Murari Lal vs State Of U.P.
2012 Latest Caselaw 6010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 52
 
AFR
 

 
Criminal Appeal No. 5014 of 2005
 

 
Murari Lal       ......................     Appellant
 
Vs.
 
   State of U.P.   ..... ...........    Opposite Party   
 

 
Hon'ble Vinod Prasad, J.

This appeal by the sole appellant Murari Lal emanates from judgment and order dated 7.11.2005 rendered by Additional Sessions Judge (FTC-1) court no.10, Mathura in S.T. No.425 of 2005, State Vs. Murari Lal under Section 376/506 IPC, P.S. Barsana, district Mathura. Learned trial Judge found appellant guilty on both the counts and had sentenced him to 10 years R.I. with Rs. 5000/- fine on the first count and one year R.I. and Rs.500/- fine on the second count. In default of payment of fine on the first count appellant was directed to serve out one year additional rigorous imprisonment, whereas in default of payment of fine on the second count he was directed to serve one month further R.I.

Narrative of the prosecution case came through the written FIR, Exhibit Ka-1 and the depositions of two fact witnesses informant Smt. Nirmala Khandelwal PW.1 and prosecutrix victim P.W.2, perusal of which indicates that the informant is a Small Savings agent in Post Office and resided in the house of Khema Munim since last six years. Prior to it, she resided in the house of brother of Khema Munim. On the incident date 7.6.2005, she had gone to Barsana Post Office regarding the Small Saving Scheme leaving her daughter P.W.2 asleep in the house. After collecting instalments of the Small Savings Scheme, when she returned back to her house at 5 p.m., she came to know that her daughter is in a precarious state. She was shown to a nurse immediately. On inquiry being made, the victim prosecutrix informed her mother that it was the appellant, who had bolted both the doors of her house, gagged her mouth with a cloth and after threatening her with life that the appellant had outraged her chastity and modesty. P.W.1 Smt. Nirmla Khandelwal initially got treated her daughter and thereafter on 11.6.2005 inked her F.I.R., Exhibit Ka-1 and went to the police station Barsana and lodged her F.I.R. on that date 11.6.2005 at 11 a.m.

Head Mohrir Kailash Chand P.W.5 registered the crime by preparing Chik F.I.R., Exhibit Ka-6 and G.D. Entry, Exhibit-Ka-7. S.I. Hosiyaar Singh P.W.6 commenced the investigation into the crime, who firstly copied the Chik F.I.R. and G.D. Entry and thereafter recorded 161 Cr.P.C. statements of the informant and the prosecutrix P.W.1 and P.W.2. Spot inspection was conducted thereafter and site plan, Exhibit Ka-8, was prepared. On 12.6.2005, appellant was arrested and was produced in Court on 12.6.2005. The medical report of the victim prosecutrix was received and was copied in the case diary. Pathological and supplementary report was received to the I.O. on 16.6.2005, who copied it in the case diary. On 17.6.2005, 164 Cr.P.C. statement of the victim prosecutrix was got recorded in the Court of ACJM-III, Mathura. After interrogating doctor and concluding investigation, I.O. filed the charge-sheet against the appellant on 28.6.2005, vide Exhibit Ka-9.

On the basis of Exhibit Ka-9, case no.508 of 2005 was registered before ACJM, court no.2 Mathura titled as State Vs. Murari Lal. Finding the disclosed offences triable by Session's Court, ACJM committed the case to the Sesssion's Court on 2.8.2005 where it was registered as S.T. No.425 of 2005, State Vs,. Murari Lal.

Additional Sessions Judge, FTC court no.10, Mathura charged the appellant under section 376 and 506 I.P.C. on 3.9.2005. Appellant denied both the charges and claimed to be tried.

To establish his guilt, therefore, session trial procedure was resorted to by the learned trial Judge.

Prosecution relied upon the oral testimonies of six witnesses in which informant Smt. Nirmala Khandelwal P.W.1 and prosecutrix victim P.W.2 appeared as witnesses of fact. Dr. R.S. Rajput P.W.3, R.P. Gupta, Senior Consultant Radiologist P.W.4, constable Kailash Chand P.W.5 and I.O. S.I. Hosiyar Chand P.W.6 deposed as formal witnesses.

