Full Text
Date of
JUDGMENT
SHIV PUJAN..... Appellant
Through Appellant with his counsel Mr.Ashitesh Gupta, Adv.
Through Ms. Fizani Husain, APP along with Inspector Suraj Bhan
RAM SUNDER..... Appellant
Through Mr. Vikas Pahwa, Sr. Adv. With Ms. Aeshna Dhaiya, Adv.
Through Ms. Fizani Husain, APP along with Inspector Suraj Bhan
Gautam.
1 The appellants are aggrieved by the impugned judgment and order of sentence dated 20.11.2010 and 24.11.2010 vide which appellant Ram 2014:DHC:260 Sunder had been convicted for the offence under Sections 363/366/376 of the IPC. He had been sentenced to undergo RI for a period of 4 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to suffer RI for a period of 1 month for the offence under Section 363 of the IPC; for the offence under Section 366 of the IPC, he had been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo SI for 3 months; for the offence under Section 376 of the IPC, he had been sentenced to undergo RI for a period of 8 years and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo SI for 2 months. Appellant Shiv Pujan had been convicted for the offence under Sections 363/366 of the IPC. The sentence imposed upon Ram Sunder for the aforenoted two offences is the same which had been imposed upon the appellant Shiv Pujan. Both the sentences were directed to run concurrently.
2 Learned senior counsel for appellant Ram Sunder, at the outset in terms of the last order, submits that he is not contesting the appeal on merits; he prays that the period of sentence already undergone by him be treated as the sentence imposed upon him. It is pointed out that out of the maximum punishment of 8 years which has been imposed upon him, he has already undergone sentence of 7 years, 2 months and 8 days. This submission of the learned senior counsel for the appellant is reflected from the nominal roll. The nominal roll further reflects that the appellants have a good conduct and there is nothing unsavory in their behavior.
3 Qua the appellant Shiv Pujan, it has been contended that out of maximum punishment of 7 years imposed upon him, he has already undergone incarceration of 5 years, 6 months and 7 days. He has even otherwise been convicted for the lesser offence i.e. offence under Sections 363/366 of the IPC.
4 Attention has been drawn to the impugned judgment. The trial Judge while passing the judgment had noted that the conduct of the prosecutrix as to whether she had been lured and taken to Ludhiana by the appellants under fear or force is questionable; statement of PW-5 (Surender Pal), statement of PW-7 (Kiran Kumari) as also the statement of the prosecutrix examined as PW-2 were considered. While noting the conduct of the prosecutrix as doubtful that she was forcefully taken by the accused, the Court had however rightly noted that this looses significance in view of the fact that the prosecutrix was a minor on the date of the offence; her consent being immaterial.
5 Record further shows that the prosecutrix had got married to Ram Sunder which was evident from the photograph (Ex.PW-11/J). It is in this background that this Court has considered the submission of the learned counsel for the appellants as to whether the period of sentence already suffered by each of the appellants can be the sentence imposed upon each of them.
6 As noted supra, accused Ram Sunder out of the 8 years of punishment imposed upon him has already undergone imprisonment of 7 years and more than two months. He is presently in judicial custody.
7 Appellant Shiv Pujan has also undergone 5 years and more than 8 months out of the total period of 7 years of punishment imposed upon him. Fine has also since been paid. The minimum punishment prescribed under Section 376 of the IPC is 7 seven year which period has already been undergone by appellant Ram Sunder.
8 It is in this background and the submissions made by the respective counsels for the parties that the offence relates to the year 2007 and each of the appellants having undergone almost 90% of the punishment prescribed, it would be a fit case in the interest of justice to release the appellants of the period of sentence already undergone by each of them. Thus while maintaining the conviction, the appellants Ram Sunder and Shiv Pujan be now released forthwith, if not required in any other case.
9 Both the appeals are disposed of in the above terms.
10 A copy of this order be sent to the Jail Superintendent for information and necessary compliance. Crl. M.A. No.2672/2011 in Crl. Appeal No.287/2011 11 This application seeking ossification test of the prosecutrix has become infructuous.
12 Application disposed of.
INDERMEET KAUR, J JANUARY 16, 2014 A