1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) SINGH BENCH Criminal Appeal No. 546/1996 Dharmendra @ Babloo S/o Sunderlal Vs. State of Madhya Pradesh PRESENT: HON'BLE SHRI JUSTICE G.S. SOLANKI _____________________________________________________ Shri S.P. Singh, learned counsel for the appellant. Mrs. Pratibha Mishra, Panel Lawyer for the State. Date of hearing: 14/07/2011 Date of Judgment: 14/07/2011 J U D G M E N T Appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, being aggrieved by the impugned judgment dated 23.2.1996 passed in S.T. No.493/95 by Second Additional Sessions Judge, Katni whereby the appellant has been convicted under Section 456 of Indian Penal Code and sentenced to undergo RI for 5 years and fine of Rs. 100/-, with default stipulations. 2. It is admitted on record that co-appellant/co- accused Munna @ Chikna, who was convicted under Sections 456 and 376/511 of the IPC has died during pendency of the appeal. The appeal against Munna @ Chikna is abated. 3. Prosecution case in short is that on 20.4.1995 at about 9 O'clock in the night when prosecutrix Chunnibai (PW5) was sleeping in her house, co-accused Munna @ Chikna knocked her door and 2 threatened her that if she could not open the door then he will be broken down the house, therefore, prosecutrix opened the door and co-accused Munna @ Chikna alongwith other man entered into her house and locked it from inside. She further alleged that after entering into her house Munna directed Bablu to stay in other room and he attempted to commit rape on her. Prosecutrix lodged the report Ex.P/1 at police station, Katni. Same was recorded by L.T.B.S. Baghel (PW3). 4. After usual investigation, appellant was charge sheeted before the Additional Chief Judicial Magistrate Katni. Additional Chief Judicial Magistrate, Katni committed the case to the Court of Sessions. Learned Second additional Sessions Judge framed the charges for offence punishable under Section 456 of IPC against the appellant. Appellant abjured the guilt and pleaded false implication. 5. On appraisal of evidence on record, appellant was convicted and sentenced as mentioned hereinabove. Hence this appeal 6. Learned counsel for the appellant submitted that he did not want to challenge the conviction recorded by the trial Court. However, he submitted that prosecutrix herself admitted in her cross-examination that when co-accused Munna @ Chikna assaulted her, the present appellant Dharmendra @ Bablu tried to save her. She further admitted in her cross-examination that present appellant Dharmendra @ Bablu had not participated in the alleged offence of attempt to commit 3 rape alongwith the co-accused. In these circumstances, ends of justice would be met, if the appellant is sentenced for the period of jail sentence already undergone which is about one month and five days. 7. On the other hand, learned counsel for the State justified and supported the impugned judgment and the conviction recorded by the trial Court against the appellant. 8. I have heard learned counsel for the parties and perused the impugned judgment, evidence and other materials on record. 9. Learned counsel for the appellant has not challenged the conviction recorded against the appellant. In these circumstances, conviction recorded under Section 456 of IPC is hereby affirmed. The incident took place in the year 1995 and 16 years have since elapsed. The appellant is a poor person and he remained in custody from 26/5/1995 to 22/6/1995, thereafter, during pendency of the appeal from 15/4/2011 to 21/4/2011. Total period of custody of appellant is one month and five days. After a lapse of long time, there is no need to send the appellant again to jail. I am of the view that ends of justice would be met, if the jail sentence is reduced to the period already undergone. 10. Thus, the appeal is partly allowed. Conviction recorded by the trial Court is affirmed. The jail sentence is reduced to the period already undergone i.e. one 4 month and five days and fine of Rs. 100/- which is already deposited. 11. Appellant is on bail. His bail bond and surety bond stand cancelled. (G.S. SOLANKI) JUDGE ravi