Partly allowed

Ramesh Chander @ Mahesh Chander v. State

Rajasthan HC2 May 2024CRLA/356/1990

Case brief

AI extract

What is this about?

In a criminal appeal against a conviction under Section 376 IPC, the High Court upheld the conviction and restored the term to four years. The court exercised discretion to reduce the total sentence to the period already served and waived the fine, citing passed time and previous incarceration.

What did the court decide?

Sentence reduced to period already undergone; fine waived; appellant released on bail.

Ramesh Chander @ Mahesh Chander Vs State — Criminal Trial and Appeal | Rajasthan HC (2024)

¶1

[2024:RJ-JD:19129]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Criminal Appeal No. 356/1990

¶4

Ramesh Chander @ Mahesh Chander S/o Shri Shankar Lal, B/c Pareek, R/o Raila, PS Banera, District Bhilwara (Raj.)

¶5

(At present lodged in District Jail, Bhilwara)

----Appellant

Versus

State of Rajasthan

----Respondent

For Appellant(s) : Mr. SK Poonia For Respondent(s) : Mr. Mukesh Trivedi, PP

¶11

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

¶12

Judgment

¶13

02/05/2024

¶14

Instant criminal appeal has been filed by the appellant against the judgment dated 09.11.1990 passed by learned Sessions Judge, Bhilwara, in Sessions Case No.45/1990 by which the learned Judge convicted the appellant for offence under Section 376 IPC and sentenced him to undergo four years’ RI along with fine of Rs.500/- and in default of payment of fine, to further undergo three months’ RI.

¶15

Brief facts of the case are that on 29.01.1989, complainant Badrilal Kogta submitted a written report before PS Banera to the effect that his family members went to attend the marriage ceremony of Bansilal’s grandson at Bapu Nagar. In the marriage ceremony, the accused-appellant lied to his daughter ‘S’ about the accident of her brother Satyanarain, which according to him happened near Golden Transport. His daughter went towards Golden Transport, where the appellant alleged to have committed

[2024:RJ-JD:19129]

[CRLA-356/1990]

(2 of 6)

rape upon her. On this report, Police registered a case against the accused appellant for offence under Section 376 IPC and started investigation.

¶20

On completion of investigation, police filed challan against the present appellant for offences under Section 376 IPC. Thereafter, the trial court framed the charge against the appellant, who pleaded not guilty and claimed trial.

¶21

During the course of trial, the prosecution examined as many as eleven witnesses in support of its case. Thereafter, statement of the accused-appellant under section 313 Cr.P.C was recorded.

¶22

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 09.11.1990 convicted and sentenced the appellant for the offences as aforesaid. Hence, this criminal appeal.

¶23

Learned counsel for the accused-appellant submits that he does not challenge the finding of conviction but since the occurrence is related to the year 1989 and the accused appellant has so far suffered a sentence of about two years, out of total sentence of four years R.I., therefore, it is prayed that the sentence awarded to the appellant for the aforesaid offence may be reduced to the period already undergone by him.

¶24

On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the said case.

[2024:RJ-JD:19129]

[CRLA-356/1990]

(3 of 6)

I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-appellant.

¶29

At the threshold, it will be appropriate to refer to Section 376(1) IPC, as it stood at the time occurrence, which reads as under:

¶30

“Section 376. Punishment for rape:- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

¶31

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.”

¶32

A bare reading of the aforesaid provision would show that prior to amendment Act 13 of 2013 (w.e.f. 03.02.2013) under Section 376(1) IPC, the sentence of imprisonment under Section 376(1) IPC was for a term not less than seven years which may extend to life. However, as per the proviso to Section 376(1) IPC (prior to amendment), discretion was vested with the court to impose imprisonment for a term of less than seven years for adequate and special reasons to be recorded in the judgment.

¶33

In the present case, the learned trial court in its discretion has also awarded lesser sentence of four years to the appellant on

[2024:RJ-JD:19129]

[CRLA-356/1990]

(4 of 6)

the ground that the appellant was about 22 years of age at the time of occurrence and the prosecutrix was also of similar age.

