Court No. - 60
Case :- CRIMINAL APPEAL No. - 1245 of 2014 Appellant :- Harprasad Respondent :- State Of U.P.
Counsel for Appellant :- Madhu Ranjan Pandey,Shashi Bhushan Rai(Pankaj Counsel for Respondent :- Govt. Advocate ******* Hon'ble Ravindra Nath Kakkar,J.
This criminal appeal has been preferred against the judgment and order dated 27.02.2014 passed by learned Additional District & Sessions Judge, Court No.4, Pilibhit in S.T. No.344 of 2013 (State Vs. Harprasad) arising out of Case Crime No.445 of 2013, under Sections 452, 376, 506 I.P.C., Police Station Barkheda, District Pilibhit, by which appellant was convicted and sentenced to two years R.I. and fine of Rs.500/- and in default of payment of fine three months additional imprisonment under Section 452 I.P.C.; ten years R.I. with a fine of Rs.2000/- and in default of payment of fine one year additional imprisonment under Section 376 I.P.C.; six months R.I. under Section 506 I.P.C. All the sentences were ordered to run concurrently.
Prosecution story, in brief, is that complainant, mother of the prosecutrix Sunita Devi had lodged a report to police station Pilibhit stating therein that on 25.04.2013 complainant along with her husband were in their wheat field for agricultural work and her daughter Km. Sapna, aged about fourteen years, was alone at the residence. Accused appellant Har Prasad, next neighbour, came into the house and taking advantage of her loneliness caught hold of her daughter and committed rape upon her. On alarm being raised, witness Ishwari Prasad reached at the spot. Thereafter Hari Prasad by giving threat ran away from the spot. On return daughter narrated the whole story to the mother -complainant, who went to the police station for lodging the report, but police refused to do so. Thereafter she went to the Superintendent of Police for lodging of the FIR.
At the very outset learned counsel for the appellant submitted that he does not want to press the appeal on merit, however, prays for modification and reduction of quantum of sentence on the basis of age of the prosecutrix/accused, economic conditions of the appellant; no criminal antecedents; languishing in jail for the last five years and the conduct of the mother of the prosecutrix Smt. Sunita.
Learned A.G.A. has no objection to the prayer made above.
Being the court of first appeal it would be appropriate to appreciate the judgment on merit.
The prosecution in support of its case examined as many as seven witnesses, namely, P.W.1 Sunita – complainant, P.W.2 Km. Sapna (prosecutrix), P.W.3 Dr. Anita Chaurasia, P.W.4 Dr. Udaiveer Singh, P.W.5 S.I. Kishan Lal, P.W.6 Ishwari Prasad and P.W.7 Constable Clerk Jaiprakash Shukla.
After close of prosecution evidence statement of the accused-appellant under Section 313 Cr.P.C. was recorded wherein he stated that he has been falsely implicated in this case.
In defence D.W.1 Nathulal was examined and in documentary evidence a copy of the judgment bearing Complaint Case No.646 of 2005 (Sunita Devi Vs. Leeladhar), was placed before the trial court.
Perusal of the impugned judgment reveals that the learned court below recorded the finding of conviction after appreciating the evidence available on record and after affording opportunity of hearing to both the parties. Further P.W.2 prosecutrix/victim was examined in this case and during investigation her statement under Section 164 Cr.P.C. was recorded which is Ex.Ka-2 available on record. P.W.2 prosecutrix/victim has proved the whole incident as narrated in the FIR. P.W.1 complainant who is the mother of the victim prosecutrix has also supported the allegation against the accused persons made in the FIR.
P.W.3 Dr. Anita Chaurasia, who conducted the medical, has proved the medical report Ex.Ka-4 and supplementary report Ex.Ka-5. P.W.4 Dr. Udaiveer Singh who conducted the x-ray has proved the x-ray report Ex.Ka-6 and x-ray plate Ex.1. Further P.W.5 S.I. Kishanlal who prepared the site plan Ex.Ka-8 has proved the charge sheet Ex.Ka-9 of the case against the accused appellant.
P.W.6 Ishwari Prasad also supported the prosecution version. In this way the sole testimony of the prosecutrix P.W.2 and the statements of P.W.1 complainant and P.W.6 Ishwari Prasad lend assurance to believe the evidence of prosecutrix P.W.2.
The formal witness P.W.7 Constable Jai Prakash Shukla has proved the chik FIR and its relevant entry in the G.D. which is Ex.Ka-10.
Perusal of the impugned judgment of conviction reveals that the judgment of conviction has been recorded after appreciating the entire evidence produced by the prosecution. Neither there is any infirmity nor perversity in recording the finding of conviction which is based on material available on record.
Further, learned counsel for the accused appellant does not want to press the appeal on merits. There appears no justification to interfere in the finding of conviction recorded by the trial court.
So far as the contention of the learned counsel for the appellant regarding reduction of sentence is concerned, the age of the prosecutrix as alleged in the FIR is 14 years; marksheet of Class-V of the prosecutrix had mentioned her date of birth as 08.07.1999, but it is relevant to mention that this marksheet has not been proved; neither original has been summoned nor Principal of the School has been examined to prove the date of birth of the prosecutrix whereas the radiological report proved by P.W.4 Dr. Udaiveer Singh had mentioned that the age of the prosecutrix at the time of complaint is in between 16 to 18 years. X-ray report and x-ray plate has been filed to substantiate this report.
It is established legal proposition that where approximate age would be determined by his/her radiological examination, in that case a margin of error of two years on either side is admissible and since it is settled law that where on the basis of material on record, two views are possible, the view favouring the accused is to be adopted. This fact is established by the medical report that the prosecutrix was major at the time of incident. It is further relevant to mention that Criminal Law Amendment, 2013 which is effective from 3.2.2013, the minimum sentence under Section 376(1) I.P.C. is seven years and under Section 376(2) I.P.C. where the prosecutrix found to be below 18 years the minimum sentence is of 10 years.
Considering the facts and circumstances of the case, social and economic condition of the accused appellant and his period of incarceration in jail, the conviction of ten years awarded for the offence under Section 376 I.P.C. is modified and reduced to seven years. Accordingly, the appeal is partly allowed on the quantum of sentence. The findings of conviction recorded by the trial court against the accused-appellant for the offences under Sections 452, 506 I.P.C. are hereby confirmed and maintained. All the sentences shall run concurrently. The accused appellant shall be entitled to get benefit of Section 428 I.P.C.
Further out of the realization of fine, Rs.2000/- shall be given to the prosecutrix.
Accordingly, the impugned judgement stands modified to the above extent.
Let a certified copy of the judgement and order be sent to the Chief Judicial Magistrate concerned for compliance report.
The lower court records be returned for compliance.
Order Date :- 30.05.2018
Anand/-