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2021 DIGILAW 270 (UTT)

Sajid v. State Of Uttarakhand

2021-05-17

R.C.KHULBE

body2021
JUDGMENT R.C. Khulbe, J. - The present jail appeal is directed against the judgment and order dated 11.10.2019 passed by the Addl. Sessions Judge/Special Judge (POCSO), Haridwar in S.S.T. No.65 of 2018, State vs. Sajid, whereby the learned Trial Court convicted the appellant u/s 377/511 IPC and sentenced him to undergo ten years' R.I. with fine of Rs.10,000; he was also convicted u/s 7/8 of the POCSO Act and sentenced to undergo three years' R.I. with fine of Rs.10,000/-; in default of payment of fine, one month's additional S.I. was also awarded; the aforesaid sentences were directed to run concurrently. 2. In short, case of the prosecution is that the informant submitted an information Ex. Ka-2 with the Police Station, Gangnahar, Roorkee on 10.04.2018. On the basis of said information, a chick FIR Ex.Ka-6 was lodged with the police station Gangnahar, Haridwar; the victim was medically examined; accordingly, medical report and supplementary medical report Ex.Ka-7 and Ka-8 respectively were prepared; the statement of aggrieved was recorded under Section 164 Cr.P.C. (Ex.Ka-1). Accordingly, arresting memo Ex.Ka-3 was prepared. After investigation, charge-sheet (Ex.Ka-11) was submitted on 26.04.2018 and cognizance was taken on 07.06.2018 by the Special Court. Accordingly, after compliance of provision of Sections 207 and 208 Cr.P.C., charges were framed on 07.07.2018. The appellant denied all the allegations and claimed to be tried. 3. To bring home the guilt of the appellant, the prosecution produced PW1-victim, PW2 Mukesh Saini (eyewitness), PW3- father of victim, PW4-S.I. Roshan Singh, PW5 Constable Chetan, PW6 Dr. Mohd. Afjal (who examined the victim), PW7 S.I. Navin Nautiyal and PW8 Minakshi Sharma, Principal. 4. After completion of prosecution evidence, statement of appellant was recorded u/s 313 Cr.P.C. he stated that he did not commit any crime; and there is no evidence against him; he was arrested by the police illegally. 5. Upon consideration of the oral and documentary evidence, by order dated 11.10.2019, the trial court convicted the appellant for the offences punishable u/s 377 read with Section 511 IPC and also Section 7/8 of POCSO Act, and sentenced him as mentioned in paragraph no.1 of the judgment. 6. Feeling aggrieved by the order of conviction and sentence, the present appeal is preferred before this Court. 7. Heard the learned Amicus Curiae for the appellant as well as learned counsel for the State. 8. 6. Feeling aggrieved by the order of conviction and sentence, the present appeal is preferred before this Court. 7. Heard the learned Amicus Curiae for the appellant as well as learned counsel for the State. 8. It is submitted by learned counsel for the appellant that he does not want to argue the appeal on merits; he fairly submitted that the trial court wrongly awarded ten years' R.I. u/s 377 read with Section 511 IPC because under Section 377 IPC, the maximum punishment is ten years, while the appellant was convicted with the aid of Section 511 IPC where the maximum punishment is one-half of the longest term of imprisonment provided for that offence; he confined his prayer to the extent that since the matter relates to the year 2018, hence the Court may kindly consider it appropriate to reduce the sentence awarded to the appellant to the period already undergone by him. 9. The learned counsel appearing for the State also submits that as per Section 511 IPC, one- half of the maximum punishment can be awarded; the accused is languishing for last more than three years, and thus, the sentence awarded u/s 377 read with Section 511 IPC can be reduced to the extent of period already undergone. 10. I have also gone through the evidence on record and come to this conclusion that the trial court has convicted the appellant based on proper evidence and there is no infirmity in the impugned findings. The appellant was convicted u/s 377 read with Section 511 IPC. Under Section 377 IPC the maximum punishment is ten years while as per Section 511 IPC the accused can be sentenced for a term which may extend to one-half of the longest term of imprisonment provided for that offence. The appellant does not have any criminal antecedent in his past life, and he is not required in any other criminal case except the one in question. Looking to the gravity of the offence, it is considered to be just and proper to alter the sentence to the appellant from 10 years' R.I. to the extent of 3 years' R.I. u/s 377 read with Section 511 IPC. 11. In view of the foregoing discussion, the appeal is allowed in part. Looking to the gravity of the offence, it is considered to be just and proper to alter the sentence to the appellant from 10 years' R.I. to the extent of 3 years' R.I. u/s 377 read with Section 511 IPC. 11. In view of the foregoing discussion, the appeal is allowed in part. The appellant is sentenced as follows: - A. The appellant is sentenced to undergo three years' R.I. u/s 377 read with Section 511 IPC, instead of ten years' R.I. as awarded by the court below. B. The conviction under Section 7/8 of POCSO C. The fine awarded under each section is also maintained, and he shall deposit the fine as imposed by the trial court. D. All the sentences shall run concurrently. E. On completion of period of sentence as modified by this Court, he shall be released from jail as per law and after due verification of records. 12. Let a copy of this judgment alongwith records be sent to the court concerned. The Registry is directed to send a copy of this judgment to the jail authority also for compliance.