IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
JUDGMENT
S.B. CRIMINAL APPEAL NO.925/2006
GAJANAND & ANR. Vs. STATE OF RAJASTHAN
DATE: 28.07.2011
HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN
Mr. Rohan Jain, for the accused-appellants.
Ms.Rekha Madnani,Public Prosecutor for State.
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The matter has come for orders on second application for suspension of sentence of appellants, but during the course of arguments, learned counsel for appellants submitted that he is not pressing this second application as well as order of conviction of appellants passed by the trial Court, in view of ‘Parcha-Bayan’ of prosecutrix Exhibit-P2, proved by the statements of PW22 Pradeep Kumar, Investigating Officer, PW2 Mooli Devi, mother of prosecutrix, PW14 Rodu and PW24 Sanwara, but his request is that appeal itself may be heard and decided, finally, and sentence of imprisonment of appellants awarded by the trial Court under Section 376(2)(G) IPC be reduced reasonably.
2. Learned Public Prosecutor has no objection in hearing the appeal, finally, and in reducing the sentence of imprisonment of appellants in view of the fact that appellants are not challenging their order of conviction.
3. At the request of learned counsel for the parties, arguments were heard and appeal is being disposed off finally.
4. Both the appellants Gajanand S/o Shri Sheochand and Nauratt @ Navratan S/o Ramlal have preferred this appeal against the impugned judgment and order dated 22.08.2006 passed by the Additional Sessions Judge(Fast Track) No.2, Jaipur City, Jaipur in Sessions Case No.20/2005, whereby accused-appellants have been convicted and sentenced as under:-
Under Section
Sentence
366 IPC
To undergo 7 years’ simple imprisonment and a fine of Rs.5,000/-, in default of payment of fine to further undergo six months’ simple imprisonment.
366/120B IPC
To undergo 7 years’ simple imprisonment and a fine of Rs.5,000/-, in default of payment of fine to further undergo six months’ simple imprisonment.
376(2)(G) IPC
To undergo 10 years’ rigorous imprisonment and a fine of Rs.8,000/-, in default of payment of fine to further undergo eight months’ simple imprisonment.
All the sentences were ordered to run concurrently.
5. Briefly stated the facts of the case are that on the basis of ‘Parcha-Bayan’ Exhibit-P2 of deceased-prosecutrix Smt. Nanagi Devi, FIR No.222/2004 was registered at Police Station Phagi under Sections 363, 366, 376 and 379 IPC. After completion of investigation, Police filed a charge-sheet against appellants and co-accused Smt. Rodi, wife of Badri, under Sections 366, 366/120, 376(2)(G) and 306 IPC. It is relevant to mention that two co-accused persons, namely, Ramswaroop and Gopal were minor, therefore, charge-sheet against them was submitted before the Juvenile Justice Board.
6. Learned trial Court framed charges against the appellants and co-accused Smt. Rodi. Accused persons denied the charges and claimed trial. The prosecution, in support of its case, examined PW1 to Pw24 and produced documentary evidence Ex.P1 to Ex.P24. Thereafter, statements of accused-persons were recorded under Section 313 Cr.P.C. In defence, statements of DW1 and DW2 were recorded.
7. Learned trial Court, after considering the submissions of the learned counsel for the parties and examining the record of the case, acquitted co-accused Smt. Rodi from all the charges and acquitted the accused-appellants of the charge under Section 306 IPC and convicted and sentenced them, as mentioned above.
8. Learned counsel for appellants has not challenged the order of conviction of appellants passed by the trial Court, therefore, it is not necessary to refer the facts and evidence of the case in detail, however, I examined the impugned judgment as well as record of the trial Court, particularly Ex.P2- ‘Parcha-Bayan’ of prosecutrix Nanagi Devi, statements of PW22 Pradeep Kumar, Investigating Officer, PW2 Mooli Devi, mother of the prosecutrix, PW14 Rodu, PW24 Sanwara and other prosecution evidence and after considering the same, I am of the view that the learned trial Court has rightly convicted the accused-appellants and finding of the learned trial Court about conviction of appellants does not call for any interference by this Court. In view of above referred overwhelming prosecution evidence, the learned counsel for appellants is right in not challenging the order of conviction of appellants passed by the trial Court.
