HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 736 / 2014
Shri Ram @ Saurabh S/o Shri Subhash Chandra, B/c Brahman,
R/o Abohar, Tehsil Abohar, District Fazilka (Punjab)
(At present lodged in District Jail,Hanumangarh)

—-Appellant
Versus
State of Rajathan.

—-Respondent
__
For Appellant(s) : Mr. Vinod Sharma
For Respondent(s) : Mr. Arjun Singh, Public Prosecutor.
__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
09/01/2018

Accused-appellant has filed this appeal under Section 374(2)

Cr.P.C. to challenge impugned judgment dated 26 th of September,

2014 passed by Addl. Sessions Judge No.2, Hanumangarh (for

short, ‘learned trial Court’), whereby the appellant is convicted for

offence under Sections 376 and 366A IPC and sentenced to eight

years’ rigorous imprisonment with fine of Rs.5,000, in default of

payment of fine to further undergo three months’ rigorous

imprisonment for offence under Section 376 IPC and five years’

rigorous imprisonment with fine of Rs.3,000, in default of payment

of fine to further undergo two months’ rigorous imprisonment for

offence under Section 366-A IPC. Both the sentences were

ordered to run concurrently.

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Succinctly stated, the facts of the case are that on

28.09.2012, at 06.40 PM, Complainant Pratap Singh submitted a

report at Mahila Police Station, Hanumangarh narrating

victimization of his daughter by accused-appellant to the effect

that his neighbour Geeta’s brother Saurabh @ Sri Ram resides at

Geeta’s house and they had cordial relations with them. Last

night when he got up at about 4.00 AM, he found his daughter not

at home and was missing. She had taken away with her cash

Rs.1,10,000/- and clothes from the home. Complainant suspected

appellant-accused Saurabh @ Sri Ram for the entire episode. On

the basis of report FIR No. 165/2012 for offence under Section

363 IPC was registered at Mahila Police Station Hanumangarh and

after investigation police filed charge-sheet for offence under

Sections 450, 363, 366, 376 IPC against Saurabh @ Sri Ram and

against one Amit Kumar under Section 363, 366, 376, 120-B IPC

before Judicial Magistrate First Class, Hanumangarh. The

concerned Magistrate committed the case to the learned trial

Court. The learned trial Court framed charge against the

appellant for offences under Section 376 and 366A IPC and on

denial, he was put to trial. During trial, prosecution, in order to

prove charge against the accused-appellant, examined as many as

14 witnesses and exhibited documents. After conclusion of

prosecution evidence, statement of accused was recorded under

Section 313 Cr.P.C. and final arguments were heard by the learned

trial Court.

The learned trial Court, after appreciation of evidence and

material available on record, found that offence under Section 376
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[CRLA-736/2014]

and 366A IPC are fully established against him and considering

culpability of the accused-appellant for aforesaid offences, he was

sentenced as aforesaid.

Learned counsel for the accused-appellant, while giving up

challenge to conviction has confined his arguments to the

quantum of sentence awarded by the learned trial Court. Learned

counsel submits that keeping in view the fact that the incident is

old one and the offence was committed by the appellant in

adolescence and therefore taking into account a mitigating

circumstance that he has already undergone sentence for a period

of five years three months, it would be appropriate to grant some

indulgence to him in the matter of punishment. Learned

counsel, therefore, submits that, in totality of circumstances,

punishment awarded to the petitioner be altered by reducing the

same to the extent he has already undergone. In support of his

contentions, learned counsel has placed reliance on following legal

precedents:-

(1) State of U.P. Vs. Om alias Om Prakash [(1998)
SCC (Cri) 1343]

(2) Dinesh @ Dinesh Kumar @ Suresh Vs. State of
Rajasthan [2011 (1) Cr.L.R. 1921]

(3) Ram Kumar Vs. State of Haryana [(2006) 4 SCC
347]

Per contra, learned Public Prosecutor has vehemently

opposed the arguments advanced by learned counsel for the

appellant. Mr. Arjun Singh Rathore would contend that, taking
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into account the entire fact scenario, it is not desirable to grant

any reprieve to the appellant in the matter of punishment.

I have heard learned counsel for the parties, perused the

impugned judgment and thoroughly scanned entire record of the

case.

