Uttarakhand High Court
Himanshu Kashyap vs State Of Uttarakhand on 5 May, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.17 of 2021
Himanshu Kashyap ..... Appellant
Versus
State of Uttarakhand ....Respondent
Mr. Lalit Sharma, learned Advocate for the appellant.
Mr. G.S. Sandhu, learned GA for the State.
Hon'ble R.C. Khulbe, J.
As prayed for by learned counsel, the bail
application (IA 2/2021) is dismissed as not pressed.
2. The matter is taken up through video conferencing,
and with the consent of parties, the present appeal is
disposed of.
3. The present appeal is directed
against the judgment and order dated 14/15.12.2020 passed
by the Special Judge, POCSO/Addl. Sessions Judge/FTC,
Haldwani (Nainital) in S.T. No.27 of 2018, State v. Himanshu
Kashyap, whereby the learned Trial Court convicted the
appellant u/s 392 IPC and sentenced him to undergo five
years' R.I. with fine of Rs.10,000/- and in case of default of
fine, to undergo one month's additional simple imprisonment;
appellant was further convicted u/s 411 IPC and sentenced to
undergo two years' R.I. with fine of Rs.5,000/- and in case of
default, to undergo 15 days' additional simple imprisonment;
the aforesaid sentences were directed to run concurrently.
4. In short, case of the prosecution is that an
information was given by informant Bhuwan Chandra Tiwari
with P.S. Haldwani, with the allegations that on 1.3.2018 at
about 7:30 PM, when his son Devesh was coming from
SIDCUL Rudrapur to Almora, the appellant along with co-
accused snatched two ATM cards, mobile phone besides
Rs.6,000/- from his son. On the basis of said information,
Chick FIR was lodged with the police station and the case was
registered, After investigation, charge-sheet was submitted
against the appellant u/s 392/504/506 IPC. Accordingly,
charges were framed. The appellant denied the allegations
and claimed to be tried.
5. To bring home the guilt of the appellants, the
prosecution produced PW1 Bhuwan Chandra Tiwari
(informant), PW2 S.I. Dinesh Chandra Joshi, PW3 Constable
Praveen Singh, PW4 Devesh Tiwari (victim) and PW5 S.I.
Mahesh Joshi.
6. After completion of prosecution evidence, statement
of appellant was recorded u/s 313 Cr.P.C. Again, the accused
stated that he did not commit any crime; and there is no
evidence against him. In defence, no evidence was produced
by the appellant.
7. After hearing the parties, the Trial Court convicted
the appellant u/s 392 and 411 IPC and sentenced him as
mentioned in paragraph no.1 of the judgment.
8. Feeling aggrieved by the order of conviction and
sentence, the present appeal is preferred before this Court.
9. Heard the learned counsel for the appellant as well
as learned G.A. appearing for the State.
10. It is fairly submitted by learned counsel for the
appellant that he does not want to argue the case on merits
since the conviction of the appellant is based on sufficient
evidence and there is no illegality therein. He fairly submitted
that at the time of incident, appellant was below 18 years of
age; he is in jail since 4.3.2018; there is no other criminal
case pending against him; the appellant has served
substantial period in jail; he confined his prayer to the extent
that the appellant may be sentenced to the period already
undergone by him.
11. The learned Government Advocate has no serious
objection to such a prayer.
12. From the report submitted by the Jailer, Sub-Jail,
Haldwani, the accused-appellant remained in jail from
4.3.2018 to 24.3.2018; on 24.3.2018, he was shifted to
Juvenile Home, Haldwani; again, he was shifted to Jail on
12.8.2020 and on 15.12.2020, he was convicted.
13. From a perusal of the jail report, it is clear that the
appellant is in custody since 04.3.2018 even till date.
Admittedly, he was under 18 years of age at the time of
occurrence; there is no other case pending against him; he
has no criminal history. on going through the evidence on
record, I have reached to this conclusion that the trial court
has convicted the appellant based on proper evidence and
there is no illegality in the impugned findings.
14. On a consolidate consideration of the aforesaid
facts, it is considered to be just and proper to reduce the
sentence part of the appellant to the period already
undergone by him.
15. In view of the foregoing discussion, the appeal is
allowed in part. The conviction of the appellant u/s 392/411
IPC is maintained. However, as far as sentence part is
concerned, he is sentenced as follows:-
A. For the offences u/s 392 and 411 IPC, the
appellant is sentenced to the period already undergone
by him instead of five years' and two years R.I.
respectively, as awarded by the court below;
B. The fine awarded under each section is maintained,
and he shall deposit the fine as imposed by the trial
court, which shall be a condition precedent before his
release.
C. The appellant shall be released from jail if not
required in connection with any other case.
16. Let a copy of this judgment and order be sent to the
concerned jail authority for compliance.
(R.C. Khulbe, J.)
05.05.2021
Rdang
