IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No.33 of 2009 Khushal Singh Brijwal ………. Appellant Versus State of Uttarakhand ..…. Respondents Dated: August 20, 2011 Hon’ble Servesh Kumar Gupta, J. Heard Sri Pankaj Miglani, amicus curiae for the appellant and Sri M.A. Khan, Brief Holder for the State/respondent. This appeal has been directed against the judgment and order dated 25.2.2009 passed by the Sessions Judge, Pithoragarh whereby the accused/appellant was convicted at the end of S.T. No.50 of 2005 and sentenced to undergo three years’ R.I. nay Rs.2,000/- fine for the offence of Section 363 IPC as well as to undergo four years’ R.I. nay Rs.2,000/- fine for the offence of Section 366 IPC. In default of payment of fine, imposed as above, he was further ordered to undergo six months’ additional simple imprisonment in lieu of the each default. This is a jail appeal filed by the convict Khushal Singh while in caption. Learned amicus curiae has not argued the appeal on merits but has drawn the attention of this Court only to the fact that the court below has absolved the accused/appellant from the offence of Section 376 IPC, notwithstanding the fact that the prosecutrix remained with him for almost three weeks. The lower court has categorically held that no rape was committed with the prosecutrix Km. Deepa Dhokti and her age was 17-18 years as per the medical report. He sought the mercy of this Court stating that the convict/accused is so poor that even 2 after procuring the bail order from this Court on dated 25.11.2009, he could not manage the sufficient funds to file the sureties for his release from the incarceration. Learned counsel for the appellant has also stated that this accused remained in jail since 20.7.05 to 6.12.05, i.e. almost for 4 months and 10 days and then after his conviction on dated 25.2.09 he was taken into custody and since then he is in jail. This way, a total period of gaol he has passed comes to nearly 2 years 10 months and 11 days. He prayed for the reduction of the period of sentence and total condonation of the pecuniary fine. In totality of the facts and circumstances of the case, as highlighted by the learned amicus curiae for the appellant, I think that the ends of justice would be served if for the offence of Section 363 IPC, the sentence of fine is set aside and for the offence of Section 366 IPC, the sentence of imprisonment is reduced from the period of four years to three years and the sentence of fine is set aside for this offence too. Thus, the convict Khushal Singh, after serving out the sentence of three years, will be released from the jail and the period already undergone by him, eversince his arrest, will be adjusted in this span of period of three years. The sentence is modified accordingly. Appeal is, accordingly, partly allowed. (Servesh Kumar Gupta, J.) 20.08.2011 Rajeev Dang