[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 883/2004 MAHAVEER Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 25.02.2004 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS JUDGE (FAST TRACK) NO.1, BARAN IN SESSIONS CASE 177/2003. Date: 29/08/2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Ratan Kaushik for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is preferred by the accused-appellant against the impugned judgment dated 25.02.2004 passed by the Additional District & Sessions Judge (Fast Track) No.1, Baran, whereby the accused-appellant has been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs. 1,000/-, in default of payment of fine to further undergo simple imprisonment for six months. 2. In brief the facts of the present appeal are that on 24.09.2003 a written report Ex.P1 was submitted by the complainant-prosecutrix Rajesh at Police Station Siswali, Baran alleging therein that at about 10.00 a.m. when she was working in the field, accused Mahaveer S/o Madan Lal came there and [2] committed rape on her. On the basis of the above written report, FIR No. 134/2003 was registered against the accused-appellant at Police Station Siswali, Baran for the offence under Sections 376, 354 IPC and investigation commenced. After completion of the investigation, the police filed charge-sheet against the accused-appellant for the offence under Sections 376 and 354 IPC in the Court of Judicial Magistrate, Mangrol and thereafter from the Court of District & Sessions Judge, Baran, the case was committed to the Court of Additional Sessions Judge (Fast Track) No.1, Baran for trial. 3. The Additional Sessions Judge (Fast Track) No.1, Baran having gone through the evidence and the material collected during investigation and placed before it and considering the rival submissions of the respective parties, framed charge for the offence under Section 376 IPC against the accused- appellant, who denied the charge and claimed trial. 4. The prosecution, in order to prove its case, examined as many as 10 witnesses and got exhibited some documents. The accused-appellant was examined under Section 313 Cr.P.C., wherein he has stated that he has been falsely implicated in the case. 5. The Additional Sessions Judge (Fast Track) [3] No.1, Baran after hearing the rival submissions of the respective parties and upon careful perusal of the material available on the record, convicted and sentenced the accused-appellant in the manner stated herein above. 6. The case of the accused-appellant is that false case has been registered against him. Neither any injury has been received by the prosecutrix nor at the place of occurrence, there is any sign of incident of rape as alleged. 7. Further there are omission and lapses on the part of the prosecution to prove the guilt against the accused-appellant beyond reasonable doubt as FSL report was also not received by the trial Court and without having FSL report, accused- appellant has been convicted and sentenced by the trial Court. It is also submitted that the statement of PW9 Dr. Mrityunjaya Mandal has also not been properly appreciated by the trial Court while passing the impugned judgment. 8. It has also been submitted on behalf of the accused-appellant that the prosecution witnesses namely; Badri Bai, Shreeram, Ramswaroop and Smt. Rajesh are members of one family and are interested witnesses and their testimony cannot be relied upon. [4] 9. Learned counsel for the accused-appellant without arguing the appeal on merits, only submits that the accused-appellant is in jail for a period of more than 4 years and 10 months, therefore, looking to the facts and circumstances of the case and considering the age of the accused-appellant, the sentence awarded to the accused-appellant of rigorous imprisonment for 7 years under Section 376 IPC be reduced to the period already undergone by him in confinement. 10. On the other hand, learned Public Prosecutor while strongly controverting the submissions made on behalf of the accused-appellant, supported the impugned judgment passed by the trial Court and referred the statement of PW9 Dr. Mrityunjaya Mandal and submits that as per the statement of the doctor and the medical report, there were multiple abrasions on the right palm of the prosecutrix and the accused-appellant has rightly been convicted and sentenced by the trial Court for the offence under Section 376 IPC. 11. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 25.02.2004 passed by the trial Court as well as the evidence and material available on the record. [5] 12. Having heard rival submissions of the respective parties, it is not disputed that sufficient evidence was tendered by the prosecution to prove the guilt of the accused-appellant and the prosecution has succeeded in proving its case against the accused-appellant beyond reasonable doubt and he has rightly been convicted by the trial Court for the offence under Section 376 IPC, but as per the settled preposition of law and looking to the overall facts and circumstances of the case, considering the age of the accused-appellant and the submissions made on his behalf, this Court is of the view that ends of justice would be amply met if the accused-appellant is sentenced to the period already undergone by him in confinement as he has already remained in custody for more than 4 years and 10 months, whereas the sentence awarded to the accused- appellant for the offence under Section 376 IPC is rigorous imprisonment for 7 years. 13. In the result, the present criminal appeal is partly allowed and the conviction of the accused- appellant under Section 376 IPC is confirmed, but instead of sentence of rigorous imprisonment for 7 years as awarded under Section 376 IPC, the same is reduced to the period already undergone by him in confinement. The accused-appellant Mahaveer S/o Madan Lal, who is presently lodged in Central Jail, Kota, shall be set at liberty forthwith, if he is [6] not required to be detained in connection with any other case. The impugned judgment of conviction and order of sentence dated 25.02.2004 passed by the Additional District & Sessions Judge (Fast Track) No.1, Baran stands modified accordingly. (K.S. RATHORE), J. /KKC/ (Reserved/Hearing)