Before proceeding further in the matter, it would be

appropriate to first go through the judgments cited by learned

counsel for the accused-appellant in support of his contention for

reducing the substantive sentence.

In State of U.P. Vs. Om alias Om Prakash (supra), in a case

of abduction and rape of a minor girl, though repelled the

argument that prosecutrix was of loose moral character and might

have gone with accused herself, reduced the sentence of accused

to the period already undergone and held:

“We, this, believing the prosecutrix, set aside the
impugned order of the High Court and restore that of
the Court of Sessions, restoring the conviction of the
respondent for the offences for which he was convicted.
The sentence, however, is reduced to the period
already undergone which approximates around 5 years’
R.I. under each count. This should, at this point of
time, meet the ends of justice.”

In Dinesh @ Dinesh Kumar @ Suresh (supra), this Court,

in a case under Section 376 IPC, finding the conviction justified

has reduced the sentence of accused-appellant from years to 5 ½

years and observed:

“Looking to the facts and circumstances of
the case, the sentence of the accused-appellant is
reduced to five and half years’ rigorous
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imprisonment and a fine of Rs.2,000/- and in
default of payment of fine, to further undergo six
months’ imprisonment. Thus, while maintaining
the conviction, the sentence of the accused-
appellant is reduced as indicated above and the
appeal is partly allowed.”

In Ram Kumar (supra), Supreme Court reduced the sentence

of seven years under Section 376, IPC, to a period of three years

imprisonment. Para No.3 of the judgment reads as under:-

“The appellant, aggrieved by the order passed by
the High Court has filed the above appeal by way of
appeal. We have been taken through the statement and
evidence recorded by the Court. Our attention was also
drawn to the judgment passed by both the Sessions
Court as well as the judgment passed by the High
Court. The learned counsel for the appellant drew our
attention to the statement of the girl Bimla (PW-5) and
also drew our attention to the evidence of the doctor.
We have carefully analysed the evidence tendered by
the prosecution. In our opinion, sufficient evidence was
tendered by the prosecution to prove the guilt of the
accused. However, at the time of hearing it is brought
to our notice that the girl has now got married and
living with her husband. The said statement is also
ratified by the evidence of the father of the girl. Having
regard to the peculiar facts and circumstances of the
case, we are of the view that the sentence imposed by
the Sessions Court and as affirmed by the High Court
under Sections 366 and 376 of the Penal Code is on the
highside. In our opinion, ends of justice would be
amply met if we reduce the sentence to three years.
We do so accordingly.”

Upon perusal of the impugned judgment in conjunction with

the record of the case, I am unable to find any illegality or

impropriety in appreciation of evidence by learned trial Court. As

a matter of fact, charge against the accused-appellant was framed

under Sections 450, 363, 366A and 376 IPC and the learned trial

Court, after thoroughly examining the evidence of material
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prosecution witnesses and the medical evidence has rightly found

the accused-appellant guilty for offence under Section 366-A, 376

IPC

Now, adverting to alternative submission of learned counsel

for the appellant for reducing sentence suffice it to observe that

learned trial Court has handed down maximum sentence of eight

years rigorous imprisonment to the appellant and admittedly

appellant has already undergone a sentence of five years and

three months. This sort of situation is a relevant consideration to

grant some indulgence to the appellant in the matter of

punishment. That apart, the fact that incident has occurred in the

year 2012 and the offence was committed by him in his

adolesence at the age of 19 years, it would not be appropriate to

incarcerate him any further when he has already served

substantial period of sentence awarded by the learned trial Court.

Therefore, in my considered opinion, the ends of justice would be

served by reducing the sentence awarded by the learned trial

Court to the extent of sentence already undergone by him while

maintaining the fine. The contentions of learned Public Prosecutor

appear to be quite alluring but not of substance when this Court is

upholding indictment and conviction of the appellant for the

aforesaid offences.

The criminal appeal, thus, deserves to be and is hereby

accepted in part. While upholding the conviction of appellant as

recorded by learned trial court, the sentence awarded to him is

reduced to the period already undergone by him. The appellant,

who is under incarceration, may be released forthwith, if not
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required in any other case. The appellant shall deposit the

amount of fine Rs.8,000/- within a period of four weeks, failing

which the State shall be at liberty to proceed against him in

accordance with law.

(P.K. LOHRA)J.