PRAMOD Vs. STATE

JUDGEMENT

(1.) By this appeal the appellant challenges the judgment and order on sentence dtd. 1/9/2016 whereby the appellant was convicted for offences punishable under Ss. 186/333/34 IPC and awarded sentence of rigorous imprisonment for a period of 10 years for offence punishable under Sec. 333/34 IPC and to pay a fine of Rs.10,000.00 in default whereof to undergo simple imprisonment for a period of 2 years and rigorous imprisonment for a period of 3 months for offence punishable under Sec. 186/34 IPC.

(2.) The sentence of the appellant was suspended by this Court vide order dtd. 17/1/2020 as he had already undergone incarceration of a period of 5 years, 7 months, 3 days as on 27/12/2019 and earned a remission of 1 year, 2 months, 3 days. However, the appellant could not furnish the surety bond and hence vide order dtd. 20/5/2020 he was directed to be released on cash surety for Rs.10,000.00 subject to his residential address being verified by the concerned authorities which surety was also not furnished. As his residential address could not be verified, this Court directed the concerned authorities to expeditiously conduct the same. However, since the appellant could not be released and thus on a letter dtd. 18/11/2021 received from the Director General (Prisons) Headquarters that the appellant is still in custody his appeal has been taken up for hearing. As per the latest nominal roll the unexpired portion of the appellant's sentence is 8 months, 23 days as on 13/12/2021 and if fine is paid in default whereof he has to undergo 2 years simple imprisonment.

(3.) Learned counsel for the appellant contends that though the prosecution examined Constable Kulvir who was the victim, however failed to examine Head Constable Vijay Pal who was accompanying him. The fact that Constable Kulvir received grievous injury has not been proved by the MLC and thus the appellant cannot be convicted for offence punishable under Sec. 333 IPC and at best only for offence punishable under Sec. 332 IPC for which the maximum sentence of 3 years imprisonment can be awarded. Learned counsel for the appellant further contends that there are inherent contradictions in the testimony of the victim and the appellant be thus acquitted or in the alternative be released on the period already undergone.