Ashok (in Jail) vs State

N.K. Mehrotra, J.—These are the criminal revisions u/s 397/401, Cr. P.C. against the judgment and order dated 5.9.1997, passed by the Ist Additional Sessions Judge dismissing the Criminal Appeal No. 20 of 1993 upholding the order of conviction, maintaining the sentence awarded u/s 452, I.P.C. and maintaining the sentence of fine of Rs. 3,000 awarded u/s 376, I.P.C. but enhancing the sentence to 10 years rigorous imprisonment u/s 376, I.P.C. in Sessions Trial No. 394 of 1990, State v. Ashok and Ors.

Since both the revisions have been filed against the same judgment, these revisions are decided together by this judgment.

Heard the learned Counsel for the revisionists and the learned Addl. Government Advocate.

It appears that the accused revisionists were tried for the charge under Sections 452 and 376, I.P.C. Learned Assistant Sessions Judge, Unnao, convicted both the accused under Sections 452 and 376, I.P.C. and sentenced the accused for the imprisonment already undergone for both the offences and further punished them with a fine of Rs. 2,000 u/s 452, I.P.C. and Rs. 3,000 u/s 376, I.P.C. The accused revisionists filed an appeal. The appeal was dismissed. Conviction was upheld. The sentence awarded u/s 452, I.P.C. was also upheld but the sentence awarded u/s 376, I.P.C. was modified to the extent that the accused Appellants were sentenced to 10 years rigorous imprisonment instead of sentence already undergone. It is against this judgment, these two revisions have been filed.

The revisionists have also challenged both the judgments of the two courts below on two grounds. The judgment of the Sessions Judge passed in appeal is challenged on the ground of jurisdiction of the Sessions Judge in enhancing the sentence u/s 376, I.P.C. The judgment of conviction of the two courts below has been challenged on merit.

This Court being court of revision, will not interfere in the finding of facts recorded by the two courts below on the merit of case. The two courts below have recorded the finding of conviction under Sections 452 and 376, I.P.C. and these findings are in accordance with the evidence available on record. No illegality has been committed. Therefore, the contentions raised on the merit of the case is rejected.

So far as the sentence u/s 376, I.P.C. is concerned, I find that the learned Assistant Sessions Judge has sentenced the accused for the imprisonment undergone along with the fine of Rs. 3,000.

Section 376, I.P.C. provides a minimum sentence of seven years and in case of gang rape, the minimum sentence is 10 years but proviso is added to Section 376(1), I.P.C. which is as follows:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years.

The learned Assistant Sessions Judge, has given special reasons by saying that after taking into consideration the ages of the accused and the circumstances, the sentence already undergone, will be adequate punishment. He has further given a reason that if the accused are sent to jail further, it will affect their families because there is no other bread earner in the family.

The appeal was filed against the judgment of conviction. There are three types of appeals u/s 386, Cr. P.C:

(a) Against the order of acquittal.

(b) Against the order of conviction.

(c) For the enhancement of the sentence.

The impugned judgment and order has been passed in an appeal against the conviction u/s 386(b). It was not an appeal for enhancement of sentence by the State under Sub-section (c) of the Section 386, Cr. P.C.

I find that in an appeal against the order of conviction, the learned Ist Additional Sessions Judge had no jurisdiction to enhance the sentence. Therefore, the operation of the impugned order by which the sentence u/s 376, I.P.C. has been enhanced is to be set aside.

Both the revisions are partly allowed and partly dismissed.

Both the revisions against the order of conviction are dismissed. The revisions against the portion of the order enhancing the sentence are allowed. The portion of the impugned judgment dated 5.9.1997 passed by the Ist Additional Sessions Judge, Unnao, in Criminal Appeal No. 20 of 1993 by which the sentence u/s 376, I.P.C. is enhanced, is set aside.

Let a certified copy of this judgment be sent to the Court concerned at once for compliance.