TAR BABU @ TARA CHANDversusSTATE

          HIGH COURT OF JUDICATURE AT ALLAHABAD

                  CRIMINAL APPEAL No. - 1744 of 1983

Tar Babu @ Tara Chand
                                                                     .....Appellant(s)
                                       Versus
State
                                                                   .....Respondent(s)

Counsel for Appellant(s)            : Jitendra Shanker Pandey, Kripa Shanker
                                      Mishra, N. Kumar, Nipun Singh(A.C.),
                                      Rakesh Kumar Tripathi, Vipin Singh
Counsel for Respondent(s)           : A.G.A.

Court No. - 93
             HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. The present appeal has been filed against the judgment and order dated
23.07.1983 passed by Sri M.A. Khan, V Addl. Sessions Judge, Etah in
Sessions Trial No.49/1982, convicting and sentencing the appellant to two
years R.I., under Section 363 I.P.C. and a fine of Rs.2000/-. In default of
payment of fine, the appellant shall undergo further rigorous imprisonment
for a period of three months.

2. Heard Shri Kripa Shanker Mishra, learned counsel for the appellant and
Shri Rahul Asthana, learned A.G.A. for the State-respondent.

3. The prosecution case, in brief, is that the informant lodged an F.I.R.
alleging that his minor daughter, aged about 17 to 18 years was enticed away
from lawful guardianship on 05.10.1979 at about 5:00 P.M. On the basis of
written report, the first information was registered and G.D. entry was
drawn. During the investigation of the case, the victim was recovered on
21.10.1979. She alleged in her statement recorded under Sections 161 and
164 Cr.P.C. that during this period, she was subjected to sexual assault by
the accused and he committed rape upon her without her consent and against
her will. After investigation of the case, the charge-sheet was submitted.

4. To substantiate it's case the prosecution has examined as many as six witnesses
namely, PW1 Santosh Kumari, PW2 Shikari Das, PW3- Ram Khilari, PW4- Sanjit
Kumar, PW5-Udal and PW6- Babu Ram. The prosecution witnesses has supported the
prosecution story.

5. The prosecution tendered certain documentary as well as medical examination
report of Santosh Kumari vide Ext. ka-3, chik report Ext. ka-4, copy of G.D. Ext. ka-5,
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Supurdagi nama of Santosh Kumari by police Ext. ka-6, site plans Exts. ka-8 and ka-9
and chargesheet Ext. ka-7 which are on record.

6. The learned trial court, after considering the oral and documentary
evidence available on record, recorded a finding of conviction for the
offence under Section 363 I.P.C. However, upon appreciation of the
evidence, the trial court found that the prosecution failed to establish the
charges under Sections 366 and 376 I.P.C. beyond reasonable doubt. The
offence under Section 363 stood proved, and accordingly, the accused was
convicted under Section 363 I.P.C. and sentenced to undergo rigorous
imprisonment for a period of two years along with a fine of Rs. 2,000/-.

7. The learned counsel for the appellant did not dispute the finding of guilt
recorded by the trial court and confined his argument only to the extent of
the severity of the sentence. It was submitted that the incident pertains to the
year 1979 and that a long period has elapsed since then. The appellant has
already undergone substantial incarceration during the pendency of the case
at different stages. Considering the long lapse of time and the period already
undergone, it was prayed that the sentence be reduced to the period already
undergone.

8. Learned A.G.A. supported the judgment of conviction but fairly submitted
that the matter is quite old.

9. The only question that arises for consideration is whether the sentence
awarded to the appellant requires modification in view of the particular facts
and circumstances of the case.

10. In Tukaram vs. State of Maharashtra (1979) 2 SCC 143, the Hon'ble
Supreme Court observed that a long lapse of time between the incident and
the final adjudication is a relevant circumstance for reducing the sentence,
especially where the accused has undergone the mental agony of a protracted
trial.

11. In B.G. Goswami vs. Delhi Administration (1974) 3 SCC 85, the
Hon'ble Supreme Court reduced the sentence considering that the accused
had been facing proceedings for a long period and held that the ends of
justice would be met by reducing the sentence to the period already
undergone.

12. In State of Punjab vs. Bawa Singh (2015) 3 SCC 441, the Hon'ble
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Supreme Court reiterated that the passage of a long time and the fact that the
accused has faced the ordeal of trial and appeal for years are valid
considerations for reducing the sentence.

13. Similarly, in Ishwar Singh vs. State of Madhya Pradesh (2008) 15 SCC
667, the Supreme Court held that where the incident is old and the accused
has undergone a substantial period of custody, it is appropriate to reduce the
sentence to the period already undergone.

14. In Ramesh Kumar vs. State of Himachal Pradesh (2017) 15 SCC 350,
it was observed that where the occurrence is old and the accused has already
suffered incarceration and prolonged litigation, the sentence can be modified
to the period already undergone along with fine.

15. The Court has carefully examined the record, including the order sheet
and custody certificate, which clearly indicate that the appellant has
undergone periods of incarceration at different stages of the proceedings,
i.e., from 23.07.1983 to 27.07.1983, from 22.12.2021 to 03.03.2022, from
05.04.2022 to 27.04.2022, and from 07.12.2022 to 09.01.2023.

16. The incident in question relates to the year 1979, and more than four
decades have elapsed since then. The appellant has faced the rigours of
criminal proceedings for a prolonged period.

17. It is a settled principle that the sentence must be proportionate not only
to the offence but also to the circumstances surrounding the offender,
including delay and prolonged litigation.

18. In the present case, the ends of justice would be adequately served if the
sentence is modified to the period of incarceration already undergone,
coupled with the fine imposed by the trial court.

19. Accordingly, while maintaining the conviction under Section 363 I.P.C.,
the sentence awarded by the trial court is liable to be modified.

20. In the result, the conviction under Section 363 I.P.C. is affirmed.
However, the sentence of two years' rigorous imprisonment is modified to
the period already undergone by the appellant. The fine of Rs. 2,000/- is
maintained.

21. The appeal is partly allowed.
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                                    22. In case the fine has not been deposited, the same shall be deposited
                                    within a period of two months from the date of receiving a certified copy of
                                    this judgment.

                                    23. Let a copy of this judgment, along with the trial court record, be
                                    transmitted to the trial court for necessary compliance.

                                    March 28, 2026
                                    Pravesh Mishra
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad