[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 440/2003 RAMESH Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 03.03.2003 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK), TONK IN SESSIONS CASE 95/2002. Date: 14/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Ashvin Garg for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 03.03.2003 passed by the Additional Sessions Judge (Fast Track), Tonk, whereby the accused-appellant has been convicted and sentenced as under:- U/s 343 IPC Simple imprisonment for 6 months U/s 366 IPC Rigorous imprisonment for 4 years with a fine of Rs. 100/-, in default of payment of fine to further undergo simple imprisonment for three months. U/s 376 IPC Rigorous imprisonment for 7 years with a fine of Rs. 100/-, in default of payment of fine to further undergo simple imprisonment for three months. [2] 2. In brief the facts of the case are that on 10.10.2002, Tejmal S/o Kanhaiyalal Mali submitted a written report at Police Station Sadar, Tonk to the effect that on 08.10.2002 at about 02.00 p.m. Ramesh S/o Kanhaiyalal took his minor daughter aged 14 years on motorcycle. It has also been alleged that his daughter also took away an amount of Rs. 11,050/- from the box. This incident of kidnapping of Vimla was witnessed by Shanti and Munni, who tried to stop Ramesh by making hue and cry, but he did not stop. 3. On the basis of the above report, dated 10.10.2002, a case was registered and investigation commenced. After completion of the investigation, challan was submitted before the Court. Charges for the offence under Sections 343, 363, 366 and 376 IPC were framed against the accused-appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 15 witnesses and got exhibited documents Ex.P1 to Ex.P23. 4. The Additional Sessions Judge (Fast Track), Tonk, after hearing rival submissions of the respective parties, vide its impugned judgment dated 03.03.2003 convicted and sentenced the accused-appellant as indicated herein above. [3] 5. Learned counsel appearing for the accused- appellant without arguing the appeal on merit, only submits that looking to the facts and circumstances of the case and considering the fact that the accused-appellant has already remained in custody for about 5 years and 7 months against the total sentence of 7 years awarded to the him under Section 376 IPC, the accused-appellant may be sentenced to the period already undergone by him in custody. 6. He further submits that the prosecutrix has admitted that there was love affairs between them and the letters were also exhibited which were written by the prosecutrix. She willingly gone with the accused and as per the opinion of the Medical Board who conducted medical examination of prosecutrix Vimla regarding commission of rape, the prosecutrix is not habitual of sexual intercourse nor there is report regarding recent forcible sexual intercourse and this fact clearly demolish the prosecution story. 7. Learned counsel for the accused-appellant also placed reliance on the judgment dated 15.04.2008 rendered by this Court in S.B. Criminal Appeal No. 1085/2003- Mahender Pal Vs. State of Rajasthan and the judgment dated 01.07.2008 [4] rendered in S.B. Criminal appeal No. 1017/2005- Ramraj Vs. State of Rajasthan. 8. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the impugned judgment dated 03.03.2003 as well as the relevant material available on the record, more particularly the report of the Medical Board and the letters of the prosecutrix exhibited by the defence as also the prosecution and the defence witnesses. I have also gone through the judgments referred by the learned counsel for the accused-appellant. 9. Having heard rival submissions of the respective parties and looking to the facts and circumstances of the case, it is no doubt that sufficient evidence was tendered by the prosecution to prove the guilt of the accused-appellant and the prosecution is able to prove the guilt against the accused-appellant for the offences under Sections 343, 366 and 376 IPC, but looking to the overall facts and circumstances of the case and considering the fact that the accused-appellant has already remained in custody for about 5 years and 7 months, the ends of justice would be amply met if the accused-appellant is sentenced to the period already undergone by him in confinement. [5] 10. Consequently, the present criminal appeal is partly allowed and the conviction of the accused-appellant under Sections 343, 366 and 376 IPC is maintained, but the sentence of imprisonment awarded to the accused-appellant for the aforesaid offences is reduced to the period already undergone by him in confinement. The accused-appellant Ramesh S/o Ghasi, who is presently lodged in District Jail, Tonk, shall be set at liberty forthwith, if not required to be detained in connection with any other case. The impugned judgment and order dated 03.03.2003 passed by the Additional Sessions Judge (Fast Track), Tonk stands modified accordingly. (K.S. RATHORE), J. /KKC/