Sanjay @ Sanju vs The State Of Madhya Pradesh on 9 September, 2017

1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Criminal Appeal No. 1374 of 2006
Parties Name Sanjay @ Sanju
vs
State of Madhya Pradesh
Bench Constituted Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Anurag Shrivastava
Judgment delivered by Hon’ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Shri Anshul Tiwari,
Amicus Curiae.

For respondent/State: Shri Vaibhav

Tiwari, Government Advocate.

Law laid down
Significant paragraph
numbers

(J U D G M E N T)
Pronounced on : 09.09.2017

1. Appellant has filed this appeal against the judgment dated

30.06.2006 passed in Special Case No.30/2005. The appellant

was prosecuted for commission of offence punishable under

Sections 456, 324, 366, 387 and 376 of Indian Penal Code. The

trial Court held the appellant guilty for the offence and awarded

sentence as under:

Section Sentence
376 of IPC Life imprisonment.
324 of IPC RI one year.
366 of IPC RI ten years.
-:- 2 -:-

CRA-1374-2006

387 of IPC RI seven years and fine Rs.10,000/-, in

default of payment of fine RI two years
456 of IPC RI two years and fine of Rs.1000/-, in
default of payment of fine RI one year.

2. Prosecution case in brief is that on 12.04.2005, husband of

the complainant had gone out of the house, at around 1 O’clock in

the night when her son and daughter (prosecutrix) were sleeping

in the room, the appellant entered the house and he had taken out

the girl (prosecutrix) outside of the house and committed rape

with her. A report of missing of the prosecutrix was lodged at the

police station. Subsequently, prosecutrix reached the house and

narrated the facts to the family members. Thereafter, police

conducted investigation and filed the charge-sheet. The appellant

abjured his guilt. The trial Court, after trial, held the appellant

guilty for commission of offence as mentioned above in the

judgment and awarded the sentence.

3. Learned Amicus Curiae appearing on behalf of the

appellant has contended that the prosecution has failed to prove

the offence against the appellant beyond reasonable doubt. In

alternate, he has submitted that the sentence awarded by the trial

Court be modified as already undergone because the appellant is

in jail for the last 12 years.

4. Learned Government Advocate has submitted that the

prosecution has proved its case beyond reasonable doubt and

there is ample evidence against the appellant. The trial Court has

-:- 3 -:-

CRA-1374-2006

rightly held the appellant guilty for commission of offence and

awarded proper sentence.

5. Prosecutrix PW-1 (Sangeeta) deposed that on 12 th April at

around 1 O’clock when she was sleeping with her mother and

brother, the appellant entered the house and he had beaten her

brother and forced her to come outside of the house. The

appellant had a knife with him measuring 10-12 inches. The

appellant demanded Rs.2000/- from her mother. He had taken her

outside of the house near Central Bank Building, where he

stripped her cloths and committed rape with her. When she

resisted, the appellant threatened her to kill. Thereafter, she came

to her house and lodged the report. The police sent her as well as

her brother to the hospital for medical examination. She admitted

the fact in her cross-examination that the appellant is her

neighbour and the place where the appellant had committed rape

is 100 foot away from her residence.

6. PW-2 Gayatri Bai is the mother of the prosecutrix. She

deposed that on the date of incident her husband had gone outside

of the house. She, her daughter and her son were sleeping in the

house. The appellant entered the house and at that time, she had

seen the appellant. The appellant inflicted injury by knife to her

son and demanded Rs.2000/- from her. Thereafter, the appellant

had taken her daughter outside of the house. She went to police

-:- 4 -:-

CRA-1374-2006

station after 15-20 minutes and lodged the report. After two

hours, her daughter came to her and, thereafter, report Ex.P/1 was

lodged at the police station. Her daughter told her that the

appellant had committed rape with her. Police prepared a map of

the spot, which is Ex.P2 and she signed the same. Police also

seized plain earth from the place of incident.

7. PW-3 Vijay Kumar @ Ramjeevan Malviya is the

neighbour. He deposed that the mother of the prosecutrix namely

Gayatri Bai came to his house and told him that the appellant had

taken her daughter and he had also injured her son. He alongwith

Gayatri Bai went to Police Station M.P. Nagar to lodge the report.

8. PW-4 Sachin is the brother of the prosecutrix. He deposed

that he was sleeping alongwith his mother and the prosecutrix.

The appellant entered the house and he had inflicted injury to

him. Thereafter, he had taken the prosecutrix forcefully. The

appellant had also made a demand of Rs.2000/-.

9. PW-5 Shanti Bai was declared hostile. PW-6 Susheela

deposed that police had seized anklet of the prosecutrix, two coins

(Rs. one each), cigarette and two matchsticks vide seizure memo

Ex.P7.

10. PW-8 Dr. Rama Raikwar deposed that on 12.04.2005 she

was posted as R.M.O at Sultaniya Women Hospital. On the

aforesaid date, she had examined the prosecutrix, her hymen was

-:- 5 -:-

CRA-1374-2006

ruptured. She did not notice any injury on the body of the

prosecutrix. Blood was coming from the hymen of the

prosecutrix. She had not given any opinion about the rape.

11. PW-9 Dr. H.P. Singh deposed that on 12.04.2005 he was

posted as Medical Officer at J.P. Hospital, Bhopal and he had

examined Sachin and noticed two injuries on his body: one

incised wound on the right hand from which blood was coming

and one abrasion on index finger of left hand.

12. PW-10 K.L. Mehta is the Investigating Officer. He deposed

that he was posted as Sub-Inspector at M.P. Nagar Police Station.

