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2016 DIGILAW 846 (RAJ)

Vijay Kumar v. State

2016-06-08

G.R.MOOLCHANDANI

body2016
JUDGMENT : Mr. G.R. Moolchandani, J. These are two appeals, one S.B. Criminal Appeal No.07/1990 filed by the accused appellant against conviction whereas another appeal bearing S.B. Criminal No.539/2008 has been filed by the State seeking enhancement of sentence. 2. Since both the appeals are filed against the same judgment so for sake of conveniency adjudication of both the appeals is being done by a single order. 3. Learned counsel for the appellant has submitted that the appellant Vijay Kumar was convicted under Section 363 I.P.C. for two years of sentence and a fine of Rs. 1,000/- vide order dated 12.12.1989 passed in Sessions Case No.77/84 (58/1983) by the Sessions Judge, Sirohi (hereinafter referred to as 'the trial court') and the instant case relates back to 5.4.1983. He has pointed out that Smt. Kashmira W/o Vijay Kumar Sahani has since died after leaving 3 siblings. The learned counsel has further submitted that the complainant Babu Bhai, father of the prosecutrix Smt. Kashmira who was at dispute with Vijay Kumar has resolved his dispute and a notary affidavit has also been filed in which it is recited that Kashmira daughter of deponent Babu Bhai Kashyab has died on 22nd September, 2005 after leaving 3 kids and he has compromised with Vijay Kumar Kashyab, so the appeal be decided in undergone. 4. Learned Public Prosecutor has submitted that the appellant was acquitted under Section 366 and was convicted only under Section 363 for two years sentence with a fine of Rs. 1,000/-. 5. Heard and perused the impugned judgment and material available on record. 6. The fact of event as mentioned in the impugned judgment discloses that Babu Bhai Kashyab lodged a FIR on 5.4.1983 against Vijay Kumar alleging abduction of his daughter Kashmira and same was lodged under Sections 363 and 366 I.P.C. 7. Appellant Vijay Kumar was convicted under Section 363 vide impugned judgment and it has been pointed out that the appellant-accused Vijay Kumar had already remained under custody from 9.4.1983 to 17.6.1983. This fact of custody has also been mentioned on the warrant of commitment disclosing that the accused Vijay Kumar remained under custody from 9.4.1983 to 17.6.1983. 8. Appellant Vijay Kumar was convicted under Section 363 vide impugned judgment and it has been pointed out that the appellant-accused Vijay Kumar had already remained under custody from 9.4.1983 to 17.6.1983. This fact of custody has also been mentioned on the warrant of commitment disclosing that the accused Vijay Kumar remained under custody from 9.4.1983 to 17.6.1983. 8. In view of the fact that there is no dispute between the complainant Babu Bhai Kashyab and the appellant-accused Vijay Kumar, affidavit filed by Babu Bhai Kashyab does have got a mentioning that Kashmira daughter of deponent Babu Bhai prosecutrix married with Vijay Kumar on 23.7.1990 and begotten 3 kids and Smt. Kashmira died on 22nd September 2005 there is no dispute between Vijay Kumar and the complainant any more. Copy of death certificate of Smt. Kashmira W/o Vijay Kumar has also been filed with the affidavit and the date of death of Kashmira is shown to be 22.9.2005. 9. In totality of the above facts, it appears to be just to modify the sentence and the ends of justice would be met, if the sentence awarded to the appellant-accused is reduced to the period already undergone. 10. Both the connected appeals stand decided accordingly. The appellant-accused Vijay Kumar be released forthwith, if not required in any other case.