Allahabad High Court
Harpal Son Of Om Prakash Yadav And Ram ... vs State Of U.P. on 8 June, 2007
Equivalent citations: 2008 CRI. L. J. (NOC) 88 (ALL.) = 2007 (6) ALJ 114, 2008 (1) AJHAR (NOC) 258 (ALL.) = 2007 (6) ALJ 114 2007 (6) ALJ 114, 2007 (6) ALJ 114
JUDGMENT M.K. Mittal, J.
1. This appeal has been preferred by Harpal son of Om Prakash Yadav and Ram Niwas son of Bharat both residents of village Lahra Nagla, P.S. Gunnaur, District Badaun against the judgment and order dated 3.8.2005 passed by Addl. Sessions Judge, F.T.C. No. 1, Badaun in S.T. No. 851 of 2002 whereby he found the accused persons guilty and convicted them under Section 366, 376(2)(g) IPC and sentenced them to undergo rigorous imprisonment for 7 years and 14 years respectively. He also imposed fine of Rs. 5000/ and 10,000/- and further directed that in case of default they will have to undergo additional imprisonment for three and five years under the two sections respectively. He also directed that the sentences shall run concurrently The accused were, however, acquitted of the charge under Section 363 IPC.
2. I have heard Sri Shanker Suvan, learned Amicus curiae for the accused appellants and Sri S.K. Yadav, the learned Counsel for state and have perused the Trial Court record.
3. Brief facts of the case are that prosecutrix, daughter of the informant Khacheru son of Tota Ram, resident of Lahra Nagla, P.S. Gunnaur. District Budaun, on 25.9.1999 at about 7 p.m. had gone to ease along with her two younger sisters aged 13 and 10 years in the jungle. At the tiem, accused Har Pal Singh and Ram Niwas came there and threatened to kill the daughters of the informant and also showed them tamanchas. Acqused persons kidnapped the prosecutrix and the other two daughters ran to the house and informed the complainant about the incident. He searched his daughter in the village and also in the jungle but could not find her. In the morning he collected the respectable villagers and along with them went to the house of Harpal and Ram Niwas. He talked to Om Prakash father of Harpal and also to mother of Ram Niwas, who promised to bring back his daughter within day or two. But later on they refused. The complainant continued to search her daughter but could not find and then he lodged the written report Ex-Ka-2 at P.S. Gunnaur on 4.10.1999 at 8.45 a.m.
4. Head constable Uma Shanker Sharma, P.W.-7 was posted as Head Moharrir at the police Station on 4.10.1999. On the basis of the written report he prepared the check report Ex-Ka-6. He also registered the case in the general diary at rapat No. 16 at 8.45 a.m. same day. Its copy is Ex-Ka7, On 5.10.1999 the informant along with the prosecutrix came to the Police Station with a bag, contain ng the clothes of the accused which was left by them and it was depo sited at the Police Station and fard Ex-ka-8 was prepared by P.W.-7.
5. The investigation was entrusted to Sub inspector Brijraj Singh P.W.-8. Case was registered in his presence. He interrogated the witnesses on 5.10.1999. He inspected the place of occurrence and prepared the site plan Ex-Ka-9. On that day, the abducted gir1 along with her father reched the police station and gave the bag containing the clothes of accused Harpal. He also interrogated the prosecutrix and on the basis of the statement added Section 376 IPC. The prosecutrix was sent for medical examination on 6.10.1999. Her statement under Section 164 Cr.P.C. was also recorded on 7.10.1999. She made statement that 10-11 days earlier when she had gone with her two sister to case was tying her nara, Ram Niwas and Harpal of her village and one Sunder came and they took out the tamanchas and threatened them. She was dragged and was taken in a jeep to Ghaziabad. They travelled throughout night and reached Ghaziabad in the morning at about 7 a.m. Harpal and Sunder remained hear her and Ram Niwas went in search of a room. From there she was taken to the room and was kept there for two days. During those two days all the three persons committed rape on her. Thereafter she was taken by the three persons, to a village and there she was sold for Rs. 20,000/- to the brother of One Fauji. When she started weeping, Fauji consoled her. He took her bua's house in Aligarh. The accused had left that village. Fauji had told her that Sunder was resident of Sunwal. Her Bua informed her father and her father took her from
6. Dr. Rama Manran, P.W.-6 was posted as Emergency Medical Officer in the Woman's hospital, Budaun on 6.10.1999. Prosecutrix was brought by constable Harpal. Doctor examined the prosecutrix at 1.00 p.m. She could not find any external injury on the per on of the prosecutrix. On internal Examination she did not find any injury on her private part. There was old tear in the hymen. Vagina admitted two fingers easily. Vaginal swab was taken for pathological examination and X-ray was also advised. Doctor prepared the report Ex-Ka-4 at the time of examination. She also prepared the letter for pathological examination and according to pathological report vaginal smear was positive for sperms. On the basis of the radiological findings and pathological report, the doctor concluded that the age of the prosecutrix was about 18 years and recent evidence of intercourse was present. The supplementary report is Ex-Ka-5.
