Robin Biswas vs State Of Uttarakhand
2021 Latest Caselaw 1795 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Jail Appeal No. 37 of 2018

Robin Biswas                                 ........... Appellant

                              Versus
State of Uttarakhand                         ........... Respondent


                                                Dated: 08.06.2021

Ms. Janki Surya, learned Amicus Curiae for the appellant.
Mr. Subhash Tyagi Bhardwaj, learned Dy. Advocate General for the State.



Hon'ble R.C. Khulbe, J.

This jail appeal is directed against the judgment and order dated 31.07.2018, passed by the F.T.C/Special Judge (POCSO Act)/ADJ, Dehradun in Sessions Trial No. 16 of 2016, State vs. Robin Biswas whereby the learned trial court has convicted the appellant under section 363 IPC and sentenced him three years rigorous imprisonment with fine of Rs. 4,000/-, in default of which, appellant to undergo further six months' rigorous imprisonment . He has been convicted under section 366A IPC and sentenced to 5 years rigorous imprisonment with fine of Rs. 6,000/- in default of which he has to undergo further six months' rigorous imprisonment. He has also been convicted under section 4 of the POCSO Act and sentenced to eight years rigorous imprisonment with fine of Rs. 10,000/- in default of which he has to undergo further one year's rigorous imprisonment.

2. Brief facts of the case are that the PW1- informant submitted a report (Ex. A1) with Police Station Raipur, Dehradun. On the basis of said report, chick FIR

(Ex. A8) was lodged on 22.11.2015 at P.S. Raipur, District Dehradun against the accused/appellant. The statement of the prosecutrix (Ex.A2) under section 164 Cr.P.C. was recorded. She was medically examined by the Government Doctor. The medical report (Ex. A4) is on record. The accused was arrested, and accordingly, recovery memo (Ex. A5) was prepared, After the investigation, charge sheet (Ex. A9) was submitted . The court concerned took cognizance on 18.02.2016 and after compliance of provision of section 207 Cr.P.C. the charges under sections 363, 366A and 376 IPC and under section 3/4 of the POCSO Act were framed. The appellant denied the allegation and claimed to be tried.

4. To prove its case, the prosecution produced PW1-informant, PW2 mother of the prosecutrix, PW3 prosecturix, PW4 Pradeep Kumar, PW5 Dr. Uttam Singh, PW6 S.I. Radhika Nabiyal, who investigated the matter initially, PW7 Dr. Beena Singh , who prepared medical report, and P.W. 8 S.I. Ravindra Singh Negi, who investigated the matter, recorded the statement of the witnesses and after completion of the investigation, submitted the charge sheet.

5. After completion of prosecution evidence, statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied all the evidence and stated that the prosecution produced false evidence against him. In defence, no evidence was produced.

6. After hearing both the parties, the learned trial Court has convicted and sentenced the appellant, as mentioned in para no.1 of the judgment above. Feeling aggrieved, the appellant preferred this criminal appeal through jail.

7. Heard learned counsel for the appellant as well as learned for the State through video conferencing and perused the entire evidence available on record.

8. Learned Counsel for the appellant fairly submitted that she does not want to argue the case on merit because the trial Court has rightly convicted the appellant based on evidence. She fairly submitted that the matter relates to the year 2015 and the appellant no criminal antecedent. He is the only bread earner of his family. He has already served about six years imprisonment and submitted that the Court, while upholding appellant's conviction, may consider to alter the sentence awarded to the appellant and reduce it to the extent of period already undergone.

9. Learned counsel for the State also submitted that the matter relates to the year 2015. The minimum punishment prescribed under section 4 of the POCSO Act is seven years and seven years punishment is sufficient.

10. I have also gone through the evidence on record and came to this conclusion that the trial Court has convicted the appellant based on sufficient evidence, as produced by the prosecution. There is no illegality or infirmity in the impugned findings regarding conviction. The appellant is the only bread earner of his family; he does not have any criminal antecedents in his past life; he is permanent resident of West Bengal and, he is not required in any other criminal case except the present one, it is considered to be just and appropriate to reduce the sentence from eight years to seven years under section 4 of the POCSO Act. As regard to the sentence awarded under section 363, and 366A IPC is concerned, the trial court has sentenced him three years rigorous

imprisonment under section 363 IPC and sentenced him five years rigorous imprisonment under section 366A IPC. The said sentence is just and proper, there is no illegality in the impugned sentence.

11. In view of the above discussion, the appeal is allowed in part. The appellant is sentenced as follows:-

A. The appellant is sentenced to undergo seven years rigorous imprisonment under section 4 of the POCSO Act instead of eight years, as awarded by the trial Court.

B. The conviction and sentence awarded u/s 363 and 366A IPC will remain intact.

C. The fine awarded under each section is also maintained and he will deposit the fine and compensation as imposed by the trial Court. However in default of fine, he will undergo six months' additional imprisonment as awarded under section 4 of the POCSO Act.

D. All the sentences shall run concurrently.

E. On completion of period of sentence, as modified by this Court, he shall be released from jail, as per law.

12. Pending application, if any, stands disposed of.

13. Let a copy of this judgment along with LCR be sent to the Court concerned for compliance. Registry is directed to send a copy of this judgment to the concerned jail authority.

(R.C. Khulbe, J.) 08.06.2021 Parul