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Kharka vs State Of Rajasthan Through Pp on 3 January, 2018



S.B. Criminal Revision No. 1704/2017.

Kharka S/o Shri Dhannaram B/c Rajnat, R/o Indra
Colony Fatehpur, Tehsil Fatehpur Distt. Sikar. (at
Present Confined in Distt. Jail Sikar)
State of Rajasthan Through P.P.
For Petitioner : Shri V.S. Jakhar

For State : Shri R.R. Gurjar, P.P.


Judgment / Order


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.

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.

Learned State Counsel, on the other hand, has

opposed the submissions made by the learned counsel for

the petitioner.

As per the prosecution story petitioner alongwith 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.

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.

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 forthwith, if not required in any other criminal case.

Petition stands disposed of accordingly.



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