Uttarakhand High Court
Unknown vs The State Of Uttarakhand on 5 April, 2021
Author: R.C. Khulbe
Bench: R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.350 of 2019
Mohod Aslam @ Machhiwala Baba @ Jhorwala
............... Appellant
Versus
The State of Uttarakhand ... Respondent
Dated: 05.04.2021
Mr. Bilal Ahmed, learned counsel for the appellant.
Mr. Deepak Bisht, learned B.H. for the State
Hon'ble R.C. Khulbe, J.
This criminal appeal, preferred by the appellant u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.05.2019 passed by learned FTC/ Additional Sessions Judge/ Special Judge POCSO, Haridwar in Special Session Trial No.99 of 2015, State Vs. Mohd. Aslam, whereby the court below convicted the appellant u/s 326 IPC and sentenced him to undergo 10 years' rigorous imprisonment along with fine of Rs.20,000/- and u/s 10 of Protection of Children from Sexual Offences Act he was convicted and sentenced to undergo 7 years' rigorous imprisonment with a fine of Rs.20,000. He was also convicted u/s 8 of Protection of Children from Sexual Offences Act and sentenced to undergo 3 years' rigorous imprisonment with a fine of Rs.10,000/-.
2. In brief, the information was submitted with Police Station, Roorkee on 20.02.20214 by PW1 Mohd. Salim, which is Ex.Ka-1. On the basis of the said information, chick FIR was lodged with police station. The matter was investigated and after completion of investigation, the Investigating Officer submitted the charge-sheet. Accordingly, charges u/s 326 IPC and u/s 7 2 read with Section 8 of POCSO Act were framed, to which the accused pleaded not guilty and claimed trial.
3. To prove the prosecution story, PW-1 Mohd. Salim, PW2 Ifzan Ahmed, PW3 Abdul Rehman, PW4 Akram, PW5 victim, PW6 Mohd. Hanif, PW7 Yaseen, PW8 Dr. H.S. Bhatia, PW9 Dr. Madhukar Maletha, PW10 B.D. Uniyal, PW11 Sumit Lakhera, PW12 Tasleem Arif, PW13 Akbar and PW14 Sandeep Dewrani were examined as prosecution witnesses.
4. After completion of prosecution evidence, statement of accused was recorded under Section 313 of Cr.P.C. in which he stated that, he has been falsely implicated in the offence. In defence, DW1 Shivmurat Singh, DW2 Sunil Gurjar and DW3 Bir Singh Budhiyal were produced.
5. After hearing both the parties, the learned trial Court convicted and sentenced the appellant, as mentioned in para no.1 of the judgment above. Aggrieved by it, the present appeal has been preferred.
6. Heard learned Counsel for the parties and perused the entire evidence available on the record.
7. Learned Counsel for the appellant fairly argued that the conviction recorded by the trial Court is based on evidence and there is no illegality in the impugned finding; and he also does not want to lay any challenge on the same he only confined his prayer to the extent that the sentence awarded to the appellant by the trial court may be reduced to some extent; he fairly argued that the appellant has no criminal history; he is the only bread earner of his family; he has already served about seven years' imprisonment while the maximum punishment awarded by the trial Court is ten years, accordingly, the sentence may be reduced as already undergone.
38. After considering the entire facts and circumstances of the case, this Court is of the view that it would be just and proper to reduce the sentence of the appellant to seven years' R.I. instead of ten years' R.I. because there is no minimum sentence prescribed u/s 326 IPC.
9. For the reasons recorded hereinabove, the appeal preferred by the appellant is partly allowed with the following directions: -
A. The conviction part of the appellant, as awarded by the Trial Court is maintained.
B. Insofar as the sentence awarded to the appellant by the Trial Court u/s 326 IPC is concerned, the appellant will serve seven years' R.I. instead of ten years' R.I. C. The fine as imposed by the Trial Court will remain unchanged. The appellant shall deposit the fine, which shall be a condition precedent for his release.
D. All the sentences will run concurrently.
10. The appellant shall now undergo the sentence, as modified by this Court. However, the period already undergone by him shall be adjusted from the records as per rules.
11. Registry is directed to forthwith transmit the record of this case along with a copy of this judgment for onwards compliance.
12. Pending application, if any, stands disposed of.
(R.C. Khulbe, J.) 05.04.2021