Court No. - 88
Case :- JAIL APPEAL No. - 512 of 2018 Appellant :- Sachin @ Kulli Respondent :- State of U.P.
Counsel for Appellant :- From Jail, ,Arun K. Singh Deshwal Counsel for Respondent :- A.G.A.
Hon'ble Vipin Chandra Dixit,J.
1. The present jail appeal has been preferred by the appellant-Sachin @ Kulli from jail against the impugned Judgement and order dated 19.07.2018 passed by learned Additional Sessions Judge/Special Judge, POCSO Act, District Meerut in Sessions Trial No. 103 of 2013 (State Vs. Sachin alias Kulli) arising out of Case Crime No. 431 of 2013 under Sections 377 I.P.C. and 4 of Protection of Children from Sexual Offences Act, Police Station Mawana, District Meerut, whereby the accused-appellant Sachin @ Kulli was convicted under Section 4 of Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo rigorous imprisonment of ten years along with fine of Rs. 25,000/- and in case of default in payment of fine to further undergo for additional imprisonment of six months.
2. The brief facts of the case are that the first informant Harendra Kumar had lodged a first information report on 15.08.2013 which was registered as Case Crime No. 413 of 2013 under Section 377 I.P.C. and Section 4 of POCSO Act. It has been alleged in the first information report that the son of the informant namely, Kartik aged about six years went to see the fair of Jaharveer at about 2:30 P.M. and the accused-appellant took him away from the fair and committed unnatural sex. It is further alleged that on the alarm raised by the son of the informant, Monu son of Gaje, Samay Singh son of Sri Natthu Singh and Dharmendra son of Sri Samay Singh reached on the spot and caught the accused-appellant.
3. The matter was entrusted for investigation and the Investigation Officer after recording statements of witnesses and collecting evidence had submitted charge sheet against the accused-appellant and the case was committed to the Court of Sessions, whereafter charges were framed by the trial Court under Section 377 I.P.C. and Section 4 of POCSO Act. The accused-appellant denied the charges and claimed to be tried.
4. P.W.1 Harendra Singh, P.W.2Samay Singh, P.W.3 Kartik-the victim, P.W.4 Dr. Arun Kumar, P.W.5 Constables Shiv Kumar Sharma and P.W.6 Sub-Inpector Ganga Pal were appeared before the trial court as prosecution witnesses.
5. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. in which, he denied the charges levelled against him and pleaded that he is innocent and has been falsely implicated in the instant case but no evidence was adduced by the accused-appellant before the trial Court. The trial Court after considering the evidence adduced by the prosecution as well as considering the fact that the accused-appellant was caught on the spot by the witnesses had recorded the findings that the accused-appellant had committed the offence as alleged by the prosecution and convicted the accused-appellant under Section 4 of POCSO Act.
6. . Feeling aggrieved with the judgement and order of the trial Court, the present jail appeal has been preferred by the accused-appellant before this Court.
7. Heard Sri Arun Kumar Singh Deshwal, learned counsel for the appellant, learned A.G.A. for the State and perused the record.
8. At the very outset, learned counsel for the accused-appellant, on instructions, stated that he does not propose to challenge the impugned Judgement and order on merit. However, he submits that it is a case of false implication of the accused-appellant and no independent witness was produced by the prosecution to established its case. Lastly, it is submitted that taking a sympathetic view in the matter, the order of conviction may be modified for the period already undergone by the accused-appellant.
9. Learned Additional Government Advocate representing the state has stated that he has no objection if the Court considers the mitigating circumstances.
10. Since the learned counsel for the accused-appellant has given up challenge to the findings of conviction, the conviction of the appellant for the aforesaid offence stands affirmed.
11. However, on the quantum of sentence, learned counsel for the accused- appellant has argued that the appellant is not a previous convict, he is sole bread earner of his family.
12. Learned counsel for the accused-appellant further submits that the appellant was awarded rigorous imprisonment of ten years and that the accused-appellant is in jail since 15.08.2013, thus the accused-appellant is in jail for more than eight years.
13. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-.
Period of imprisonment in case of default will remain the same."
14. Considering the facts and circumstances of the case and the substantive period already undergone by the accused-appellant in the instant case and the fact that the accused-appellant is not a previous convict, I am of the view that the accused-appellant should be given a chance to reform himself.
15. Consequently, the conviction of the accused-appellant stands affirmed. The sentence is modified to the period already undergone by the accused-appellant in this case i.e. more than 8 years is taken as his substantive sentence. The amount of fine is also reduced from Rs. 25,000/- to Rs. 10,000/-. The amount of fine as reduced by this Court shall be deposited by the accused-appellant within two months from the date of his release from jail. In case of default in payment of fine, the appellant is liable to undergo for imprisonment of remaining period of his sentence.
16. That appeal stands partly allowed in aforesaid terms.
17. The appellant is in jail. He shall be released forthwith if not wanted in any other case. It is further directed that the appellant shall furnish bail bonds with sureties to the satisfaction of the Court in terms of Sections 437-A Cr.P.C.
18. Office is directed to transmit a copy of the Judgement and order passed by this Court to the concerned Court below for effective compliance.
Order Date :- 6.10.2021 S.Ali