Vijay Kumar vs State Of Haryana on 10 October, 2017

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IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH

Criminal Appeal No. 5202-SB of 2014(OM)
Date of Decision: October 10 , 2017.

Vijay Kumar …… APPLICANT/APPELLANT (s)
Versus
State of Haryana …… RESPONDENT (s)

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr. Rahul Gautam, Advocate
for the applicant/appellant.

Mr. Anmol Malik, AAG, Haryana.
*****

LISA GILL, J.

The appellant has been convicted for the offences punishable under

Section 354 IPC and Sections 8/10 of the Protection of Children from Sexual

Offences Act, 2012 (for short, the ‘POCSO Act’) vide judgment dated 31.10.2014

passed by the learned Sessions Judge, Panipat. By a separate order dated

01.11.2014 passed by the learned trial court, the appellant has been sentenced to

undergo rigorous imprisonment for five years, besides, pay a fine of `25,000/-

for the offence under Section 354 IPC. He has been sentenced to undergo

rigorous imprisonment for five years, besides, pay a fine of `25,000/- for the

offence under Sections 8/10 of the POCSO Act. In default for payment of fine,

the appellant is to undergo further rigorous imprisonment for three years.

However, both the sentences are ordered to run concurrently.

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The present appeal has been filed through the High Court Legal

Services Committee impugning the said judgment of conviction and order of

sentence.

Criminal Misc. No.6392 of 2017 was moved by the appellant

seeking suspension of sentence during pendency of the appeal on the ground that

substantial period of the sentence imposed upon him has been undergone.

Record of this case was called for. As per the custody certificate dated

15.08.2017, it transpires that the applicant/appellant has undergone the sentence

imposed upon him. The applicant/appellant is stated to be undergoing

imprisonment for a period of six years w.e.f. 25.05.2017 for default in payment

of fine of `50,000/- imposed upon him by the learned trial court. The matter

was adjourned on the request of learned counsel for the applicant/appellant.

Learned counsel submits that the applicant/appellant does not wish

to challenge his conviction in view of the fact that he has already undergone

substantive sentence imposed upon him. However, it is urged that the sentence

imposed upon him for default in payment of fine is in contravention of specific

provisions of Section 65 IPC.

With the consent of learned counsel for the parties, the present

appeal is taken up for hearing today.

Brief facts of the case are that, FIR No.1104 dated 26.09.2013 under

Section 354 IPC and Sections 8/10 of the POCSO Act was registered on a

written application submitted by the complainant, who is the aunt of the victim.

It is stated that the complainant’s sister and her husband died in the year 2011.

Two daughters of her deceased sister and brother-in-law were residing with the

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complainant’s mother. Younger daughter of the complainant’s sister aged about

three years was playing in the street on 26.03.2013. When the child was not

seen in the vicinity for some time, the complainant went looking for her. She

saw the appellant, a tenant in the house opposite, sexually assaulting her niece in

an adjoining dilapidated house. When the complainant raised a hue and cry, the

appellant tried to flee. However, people of the vicinity attracted to the spot, tried

to apprehend him. He fell down in the hustle and sustained injury on his left

eye. Charges for the offences punishable under Section 354 IPC and Section 10

of the POCSO were framed against the appellant to which he pleaded not guilty

and claimed trial.

The prosecution examined as many as five witnesses to prove its

case. The appellant in his statement under Section 313 Cr.P.C. denied the

incriminating evidence put to him. He stated that the victim in this case came to

his rented premises on 26.09.2013 to play with the white rats kept by his wife.

When he objected to the same, his wife retorted loudly. Sister of the

complainant on hearing the noise arrived and gave brick-bat blows to him, due

to which he sustained injuries. The complainant, it is submitted, lodged a false

complaint against him only with a view to save her own sister. He further stated

that he had three children. One of his sons passed away and he was residing

with his wife and other two children. It was argued on behalf of the appellant

that there was no medical evidence on record to prove the allegations against the

appellant. Injuries were caused to him by the complainant’s sister.