7. Doctor Neeta Chandel, P.W.-5 Was posted as Pathologist in District Hospital on 6.10.1999. She had examined the vaginal swab of the prosecutrix and had found sperm therein. She prepared and proved her report Ex-Ka-3.
8. Doctor T.N. Sharma, P.W.-1 was, posted as senior Radiologist in District Hospital, Budaun. On 6.10.1999. X-ray of the right elbow, knee and wrist joints of the prosecutrix was taken by the techmcian under his supervision and epiphysis were found to have fused with their respective bones. The lime of fusion was also noted in the wrist joint. He prepared the X-ray report Ex-Ka-1 and also proved the X-ray plate as material Ex-1.
9. After completing the investigation, charge sheet Ex-Ka-11 was submitted by the Investigating Officer against the accused persons.
10. The accused were committed to the Court of Sessions by order dated 18.9.2002 passed by A.C.J.M. IInd Budaun. The charges were framed against the accused on 21.1.2003. They pleaded not guilty and claimed trial.
11. In support of its case, prosecution led evidence and besides the above noted formal witnesses examined the prosecutrix as P.W.-2, informant Khacheru as P.W. -3 and Km Durgesh another daughter of the informant as P.W.-4. These witnesses have stated about the prosecution case.
12. Learned Trial Court after considering the evidence on record came to the conclusion that the prosecutrix was more than 18 years at the time of incident and that she was forcibly taken by the accused persons and that rape was committed on her by the accused. He also held that there is presumption against the accused persons under Section 114A of the Evidence Act that the accused committed rape on the prosecutrix without her consent. He also held that the contention of the prosecutrix about the alleged rape was corroborated by medical evidence also. Consequently he convicted the accused persons as aforesaid. Feeling aggrieved, they have come up in this appeal.
13. Learned Amicus curiae has contended that the accused have been wrongly implicated in this case and that the learned Trial Court has not made a proper appreciation of the evidence on record. According to him the prosecutrix was consenting party and went with the accused. No injury was found on her person during medical examination and that the accused have been roped in on account of their enmity with Jeewn Chaudhary, Pradhan. Accused belong to the party of Jai Singh. He also contended that there is delay in lodging of the report and thath the accused are entitled to be acquitted.
14. Against it learned A.G.A. has contended that the prosecutrix was kidnapped at pistol point by the accused persons and they took her in the jeep to Ghziabad where she was kept for two days in a house and the accused committed rape on her. He also contended that according to prosecutrix there was one more person who was named as Sunder by these accused persons but his address could not be available and therefore he could not be prosecuted in the case. He has further contended that the prosecutrix was not a consenting party and was gang raped by the accused persons. According to him the medical evidence corroborates the prosecution case and the appeal is liable to be dismissed.
15. In this case, prosecution came with the allegations that at the time of alleged incident age of the girl was 17 years. This age has been mentioned in the first information report. Father of the prosecutrix during trial stated that the age of his daughter was about 16 years. On the basis of the medical examination the age of the girl was determined as about 18 years. It is not the case of the prosecution that the prosecutrix ever had been to any school. There is no birth certificate of school certificate on the record. In the circumstances of the case the age could be determined with the help of the medical evidence. There is margin of two years on either side while determining the age on the basis of the medical assessment. It is also settled principle of law that if two opinions are possible the one favourable to the accused has to be adopted. In the circumstances the age of the prosecutrix can be held to be more than 18 years. In this connection, the finding as recorded by the learned Trial Court is therefore correct.
