Gourishankar Vs State Of Chhattisgarh

The present revision filed under Section 397/401 Cr.P.C. is directed against the judgment of conviction and order of sentence dated 23.07.2012 passed by learned 1^st Additional Sessions Judge, Manendragarh, Place Baikunthpur C.G. in Criminal Appeal No. 53/2010, whereby the appeal of the applicants has been dismissed while affirming the judgment dated 22.03.2010 passed in criminal case No.110/2008 by the Chief Judicial Magistrate, Baikunthopur, convicting the applicant No.1 under Section 317 IPC and sentencing him to RI for two years with fine of Rs.500/- and likewise convicting the applicant No.2 under Section 317/34 IPC and sentencing her to RI for two years with fine of Rs.500/- and in default, additional SI for 3 months on each count.

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Case of the prosecution, in brief, is that the applicant No.1 is a father of applicant No.2 and when applicant No.2 became pregnant and gave a birth to male child on 12.10.2007, the applicant No.1 left it in an unprotected place so that the newly born infant could die, to which, applicant No.2 had also cooperated. On receiving the information of above incident, Baikunthpur Police recovered the new born baby from the scene of incident and during investigation, sufficient evidence was found against the applicants.

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After completion of investigation, charge sheet has been filed before the Court of Chief Judicial Magistrate, Baikunthpur C.G against the applicants. The applicants abjured their guilt and prayed for trial.

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The Court of CJM, after appreciation of oral and documentary evidence, convicted and sentenced the applicants as shown in para 1. The said judgment was challenged by the applicants in criminal appeal, however, the Appellate Court vide judgment dated 23.07.2012 had dismissed the appeal while affirming the judgment dated 22.03.2010 as passed by the CJM, Baikunthpur as mentioned in opening paragraph. Hence, this revision.

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Learned counsel for the applicants submits that he does not want to press this revision on merit and confines the argument only on the sentence part, which according to him, is on higher side. He further submits that applicant No.1 is in jail from 16.10.2007 to 13.02.2009 and thereafter from 22.07.2012 to 11.09.2012, i.e. 485 days whereas the applicant No.2 is in jail since 22.07.2012 to 11.09.2012, i.e. 52 days and they are facing lis since 2007 i.e. more than 17 years and that there are no criminal antecedents against them. He further contends that now the applicant No.1 is aged about 63 years whereas at the time of incident, applicant No.2 was bachelor and now she is a married woman and living with her children peacefully. Therefore, it is prayed by counsel for the applicants that the jail sentence awarded to them may be reduced to the period already undergone by them. He further submits that the fine sentence has already been deposited by him in the concerned Court.

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On the contrary, learned State Counsel opposed the revision and supported the impugned judgment.

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I have heard learned counsel appearing on behalf of the parties and perused the record available with utmost circumspection.

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So far as conviction of the applicants is concerned, the trial Court as well as Appellate Court, after considering the statements of P.W.1 P.K, P.W.2 B.L., P.W.7 Smt. S.B. and P.W.8 Dr. S.B. and other evidence and material documents available on record, have rightly recorded finding of conviction. The said finding of conviction by trial Court as well as Appellate Court is a finding of fact based on evidence

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available on record, it is neither perverse nor contrary to record and I hereby affirm the said finding of conviction of applicant.

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As regards the sentence part, considering the facts and circumstances of the case, particularly, considering the fact that the incident is of 2007, i.e., more than 17 years and at present the applicant No.1 is aged about 63 years and at that time, the applicant No.2 was unmarried girl and they remained in jail for a period of 52 days and that there is nothing on record to show that they misused the liberty while they were on bail; in the considered opinion of this Court, no fruitful purpose would be served in sending the applicants back to jail at this stage and rather it would be justifiable if they are sentenced to the period of 52 days already undergone by them.

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Consequently, the revision is partly allowed. While maintaining conviction of the applicants under the aforesaid Sections, the sentence imposed thereunder by the trial Court as well as by Appellate Court is hereby modified as above and they are sentenced to the period of 52 days already undergone by them. 11. It is reported that the applicants are on bail. Their bail bonds are not discharged at this stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C. 12. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Gourishankar v. State Of Chhattisgarh

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Gourishankar v. State Of Chhattisgarh

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