A. K. MATHUR, J. - (1.) THIS jail appeal is directed against the judgment of conviction and sentence under Sec. 366 and 376 I. P. C. passed by Additional Sessions Judge No. 2, Hanumangarh dated 1-2-1979. Whereby the learned Addl. Sessions Judge convicted the accused under Sec. 366 and 376 read with Section 511 I. P. C. and sentenced him to undergo four years rigorous imprisonment under Section 366 and 2- 1/2 years under Section 376 read with Section 511 I. P. C. Both the substantive sentences were directed to run concurrently.
(2.) THE brief facts giving rise to this appeal are that on 3-12-1977 at about 9 A. M. an oral first information report was filed by complainant Mst. Shanti at police station. T. B. that on the previous evening i. e. on 2-12-1977 when she had gone out to ease out from her house to a deserted place and came back after easing then Milkhasingh, Birkhasingh & Lakhasingh residents of Talwara Jheel came there and Milkhasingh pulled her. On this her sister Cheta who was standing at the door of the house shouted, then Lakhasingh and Birkhasingh threatened her that she will be killed. THEreafter, all the three accused persons took Mst. Shanti. Milkhasingh accused dropped her in a small ditch and opened the Pajama of Mst. Shanti and removed his Tahmat and sat on her. Accused Birkhasingh and Lakhasingh stood by the side and threatened that no one should come near them. THEreafter some people of the nearby area came over on hearing the cries and some more ladies also came there. THEy managed to rescue the girl Mst. Shanti. In this scuffle Mst. Shanti received some injuries on her hands, legs and pack. On this report a case under Sections 366, 376/511 I. P. C. was registered against the accused. However, the prosecution, after close of the investigation found a prima facie case against the accused Milkhasingh only and he was charge-sheeted under the aforesaid sections. THE learned Additional Sessions Judge after close of the trial found the accused Milkhasingh guilty and sentenced him as aforesaid. Aggrieved against the aforesaid conviction and sentence the accused preferred the present appeal. Mr. Sandhu, learned counsel for the accused appellant has taken me to the statements of Mst. Shanti, and invited my attention specially to the contradictions in the statements of Mst. Shanti with the police statement. He also drew my attention to the statement of Mst. Cheti sister of the prosecutrix. However, after going through the statement of both the witnesses, I think the conviction of the accused under Sections 366, 376 read with Section 511 I. P. C. appears to be well founded. From the statements of Mst. Shanti, Mst. Cheti and Mst. Ishwari it is clearly established that accused Milkhasingh pulled her up and tried to commit rape on her, but on account of some more persons appearing on the scene he could not succeed in his attempt. Thus, the learned Additional Sessions Judge has rightly convicted the accused under Sec. 376 read with Section 511 I. P. C. for committing rape. At the same time the learned Additional Sessions Judge has also convicted the accused under Section 366 I P. C. as Mst. Shanti was forcibly taken by the accused. Thus so far as the conviction of the accused appellant under the aforesaid sections is concerned, there is no illegality whatsoever. Now, the question is whether the accused should be sent to Jail at this distance of time. The offence is alleged to have been committed in the year 1977 and now we are in the year 1989 i. e. after a distance of 12 years. The accused has already remained in jail from 3-1-1978 to 6-3-1978. Thereafter he was convicted by the learned Additional Sessions, Judge on 1-2 1979 and enlarged on bail by this Court on 19-2-1979. The accused has already remained in jail for about 3 months and 22 days. I. therefore, affirm the conviction of the accused under Section 366 and 376/511 I. P. C. but however reduce the sentence of the accused appellant to that of already undergone. The accused shall also pay a fine of Rs. 2000/- under Section 366 I. P. C. and out of the aforesaid fine of Rs. 2000/- so realised the same shall be paid to Mst. Shanti. In default of payment of fine the accused shall undergo rigorous imprisonment for a period of three months. The accused is allowed two months time to deposit the aforesaid fine of Rs. 2000/- In the result, the appeal is allowed in part, as indicated above. . ;