CRA/2414/2005 of KANHAI @ KANHAIYA LAL SHARMA Vs THE STATE OF MADHYA PRADESH on 29 December 2023

J U D G M E N T

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 29.10.2005passed by Special Judge (Scheduled Caste and Scheduled Tribes (preventionof Atrocities) Act, 1989 District Chhatarpur in Special Case No.09/2004,whereby the learned Special Judge has convicted the appellant for commissionof offence under Sections 354 of I.P.C. and sentenced to undergo R.I. for sixmonths with fine Rs.500/- with default stipulation.

2. The prosecution story in brief is that incident took place on 18.12.2003, when the minor daughter of the complainant went to collectcowdung by the side of the road. At that time appellant is said to haveapproached the said girl and took him to his Well in the field. There he allegedto have removed cloths of the said girl and disrobed her, but before he couldproceed further when the girl called out for help and witness Brijraj came on thespot, due to which appellant let the girl go. The appellant has been convictedfor the offence punishable under Section 354 IPC.

3. Learned counsel for the appellant has submitted that the soleindependent witness of the case is Brijraj who said to have rescued the minorgirl, however, said Brijraj (PW-5) has not supported the prosecution versionand he has turned hostile. The victim was stated to be 9 years old as per theprosecution and as per the medical report duly proved by PW-6, her age wasassessed to be between 10 to 12 years after Radiological examination. The saidvictim witness entered in the witness box as PW-2. The said PW-2 has dulysupported the prosecution version and looking to the answers to the questionput to her, it appears that the prosecution has duly succeeded in proving thecase against the appellant and findings of the trial Court of holding guilt of theappellant under Section 354 of IPC are proper. Accordingly this Court finds noreason to interfere in the finding of conviction. The conviction of the appellantunder Section 354 of IPC is hereby upheld.

4. At this stage, learned counsel for the appellant submits that at the timeof occurrence of the incident the appellant was 65 years of age and as of nowhe must be around 85 years of age. This mitigating factor should be taken intoconsideration and no interest of justice would be served if at this distance oftime and at this age of 85 years the appellant is taken in custody.

5. Accordingly considering the mitigating factor of age of appellant thesentence is modified to the period of 12 days already undergone by theappellant during trial and fine amount is enhanced to Rs.10,000/-.

6 . Consequently, this appeal is partly allowed. The impugnedconviction is maintained. However, the appellant/accused is sentenced toundergo imprisonment for the period he has already undergone i.e. for a periodof twelve days subject to depositing the further fine amount of Rs.10,000/- bythe appellant within a period of three months from today.

7. However, it is clarified that if fine amount as quantified by this Court is

not 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.

8. Learned trial Court is directed to ensure the aforesaid compliance.

9. The bail bonds of the appellants/accused, if any, are discharged.

10. Registry is directed to immediately send back the trial Court record alongwith copy of this judgment to the trial Court concerned for informationand necessary compliance.

11. With the aforesaid modification, this appeal is partly allowed anddisposed of.

Vin**

(VIVEK JAIN) V. JUDGE