Jharkhand High Court
(Against The Judgment Of ... vs The State Of Jharkhand on 14 July, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 1366 of 2003
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(Against the judgment of conviction and order of sentence, both
dated 03.09.2003 passed by learned 5th Additional Sessions
Judge, Palamau at Daltonganj corresponding to S.T. No.37 of
2003.)
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Sambhu Singh ..... .... Appellant
Versus
The State of Jharkhand. ..... .... Respondent
CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant :Ms. Amrita Banerjee, Amicus.
For the Respondent-State :Mr. Ravi Prakash, A.P.P
.........
15/14.07.2023 Heard learned counsel for the parties.
2. The instant criminal appeal has been preferred
against the judgment of conviction and order of sentence, both
dated 03.09.2003 passed by learned 5th Additional Sessions
Judge, Palamau at Daltonganj corresponding to S.T. No.37 of
2003, whereby the appellant has been convicted for the offence
under Sections 376/511 & 456 of the IPC and sentenced to
undergo R.I. for a period of Three years with a fine of Rs.5000/-
u/S 376/511 IPC and in default of payment of fine further to
undergo S.I. for Six months. Further sentenced to undergo R.I.
for a period of Three years u/S 456 IPC. However, both the
sentences directed to run concurrently.
3. The brief fact of the case is that on 02.11.2002 at
about 2.30 to 3.00 a.m while the informant/victim was sleeping
the appellant entered her house and started soothing her skin,
she woke up. The appellant put cloth in her mouth and
committed rape upon her.
4. Learned counsel appearing for the appellant has
made the following submissions:-
(i) No eye witness of the occurrence.
(ii) Out of seven chargesheet witnesses only five have
been examined.
(iii) I.O of this case has not been examined.
(iv) P.Ws, 2, 3 and 4 have no knowledge about the case.
(v) As per doctor report no external or internal injuries
anywhere on the body and no evidence of recent sexual
intercourse was found.
After the aforesaid submission, he further made an
alternative argument that the incident is of the year 2002 and
the appellant has suffered the mental agony due to ongoing
litigation and looking to the overall facts and circumstances of
the case, this Court may kindly at least modify the sentence for
the period already undergone as the appellant is aged about 54
years and he also remained in custody for about 4 months.
5. Learned APP opposed the prayer for acquittal and
submits that the learned trial court has not committed any
error in convicting the appellant. He admits that as per doctor
report no external and internal injuries were found and no sign
of recent sexual intercourse but on court question the doctor
admitted that vanishing sperm on urinating or washing cannot
be over ruled. However, he fairly submits that as per record,
there is no any criminal antecedents of the appellant; as such, if
the sentence is modified, then the same should be modified in
lieu of fine.
6. Having heard learned counsel for the parties and
after going through the impugned judgment and the documents
available on LCR, and looking to the comprehensive facts and
circumstances of the case and the deposition of the prosecution
witnesses who have considerably proved the case of the
prosecution especially the doctor who examined the victim did
not find any external or internal injuries and further there was
no sign of recent sexual intercourse, but on court question the
doctor admitted that vanishing sperm on urinating or washing
cannot be over ruled, hence the findings of the trial court does
not suffer from any infirmity as such, this Court is not inclined
to interfere with the Judgment of conviction and thus the same
is sustained.
7. Now coming to the alternative argument of learned
counsel for the appellant with respect to sentence awarded to
him; this Court is of the view that at this stage remitting the
appellant to the rigors of imprisonment at this juncture of his
life would not serve the ends of justice and admittedly the
appellant remained in custody for about 4 months.
8. Thus, on point of sentence, looking to the entire
facts and circumstances of the case and also the fact that the
alleged incident took place in the year 2002 and about 21 years
have passed and that period is sufficient to exhaust anybody
mentally, physically and economically and the appellant has
also remained in jail for 4 months and he has never misused
the privilege of bail and there is a chance to reform him.
9. Taking into consideration of mitigating
circumstances, I am of considered view that without interfering
with the judgment of conviction, the sentence ought to be
modified to the extent that the appellant shall be released for
the period already undergone but subject to payment of fine of
Rs.25,000/-.
As a result, the sentence as ordered by the learned
trial court is hereby modified to the extent that the appellant is
sentenced for the period already undergone subject to payment
of fine of Rs.25,000/-.
It is made clear that the appellant shall pay the
aforesaid fine of Rs.25,000/- within a period of 4 months from
the date of receipt of this order, before the D.L.S.A., Palamau at
Daltonganj; failing which he shall serve rest of the sentence as
ordered by the learned trial court.
10. With the aforesaid observations, directions and
modification in sentence only, the instant criminal appeal
stands disposed of.
11. The appellant shall be discharged from the liability
of his bail bonds, subject to fulfillment of aforesaid condition.
12. Let a copy of this order be communicated to the
Secretary, JHALSA for quantifying the fees of learned Amicus.
13. Let a copy of this order be communicated to the trial
court, Secretary, DLSA Palamau at Daltonganj and the LCR be
sent back to the court concerned forthwith.
(Deepak Roshan, J.)
Fahim/-
