HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 177 / 2016
Rahul S/o Shri Ganpat Lal, by caste Sargara, resident of Near
Khardion ki Masjid, Sojat City, District Pali
(At present lodged in Central Jail, Jodhpur)
—-petitioners
Versus
State of Rajasthan
—-Respondent
Connected With
S.B. Criminal Revision No. 111 / 2016
Naresh @ Narendra S/o Shri Omprakash, by caste Suthar, resident
of Paoti ka Vas, Sojat, District Pali
(At present lodged in Central Jail, Jodhpur)
—-petitioners
Versus
State of Rajasthan
—-Respondent
S.B. Criminal Revision No. 176 / 2016
Dinesh S/o Madan Lal, by caste Vaishnav, resident of Singhadio ki
Pole, Sojat City, Tehsil Sojat, District Pali
(At present lodged in Central Jail, Jodhpur)
—-petitioners
Versus
State of Rajasthan
—-Respondent
__
For petitioners(s) : Mr. Suresh Kumbhat and Mr. N.A. Rajpurohit
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
07/03/2018
The petitioners have preferred these revision petitions
against common judgment dated 14 th of January, 2016, passed by
Additional Sessions Judge, Sojat, District Pali (for short, ‘learned
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appellate Court’), whereby the learned appellate Court while
dismissing the appeals filed by petitioners has affirmed the
conviction and sentences awarded to them by Addl. Chief Judicial
Magistrate, Sojat (for short, ‘learned trial Court’). The learned
trial Court convicted all the petitioners for offence under Sections
377 506 but petitioners Naresh alias Narendra and Dinesh were
also indicted for offence under Section 120-B IPC and awarded
following sentences:
Offence U/s Sentence Fine In default of
payment
377 IPC 5 years’ S.I. Rs.2,000 3 months’ S.I.
506 IPC 1 year S.I. Rs.500 1 month S.I.
120-B IPC 2 years’ S.I. Rs.500 1 month S.I.
Court further ordered that all the sentences shall run
concurrently.
In brief, the facts of the case are that an FIR came to be
lodged against present petitioners on a complaint made by
complainant Imran on 5th of February 2014 alleging, inter-alia,
therein that his maternal aunt’s son Dilshad is dull-headed boy
who was put in fear by petitioners and then was taken to some
isolated place where all the three subjected him to unnatural sex.
The complaint further revealed that petitioners made clippings of
the saga and asked Dilshad to bring his sister’s jewellery
otherwise the clippings shall be shown to others which panicked
the victim. Petitioner Rahul gave him a memory card and asked
him to see it and also to bring Rs.50,000 else he would upload the
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same on internet. The FIR was registered for offence under
Section 377 IPC. Later on, after investigation charge-sheet
against petitioners was filed for offence under Sections 377, 384,
506, 120-B IPC and Section 67A of the I.T. Act. The accused-
petitioners denied the charges framed against them. During trial,
prosecution exhibited 20 witnesses and 19 documents.
Thereafter, statements of accused-petitioners were recorded under
Section 313 Cr.P.C. and in defence they too examined witnesses.
On conclusion of trial, the learned trial Court acquitted petitioners
for offence under Section 384 IPC and 67A of the IT Act but found
petitioner Rahul guilty of the offence under Section 377 and
Section 506 IPC and two others petitioners under Section, 377,
506 read with Section 120-B IPC and sentenced them as
aforesaid. Being aggrieved by the same, the petitioners preferred
separate appeals before learned appellate Court and the learned
appellate Court, while concurring with the findings of learned trial
Court, has affirmed the conviction and sentences awarded to
them. It is in that background, the petitioners have approached
this Court.
At the outset, learned counsel for the accused-petitioners
has not challenged the concurrent findings recorded by two Courts
below to the extent the petitioners are held guilty for the offence
under Sections 377, 506, 120-B IPC. However, learned counsel
for the accused-petitioners submits that the petitioners have
already suffered substantial part of the sentences awarded to
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them, therefore, taking into account the peculiar facts of the case,
sentences awarded to them be reduced to the period already
undergone. Learned counsel for the petitioners would contend
that since occurrence of the incident more than four years have
elapsed and during interregnum the petitioners have suffered a
lot, as such, a lenient view in the matter is desirable. In support
of his contentions, learned counsel for the petitioners has placed
reliance on following judgments:
(1) Fazal Rab Choudhary Vs. State of Bihar [(1982)
3 SCC 9],
(2) Chitranjan Dass Vs. State of U.P. [(1974) 4 SCC
454], and
(3) Neel Kumar @ Neelu Vs. State of Himachal
Pradesh [2013(1) Crimes 99 (H.P.).
Per contra, learned Public Prosecutor has vehemently
opposed the prayer of petitioners. Learned Public Prosecutor
would contend that there is reliable, clinching and trustworthy
evidence on record to prove that the accused have committed the
offence, and therefore, the prosecution has proved the charge
levelled against them beyond reasonable doubt as such no mercy
can be shown towards them even by reducing the sentence.
Learned Public Prosecutor has argued that both the Courts below
have recorded finding of guilt against the accused-petitioners, and
therefore, it is not desirable to reduce the sentence awarded to
the accused-petitioners, therefore, the revision petitions are liable
to be dismissed.
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I have heard learned counsel for the parties, perused the
impugned judgment of learned appellate Court as well as learned
trial Court and thoroughly scanned record of the case.
Indisputably, the learned trial Court, on the material
available on record, has recorded a definite finding of guilt against
the petitioners and the said conclusion of the learned trial Court is
affirmed by learned appellate Court on re-appreciation of
evidence. Therefore, I am not persuaded to interfere with the
finding of fact recorded by both the courts below. Otherwise also,
the learned counsel for petitioners has conceded on the finding of
guilt recorded by both the Courts below. However, taking into
account the concession made by learned counsel for the
petitioners and a significant fact that out of the maximum
sentence of five years awarded to the accused-petitioners, Rahul
has already undergone imprisonment for 4 years and 27 days, and
both Naresh and Dinesh for 3 years 10 months and one day, which
is evident from the communication of Superintendent, Central Jail,
Jodhpur dated 07.03.2018 addressed to the Government
Advocate, I feel persuaded to consider the prayer of the
petitioners in the backdrop of their proven delinquency. There
remains no quarrel that offence under Section 377 IPC is
punishable with very heavy punishments including the punishment
for imprisonment for life but then no minimum sentence is
prescribed. Likewise, offence under Section 506 IPC is also
punishable with maximum sentence of two years or with fine only.
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Therefore, in totality, by relying on the legal precedents, cited by
the learned counsel for the petitioners, in my opinion, sentence
awarded to the petitioners can be reduced to the extent they have
already undergone to meet the ends of justice. It is made clear
that there is no reprieve to the petitioners so far as punishment of
fine is concerned and therefore the petitioners shall deposit the
fine before the learned trial Court within four weeks. The learned
trial Court upon receipt of the aforesaid amount of fine from the
petitioners shall pay the same to the victim through his mother as
compensation under Section 357 Cr.P.C. forthwith.
In view of above discussion, revision petitions are allowed in
part and while upholding the conviction of the petitioners, as
recorded by learned trial Court and affirmed by appellate Court,
the sentences awarded to them is reduced to the period already
undergone by them while maintaining the fine. The petitioners,
who are under incarceration, be set at liberty upon their paying/
depositing the fine before learned trial Court, if not required in any
other case.
(P.K. LOHRA)J.