Court No. - 44
Case :- CRIMINAL APPEAL No. - 3489 of 2010 Appellant :- Lallu Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Om Prakash-VII,J.
1. Present criminal appeal has been preferred by accused appellant Lallu against judgment and order dated 05.05.2010 passed by Sessions Judge, Banda in Session Trial No. 118 of 2009 (State of U.P. Vs. Lallu) convicting and sentencing the appellant for the offence punishable under Section 354 IPC to undergo one and half years' imprisonment and a fine of Rs. 5000/-. In default of payment of fine three months' additional imprisonment was also directed to undergo.
3. Prosecution case, as unfolded by informant in Ext. Ka-7 moved to concern Station Officer is that on 02.03.2009, when she was sleeping in kitchen with her son Indrajit at about 12:00 hours in the night, accused- appellant Lallu entered in her residence and laid upon her. She suddenly woke up raising alarm and caught hold of the accused-appellant. He pushed to the complainant and tried to bite at her face. Kalka the son of her husband's brother was also sleeping on another cot near to her. He also woke up and caught the accused-appellant but he pushed him and flew away. On the basis of Ext Ka-7, chik FIR Ext Ka-5 was registered on same day. G.D. entry was also made at the same time. Investigation commenced. Investigating Officer visited the place of occurrence preparing site plan (Ext. Ka-8), interrogated the witnesses. He also collected the evidence and submitted charge-sheet Ext. Ka-9 against accused-appellant.
4. Concerned Magistrate took cognizance and case being exclusively triable by sessions court, was committed to Court of Sessions.
5. The appellant was charged by the Court of Sessions under Section 376/511, 506 IPC. Appellants denied the charges and claimed to be tried.
6. Trial proceeded and in order to prove the charges on behalf of prosecution, seven witnesses, namely, PW-1 Smt Champa (informant), PW-2 Kalka, PW-3 Dr. Anita Sagar, PW-4 Dr. P.S. Sagar (radiologist), PW-5 Constable Kishun lal, the chik writer, PW-6 Guman Singh, the scribe of written report Ext. Ka-7 and PW-7 Umakant Deepak, Investigating Officer were examined.
7. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded in which he denied the incident and stated that FIR was lodged on the basis of false facts.
8. Having heard learned counsel for parties and going through record, Trial court found that prosecution has fully succeeded in bringing home the charges against accused appellant beyond reasonable doubt and convicted and sentenced accused appellant as above. Hence this appeal.
9. I have heard learned counsel for appellant and learned AGA for State at length.
10. Learned counsel appearing for appellant argued that offence is said to have been committed in the year 2009. Appellant has been convicted and punished in this matter for the offence under Section 354 IPC for one and half years' rigorous imprisonment and fine of Rs. 5000/- along with default clause. It is further submitted that no minimum sentence was provided for the offence under Section 354 IPC on the date of offence. Amendment in the provision of Section 354 IPC took place in the year 2013 and it is not applicable retrospectively. It is next contended that it is the first offence of the accused-appellant hence benefit of the first offender if possible be given to him or appeal be disposed of reducing the substantive sentence to the extent of period already undergone.
11. On the other hand, learned AGA argued that accused-appellant was facing trial for the offence under Section 376/511 IPC. Ultimately, he was convicted only for the offence under Section 354 IPC. Thus, punishment imposed upon him is adequate and proper. There is no need to adopt further leniency. There in no infirmity or illegality in the impugned judgment and order. Prosecution has proved its case beyond reasonable doubt.
12. I have considered rival submissions made by learned counsel for parties and have gone through the entire record carefully.
13. Since learned counsel for accused appellant did not challenge findings recorded by Trial court in the impugned judgment and order regarding guilt of accused-appellant for offence under Section 354 IPC and confined his argument only to the sentence awarded by Trial court to accused appellant, I do not propose to scrutinize the entire evidence minutely in this regard. However, a perusal of entire record shows that Trial Court has considered in detail the entire evidence available on record regarding guilt of accused-appellant for offence under Section 354 IPC and keeping in view the offence committed by accused appellant, I am also of the opinion that prosecution was able to establish the guilt of accused appellant for the aforesaid offence beyond reasonable doubt. The findings recorded by the Trial court to constitute offence under Section 354 IPC against accused-appellant are correct and same do not warrant interference by this Court.
14. So far as submission regarding sentence is concerned, offence is said to have been committed in the year 2009, for the offence under Section 354 IPC sentence imposed upon appellant is one and half years' rigorous imprisonment and fine of Rs. 5000/- along with default stipulation. On the date of incident, provision of Section 354 IPC was as follows.
“Whoever assaults or uses criminal force to any woman, intending to outrase or knowing it to be likely that he will thereby outrase her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
15. Offence is said to have been committed in the year 2009 and by that time there was no minimum sentence prescribed for the offence under Section 354 IPC. Appellant was in jail in this matter for some time against substantive sentence. Keeping in view, the nature of offence and punishment provided for the offence proved against him under the Indian Panel Code, I am of the considered view that if appellant is released in this matter on the basis of period already undergone imposing fine to the tune of Rs. 15,000/-, the purpose of imposing of adequate and proper sentence would subserve and it will meet the ends of justice and will also be in conscience of the society. Thus, appeal is liable to be partly allowed reducing the period of substantive sentence imposed upon the appellant for the offence under Section 354 IPC as already undergone and imposing fine to the tune of Rs. 15,000/- instead of Rs. 1000/- imposed by Trial court. Appellants may also be directed to deposit the fine amount within the stipulated period.
16. In the light of foregoing discussions, this criminal appeal is liable to be allowed in part and conviction of appellant under Section 354 IPC is liable to be upheld. The impugned judgment and order dated 05.05.2010 is liable to be modified to the extent, as discussed above.
17. Accordingly, criminal appeal is allowed in part. Conviction of accused-appellant Lallu under Section 354 IPC is upheld but sentence awarded to accused-appellant vide impugned judgment and order for the said offence shall stand modified and reduced to the period already undergone with a fine of Rs. 15,000/-. Fine imposed upon accused- appellant for the aforesaid offence shall be deposited by the appellant within three months from today. In case of default in payment of fine amount within the aforesaid period, the appellant shall serve out the entire sentence awarded to him by the Trial Court vide the impugned judgment and order.
18. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Banda for compliance forthwith. A compliance report be sent to this Court.
Order Date :- 18.12.2018 sanjeet