¶38

In the opinion of this Court, the learned trial court while considering the peculiar circumstances of the case and taking into account the fact that on the date of occurrence the accusedappellant was about 22 years of age, has given adequate reasons for awarding lesser sentence of four years instead of minimum sentence of seven years as provided under Section 376(1) IPC (prior to amendment), which does not call for any interference.

¶39

While dealing with the similar issue, the Hon’ble Supreme Court in the case of State of Madhya Pradesh Vs. Preetam reported in [(2018) 17 SCC 658] has reduced the sentence of the accused from seven years to four years. The relevant paras of the judgment are reproduced as under :

¶40

“(16) Prior to the Amendment Act 13 of 2013 (w.e.f. 3rd February, 2013) under Section 376(1) I.P.C. the sentence of imprisonment for a term shall not be less than 7 years extending for life. However, as per the proviso to 376(1) I.P.C. (prior to amendment) discretion is vested with the Court to impose imprisonment for a term of less than seven years for adequate and special reasons to be recorded in the judgment. In this case, the occurrence was of the year 1993 i.e. about 25 years ago. Having regard to the passage of time and other facts and circumstances of the case, the sentence of imprisonment of seven years imposed on the respondent-accused is reduced to a period of four years.

¶41

(17) Accordingly the appeal preferred by the State is allowed and the conviction of the respondent-accused under Section 376 I.P.C. as passed by the trial court is restored. However, the period of sentence of seven years, as noted above, is reduced to four years.”

[2024:RJ-JD:19129]

[CRLA-356/1990]

(5 of 6)

Now, coming to the prayer of the counsel for the accusedappellant to reduce the sentence of the appellant to the period already undergone, it is not in dispute that the occurrence relates back to year 1989 and the appellant has so far undergone a period of two years incarceration, out of total sentence of four years R.I., and has also suffered the mental agony and trauma of protracted trial. Hon’ble High Court of New Delhi in the case of Mahesh Vs. State of NCT of Delhi [2024 SCC online Del 2051] has reduced the sentence of the accused from seven years to the period already undergone. While reducing the sentence, the Hon’ble Delhi High Court has observed as under :

¶46

“6. Nominal roll of the appellant as on 21.11.2002/03.02.2024 has been placed on record, as per which the appellant has already undergone incarceration of 2 years, 3 months and 11 days with remission of 4 months and 7 days.

¶47

Considering that the appellant himself was aged around 18 years at the time of the incident and that he is not found involved in any other case, this Court, while maintaining the order of conviction, modifies the appellant’s sentence to the period already undergone by him, however, subject to payment of fine, if not already paid. In case the fine remained unpaid, the appellant shall undergo default sentence. His bail bonds are cancelled and surety is discharged.”

¶48

Looking to the over-all circumstances and the fact that the appellant has remained behind the bars for a considerable time, it will be in the interest of justice, if the sentence awarded by the trial court for offence under Section 376 IPC is reduced to the period already undergone by the appellant.

[2024:RJ-JD:19129]

[CRLA-356/1990]

(6 of 6)

Accordingly, the appeal is partly allowed. While maintaining the appellant’s conviction and sentence for offence under Section 376 IPC, the sentence awarded to him is hereby reduced to the period already undergone. The fine amount is also hereby waived. The appellant is on bail. He need not surrender. His bail bonds stand discharged.

¶53

Record, if received, be sent back forthwith.

¶54

(MANOJ KUMAR GARG),J

¶55

155-MS/-

Ramesh Chander @ Mahesh Chander v. State

Case brief

What is this about?

What did the court decide?

Ramesh Chander @ Mahesh Chander v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Devendra Kumar Vs State

Ganga Ram Vs State and Ors.

Kunal Talach Vs Mahip Pancholi

Maniya Vs State

Amandeep Singh Vs State of Rajasthan

Dalchand Vs State of Rajasthan