The learned trial court on appreciating the evidence on record and

keeping in view the facts and circumstances of the case, concluded that the

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prosecution successfully proved its case beyond reasonable doubt against the

appellant. Thereby the appellant was convicted and sentenced as detailed above.

As mentioned earlier, learned counsel for the appellant does not

challenge the conviction of the appellant vide impugned judgment dated

31.10.2014 in view of that fact that he has already undergone the entire sentence

imposed upon him. It is vehemently argued that the maximum sentence

provided for the offence punishable under Section 354 IPC is five years and for

the offence punishable under Section 10 of the POCSO Act, the maximum

punishment prescribed is seven years. Thus in view of Section 65 IPC, the

imprisonment of three years each for default in payment of fine is not

permissible. Moreover, both the sentences are ordered to run concurrently, there

is thus no question of the appellant undergoing rigorous imprisonment for six

years (three years each) for default in payment of fine payable for the offences

under Section 354 IPC and Section 10 of the POCSO Act. It is further submitted

that the appellant is not involved in any other criminal case either before or after

the registration of the present FIR. He is the only bread winner in his family.

The appellant, it is urged, is in such dire financial straits that he did not even

have the wherewithal to prefer the present appeal which has been filed through

the High Court Legal Services Committee. It is thus prayed that the rigorous

imprisonment imposed upon him for default in payment of fine be accordingly

reduced.

Heard learned counsel for the parties.

Section 65 IPC prescribes the limit to imprisonment for non-

payment of fine when both imprisonment and fine are awardable. It is

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specifically provided that the imprisonment in default of payment of fine shall

not exceed 1/4th of the term of maximum imprisonment fixed for the offence.

Section 65 IPC reads as under:-

“65. Limit to imprisonment for non-payment of fine, when
imprisonment and fine awardable.– The term for which the
Court directs the offender to be imprisoned in default of payment of
a fine shall not exceed one-fourth of the term of imprisonment
which is the maximum fixed for the offence, if the offence be
punishable with imprisonment as well as fine.”

The maximum imprisonment for the offences punishable under

Section 354 IPC and Section 10 of the POCSO act is five years and seven years,

respectively. Accordingly, the imprisonment of three years imposed upon the

appellant by the learned trial court for default in payment of fine is not

sustainable.

Learned counsel for the State is unable to deny that the present

appeal has been filed through the High Court Legal Services Committee. There

is nothing on record to dispute the factum of the appellant being a poor person

and the sole bread-winner of his family.

Custody Certificate dated 09.10.2017 of Mr. Jaswant Singh, Deputy

Superintendent, District Prison, Karnal indicating the period of custody of the

appellant, filed in Court today, with a copy thereof to learned counsel for the

appellant, is taken on record subject to just exceptions.

As per the said custody certificate, the appellant is not reported to

be involved in any other criminal case. He has admittedly undergone the

substantive sentence imposed upon him for the offences punishable under

Section 354 IPC and Section 10 of the POCSO Act on 24.05.2017. He has

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further undergone rigorous imprisonment of nearly six months thereafter in

default for payment of fine.

The Hon’ble Supreme Court in Shanti Lal v. State of M.P.,

(2007) 11 SCC 243 while considering the inability of the appellant in depositing

the fine of `1,00,000/- under the NDPS Act, reduced the imprisonment in default

of payment of fine from a period of three years to six months.

Keeping in view the peculiar facts and circumstances of the case,

while upholding the conviction and fine imposed upon the appellant, it is

considered just and expedient to reduce the period of imprisonment imposed

upon the appellant in default of payment of fine to the one already undergone by

him while upholding the conviction of the appellant under Section 354 IPC and

Section 10 of the POCSO Act vide judgment dated 31.10.2014 passed by the

learned Sessions Judge, Panipat as well as the sentence imposed upon him for

the commission of the said offences vide order dated 01.11.2014

Accordingly, with the abovesaid modification in the period of

imprisonment imposed upon the appellant in default of payment of fine, this

appeal is disposed of.

Consequently, the appellant be released forthwith, in case not

required in any other case.

( LISA GILL )
October 10 , 2017. JUDGE
‘om’

Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No

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