Jagdish Prasad Bairagi vs The State Of Madhya Pradesh on 30 August, 2017

Cr.A. No. 2623/2007
1

HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR

(Division Bench: Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Anurag Shrivastava)

Cr.A. No. 2623/2007.

Jagdish Prasad Bairagi.
Versus
State of M.P.

*********
Smt. Durgesh Gupta, learned counsel for the appellant.
Shri Prakash Gupta, learned Panel Lawyer for the
respondent-State.
*********

WHETHER APPROVED FOR REPORTING: YES/NO.

JUDGMENT

(Pronounced on 30/08/2017)

Per S.K. Gangele J

The appellant has filed this appeal against the

judgment dated 20/11/2007 passed in Sessions Trial No.

35/2007. The allegation against the appellant is that he

has committed rape on 11/11/2006 with a minor girl.

Report of the incident was lodged on 12/11/2006 by father

of the prosecutrix, thereafter, police conducted the

investigation and filed the charge-sheet for commission of

offence punishable under Section 376(2)(f) of the IPC

against the appellant. The trial court held appellant guilty

for commission of offence punishable under Section 376(2)

(f) of IPC and awarded sentence RI for life and imposed

fine amount of Rs. 5000/-.

Cr.A. No. 2623/2007
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2. Learned counsel appearing on behalf of the appellant

has not argued the appeal on merit, however, she has

contended that the appellant is in jail since 09/01/2007. He

has completed more than 10 years actual jail sentence and

near about 14 years of jail sentence including remission,

hence, the sentence of the appellant be modified as

already undergone because the appellant has completed

more than sentence than minimum sentence of 10 years.

3. The prosecutrix PW/1 was aged about seven years at

the time of incident. She deposed that she was playing at

around 2 O’clock near her house on the road. At that time

the appellant had called her at his house with a promise to

give sweets where the appellant slammed her in the bed

thereafter committed sexual intercourse with her, due to

which blood was oozing from my private parts. Thereafter,

I came back to my house and told the incident to my

mother and mother told the father, thereafter father told

the incident to other family members. They had taken me

to Mandla Hospital where I was treated for a period of

twenty days and FIR was lodged.

4. PW/2 mother of the prosecutrix deposed that the

appellant is neighbour and he is also releative. At the time

of incident age of the prosecutrix was near about seven

years. When I returned back from the fields at around 5

O’clock, the prosecutrix told me that the appellant had
Cr.A. No. 2623/2007
3

committed rape with her. Blood was oozing from her

private part. Thereafter, mother of the appellant came to

my house, I told the incident to my husband and

thereafter, husband told to other villagers and report was

lodged at police station Mohgaon. The prosecutrix was

admitted in the Hospital, Mandla. Report is Ex. P/6. She

was examined by the doctor.

5. PW/4 Subbedas father of the prosecutrix deposed

that when I returned back to house, my wife told me that

the appellant had committed rape with the prosecutrix due

to which blood was oozing from her private part. I found

the blood on the body of the prosecutrix and on her

clothes, thereafter, mother of the appellant came to my

house. I told the facts to other villagers, thereafter, we had

gone to police station and lodged report which is Ex. P/6. I

signed the same. The prosecutrix was admitted in the

hospital Mandla. Patwari prepared spot map which is Ex.

P/8.

6. PW/5 Motidas, PW/6 Mulludas, PW/7 Balidas who are

villagers deposed that the father of the prosecutrix told

them about rape committed by the appellant. PW/8

Patwari deposed that he had prepared the spot map which

is Ex. P/8 and Panchanama Ex. P/7.

7. PW/10 Dr. Ravindra Sharma, deposed that I had

examined the appellant and found that the appellant was
Cr.A. No. 2623/2007
4

competent to perform sexual intercourse.

8. Doctor Smt. Reeta Shrivastava PW/3 deposed that I

was posted as Assistant Surgeon at District Hospital

Mandla on 12/01/2006 and examined the prosecutrix who

was aged about seven years. I do not find any sign of

injury on her body, however there were signs of blood on

private part and lower part of thigh. Hymen was ruptured

from where blood was oozing. Doctor gave opinion that

the sexual intercourse was committed with her.

9. The prosecutrix was admitted in the hospital Mandla.

PW/11 R.D. Kanva, deposed that I was posted as station

house officer at Police Station Mohgaon. On the report of

the complainant Subbedas an offence was registered

against the appellant which is Ex.P/6, I signed the same.

Thereafter, I recorded statements of Motidas, Balidas,

Mulludas and arrested the appellant vide arrest memo

Ex.P/17, I signed the same and send the appellant for

medical examination thereafter, the seized articles were

send for FSL, Sagar.

10. Appellant in his defance had examined Nandlal,

however, his evidence is not of much important. There is

evidence of prosecutrix which is natural, her mother PW/2,

her father PW/4 and evidence of other villagers, it is

established that the appellant committed rape with the

prosecutrix. This fact is also supported from the evidence
Cr.A. No. 2623/2007
5

of PW/3 Doctor who examined the prosecutrix. The report

was lodged on the next day and investigating officer who

conducted the investigation has verified the facts. On

perusal of the aforesaid evidence in our opinion the trial

court has rightly held the appellant guilty for commission

of offence punishable under Section 376(2)(f) of the IPC.

11. The next question is that what sentence be awarded

to the appellant. At the relevant time when offence was

committed the minimum sentence for the offence was ten

years. The appellant has already completed ten years and

seven months of the actual jail sentence including

remission more than 13 years. As per the certificate given

by the concerned jail authority the trial court has awarded

the jail sentence of life which is maximum. In the similar

circumstances the Apex Court in the case of Bavo Alias

Manubhai Ambalal Thakore Vs. State of Gujarat

(2012) 2 SCC 684 has modified the sentence upto ten

years. However, in the present case the appellant has

completed jail sentence of near about thirteen and half

years including remission.

12. Learned Panel Lawyer relied on the judgment of

Apex Court in the case of State of U.P. Vs. Shri Kishan

(2005) 10 SCC 420 and pleaded that a proper sentence

awarded by the Trial Court. Hence, there is no necessity of

reducing the sentence.

Cr.A. No. 2623/2007
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13. In the present case, the trial court has awarded the

maximum sentence. The Supreme Court in Bavo Alias

Manubhai Ambalal Thakore Vs. State of Gujarat

(2012) 2 SCC 684 in similar circumstances reduced the

sentence to RI 10 years. The appellant already undergone

jail sentence more than 13 ½ years including remission,

hence, in our opinion, it would be just and proper that the

sentence awarded by the trial court be modified in view of

the fact that the appellant has undergone sentence with

default stipulation imposed by the trial court. He is poor

person.

14. In view of the above the appeal filed by the appellant

is partly allowed. His conviction for commission of offence

punishable under Section 376(2)(f) of the IPC is hereby

upheld, however, the sentence awarded by the trial court is

modified to the extent of already undergone. The appellant

is in jail, he be released forthwith, if he is not required in

any other case.

(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE

MISHRA

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