Ajay Kumar Gupta @ Ajay Kumar vs The State Of Jharkhand

By Court: Heard Mr. Rajen Sahay, learned counsel for the appellant and Mr. Abhay Kumar Tiwari, learned A.P.P. for the State.

The instant criminal appeal is directed against the judgment and order of conviction and sentence dated 10.07.2009, passed by learned Additional Judicial Commissioner, Fast Track Court No.VI, Ranchi, in Sessions Trial No. 299 of 2008, whereby and whereunder the appellant along with other co-accused persons have been held guilty for the offence under Section 354 of the I.P.C. and sentenced to undergo R.I. for two years along with fine of Rs.5,000/- with default stipulation.

Factual matrix giving rise to this appeal is that on 16.04.2008 (Wednesday) at about 07.30 P.M., informant boarded a tempo from Kishori Yadav Chowk for going to Ratu Kathi Tand and on the said tempo, she was alone apart from the tempo driver and his two associates. When the tempo arrived Piska More, one of the friends of tempo driver suddenly instructed him to take the vehicle turned towards Itaki road. The informant objected to the same, stating that she has to go to Kathitand and why the tempo is being taken through that route. Upon this, the tempo driver and his friends replied that there was a traffic jam on the said road and that they would proceed to Kathitand via Kathal More. The tempo continued towards Itaki Road and upon reaching a remote place between Itaki Road Bus Stand and before L.N. Mishra Colony near hillock, the tempo driver stopped the vehicle and stated that the tempo has developed some snag. When she alighted from the tempo, all of sudden the tempo driver and both his friends caught hold of her and started misbehaving with her. When she objected to their conduct, the tempo driver, shut her mouth with his hand. In order to save herself, she bite the fingers of the tempo driver and somehow managed to escape from their clutches. The tempo driver and his other friends tried to commit rape upon her, but she somehow managed to escape after biting the fingers of the tempo driver. She has given the physical description of the tempo driver. She remained in a state of shock after the incident and after being persuaded and given strength by his friends and family members, she came before the police officer at New Market Chowk on 19.4.2008 to record her statement. The registration number of the tempo in which she was being taken at the time of occurrence was JH01A-6798 and she claimed that she would be able to identify the accused persons if they were shown to her again. The time of occurrence was about 08.00 P.M.

On the basis of fardbeyan of the informant, Kotwali (S. Nagar) P.S. Case No. 259 of 2008 was registered for the offence under Section 376/511/34 of the I.P.C.

After completion of investigation, charge-sheet was submitted against all three accused persons for the aforesaid offences. Accordingly, cognizance was taken and subsequently, the case was committed to the Court of Sessions, where Sessions Trial No. 299 of 2008 was registered. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

In the course of trial, altogether 6 witnesses were examined by the prosecution apart from documentary evidence.

On the other hand, no oral or documentary evidence has been adduced by the defence. The case of defence is denial from occurrence, plea of innocence and false implication.

After conclusion of trial, the appellant was held guilty for the offence under Section 354 of the I.P.C. and sentenced as stated above which has been assailed in this appeal.

Learned counsel for the appellant without touching the merits of the judgment has confined his argument towards the quantum of sentence awarded to the appellant. It is submitted that appellant has been held guilty for the offence under Section 354 of the I.P.C. and sentenced to undergo R.I. for two years out of which, he has already remained in custody for more than 10 months. It was first offence of the appellant and he has never been convicted for any other offence. Learned counsel submits that the occurrence is of the year 2008 and now more than one and half decades have passed from the date of occurrence. The appellant has sufficiently been punished for his guilt and again sending the appellant for sustaining rest period of imprisonment would yield no useful purpose. Hence, the sentence awarded to the appellant may be reduced to the imprisonment already undergone by him to meet the ends of justice in this case.

On the other hand, learned A.P.P. has raised no serious objection to the aforesaid point of argument, rather defended the impugned judgment of conviction and order of sentence on merits.

I have gone through the impugned judgment and order along with the record of the case in the light of rival contentions of the learned counsel for the respective parties.

From the evidence of the victim, it appears that she remains intact at the time of her deposition before the Court and clearly stated that she was stopped by the tempo driver in remote area and thereafter, the tempo driver and his two friends caught hold of her and started misbehaving and tried to commit rape and the driver put his palm on her mouth so that she could not raise hulla but she bite fingers of the driver to save herself. The doctor who examined the accused driver has found healing lacerated wound of two fingers tip area black in colour of middle and ring finger, therefore, the conviction of the appellant for the offence under Section 354 of the I.P.C. is hereby upheld and confirmed.

Considering the facts and circumstances of the case, the nature of offence alleged to have been committed by the appellant and also in view of the fact that the appellant has already remained in custody for more than 10 months during the pendency of trial and post-conviction, it appears to be sufficient punishment for his guilt for the offence committed by him and his sentence is reduced from R.I. of 2 years to the imprisonment already undergone by him during trial of the case.

Accordingly, this appeal is dismissed on merits with modification in sentence as stated above.

Appellant is on bail, as such he is discharged from the liability of bail bond and sureties are also discharged.

Pending I.A(s), if any, is also disposed of accordingly.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.