Madhya Pradesh High Court
CRA/8277/2021 of SANTOSH KUMAR JHARIYA @ SANTU JHARIYA Vs THE STATE OF MADHYA PRADESH on 29 December 2023
COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI
1
IN THE HIGH COURT OF MADHYA PRADESHAT JABALPURBEFOREHON'BLE SHRI JUSTICE VIVEK JAINON THE 29[th] OF DECEMBER, 2023CRIMINAL APPEAL No. 8277 of 2021
BETWEEN:-
SANTOSH KUMAR JHARIYA @ SANTU JHARIYA S/OMAHADEV JHARIYA, AGED ABOUT 36 YEARS,OCCUPATION: AGRICULTURIST R/O VILLAGERAMKHIRIYA P.S. MOHGAON DISTT. MANDLA(MADHYA PRADESH)
(BY SHRI ADITYA VYAS - ADVOCATE )
.....APPELLANT
AND
THE STATE OF MADHYA PRADESH THR. P.S. MOHGAONMANDLA (MADHYA PRADESH)
(BY SHRI NARENDRA LODHI - PANEL LAWYER )
.....RESPONDENT
This appeal coming on for hearing this day, th e court passed thefollowing:
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ORDER
This Criminal Appeal under Section 374(2) of the Code of CriminalProcedure, 1973 has been preferred by the appellant/accused against theimpugned judgment of conviction and order of sentence dated 07.12.2021passed by First Additional Judge of First Upper Sessions Judge, Mandla (M.P.)in Session Trial No.64/2016, whereby the learned trial Judge has convicted theappellant for commission of offence under Sections 354(A) (1) and 323 of IPCand sentenced him to undergo rigorous imprisonment for 6 months and 3months and fine of Rs.2,000/- and Rs.500/- respectively.
2. The case of prosecution in brief is that the incident had occurred on25.02.2016 and as the prosecutrix was going to her home in the evening ataround 07:00 P.M. after plucking crop from her agricultural land then theappellant came and caught hold her mouth and arms of the prosecutrix andcommitted act in term of Section 376 of IPC. However, the trial Courtconvicted the appellant under Section 354-A (1)(i) of IPC.
3. Learned counsel for the appellant submits that even the offence underSection 341(A)(1) of IPC is not made out because the prosecution version ofthe prosecutrix (PW-1) has not been supported by her husband. PW-2 who hasbeen declared hostile as well as PW-12 who is the son of the prosecutrix whohas also been declared hostile. It is also submitted that the entire incident is falsebecause the initially in the FIR there was no ingredient under Section 376 ofIPC, but statement under Section 164 of Cr.P.C. for the first time ingredients ofSection 376 of IPC were stated.
4. After having perused the evidence adduced by the prosecution, it isfound that the findings recorded by the Trial Court upholding the guilt of theaccused-appellant are impeccable and the prosecution has succeeded in provingthe case against the accused-appellant. There is nothing in cross examination ofthe witnesses that may demolish the prosecution case. Thus, there is nothing inthe said findings of the trial court that can be said to be erroneous or perverse,warranting interference by this Court in Appellate jurisdiction.
5. Thus, the conviction of the appellant as ordered by the trial court ishereby upheld.
6. However, there are certain mitigating circumstances that deserve to betaken in consideration so far as the sentence part is concerned. The incidenttook place in the year 2016 and accused/appellant has faced trial and this appeal is pending since 2021, the accused/appellant has been under trial or appearingbefore the Court as condition to suspension of sentence since long. Nothinghas come on record regarding misuse of conditions of bail/suspension ofsentence during the long period since the prosecution, trial and appeal arepending. Thus, this Court deems it fit to reduce the sentence of the appellant tothe period already undergone by him (four days) and to enhance the fineamount to Rs.10,000/-.
7. Consequently, this appeal is partly allowed. The impugned convictioni s maintained. However, the appellant/accused is sentenced to undergoimprisonment for the period he has already undergone (four days), subject todepositing the further fine amount of Rs.10,000/- within a period of threemonths from today.
8. However, it is clarified that if fine amount as quantified by this Court isnot deposited within a period of three months from today, then the originalsentence would come into operation and appellant shall be taken into custodyor he would surrender himself to serve the entire jail sentence of six months asawarded by the learned trial Court with default stipulations.
9. Learned trial Court is directed to ensure the aforesaid compliance.
10. The bail bonds of the appellant/accused, if any, are discharged.
11. Registry is directed to immediately send back the trial Court recordalongwith copy of this judgment to the trial Court concerned for informationand necessary compliance.
12. With the aforesaid modification, this appeal is partly allowed anddisposed of.
(VIVEK JAIN)JUDGE