9. So far as reduction of sentence of imprisonment of appellants is concerned, I find that although order of conviction is based on Ex.P2- ‘Parcha-Bayan’ of prosecutrix, proved by the statements of PW2 Mooli Devi and PW22 Pradeep Kumar, Investigating Officer, but the prosecutrix could not be examined as prosecution witness during trial of the case as she died before her examination, therefore, appellants could not get an opportunity of cross-examination of prosecutrix and further looking to the age of prosecutrix and other facts and circumstances of the case, I am of the view that this is a fit case for reduction of sentence of imprisonment of appellants.
10. In Prem Chand Vs. State of Haryana, AIR 1989 SC 937, in the peculiar facts and circumstances of that case, the Hon’ble Supreme Court reduced the sentence of imprisonment of ten years awarded under Section 376 (2) IPC, to a period of sentence of imprisonment of five years. The State of Haryana filed review petition before Hon’ble the Supreme Court in the above case and the same was dismissed. The decision of the Hon’ble Supreme Court in that review petition is reported in (1990) 1 SCC 249 (State of Haryana v. Prem Chand & Others).
11. In Ram Kumar Vs. State of Haryana (2006) 4 SCC 347, their Lordships of the Hon’ble Apex 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:-
3. 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 high side. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly.
12. In the case of State of Chhattisgarh Vs. Lekhram, (2006) 5 SCC 736, the Hon’ble Apex Court reduced the minimum sentence under Section 376, IPC, of seven years to a sentence of one-and-half-year imprisonment, already undergone by accused therein. Para 16 of the judgment reads as under:-
16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws’ place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the respondent again may not arise. She lived for some time with the respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The respondent preferred an appeal before the High Court in the year 1987. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one-and-a-half years. In the peculiar facts and circumstances of this case and having regard to the facts that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison.
13. Hon’ble Apex Court in Ravinder Vs. State of M.P., (2006) 9 SCC 590, reduced the minimum statutory sentence of 7 years rigorous imprisonment to a period of 4 years imprisonment, already undergone by accused, in the facts and circumstances of that case. Para 4 of the judgment is reproduced as under:-
4. Learned counsel for the appellant next submitted that the appellant has remained in custody for a period of more than four years, as such the sentence of imprisonment awarded against him should be reduced to the period already undergone. In the facts and circumstances of the case, we are of the view that it is a fit case where sentence of imprisonment awarded against the appellant should be reduced to the period already undergone.
14. Hon’ble Apex Court in Raj Kumar Alias Raju Yadav Alias Raj Kumar Yadav Vs. State of Bihar, (2006) 9 SCC 589, reduced the sentence of 7 years’ imprisonment under Section 376 IPC to a period of imprisonment already undergone by accused.
15. Hon’ble Apex Court in the above referred cases, in the facts and circumstances of that particular case, reduced the minimum sentence of imprisonment under Section 376 IPC to a period of 5 years, 3 years, 1- years, in one case 4 years, already undergone by accused and in last case to a period of imprisonment already undergone.
16. After considering all the facts and circumstances of the case and the above referred judgments of the Hon’ble Apex Court and for the reasons mentioned above, I am of the view that ends of justice will meet, in case the sentence of imprisonment of appellants under Section 376(2)(G) IPC is reduced from 10 years’ rigorous imprisonment to 7 years’ rigorous imprisonment.
17. Consequently, appeal is partly allowed. Order of conviction and sentence of appellants under Sections 366 and 366/120B IPC is upheld. Order of conviction of appellants passed by the trial Court under Section 376(2)(G) is also upheld, but their sentence of imprisonment under this Section is reduced from 10 years’ rigorous imprisonment to 7 years’ rigorous imprisonment and a fine of Rs.8,000/-, in default of payment of fine to further undergo one month’s simple imprisonment. All the sentences shall run concurrently, as already ordered by the trial Court.
18. Since appeal itself has been disposed off finally, therefore, second application for suspension of sentence also stands disposed off.
(NARENDRA KUMAR JAIN),J.
/KKC/
