A. K. MATHUR, J. - (1.) THIS appeal is directed against the judgment of the learned Sessions Judge, Doongarpur dated 28. 04. 1979 by which accused Champa was convicted under Section 323 IPC and sentenced to six months rigorous imprisonment, under Section 366 IPC sentenced to two years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to undergo one month's further rigorous imprisonment, under Section 342 IPC sentenced to six' months' rigorous imprisonment and under Section 379 IPC to undergo one year's rigorous imprisonment; the accused Rawaji was convicted under Section 366 IPC and sentenced to two years' rigorous imprisonment and a fine of Rs. 100/- in default to further undergo one month's rigorous imprisonment, under Section 342 IPC six months' rigorous imprisonment and under Section 411 IPC one year's rigorous imprisonment; accused Shankar was convicted under Section 366 IPC and sentenced to two years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to further undergo one month's rigorous imprisonment, under Section 342 IPC six months' rigorous imprisonment; and under sec. 379 one year's rigorous imprisonment, accused Kauda was convicted under Sec. 366 IPC and sentenced to two years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine to further undergo one months rigorous imprisonment and under Section 342 IPC sentenced to six months' rigorous imprisonment. All the sentences were directed to run concurrently. Aggrieved against this conviction of the accused appellants, present appeal has been preferred.
(2.) BRIEF facts giving rise to this appeal are that a first information report was filed by Bhawla (PW 3) at police station Gaia Kot, who is the uncle of Mst. Dhuli. It was stated in the first information report that Devli was married to one Somla Meena of Gujarat, she gave birth to a male child in Gujarat out of this wedlock and had come to her parents' house, she lived with her father about ten days and on 20. 09. 1977 alongwith her mother Devli going back to her- in-laws house but in the village between Shishod and Ambada Kauda S/o Kadua. Natha, Dhura, Daliya, Champa, Rawaji, Magji, Roopa, Bavra and his three sons armed with lathies attacked them and gave a beating to her mother with lathies and when she fell down they took her from there. That, she does not know whether her mother died or survived. That, she was also belaboured by them and she cried for help. That, she was having three months' old child and it was also left behind. She was taken to various places and ultimately was brought down to Doongarpur in a vehicle. It is alleged that her uncle went out in search and suspected her to be in village Malpur he took the help of one of the constables and there she was removed from the clutches of these accused persons. It is alleged that her uncle went to Galia Kot Police Station but FIR was not registered, thereafter a medical certificate of her mother was obtained and P. S. Doongarpur registered case against the nine accused persons under Sections 147, 366, 363/376, 342 and 323 IPC. Police filed a challan against all the accused persons and the case ultimately came to the Court of Sessions Judge and the learned Sessions Judge after due trial convicted only the four accused persons and rest of them were acquit-ted. Prosecution in support of its case examined 8 witnesses. Plea of the accused were that they were wrongly implicated. It was suggested that this girl was duly sold for a sum of Rs. 1300/-to the accused party but father wrongly got her married to another place but the suggestion was denied. Mr. Seni, learned counsel for the appellants has taken me to the necessary evidence. The identification memo has not been proved and during the trial also Dhooli and Devli has only identified Champa in the Court. The learned counsel submitted that since the identification parade has not been established therefore identification in the Court is meaningless. Learned counsel also submitted that incident took place on 20. 9. 77 and FIR was filed on 24. 9. 77 and identification parade was held on 14. 11. 77 and that too has not been proved. Likewise, learned counsel submitted that this FIR was sent to the Magistrate on 30. 09. 1977. Learned counsel also submitted in the alternative that since the incident is of 1977 and that accused have already remained behind the bars for a period of 2 1/2 years, a lenient approach may be taken in the matter in case they are convicted. As against this, the learned Public Prosecutor supported the judgment of the learned Sessions Judge under appeal. . I have considered the rival arguments and have gone through the record. From the statements of PW 1 Dhuli and PW 2 Devli the identity of these accused persons in the Court is etablished but I need not go in detail as I find the alternative contention of Mr. Soni sustainable. The case is of 1977 and it will not be fair to send the accused person now again behind the bars, since 12 1/2 years have lapsed from the date of the incident. The accused have already been behind the bars for a period of about 2\ years, therefore, I am inclined to take a lenient view. I uphold the conviction of the accused appellants and reduce the substantive sentence of all the accused appellants to already undergone, however, I maintain the sentence of fine and in default of payment of fine to further undergo the sentence as directed by Sessions Judge. The accused appellants may deposit the fine within a period of three months from today. The appeal is allowed in part. .;