16. Now it has to be seen whether the prosecutrix was abducted by the accused persons at pistol point as alleged by the prosecution or she went of her own free will with the accused as claimed by the defence. In order to detemine the fact it will be relevant ot refer the statement of theprosecutrix and of her sister. Prosecutrix P.W.-2 has stated on oath that when she had gone to ease herself along with her two sisters and was tyin ger nara accused Harpal and Ram Niwas of her village came with tamanchas. It was about 7 p.m. and the sun had set at that time. Accused threatened with tamanchas and said that if they raised alarm they would be shot dead. Her two daughters ran towards the house and she was taken by Harpal and Ram Niwas. Third person named Sunder whom she did not know from before and whose name was being called by the accused also came and he was salso having a tamancha. She was taken to Junamai road on foot and thereafter in jeep to Ghaziabad where they reached in the morning. Harpal and Sunder remained with her in the jeep and Ram Niwas went in search of a room, Thereafter they fookher to that house where she was kept. In cross examination she has stated that prior to the incident she did not use to talk to Harpal. Harpal and Ram Niwas had taken her in the jeep to Gaziabad. Sunder was also in the jeep. When Ram Niwas had gone to see the room, they were in the jeep. After some time Ram Niwas came back and as long the jeep remained standing there, she did not raise alarm because the accused had threatened her. She did not complain to any one when she stayed in that room because the accused had threatened her. She has also stated in cross examination that she was dragged on the ground and she had received abrasions and her clothes were also torn. In reply to a question put by the Court, she stated that she had received abrasioons on her hands and legs. She also stated that when she was being taken, she did not raise alarm because the accused were carrying tamanchas and she had already been threatened so how she could raise alarm. A. that time no one was working in the near by fields and it had become dark. In the entire statement as has come on record no suggestion has been given to this witness that the accused did not threaten her with tamancha or that they did not take her in the Jeep.
17. Learned Amicus Curiae has stated that the conduct of the prosecutrix in not raising alarm shows that she was consenting party. But the prosecutrix has given a positive reply that she was threatened by the accused persons who wee carrying tamancha and therefore she did not raise any alarm. It is important to note that no suggestion has been given to life prosecutrix that she was a consenting party and went with the accused of her own free will. Even the accused have not made any statement in their statements under Section 313 Cr.P.C. that the prosecutrix went with them or that she was a consenting party The accused Ram Niwas had only stated under Section 313 Cr.P.C. that the prosecutrix had gone with Sheoram her tractor driver. But even no such suggestion has been given to the prosecutrix. Thus the theory that she was a consenting party cannot be accepted.
18. Learned Amicus curiae for the appellants has also contended that according to prosecutrix when she was being dragged she had received injuries on her hands and legs and that during medical examination no external injury was found on her person. But he was examined after about 10-11- days and if no injury was found at that time it cannot be said that prosecutrix is not stating the truth. In the case of Ram Das and Ors. v. State of Maharashtra (2007) 1 SCC (Cri) 546 it has been held by Hon'ble Apex Court that the conviction on the sole basis of testimony of prosecutrix is sustainable where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. In the instant case, testimony of the prosecutrix who has been cross examined at length, shows that it is of sterling quality on whose sole testimony conviction can be sustained.
19. Statement of the prosecutrix that she was forcibly abducted by the accused persons has also been corroborated by her sister Km. Durgesh P.W.-4 She also stated that when they were in the field accused came and took out their tamancha and threatened them and forcibly took her sister She also stated in her cross examination that her elder sister was caught by the accused accused persons and thereafter they ran toward their house and informed their father. The accused had also threatened them and took her sister towards Bazra field. There is nothing in her cross examination to show that P.W-4 is not speaking the truth. Therefore the Prosecution, had been successful in establishing that prosecutrix was forcibly abducted by these accused persons.
20. Learned Amicus Curiae for the appellants has contended that there was one more accused Sunder but he has been intentionally left over by the prosecutrix and it shows that she had some affairs with Sunder but this contention is not made out from the evidence on record. Although the prosecutrix gave the name of the village of Sunder as Sunwal in statement under Section 164 Cr.P.C. but it has come in her statement that she did not know Sunder and his name was disclosed by these accused persons. Moreover the statement under Section 164 Cr.P.C. shows that name of the village was old to the prosecutrix by Fauji. The Investigating Officer has stated that for want of address, Sunder could not be traced out and therefore he could not be implicated. Therefore the non implication of Sunder in this case is not material and does not effect the veracity of the prosecution case.
21. Learned A G.A. has contended that prosecutrix was gano raped by both the accused persons as well as by the third person Sunder and in this connection the prosecutrix has stated that the accused committed rape on her forcibly and on pistol point one after the other when she was kept in the house in Ghaziabad. She has described the act of rape as done by the accused. In cross examination, the has stated that all the accused committed rape on her one by one. She had received bruises in her back, hips and thighs while she was raped by the accused. She also stated that when one accused used to commit rape on her, the other used to sit out and that they used to commit this act one alter other. She had pain at the time, the rape was committed. They had tamancha with them and also used to threaten that if any alarm was raised she would be killed. She has been cross examined at length but no suggestion has been given that the accused did not commit rape on her. There is no reason for the prosecutrix to make false statement regarding rape committed on her by the accused persons. Although she stated that she had received bruises during that act and no injury was found in the medical examination but there was sufficient time gap in the medical examination and therefore on this ground her testimony cannot be doubted. The prosecutrix was raped by three persons and in the circumstances there can be no question of consent for intercourse.
22. Section 114A of the Indian Evidence Act reads as under:
114-A. Presumption as to absence of consent in certain prosecutions for rape- In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of Sub-section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she stated in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
23. In the instant case, the prosecutrix made positive statement that she was raped by the accused persons and the accused could not rebutt the same and therefore the presumption would arise that she did not consent.
24. Learned Amicus curiae has further contended that the act as alleged cannot be treated to be gang rape as according co the statement of the prosecutrix when she was raped by one accused the others remained outside. But according to the learned Counsel for the state, accused were members of a group and had common intention for committing rape and in furtherance of their common intention they committed rape one after another on the prosecutrix.
25. In order to appreciate the arguments advanced by the earned counsel appearing on both sides, it would be appropriate to extract the relevant provisions of Section 376 IPC, as under:
Section 376 Punishment for Rape-(1) * * * (2) Whoever- * * *
(g) commits gang rape , shall be punished with rigorous imprisonment for a term which shall not be less than ten years but Which may be for life and shall also be liabel to fine:
Provided....
Explanation-I--Where a woman is raped by one or more in a group of persons acting in furtherance of heir common intention, each of the persons shall be deemed to have committed gang within the meaning of this sub-section.
26. In the case of Ashok Kumar v. State of Haryana , it has been held by Hon'ble Apex Court that in order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which maybe determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence."
27. In the case of Pramod Mahto v. State of Bihar 1990 SCC (cri) 206, it has been held by Hon'ble Apex Court that in cases of gang rape the proof of completed act of rape by each accused on the wictim is not required. The statutory intention in introducing Explanation-I in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC.
28. In the case of Priya Patel v. State of M.P. , it has been held by Hon'ble Apex Court that a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. Common intention is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. Common intention denotes action in concert and necessarily postulates a pre arranged plan a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from the same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC is that the act must be done, in furtherance of the common intention to do a criminal act. The expression in furtherance of their common intention as appearing in the Explanation to Section 376(2) relates to the intention to commit rape.
29. In the case of Pradeep Kumar v. Union Administration Chandigarh (2007) 1SCC (Cri) 41 it has been held by Hon'ble Apex Court that in order to bring the offence of rape within the purview of Section 376(2)(g) IPC read with Explanation-I to this section, it is necessary for the prosecution to prove:
(i) that more than one persons had acted in concert with the common intention to commit rape on the victim;
(ii) that more than or one accused had acted in concert in commission of crime of rape with pre-arranged plan, priori meeting of mind and with element of participation in action. Common intention would be action in concert it pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence, and:
(iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group (11) On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would Would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims.
(12). It is settled law that the common common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the act or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances.
30. In view of the principles enumerated by the Hon'ble Apex Court, if the factual matrix of the present case is analysed with regard to the role played by the accused persons it becomes becomes clear that they were acting in a group from the beginning and had common intention and they forcibly abducted the girl and took her to a room and there they committed rape on her on her one after another for two days. Even if while actual act of rape was done by one accused accused the other remained outside of the room it cannot be said that they had no common intention and that they were not acting in furtherance thereof as members of that group.
31. The learned Amicus Curiae has placed reliance on the case of Pradeep Kumar (supra) but in that case the facts were different. According to the statement of the prosecutrix, the Hon'ble Apex Court came to the conclusion that accused entered the house after the rape had been committed on the prosecutrix and thereafter he was consuming liquor with Lalit Gupta and one Bittu and on that ground it was held that his mere presence his mere presence would not be sufficient to find him guilty taking aid of explanation-I. In that case the accused Pradeep was not alleged to have committed rape on the prosecutrix. But in the instant case, both these accused as well as one Sunder are alleged to have actively participated and committed rape on the prosecutrix and therefore this ruling not help the appellants.
32. Learned Amicus curiae has also contended that the medical evidence does not support the prosecution case of rape as during medical examination no injury was found even on the private parts and there was old tear in the hymen suggesting that she was used to intercourse from much before the incident. Although no injury was found but there is nothing improbable in it as she was examined after several daysi The fact that vagina admitted two fingers could be due to the fact that she was raped by three persons for two days. Prosecutrix made positive statement that prior to this incident she never had any intercourse. Therefore this contention of learned Amicus curiae cannot be accepted.
33. It has also come in evidence of the prosecutrix that the accused persons took her to the house of Fauji and sold her for Rs. 20,000/- to his brother. At that time, Fauji was not present and one of the accused Harpal even left his bag which was deposited with the police The girl narrated the facts to the wife of Fauji Who was a gentle lady. The fauji assured her to take her to her Bua and he left her there. At Mat place the father of the prosecutrix as well as Jeevan Chaudhary, the pradhan were present. Her father was called by her Bua WHO was at the home of her brother in Aligarh She was taken to police station by her father.
34. Learned Amicus curiae has contended that prosecution has not examined Fauji and Bua and it shows that the father of the prosecutrix as well as Jeevan Chaudhary were aware as to where the prosecutrix was and they brought her and falsely implicated the accused at the instance of Jeevan Chaudhary who was inimical to the accused because they belong to the party of Jai Singh, a political rival of Jeevan Chaudhary. It would have been better for the prosecution to have examined Fauji as a witness but it appears that prosecutrix could not give his details including the address. But this will not effect the prosecution case. No suggestion has been given to the prosecutrix that she was not taken by the accused to the house of Fauji and that she was not sold to his brother. Had it not been so there was no occasion to introduce such facts. Accused have stated that because of their enmity with Pradhan the have been implicated in this case but no details about the enmity have been brought by the accused on record. Even if for arguments sake it is accepted that the relations between the accused and Jeevan Chaudhary were not cordial, on that ground the complainant is not expected to lodge the report against these two persons involving his family reputation as well as future of his daughter. If pradhan had enmity and if informant wanted to oblige the Pradhan any other case could have been cooked up. Therefore the defence plea that they have been falsely implicated on account of enmity with Pradhan is not tenable and cannot be accepted.
35. Learned Amicus curiae has also contended that there is delay of about 10 days in lodging of the report In this connection, complainant has given sufficient explanation. In report itself it has been mentioned that when he came to know from his daughter that the accused had taken the prosecutrix collected respectable persons of the village and they all went to the house of the accused and there talked with Omprakash father of Harpal and mother of Ram Niwas and they assured that they would call back the girl. According to Khacheru P.W.-3 when subsequently they refused, he had to lodge the report. The fact that complainant went to the house of the accused persons and was assured by the father and mother of the two accused has not been challenged in his cross examination and it goes unrebutted. This explains the delay in the first information report. Moreover in such matters the delay in lodging in lodding of the report in itself is not material. In the case of Dildar Singh v. State of Punjab (2007) 1 SCC (cri) 129, it has been held by Hon'ble Apex Court that delay in lodging of the first information report cannot be used as ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and if offered, whether it is satisfactory, in the instant case, as mentioned above the informant the informant has given satisfactory explanation for delay in lodging of the report.
36. Considering the entire facts of the case, I come to the conclusion that the prosecution had been able to establish its case against the appellants beyond reasonable doubt that they had forcibly taken the prosecutrix with intention that she would be forced to illicit intercourse and committed gang rape on her. In the circumstances the findings as recorded by the learned Trial Court are correct and are confirmed.
37. Now I come to the question of sentence. Accused have been sentenced to undergo rigorous imprisonment for 14 years under Section 376(2)(g). The contention of learned Amicus Curiae is that the sentence as imposed is too harsh and excessive. It is settled law that the sentence has to be commensurate with the offence committed. In the facts and circumstances of the case, the interest of justice will be served if the accused are sentenced to undergo rigorous imprisonment for 10 years the minimum prescribed under Section 376(2)(g). The accused have also been directed to deposit the fine of Rs. 5000/- and Rs. 10,000/- in default to undergo rigorous imprisonment for three years and five years under Section 366, 376(2)(g) IPC respectively. This is also excessive and needs to be reduced. The interest of justice will be served if they are directed to deposit the fine of Rs. 1000/- and 4000/- and in default to undergo simple imprisonment for two months and six months respectively. With this modification, the appeal is liable to be dismissed.
38. Conviction of the appellants Ram Niwas and Harpal as recorded under Sections 366, 376(2)(g) IPC is confirmed. The sentence as awarded to the appellants under Section 366 IPC is also confirmed. However the sentence under Section 376(2)(g) is reduced from 14 years to 10 years. The sentences shall run concurrently and the period already spent in custody shall be liable to be adjusted under Section 428 Cr.P.C. The appellants shall also deposit the fine of Rs. 1000/- and 4000/- under Section 366, 376(2)(g) IPC respectively and in default shall undergo two months and six months further simple imprisonment. To the extent the impugned order is modified and with this modification appeal is dismissed. The accused shall remain in jail to serve out the sentence.
39. Copy of the judgment be sent to learned Trial Court so that concerned jail authorities be intimated regarding the modification of the sentence.
40. Fee of learned Amicus Curiae is assessed at Rs. 3000/-