singh, learned Advocate appearing for the accused, states that once two co-accused of the present appellant have earned acquittal, the instant case cannot be said to be a gang rape but a case of rape simpliciter. He submitted that after the prosecutrix has been disbelieved with regard to involvement of other co-accused on the ground that she herself denied involvement of the co-accused, when stepped into the witness box, and this basic flaw by itself would be enough to disbelieve her, even with regard to the alleged involvement of the accused. But, he without joining issue on the merits of the case, simply prays for reduction of the sentence to the prescribed minimum period of seven years as the accused by now has already undergone six years and about eleven months. But, he without joining issue on the merits of the case, simply prays for reduction of the sentence to the prescribed minimum period of seven years as the accused by now has already undergone six years and about eleven months. In support of his contentions, he has drawn the attention of the medical evidence of the prosecutrix, who happens to be a married lady having two children, eldest one of the age of 18 years. Learned counsel on reduction of sentence relied on the judgment of the Hon'ble Supreme Court rendered in the case of Rajesh Vs. State of Goa (2003)11 S.C.C. 736. 5. Learned State counsel does not strongly oppose the prayer made by counsel for the appellant. 6. Although, learned counsel for the appellant has not joined issue vis-a-vis the merits of the case, yet we have re-scanned the entire evidence once again being first Court of appeal and appeal being continuation of trial. In our view, conviction of the accused under Section 376(2)(g) IPC deserves to be disturbed, in the event of his two co-accused been acquitted by this Court in two different appeals. However, he is convicted under Section 376 IPC . His conviction under Section 342 IPC is also maintained. 7. So far as sentence part is concerned, considering the totality of the facts and circumstances of the present case from all aspects, ends of justice would be adequately met, if sentence of the accused is reduced to the prescribed minimum period of seven years under Section 376 IPC. Ordered accordingly. 8. However, the sentence slapped upon him of one year rigorous imprisonment under Section 342 IPC shall remain intact. Both the sentences shall run concurrently. 9. The appeal on hand thus stands dismissed on merits, except alteration, as indicated hereinabove vis-a-vis the main offence and the sentence part. 10. Since the instant appeal has been filed through Jharkhand State Legal Services Authority, copy of the judgment be sent to Member Secretary of JHALSA, so that the accused who is languishing in the jail is made aware of the outcome of the instant appeal without any delay. Copy of the judgment shall also be provided to the accused through JHALSA. 11. Learned trial court shall also be intimated of the judgment. 12. Trial court record in original be remitted to the court concerned.