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Judgments of Supreme Court of India and High Courts

Chand Khan vs The State Of Madhya Pradesh on 19 February, 2018

1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

Criminal Appeal No. 137 of 2008
Parties Name Chand Khan
Vs.
State of Madhya Pradesh
Bench Constituted Hon’ble Shri Justice S.K. Gangele
Hon’ble Smt. Justice Anjuli Palo
Judgment delivered by Hon’ble Shri Justice S.K. Gangele
Whether approved for No
reporting
Name of counsels for parties For appellant: Shri Sandeep Dubey,
Amicus Curiae.

For respondent/State: Shri A. N. Gupta,

Government Advocate.

Law laid down
Significant paragraph
numbers

(J U D G M E N T)
Pronounced on : 19.02.2018

1. Appellant has filed this appeal against the judgment of

conviction dated 12.12.2007 passed in Sessions Trial No.230/07.

The trial Court held the appellant guilty for commission of

offence punishable under Sections 376(f) and 377 of IPC and

awarded sentence of RI life and RI three years alongwith fine of

Rs.2,000/- and Rs.500/- respectively.

2. Prosecution story in brief is that prosecutrix, who was five

years old, was playing in the courtyard. The appellant was the

neighbour of the prosecutrix. He called the prosecutrix and

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CRA No. 137 of 2008

requested her to bring a gutkha for him. When the prosecutrix

returned back, the appellant committed sexual intercourse

(vaginal as well as anal) with her. She came back crying and

screaming to her nani (grandmother) and narrated the story.

Blood was oozing from her private parts. At that time, mother and

father of the prosecutrix were not at home. When they came back,

the prosecutrix narrated the incident to them. Prosecutrix’s nani

administered one pain killer to her. FIR of the incident was

lodged next day, when the parents of the prosecutrix came back to

the house. Police conducted investigation and filed charge-sheet.

The appellant abjured the guilt and pleaded innocence. The trial

Court held the appellant guilty for commission of offence and

awarded punishment as mentioned above in the judgment.

3. Learned Amicus Curiae for the appellant has submitted that

the appellant is innocent. He has not committed rape with the

prosecutrix. The trial Court committed an error in holding the

appellant guilty for commission of offence of rape and awarded

severe punishment.

4. Learned Government Advocate appearing on behalf of the

State has submitted that the appellant is a habitual offender. There

is ample evidence on record against the appellant. The trial Court

rightly held the appellant guilty and awarded a proper sentence.

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CRA No. 137 of 2008

5. PW-1 Prosecutrix, deposed that I am studying in Madarsa.

Nafisa Begum is my nani. I know the appellant Chand Bhai.

Appellant told me to take a gutkha for him. When I went to the

house of the appellant alongwith gutkha, he had taken me inside

the house, thereafter, he had committed rape with me. When I

cried, he told me that he would kill me by knife. Thereafter, Rani

aunty came there and she took me to my nani. Blood was coming

from my vagina as well as anus. I told the whole story to my nani

that Chand Bhai committed rape with me.

6. PW-2 Nafeesa Bi is the nani of the prosecutrix. She

deposed that the prosecutrix, at that time, was aged about 5 years.

The appellant is my neighbour. Prosecutrix told me that the

appellant had requested her to bring a pouch of gutkha and when

the prosecutrix went to the house of the appellant, he committed

rape with her (vaginal as well as anal). When the prosecutrix

came to me, blood was coming from her vagina and anus. I went

to tell the incident to my daughter, who is the mother of the

prosecutrix because father and mother of the prosecutrix were not

at the house. When the prosecutrix told me that there was pain in

her stomach, I administered a pain killer to her. On next day,

when my daughter and her husband came to the house, we went

to police station and lodged the report, which is Ex.P1 and I

signed the same. Police recorded my statement. Cloths of the

prosecutrix were seized vide seizure memo Ex.P2.

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CRA No. 137 of 2008

7. PW-4 Dr. Pinky Tiwari deposed that I was posted RMO

on 20.06.2007 at Sultaniya Lady Hospital, Bhopal. I examined the

prosecutrix. There was no external injury on her body. There was

swelling on her vagina and abrasion on the anus. I do not opine

that any rape was committed with her.