Before proceeding further, it is recorded here that according to the doctor, he had examined the victim, who was daughter of Hansraj on 11.6.2005. Constable-398 Sumitra of police station Civil Lines had produced the victim before P.W.3 at 6.30 p.m. on the said date. Victim was four feet eight inch of height and having 30 kg weight. She had average built body and her breast had started developing. There was no external mark of injury on her body. In the internal examination, only tip of the small finger could penetrate. Her hymen was torned at 6 'O' clock and 9 'O' clock position and blood was oozing. Vaginal smear of the victim was taken and slides were prepared for checking spermatozoa and was sent to the district Hospital Mathura. Victim was also referred to Radiologist District Hospital. Medical examination report of the victim, Exhibit Ka-3 was prepared by P.W.3 in his own hand writing. Supplementary report was also prepared by the same witnesses on 15.6.2005, after receiving pathological and X-Ray report. According to the X-Ray report, victim was radiologically aged about 15 or 16 years. The radius ulna had not joined. According to pathological report dated 13.6.2005, no living or dead spermatozoa was found in the vaginal smear. According to the doctor, victim had sustained injury from some blunt object. Her supplementary report is Exhibit Ka-4.

Dr. R.P. Gupta Senior Consultant Radiologist had X-rayed the victim on 13.6.2005 of her elbow, both the wrists and knee joints. Victim was produced before Dr. R.P. Gupta P.W.4 by the same constable Sumitra. On the findings found in the X-Report, P.W.4 had prepared the X-Ray report Exhibit Ka-5 and X-Ray plate nos.2333, 2334, 2335, 2336, 2337 and 2338. The X-Ray plates have been proved, as material Exhibits 1 and 2.

After prosecution evidence were over, accused was examined under section 313 Cr.P.C., who denied incriminating circumstances appearing against him and took the plea of false implication. As stated herein above, learned trial Judge found the charge against the appellant proved to the hilt beyond all reasonable doubts and therefore convicted and sentenced him as has already been mentioned herein above in the opening paragraph of the judgment on both the counts under section 376/506 IPC and sentenced him to 10 years R.I. with Rs.5000/- fine and in default in payment of fine to serve one year further imprisonment. For the second charge under section 506 IPC, appellant was convicted for one year R.I. and fine of Rs. 500/-, the default sentence being one month additional imprisonment through impugned judgment and order. Hence this appeal.

I have heard Sri Azad Rai, learned counsel for the appellant and Sri Anand Tiwari, learned AGA for the State.

Sri Rai submitted that so far as conviction of the appellant is concerned, it cannot be said that the same has been recorded against the merits of the evidence on record. He further submitted that the conviction of the appellant is well merited and, therefore, he will not challenge the conviction of the appellant. However, Sri Rai concentrated on the question of sentence and submitted that according to the report received from Jail Authorities through counter affidavit filed by Sri Vinay Pratap Singh, Deputy Jailer, District Jail, Mathura, appellant had already undergone major portion of his sentence. He has already deposited the fine. It was pointed out through the said counter affidavit dated 11.12.2012 that on 18th January 2013, after one month and six days, appellant will complete his entire imprisonment on both the counts. Relying upon paragraph 7 of the counter affidavit filed by Deputy Jailer, it was submitted that as an under trial from 12.6.2005 to 18.11.2005, appellant had undergone four months and twenty five days of imprisonment. After his conviction through the impugned judgment and order, he had served seven years, one month and some days of imprisonment. During period of incarceration, appellant had earned a remission of two years and three months as on date and, therefore, learned appellant's counsel submitted that the sentence of the appellant be altered to the period of imprisonment undergone by him, which will be nine years, ten months and twenty four days. Learned counsel for the appellant further contended that the appellant had no criminal background and no conviction to his credit and because of insane infatuation, he had indulged into the crime and, therefore, the period of imprisonment undergone by him, which is short of one month and six days in 10 years will suffice and will meet the ends of justice. He further submitted that the appellant had already deposited the fine and, therefore, now he had not to serve the default sentence.

Learned AGA also did not dispute the contention urged by learned counsel for the appellant in respect of the period of imprisonment already undergone by the appellant and in fact, learned AGA concurred with the submission of appellant's counsel on that score.

In view of above, I am of the view that no useful purpose will be served in keeping the appeal pending on the dockets of this Court and, therefore, after hearing both the sides, I allow the appeal in part.

Conviction of the appellant on both the counts under sections 376/506 I.P.C. are hereby maintained but on the first count, the period of imprisonment already undergone by the appellant, which is nine years, ten months and twenty four days will suffice and, therefore, the sentence of the appellant on the aforesaid count is reduced to the period of imprisonment already undergone by him. So far as conviction and sentence of the appellant under section 506 I.P.C. of one year RI is concerned, it is hereby maintained. Both the sentences of the appellant shall run concurrently. Appellant is not on bail, he shall be released from jail forthwith unless and until he is wanted in any other case.

Appeal is partly allowed as above.

Let a copy of the judgment be sent to learned Trial Judge for his intimation.

Dt.12.12.2012

Arvind/Tamang/-