Mathur @ Madhur vs State Of Rajasthan
2021 Latest Caselaw 16542 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 41/2019

Mathur @ Madhur, S/o Kishanlal , B/c Gujrati Mali , Niwasi Halwad, Distt. Surendra Nagar, State Gujrat

----Appellant Versus State Of Rajasthan, Through Pp

----Respondent

For Appellant(s) : Mr.Kuldeep Sharma For Respondent(s) : Mr. O.P. Rathi, P.P

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Judgment

Judgment Reserved on : 28/10/2021 Date of pronouncement: 29/10/2021

Instant criminal appeal has been filed by the appellant under

Section 374(2) Cr.P.C. against the judgment dated 27.11.2018

passed by learned Special Judge, POCSO Act Cases, Churu in

Sessions Case No. 10/2018 by which the learned Judge convicted

the appellant as under :-

Under Section 363 IPC = Two years R.I. alongwith fine of Rs.

2000/-, in default of fine to undergo three months S.I.

Under Section 366 IPC = Five years R.I and fine of Rs.

3000/-, in default of fine to further undergo three months R.I.

Under Section 9/10 of POCSO ACT = Five years R.I and fine of Rs.

5000/-, in default of payment of fine, to undergo three months

R.I.

Brief facts of the case are that on 07.11.2016, the father of

prosecutrix field a written report before the Police Station to the

effect that his daughter who is aged about 13-14 years is missing

(2 of 4) [CRLAS-41/2019]

from home. It was alleged that appellant Madhur was also missing

and he had enticed away his daughter and she has also taken

away cash in the sum of Rs. 10,000/- alongwith gold earrings.

The police registered the FIR and started investigation. After

investigation, the police filed challan against the present appellant

for offence under Section 363, 366, 366A, 354 IPC and Section

9/10 POCSTO Act. Thereafter, the charges of the case were

framed against the appellant. He denied the charges and claimed

trial.

During the course of trial, the prosecution examined seven

witnesses and various documents were also exhibited. Thereafter,

statement of appellant under section 313 Cr.P.C was recorded. No

witness was examined on the defence side.

Upon conclusion of the trial, the learned trial court vide

impugned judgment dated 27.11.2018 convicted and sentenced

the appellant for offence under Section 363, 366 and Section 9/10

POCSO Act as mentioned earlier.

At the threshold, learned counsel for the appellant does not

challenge the finding of conviction but it is submitted that the

appellant has been awarded maximum five years sentence for

offence under Section 366 IPC and Section 9/10 of POCSO Act and

he has already served more than 05 years imprisonment and is

present serving the sentence in default of payment of fine. It is

prayed that the substantive sentence awarded to the appellant for

the aforesaid offence may be reduced to the period already

undergone by him.

                                          (3 of 4)                       [CRLAS-41/2019]


     On the other hand, the learned Public Prosecutor                        opposed

the submissions made by the learned counsel for the appellant.

The learned PP submitted that there is neither any occasion to

interfere with the sentence awarded to the accused appellant nor

any compassion or sympathy is called for in the said case.

Since the appellant's counsel does not challenge the

appellant's conviction, this Court need not go into the merits of

the case and accordingly, the conviction of the appellant as

recorded by the learned trial court for the offence under Section

363, 366 and Section 9/10 POCSO Act is maintained.

I have perused the evidence of the prosecution as well as

defence and the judgment passed by the trial court regarding

conviction of the accused-appellant. It is not disputed that the

appellant has so far undergone a period of 05 years 04 months

and 20 days as on 26.10.2021 so also suffered the agony and

trauma of protracted trial. Thus, looking to the over-all

circumstances and the fact that the appellant has remained behind

the bars for considerable time, it will be just and proper if the

sentence awarded by the trial court for offence under Section 366

and Section 9/10 POCSO Act is reduced to the period already

undergone by him while maintaining the amount of fine, however,

the imprisonment in default of payment of fine is reduced to one

month each.

Accordingly, the appeal is partly allowed. While maintaining

the appellant's conviction and sentence for offence under Section

363, 366 IPC and Section 9/10 POCSO Act, the sentence awarded

to him is reduced to the period already undergone, however the

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amount of fine is hereby maintained. Since the appellant has also

served the period of three months imprisonment in default of

payment of fine, he may be released forthwith, if not required in

any other case.

The record of the trial court be sent back forthwith.

(MANOJ KUMAR GARG),J

2-BJSH/-

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