8. PW-5 Dr. Sudha Chaurasiya deposed that I was posted

Associate Professor on 19.06.2007 at Sultaniya Lady Hospital,

Bhopal. On that date, prosecutrix was admitted in the hospital.

There was perennial injury. She told me that there was a pain in

lower part of her body and rape was committed with her. She was

discharged after one day.

9. PW-3 Shambhuprasad Ahirwar is the Investigating

Officer. He deposed that on 20.06.2007, I was posted as Station

House Officer Incharge at Police Station Ashoka Garden, Bhopal.

Nafeesa Bi informed me that the appellant had committed rape

with her granddaughter (prosecutrix) vaginal as well as anal and

blood was coming from the private parts of the prosecutrix.

Nafeesa Bi called her neighbours. The report of the incident was

lodged when the father and mother of the prosecutrix came to the

house. I registered the FIR, which is Ex.P1 at the Police Station

and signed the same. Thereafter, I prepared spot map Ex.P3 and

signed the same. Some cloths of the prosecutrix were also seized

vide seizure memo Ex.P2 and I signed the same. I recorded

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CRA No. 137 of 2008

statements of Nafeesa Begum, Basheer, Rukaiya, Aisha Bi, Smt.

Baby and Mohd. Abrar. The prosecutrix was sent for medical

examination. When the prosecutrix was discharged from the

hospital on 23.06.2007, I recorded her statement. The appellant

was arrested vide arrest memo Ex.P6 and I signed the same. The

appellant has a criminal history. He is a history sheeter. In the

year of 2004, a case of rape was also registered against the

appellant.

10. The appellant in his statement under Section 313 Cr.P.C.

stated that he has been falsely implicated in the case.

11. The prosecutrix (PW-1) in her statement specifically

deposed that the appellant had committed sexual intercourse

(vaginal as well as anal) with her. Blood was coming from her

private parts. She immediately told the story to her nani Nafeesa

Bi (PW-2). The evidence of PW-1 and PW-2 is quite natural and

it is unshakable in cross-examination. Dr. Pinky Tiwari (PW-4)

deposed that she examined the prosecutrix on 20.06.2007 and

noticed that there was swelling on the vagina and abrasion on the

anus of the prosecutrix. However, she could not give any definite

opinion about sexual intercourse. PW-5 Dr. Sudha Chaurasiya

deposed that the prosecutrix was admitted in the hospital for the

ailment of perennial injury and she remained in the hospital for

one day. There was swelling and abrasion on both sides of labia.

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CRA No. 137 of 2008

12. From the evidence of the doctors and the prosecutrix, this

fact has been proved that the appellant tried to commit rape with

the prosecutrix and the act of the appellant would amount to rape.

The report of the incident was lodged on the next day, which is

quite natural because the father and mother of the prosecutrix

were not at the house and when they returned back, the report was

lodged.

13. The age of the prosecutrix, at the time of incident, was near

about five years. The Amicus Curiae for the appellant has

submitted that the trial Court has awarded an excess punishment

to the appellant. In support of his contention, he relied on a

judgment of this Court passed in Criminal Appeal No.415/2007

(Rajesh Patel vs State of Madhya Pradesh). We are not in

agreement with the arguments advanced by the learned Amicus

Curiae. In the present case, the appellant has a criminal history.

He was involved in number of criminal cases. Earlier also, he was

prosecuted for commission of offence of rape. He is found guilty

for commission of offence punishable under Sections 376(f) and

377 of IPC. The act of the appellant is cruel in nature.

14. The Apex Court in the case of Shyam Narain vs State

(NCT of Delhi), (2013) 7 SCC 77 confirmed the sentence of life

when the accused committed rape with an 8 years old girl. The

Apex Court has held as under:

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CRA No. 137 of 2008

“12. Presently, we shall proceed to deal with
the justification of the sentence. Learned counsel for
the appellant, would submit that though Section
376(2) provides that sentence can be rigorous
imprisonment for life, yet as a minimum of sentence
of ten years is stipulated, this Court should reduce
the punishment to ten years of rigorous
imprisonment. It is urged by him that the appellant is
a father of four children and their lives would be
ruined if the sentence of imprisonment for life is
affirmed.

