Court No. - 50
Case :- CRIMINAL APPEAL No. - 1406 of 2018 Appellant :- Monu Sharma Respondent :- State Of U.P.
Counsel for Appellant :- Deepak Gaur Counsel for Respondent :- G.A. Hon'ble Harsh Kumar,J.
The appeal has been filed against the judgment and order dated 30.01.2018 passed by the learned Additional Sessions Judge, Court No. 1, Etawah in Sessions Trial No. 311 of 2013 arising out of Case Crime No. 258 of 2013, under sections 376(2), 323, 506 IPC and section 4 Protection of Children from Sexual Offences Act, 2012 by which the learned trial court acquitted the appellant for the offences under sections 376(2) and 506 IPC and section 4 of Protection of Children from Sexual Offences Act and convicted him for the offences under section 323 IPC and section 8 of Protection of Children from Sexual Offences Act, 2012 and sentenced him with five years rigorous imprisonment under section 8 of Protection of Children from Sexual Offences Act, 2012 and a fine of Rs. 5,000/- and in case of default in payment of fine, simple imprisonment for additional period of three months and imprisonment for a period of six months under section 323 IPC.
Feeling aggrieved the appellant has preferred this appeal.
Heard Mr. Deepak Gaur, Advocate for appellant and Mr. L.D. Rajbhar, learned A.G.A. for State.
Learned counsel for the appellant contended that he has been falsely implicated and wrongly convicted; that he was taken into custody on 23.07.2013 and was not granted bail during trial and has been granted bail by this Court in appeal vide order dated 02.05.2018; that even if he is found guilty and his conviction is maintained, his sentence may be reduced to the period of imprisonment already undergone.
Per contra, learned AGA supported the impugned judgment and order and contended that the appellant has committed the offence with eleven years old girl child and is not entitled to any leniency or reduction of sentence.
Upon hearing the learned counsel for the parties and perusal of the record as well as the paper book and lower court record summoned from the court below, I find that there is no illegality or incorrectness in the impugned judgment and order of conviction and there is no sufficient ground for setting aside the conviction or interfering with it.
However, I find that the appellant was an under- trial and not granted bail during trial since taking him into custody on 23.07.2013 till his release on bail vide order dated 02.05.2018 in this appeal. In view of these facts on record, he has been in custody for a period over 4 years and 9 months. Considering that the offence under section 8 of Protection of Children from Sexual Offences Act, 2012 is punishable with imprisonment, which may be extended upto period of five years. Considering the fact that accused-appellant has undergone considerable period of substantive sentence, I find that if the substantive sentence of accused- appellant is reduced to period already undergone, it will be an adequate sentence and will meet the ends of justice. The appeal is accordingly liable to be allowed.
The appeal is partly dismissed. The impugned order of convicting the accused-appellant under section 8 of Protection of Children from Sexual Offences Act, 2012 and under section 323 IPC is upheld and confirmed.
However, the appeal is partly allowed with regard to sentence and his substantive sentence is reduced to the imprisonment for a period already undergone under section 8 of Protection of Children from Sexual Offences Act. 2012 and fine of Rs. 5000/- with default clause as passed by the trial court for three months' simple imprisonment and with imprisonment for a period already undergone under section 323 IPC.
The appeal is disposed of accordingly.
The accused-appellant is on bail. He need not surrender if he has deposited the fine, unless wanted in some other case or makes default in payment of fine.
The lower court record be sent back to court below along with copy of this order for necessary compliance, if any.
Order Date :- 30.7.2018/Sazia