At around 1:30 AM, Gayatri Bai lodged a report at the police

station against the appellant, which is Ex.P1. He had sent the

prosecutrix and Sachin for medical examination. Thereafter, in

the morning, he inspected the spot and prepared the map, which is

Ex.P2 and signed the same. He also seized anklet of the

prosecutrix and other articles vide seizure memo Ex.P7.

13. From the evidence of prosecutrix PW-1, PW-2 Gayatri Bai,

who is the mother of the prosecutrix and PW-4 Sachin, who is the

brother of the prosecutrix, this fact has been proved that the

appellant had entered forcefully in the house of the prosecutrix

where she was sleeping with her mother and brother. The

prosecutrix deposed that the appellant had committed rape with

her. This fact has been proved from the evidence of doctor PW-8,

-:- 6 -:-

CRA-1374-2006

who had examined the prosecutrix and found that blood was

coming from the hymen. The prosecutrix was minor. The

appellant had taken the prosecutrix forcibly and committed rape

with her. In our opinion, the trial Court has rightly held the

appellant guilty for commission of offence punishable under

Sections 324 of IPC because the appellant had inflicted injury to

the brother of the prosecutrix. The trial Court rightly held the

appellant guilty for commission of offence punishable under

Sections 376, 366, 387 and 456 of IPC also.

14. Now, the question is “what sentence be awarded to the

appellant?” In the present case, the trial Court awarded a sentence

of RI life against the appellant for commission of offence

punishable under Section 376 of IPC. The minimum sentence is

10 years. The maximum sentence is life imprisonment, as

awarded by the trial Court. The appellant is in jail since

06.05.2005. He has completed more than 12 years’ actual jail

sentence.

15. The Apex Court in the case of Hazara Singh vs Raj Kumar

and others, (2013) 9 SCC 516 has held as under in regard to

award of proper sentence:

“27. While rejecting the similar reasons as
stated by the High Court in the present case, the
following conclusion arrived at by this Court are
relevant:

-:- 7 -:-

CRA-1374-2006

“7. …. The learned Judge then took
notice of the fact that three co- accused of the
appellants were given benefit of doubt by the
trial court and acquitted them although they
were also attributed causing of some injuries. If
acquittal of some co-accused casts a cloud of
doubt over the entire prosecution case, the
whole case may be rejected. But we fail to
understand how acquittal of some of the
accused can have any relevance to the question
of sentence awarded to those who are
convicted. In this case the prosecution
submitted that these two appellants alone were
armed with guns. Then the learned Judge
observes that no useful purpose, will be served
by sending the appellants to prison again to
undergo the unexpired period of their sentence.
We repeatedly asked why this indulgence and
waited for answer in vain. If someone is
enlarged on bail during the pendency of appeal
and when the appeal is dismissed sending him
back to jail is going to raise qualms of
conscience in the Judge, granting of bail
pending appeal would be counter-productive.
One can pre-empt or forestall the decision by
obtaining an order of bail.

8. If the learned Judge had in mind the
provisions of Section 360 of CrPC so as to
extend the benefit of treatment reserved for first
offenders, these appellants hardly deserve the
same. Admittedly, both the appellants were
above the age of 21 years on the date of
committing the offence. They have wielded
dangerous weapons like firearms. Four shots
were fired. The only fortunate part of the
occurrence is that the victim escaped death.
The offence committed by the appellants is
proved to be one under Section 307 of IPC
punishable with imprisonment for life. We were
told that the appellants had hardly suffered
imprisonment for three months. If the offence is
under Section 307 IPC i.e. attempt to commit
murder which is punishable with imprisonment
for life and the sentence to be awarded is
imprisonment for three months, it is better not
to award substantive sentence as it makes
mockery of justice. Mr Jain said that the High

-:- 8 -:-

CRA-1374-2006

Court has enhanced the fine and compensated
the injured and, therefore, we should not
enhance the sentence. Accepting such a
submission would mean that if your pockets
can afford, commit serious crime, offer to pay
heavy fine and escape tentacles of law. Power
of wealth need not extend to overawe court
processes. Thus it appears that the High Court
wrongly interfered with the order of sentence
on wholly untenable and irrelevant grounds
some of them not borne out by the record. In
order, therefore, to avoid miscarriage of justice
we must interfere and set aside the sentence
imposed by the High Court and restore the
sentence imposed by the learned Sessions
Judge which we hereby order. Both the
appellants shall be taken into custody forthwith
to suffer their sentence.”

16. The Hon’ble Apex Court in the case of Satish Kumar

Jayanti Lal Dabgar vs State of Gujarat, (2015) 7 SCC 359 has

upheld the sentence awarded by the High Court of four and half

years for commission of offence punishable under Section 376 of

IPC. In the aforesaid case, the High Court reduced the sentence

from RI seven years to RI four and half years. In the present case,

the appellant has undergone actual jail sentence of more than 12

years. Hence, in our opinion, it would be just and proper if the

sentence awarded by the trial Court for commission of offence

punishable under Section 376 of IPC be reduced to 12 years i.e.

already undergone.

17. Consequently, the appeal filed by the appellant is partly

allowed. His conviction for commission of offence punishable

under Sections 324, 366, 387 and 456 of IPC is upheld and the

-:- 9 -:-

CRA-1374-2006

sentence awarded by the trial Court for commission of offence is

also upheld. However, the sentence awarded by the trial Court for

commission of offence punishable under Section 376 of IPC is

modified to the extent of 12 years. All the sentences shall run

concurrently. The appellant has undergone jail sentence of more

than 12 years. Hence, he be released forthwith, if he is not

required in any other case.

(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
vkt

Leave a Comment

Your email address will not be published. Required fields are marked *