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2018 DIGILAW 128 (RAJ)

RAM @ SAURABH v. STATE OF RAJATHAN

2018-01-09

P.K.LOHRA

body2018
ORDER : P.K. Lohra, J. Accused-appellant has filed this appeal under Section 374(2) Cr.P.C., 1973 to challenge impugned judgment dated 26th of September, 2014 passed by Addl. Sessions Judge No.2, Hanumangarh (for short, 'learned trial Court'), whereby the appellant is convicted for offence under Sections 376 and 366A IPC and sentenced to eight years' rigorous imprisonment with fine of Rs. 5,000, in default of payment of fine to further undergo three months' rigorous imprisonment for offence under Section 376 IPC and five years' rigorous imprisonment with fine of Rs. 3,000, in default of payment of fine to further undergo two months' rigorous imprisonment for offence under Section 366-A IPC. Both the sentences were ordered to run concurrently. 2. Succinctly stated, the facts of the case are that on 28.09.2012, at 06.40 PM, Complainant Pratap Singh submitted a report at Mahila Police Station, Hanumangarh narrating victimization of his daughter by accused-appellant to the effect that his neighbour Geeta's brother Saurabh @ Sri Ram resides at Geeta's house and they had cordial relations with them. Last night when he got up at about 4.00 AM, he found his daughter not at home and was missing. She had taken away with her cash Rs. 1,10,000/- and clothes from the home. Complainant suspected appellant-accused Saurabh @ Sri Ram for the entire episode. On the basis of report FIR No. 165/2012 for offence under Section 363 IPC was registered at Mahila Police Station Hanumangarh and after investigation police filed charge-sheet for offence under Sections 450, 363, 366, 376 IPC against Saurabh @ Sri Ram and against one Amit Kumar under Sections 363, 366, 376, 120-B IPC before Judicial Magistrate First Class, Hanumangarh. The concerned Magistrate committed the case to the learned trial Court. The learned trial Court framed charge against the appellant for offences under Section 376 and 366A IPC and on denial, he was put to trial. During trial, prosecution, in order to prove charge against the accused-appellant, examined as many as 14 witnesses and exhibited documents. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C., 1973 and final arguments were heard by the learned trial Court. 3. The learned trial Court, after appreciation of evidence and material available on record, found that offence under Section 376 and 366A IPC are fully established against him and considering culpability of the accused-appellant for aforesaid offences, he was sentenced as aforesaid. 3. The learned trial Court, after appreciation of evidence and material available on record, found that offence under Section 376 and 366A IPC are fully established against him and considering culpability of the accused-appellant for aforesaid offences, he was sentenced as aforesaid. 4. Learned counsel for the accused-appellant, while giving up challenge to conviction has confined his arguments to the quantum of sentence awarded by the learned trial Court. Learned counsel submits that keeping in view the fact that the incident is old one and the offence was committed by the appellant in adolescence and therefore taking into account a mitigating circumstance that he has already undergone sentence for a period of five years three months, it would be appropriate to grant some indulgence to him in the matter of punishment. Learned counsel, therefore, submits that, in totality of circumstances, punishment awarded to the petitioner be altered by reducing the same to the extent he has already undergone. In support of his contentions, learned counsel has placed reliance on following legal precedents:- (1) State of U.P. v. Om alias Om Prakash [(1998) SCC (Cri) 1343] (2) Dinesh @ Dinesh Kumar @ Suresh v. State of Rajasthan [2011 (1) Cr.L.R. 1921] (3) Ram Kumar v. State of Haryana [ (2006) 4 SCC 347 ] 5. Per contra, learned Public Prosecutor has vehemently opposed the arguments advanced by learned counsel for the appellant. Mr. Arjun Singh Rathore would contend that, taking into account the entire fact scenario, it is desirable to grant any reprieve to the appellant in the matter of punishment. 6. I have heard learned counsel for the parties, perused the impugned judgment and thoroughly scanned entire record of the case. 7. Before proceeding further in the matter, it would be appropriate to first go through the judgments cited by learned counsel for the accused-appellant in support of his contention for reducing the substantive sentence. 8. 6. I have heard learned counsel for the parties, perused the impugned judgment and thoroughly scanned entire record of the case. 7. Before proceeding further in the matter, it would be appropriate to first go through the judgments cited by learned counsel for the accused-appellant in support of his contention for reducing the substantive sentence. 