Vinnu @ Vinod Kumar v. State
f3^ -1NAFR H1GH COURT OF CHHATT1SGARH. BILASPUR CRA No. 1225 of 1999
1. Totu @ Amar Kumar, aged about 19 years, S/o Mahabir Prasad Sarthi, R/o Jatiya Talab, Jarhabhata, P.S. Civil Lines, Bilaspur (M.P.) -- Appeltant
Versus
1. State of Madhya Pradesh through S.H.O., P.S. Anusuchit Jati Kalyan Prakoshtha, Bilaspur (M.P.).
-- Respondent And CRA No. 1285 of 1999
1. Vinnu @ Vinod Kumar S/o Bisahu Ram Nai, aged about 22 years, R/o Village Jatiya Talab, Jaharbhata, P.S. Civil Lines, District Bilaspur, M.P. --Appeilant
Versus
1. The State of Madhya Pradestl .
-- Respondent ForAppellant-Ms. Itu Rani Mukherjee, Advocate (in CRA No.1225/1999). For Appellant - Mr. Varunendra IVIishra,Advocate (in CRA No.1285/1999). For Respondent/State - Ms.Shobha KasHyap, Deputy Govt. Advocate. Hon'ble Shri Justice Chandra Bhushan Bajpai Judament on Board 16-02-201^7 1.
By this common judgment Criminal Appeal No. 1225/1999 and Criminal AppealNo. 1285/1999 are being disposed of as both are connected appeals arise out ofthe common judgment passed by the Court below. 2.
Challenge in these two appeals is to the judgment of conviction and order of sentencedated 17-04-1999 passed by the Special-Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 'the Act, 1989'), Bilaspur in Special Criminal Case No. 19/97 whereby and whereunder the learned Special Judge under the Act, 1989 after holding both the appellants guilty for using criminal force with intent to outrage modesty
"V3 £ :,».^y.,/ h .^'•'^Y :'Ki 'k -2of prosecutrix (PW-1) (name not mentioned), convicted both accused/appellants under Section 354 ofthe Indian Penal Code, 1860 (in short 'the IPC') and sentenced to undergo R.l. for 2 years to each appellant with a direction that the period already undergone be set off under the relevant provision.
3.
Conviction is impugned on the ground that without there being any iota of evidence Court below convicted and sentenced, the appellants as aforementioned and thereby committed illegality. 4.
As per the case of the prosecution, on 04-01-1997 at about 5.00 p.m. when the prosecutrix was returning her home both the accused/appellants restrained her, the prosecutrix (PW-1) anyhow managed to escape and reached her home. Thereafter, at about 6.00 p.m. when she was going to her elder sister's house, again the accused/apRellantsmet her and they showed her knife and under the threat to take life both the accused/appellants committed forcible sexual intercourse one after another arid also gave her threat not to disclose it to anybody and also gave a silver chiain. Thereafter, the prosecutrix narrated the incident to her elder sister thereaft6r, her family members and next day the matter was reported before Civil Lines police. Police registered the case against the accused/appellants under Section 354/34 of the IPC as crime No.1997/92.
Thereafter, in subsequent facts addued before police, the matter was registered under Section 376(2)(g) of the IPC, Section 3(2)(v) of the Act, 1989. She was examined after obtaining the necessary consent from the prosecutrix and family members, Undergarment was also seized. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). Both the accused/appellants were alsoarrested on 07-01-1997 and 06-01-1997 respectively. The matter was, in turn, further investigated by STunci; police as the prosecutrix belongs to member of Scheduled Castes. The caste certifjcate was also collected.
f^ -4of the trial Court and also they marked their appearance as on bail on 27-051997, it goes to show that they remained in custody for more than 4 months. Also prior to the substitution ofthe Criminal Law (Amendment) Act, 2013, w.e.f. 03-02-2013, penal part for Section 354 of the IPC was that which may extend to two years or with fine or with both. As both accused/appellants remained in jail for more than 4 months, they were aged about 19 and 20 years at the time of the incident and looking to the entire facts and circumstances, they may be sentenced for the period already undergone as there is no minimum sentence prescribed in the matter and also on account of entire conduct of the prosecutrix, the trial Court not believed story of gang rape to a woman belonging to Scheduled Caste category and acquitted both accused/appellants in both of the penal offences as aforementioned and convicted them only for use of criminal force to a woman with intent ta dutrage her modesty. Therefore, both these appeals may be allowed and the appellants may be considered sympathetically. 9.
Per contra, learned counsel for the respondent/State opposed argument advanced on behalf of bQth appellants and would submit that though the charges under Section 376(2)(g) of the IRC and Section 3(2)(v) of the Act, 1989 are not proved against the appellants, but in a detailed discussion the trial Court noticed use of criminal force by two accused over a teenage girl, with this, the trial Court rightly convicted and sentenced the appellants. Hence, both the appeals may be dismissed.
10.
In order to appreciate the arguments advanced on behalf ofthe parties, l have perused the evidence adduced by the prosecution during the trial. 11.
As per the facts, State has not preferred any acquittal appeal against the accused/appellants. Also the criminal revision preferred by the prosecutrix was dismissed for want of prosecution as the P.F. was not paid and also no application for condonation of delay was filed, revisioner was also not represented either in person or through her counsel. With this, as there is no any \
l^ -5challenge for the acquittal of both accused/appellants, their acquittal attains finality for the moment; and after entire appreciation, the trial Court merely found that the accused/appellants are guilty for use of criminal force against the prosecutrix (PW-1) with intent to outrage her modesty. The incident is about about 20 years old, the criminal appeal is pending since 1999, both the accused/appellants were aged about 19 years and 20 years respectively, they were the first offender, no any criminal antecedent were reported in the charge sheet and as prayed they have not involved themselves in any other crime after this incident. Looking to the entire facts and circumstances and also as both accused/appellants remained in jail during the trial for more than 4 months and also as per law applicable for Section 354 ofthe IPC, no any minimum sentence was prescribed, it would be appropriate to sentence the accused/appellants to the period already undergone bythem.
12.
Consequently, both the appealg filed tiy the convicted accused/appellants are hereby allowed in part. Conviction of both accused/appellants under Section 354 of the IPC are hereby affirmed after due consideration as the prosecution duly proved ingredients of Section of IPC against both accused/appellants. So far as substantive jail sentence is concerned, both accused/appellants, instead of R.l.
for two years to each appellant, are sentenced to the period already undergone by them. Both accused/appellants are on bail. They be set at liberty forthwith. Their bail bonds shall continue for a further period of six months as required under Section 437-A of the Code. 13.
Both appeals are allowed in part.
Sd/- (Chandra Bhusti&n Bajpai) JUDGE