Subhash vs State

Suresh Kait, J.—In pursuance of the order dated 29.02.2012, appellant is produced from Jail in the court.

Vide the instant petition, the appellant has assailed the judgment dated 15.03.2010, whereby he was held guilty and convicted u/s 376/511/506 Indian Penal Code, 1860 and also assailed the order on sentence dated 18.03.2010, whereby he was sentenced to undergo RI for a period of 5 years with fine of Rs. 50,000/- for the offence punishable u/s 376 read with Section 511 of Indian Penal Code, 1860. In default of payment of fine, he shall further undergo RI for a period of 2 years.

He also sentenced to undergo RI for a period of 2 years with fine of Rs. 5,000/- for the offence punishable u/s 506 Indian Penal Code, 1860. In default of payment of fine, he shall further undergo RI for a period of 3 years. Fine, if recovered, shall be paid to the victim as compensation and shall be kept in the fixed deposit till she attains the majority or is married whichever is later.

It is further directed by the trial court that in case, the fine/compensation is not recovered, the State Government shall pay the amount of compensation to the victim and recovered the same from the estate of the victim.

It is observed by the ld. Trial Court that as per the law laid down by the Hon''ble Supreme Court, the convict shall pay maintenance to the child @ Rs. 500/- per month till the age of her majority or her marriage whichever is later. The said amount shall also be recovered from the estate of the convict as he is in judicial custody undergoing the sentence.

Benefit of Section 428 Cr.P.C. was also extended to the appellant.

Ld. Counsel for the appellant has submitted that though vide the instant appeal the appellant has challenged the judgment/order mentioned above, however, on instruction he has submitted that the appellant does not dispute the impugned judgment whereby he was guilty and convicted, however, he has prayed to modify the order on sentence dated 18.03.2010 as the appellant has already undergone around 41/2 Years and only about 6 months are remaining.

It is further submitted that appellant is from the lower strata of the society, therefore he could not pay any fine amount as directed by the trial court and still he is not able to pay any penny.

Ld. Counsel for the appellant has submitted that as per Section 65 of Indian Penal Code, 1860, limit of imprisonment for non-payment of fine shall not exceed one-fourth of the term, which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.

Further submitted that 2 years RI awarded by the trial court is more than one-fourth of the total sentence awarded.

Ld. Counsel submitted that the maximum sentence u/s 376/511 Indian Penal Code, 1860 is 5 years and if he does not pay the fine amount, he will have to undergo total sentence of 7 years i.e. 5 years + 2 years, thus it is violation of the provision as enumerated in the Indian Penal Code, 1860 as mentioned above.

Ld. APP on the other hand submitted that appellant is convicted in heinous crime i.e. u/s 376/511 IIPC and also convicted u/s 506 of Indian Penal Code, 1860. Therefore, at least the appellant should pay the fine and compensation amount, as directed by the trial court, to the victim.

Ld. APP has further submitted that there is no violation of the Section 65 of Indian Penal Code, 1860. The total sentence awarded by the Trial Court is 5 years with fine amount and if he does not pay the fine amount, he will have to undergo RI for 7 years in total. Therefore the prayer of the appellant may not be allowed.

I note, in the instant case, there is attempt to rape, therefore, he is convicted u/s 376/511 Indian Penal Code, 1860 and sentenced for 5 years. He is from the lower strata of the society, therefore no source to pay any amount. He has already remained incarceration for more than 41/2 years out of the total sentence awarded i.e. 5 years, and only remains less than 06 months with fine amount to be paid.

Since he is very poor and is not in a position to pay fine and compensation, therefore I am of the considered opinion that he has suffered maximum for the offence he committed, therefore while maintaining the order of conviction dated 15.03.2010, modified the order of sentence to the extent already undergone.

Accordingly, instant appeal bearing no. Crl.A.928/2010 is disposed of.

Jail authorities are directed to release the appellant forthwith if not involved in any other case.

Order of this Court be sent to Jail authorities for compliance.

Dasti.