Manoj Kumar Sahu vs The State Of Jharkhand & Anr.

A counter-affidavit containing custody report has been produced by the learned Public Prosecutor.

Keep in on record.

Heard Mr. Ayush Kumar Verma, the learned counsel for the appellant and Mr. Pankaj Kumar, the learned Public Prosecutor for the State.

The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated, 18.11.2008 passed by the learned Additional Judicial Commissioner, FTC-VI, Ranchi in S.T. No.248 of 2006, arising out of Kotwali Sukhdeo Nagar PS Case No. 28 of 2006 G.R. No. 155 of 2006, by which the sole appellant has been convicted for the offence under sections 366 and 376 IPC and sentenced to undergo RI for seven years and fine of Rs. 10,000/- for the offence under section 366 IPC and in default stipulation further imprisonment for one year. He has been further sentenced to undergo RI for seven years and fine of Rs. 5000/- for the offence under section 376 IPC and in default stipulation imprisonment for six months. Both the sentences were directed to run concurrently.

The prosecution case, as unfolded in the fard-beyan of the informant Sunil Gope is that on 5.1.2006 his daughter (victim x), aged about 15-16 years left her house for Ratu Road in connection with her work but did not return. He made search for her but could not find and thereafter on 8.1.2006 he has lodged missing Sanha no. 267/05. On 12.1.2006 at bout 4:00 p.m. his daughter returned and disclosed that on 5.1.2006 accused Manoj Kumar Sahu met her near Ratu Road graveyard and persuaded her to eat something after which she became semiconscious and thereafter took her along with him, keep moving to different places and on 12.1.2006 left her back near graveyard. It is alleged that accused Manoj Kumar Sahu enticed and induced minor daughter of the informant despite the fact that he has already having children.

On the basis of fardbeyan of informant Kotwali(Sukhdeo Nagar) PS Case No. 28 of 2006 under section 366A IPC was registered. After completion of investigation charge sheet was submitted against sole accused under sections 366A and 376 IPC, on the basis of which cognizance was taken. Charges were framed under the same sections and read over and explained to him to which he pleaded not guilty and claimed to be tried.

During trial, the prosecution has examined altogether 9 witnesses in support of his case and the defence has also examined altogether 8 witnesses.

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 and submitted that during trial and post-conviction, the appellant has remained in custody for 3 years 1 months and 7 days. Considering the nature of offence committed by the appellant, he has sufficiently been punished for his guilt. The occurrence is of the year 2006. The appellant has undergone agony of trial and has sufficiently been punished by undergoing almost half of the sentence, therefore, again sending the appellant to jail custody for remaining period of sentence would not meet the ends of justice and disproportionate to the offence committed by him. Hence, the sentence awarded to the appellant may be reduced to the imprisonment already undergone by him.

On the other hand, learned A.P.P. has defended the judgment of learned trial court on merits. So far as the quantum of sentence is concerned, he has fairly submitted that this case is stale one of the year 2006 and the appellant has sustained custody of 3 years 1 months and 7 days out of total sentence of 7 years, hence, appropriate order may be passed in the ends of justice.

I have considered the submission of the respective parties and also perused the impugned judgment.

PW-2 is the victim herself. She has stated in her examination -in-chief that on 5.1.2006 she left her house at about 7 to 7:15 a.m. for Ratu Rod flats where she used to work as maid. When she reached near Ratu Road graveyard she met with the accused appellant who offered her tea. Upon pursuance, she accepted the tea. Meanwhile she felt dizziness and the accused appellant took her on a tempo in which she was fully unconscious. When she regained her sense, she found herself in a tiled roofed house where she was kept in captivity for seven days, in course of which under threat and coercion the appellant used to commit rape upon her. On 12.1.2006 she was left near graveyard and thereafter she went back to her house. Police got her medically examined and her statement was also recorded by the learned judicial magistrate under section 164 Cr.P.C. upon which she has put her signature which has been marked as Ext. 2/1. She identified the accused appellant in the dock.

PW-8 is the Dr. Jayotshna Sinha. She has examined the victim on 13.1.2006. She did not find any injury on the victim's body. Upon medical examination she found abrasion on both the thighs, swelling redness of vulva, tear in hymen, abrasion in vagina. Blood mixed discharged was coming out from vagina. Internal examination of vagina was done with one finger. Vaginal swab discloses that there is no dead or alive spermatozoa was found as per pathologist report but RBC was found. Injury report of the doctor marked as Ext. 4.

Considering the nature of offence and direct involvement of the appellant in the alleged offence, which was corroborated by the victim herself in her evidence and medical examination report, I find that there is no error in the judgment of conviction of the appellant. Hence, the conviction for the offences under sections 366 and 376 of IPC is upheld.

So far as the sentence of the appellant is concerned, it appears that the occurrence is of the year 2006 and since then more than two decades have expired and the appellant has suffered long agony of the trial and the appellant has remained in custody for 3 years 1 months and 7 days out of total imprisonment of 7 years and as such he has already undergone about half of the total sentence awarded to him. Therefore, no useful purpose would be served by sending the appellant again in jail for serving out the rest of the imprisonment. Hence, it appears expedient, in the ends of justice to modify/alter the sentence of the appellant.

Accordingly, the sentence of the appellant is modified to the extent of period already undergone by him.

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

Appellant is on bail, hence, he is discharged from the liabilities of bail bonds. The 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 Records be sent back to the court concerned for information and needful.