8. In State of U.P. v. Om alias Om Prakash (supra), in a case of abduction and rape of a minor girl, though repelled the argument that prosecutrix was of loose moral character and might have gone with accused herself, reduced the sentence of accused to the period already undergone and held: "We, this, believing the prosecutrix, set aside the impugned order of the High Court and restore that of the Court of Sessions, restoring the conviction of the respondent for the offences for which he was convicted. The sentence, however, is reduced to the period already undergone which approximates around 5 years' R.I. under each count. This should, at this point of time, meet the ends of justice." 9. In Dinesh @ Dinesh Kumar @ Suresh (supra), this Court, in a case under Section 376 IPC, finding the conviction justified has reduced the sentence of accused-appellant from years to 5 years and observed: "Looking to the facts and circumstances of the case, the sentence of the accused-appellant is reduced to five and half years' rigorous imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to further undergo six months' imprisonment. Thus, while maintaining the conviction, the sentence of the accused-appellant is reduced as indicated above and the appeal is partly allowed." 10. In Ram Kumar (supra), Supreme Court reduced the sentence of seven years under Section 376, IPC, to a period of three years imprisonment. Para No.3 of the judgment reads as under:- "The appellant, aggrieved by the order passed by the High Court has filed the above appeal by way of appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned counsel for the appellant drew our attention to the statement of the girl Bimla (PW-5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. The learned counsel for the appellant drew our attention to the statement of the girl Bimla (PW-5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient evidence was tendered by the prosecution to prove the guilt of the accused. However, at the time of hearing it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under Sections 366 and 376 of the Penal Code is on the highside. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly." 11. Upon perusal of the impugned judgment in conjunction with the record of the case, I am unable to find any illegality or impropriety in appreciation of evidence by learned trial Court. As a matter of fact, charge against the accused-appellant was framed under Sections 450, 363, 366A and 376 IPC and the learned trial Court, after thoroughly examining the evidence of material prosecution witnesses and the medical evidence has rightly found the accused-appellant guilty for offence under Section 366-A, 376 IPC. 12. Now, adverting to alternative submission of learned counsel for the appellant for reducing sentence suffice it to observe that learned trial Court has handed down maximum sentence of eight years rigorous imprisonment to the appellant and admittedly appellant has already undergone a sentence of five years and three months. This sort of situation is a relevant consideration to grant some indulgence to the appellant in the matter of punishment. That apart, the fact that incident has occurred in the year 2012 and the offence was committed by him in his adolesence at the age of 19 years, it would not be appropriate to incarcerate him any further when he has already served substantial period of sentence awarded by the learned trial Court. Therefore, in my considered opinion, the ends of justice would be served by reducing the sentence awarded by the learned trial Court to the extent of sentence already undergone by him while maintaining the fine. Therefore, in my considered opinion, the ends of justice would be served by reducing the sentence awarded by the learned trial Court to the extent of sentence already undergone by him while maintaining the fine. The contentions of learned Public Prosecutor appear to be quite alluring but not of substance when this Court is upholding indictment and conviction of the appellant for the aforesaid offences. 13. The criminal appeal, thus, deserves to be and is hereby accepted in part. While upholding the conviction of appellant as recorded by learned trial court, the sentence awarded to him is reduced to the period already undergone by him. The appellant, who is under incarceration, may be released forthwith, if not required in any other case. The appellant shall deposit the amount of fine Rs. 8,000/- within a period of four weeks, failing which the State shall be at liberty to proceed against him in accordance with law.