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2018 DIGILAW 50 (RAJ)

Kharka Rajnat v. State of Rajasthan

2018-01-03

SABINA

body2018
JUDGMENT : SABINA, J. Respondent No. 2 had faced trial alongwith his co-accused Mahendra in FIR No. 6/2004 registered at Police Station Kotwali Fatehpur, District Sikar for the offence under Section 354/34 Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’). Trial Court vide judgment/order dated 16.6.2009 ordered the conviction and sentence of the petitioner and his co-accused under Section 354 IPC. Appeal filed by the petitioner was dismissed by the Appellate Court vide order dated 27.6.2015. Hence, the present petition by the petitioner. 2. Learned counsel for the petitioner has submitted that co-accused Mahendra had preferred an appeal and the Appellate Court vide order dated 19.4.2014 had held that no offence under Section 354 IPC could be said to be made out in the facts and circumstances of the present case and ordered the conviction of co-accused Mahendra under Section 352 IPC and granted him benefit of probation. Similar allegations have been levelled against the petitioner. Hence, the conviction of the petitioner was also liable to be converted under Section 352 IPC. Petitioner who is in custody for the last three months be also convicted under Section 352 IPC and be sentenced to the period already undergone by him. 3. Learned State Counsel, on the other hand, has opposed the submissions made by the learned counsel for the petitioner. 4. As per the prosecution story petitioner along with his co-accused Mahendra and Vakil had misbehaved with the victim and told her to leave the spot. While altering the conviction of co-accused Mahendra from Section 354 IPC to Section 352 IPC Appellate Court in its order dated 19.4.2014 (in appeal filed by co-accused Mahendra) had noticed that victim in her cross- examination had admitted that she had not suffered any injury nor her clothes had been torn. In-fact, she had been rescued by Dalip before the accused could inflict any injury on her person. Learned Appellate Court had held that it could be said to be a case of use of criminal force by the accused but could not be said to be a case of use of criminal force with an intention to outrage the modesty of the victim. 5. Since in an appeal filed by co-accused Mahendra his conviction has been altered from Section 354 IPC to Section 352 IPC, petitioner is also liable to be extended the similar relief. 6. 5. Since in an appeal filed by co-accused Mahendra his conviction has been altered from Section 354 IPC to Section 352 IPC, petitioner is also liable to be extended the similar relief. 6. Accordingly, conviction of the petitioner is altered from Section 354 IPC to Section 352 IPC. Petitioner is in custody for the last about three months. Consequently, petitioner is sentenced to undergo imprisonment already undergone by him. Petitioner who is in custody be set at liberty forth with, if not required in any other criminal case. Petition stands disposed of accordingly.