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2021 DIGILAW 345 (UTT)

Chandan Singh v. State Of Uttarakhand

2021-07-07

R.C.KHULBE

body2021
JUDGMENT R.C. Khulbe, J. - The present criminal appeal is directed against the judgment and order dated 05.12.2020 passed by the learned Special Judge (POCSO Act), Tehri Garhwal in S.S.T. No. 5 of 2018, "State vs. Chandan Singh and another", whereby the learned Trial Court convicted the appellant u/s 363 and sentenced him to undergo four years' R.I. with a fine of Rs.1,000/- with default stipulation and also convicted U/s 366 IPC and sentenced him to undergo four and half years' R.I. with a fine of Rs.1,000/- with default stipulation. He was also sentenced to undergo three months' additional imprisonment. 2. Brief facts of the case are that PW1 informant submitted an information Ex.Ka-1 with the Revenue Circle, Hisriyakhal, Dev Prayag on 07.01.2018. On the basis of said information, a Chick FIR Ex.Ka-3 was lodged with the Revenue Circle against the present accused-Chandan Singh. The statement of PW2 prosecutrix was recorded under Section 164 Cr.P.C., which is Ex.Ka-2. She was medically examined and accordingly, medical report was prepared, which is Ex.Ka-22. The accused was arrested and arresting memo Ex.Ka-6 was prepared. On completion of investigation, charge-sheet Ex.Ka-25 was submitted. Accordingly, after compliance with the provision of Section 207 Cr.P.C., learned trial Court took the cognizance and framed charges on 28.04.2018. The appellant denied all the allegations and claimed to be tried. 3. In order to prove its case, the prosecution, produced PW1 Kailash Chandra Bangwal (informant), PW2 prosecutrix, PW3 mother of the prosecutrix, PW4 Ram Chandra, PW5 Girish Chandra Dobhal, who lodged the FIR Ex.Ka-3 and prepared G.D. Ex.Ka-4, PW6 A.K. Painuli, who proved the date of birth certificate, which is Ex.Ka-17, PW7 Head Constable Sunil Kumar, PW8 Kendra Singh, PW9 S.I. Rajendra Singh Aswal is the I.O. who prepared the site plan Ex.Ka-19, PW10 Dr. Garima Naithani, who prepared the medical report Ex.Ka-22, and, PW11 Dhirajmani Baluni is also the I.O. who recorded statements of the witnesses and after completion of investigation submitted the charge-sheet Ex.Ka-25. 4. After completion of prosecution evidence, statement of appellant was recorded u/s 313 Cr.P.C. in which he denied all the evidences and stated that the prosecution produced false evidences against him. However, no evidence was produced in defence. 5. After hearing both the parties, learned trial court convicted the appellant and sentenced him as mentioned in paragraph no.1 of the judgment. 6. However, no evidence was produced in defence. 5. After hearing both the parties, learned trial court convicted the appellant 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 counsel for the appellant as well as learned counsel for the State. 8. It is submitted by learned counsel for the appellant that she does not want to argue the case on merits, as the trial Court has rightly convicted the appellant-Chandan Singh based on sufficient material on record; there is no illegality in the impugned judgment; she fairly submitted that as per the jail report, the appellant has already served three years seven months with remission; he has no criminal antecedents and prays that while upholding appellant's conviction, this Court may consider to alter the sentence awarded to the appellant and reduce it to the extent of period already undergone. She, lastly, submitted that the trial court awarded three months' additional sentence in default of payment of fine, which is on higher side. 9. The learned counsel for the State has no objection for the same but submitted that there is no minimum sentence prescribed under the offence. 10. I have also gone through the entire evidence on record and came to this conclusion that the trial court has rightly convicted the appellant based on sufficient material on record. There is no illegality or infirmity in the impugned findings regarding conviction. As regards to the sentence is concerned, the matter relates to the year 2018 and he has been acquitted under the POCSO Act; there is no criminal history against him; and, the appellant has already served three years and seven months with remission. Accordingly, it is considered to be just and proper to alter the sentence from four and half years to three years and seven months U/s 366 IPC and three years seven months U/s 363 IPC instead of four years. As regards to the sentence in default of payment of fine is concerned the same is also on the higher side. In my view, 45 days additional imprisonment is sufficient in default of payment of fine. 11. In view of the above discussion, the appeal is allowed in part. As regards to the sentence in default of payment of fine is concerned the same is also on the higher side. In my view, 45 days additional imprisonment is sufficient in default of payment of fine. 11. In view of the above discussion, the appeal is allowed in part. The appellant is sentenced as follows: A. The appellant is sentenced to undergo three years and seven months' rigorous imprisonment under section 366 IPC instead of four and half years R.I. as awarded by the trial court. B. The appellant is sentenced to undergo three years and seven months' rigorous imprisonment under section 363 IPC instead of four years R.I. as awarded by the trial court. C. The fine awarded under section 363 and 366 IPC will remain intact. However, in default of payment of fine, he will serve 45 days' additional imprisonment under both the sections. D. Both the sentences shall run concurrently. E. On completion of period of sentence, as modified by this Court, appellants 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 back to the court concerned. The Registry is directed to send a copy of this judgment to the jail authority also for compliance.