13. Mr. Paras Kuhad, and Mr. B.V. Balram
Dass, counsel for the State, submitted that the crime
being heinous, the sentence imposed on the accused
is absolutely justified and does not warrant
interference. It is also canvassed by them that
reduction of sentence in such a case would be an
anathema to the concept of just punishment.

14. Primarily it is to be borne in mind that
sentencing for any offence has a social goal.
Sentence is to be imposed regard being had to the
nature of the offence and the manner in which the
offence has been committed. The fundamental
purpose of imposition of sentence is based on the
principle that the accused must realise that the crime
committed by him has not only created a dent in his
life but also a concavity in the social fabric. The
purpose of just punishment is designed so that the
individuals in the society which ultimately constitute
the collective do not suffer time and again for such
crimes. It serves as a deterrent. True it is, on certain
occasions, opportunities may be granted to the
convict for reforming himself but it is equally true
that the principle of proportionality between an
offence committed and the penalty imposed are to be
kept in view. While carrying out this complex
exercise, it is obligatory on the part of the Court to
see the impact of the offence on the society as a
whole and its ramifications on the immediate
collective as well as its repercussions on the victim.

15. In this context, we may refer with profit to
the pronouncement in Jameel v. State of Uttar
Pradesh, (2010) 12 SCC 532, wherein this Court,
speaking about the concept of sentence, has laid
down that it is the duty of every court to award
proper sentence having regard to the nature of the

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CRA No. 137 of 2008

offence and the manner in which it was executed or
committed. The sentencing courts are expected to
consider all relevant facts and circumstances bearing
on the question of sentence and proceed to impose a
sentence commensurate with the gravity of the
offence.”

16. In Shailesh Jasvantbhai and another v.
State of Gujarat and others (2006) 2 SCC 359, the
Court has observed thus:

“7. … Friedman in his Law in Changing
Society stated that: “State of criminal law
continues to be – as it should be -a decisive
reflection of social consciousness of society.”
Therefore, in operating the sentencing system,
law should adopt the corrective machinery or
deterrence based on factual matrix. By deft
modulation, sentencing process be stern where
it should be, and tempered with mercy where it
warrants to be. The facts and given
circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the
crime, the conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which would
enter into the area of consideration”.

17. In State of M.P. v. Babulal (2008) SCC
234, two learned Judges, while delineating about the
adequacy of sentence, have expressed thus : –

“23. Punishment is the sanction imposed
on the offender for the infringement of law
committed by him. Once a person is tried for
commission of an offence and found guilty by a
competent court, it is the duty of the court to
impose on him such sentence as is prescribed
by law. The award of sentence is consequential
on and incidental to conviction. The law does
not envisage a person being convicted for an
offence without a sentence being imposed
therefore.

24. The object of punishment has been
succinctly stated in Halsbury’s Laws of
England, (4th Edition: Vol.II: para 482) thus:

“482 Object of punishment. – The
aims of punishment are now considered

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CRA No. 137 of 2008

to be retribution, justice, deterrence,
reformation and protection and modern
sentencing policy reflects a combination
of several or all of these aims. The
retributive element is intended to show
public revulsion to the offence and to
punish the offender for his wrong
conduct. The concept of justice as an aim
of punishment means both that the
punishment should fit the offence and
also that like offences should receive
similar punishments. An increasingly
important aspect of punishment is
deterrence and sentences are aimed at
deterring not only the actual offender
from further offences but also potential
offenders from breaking the law. The
importance of reformation of the offender
is shown by the growing emphasis laid
upon it by much modern legislation, but
judicial opinion towards this particular
aim is varied and rehabilitation will not
usually be accorded precedence over
deterrence. The main aim of punishment
in judicial thought, however, is still the
protection of society and the other
objects frequently receive only secondary
consideration when sentences are being
decided”.

(emphasis in original)

18.. In Gopal Singh v. State of Uttarakhand
(2013) 7 SCC 545, while dealing with the philosophy
of just punishment which is the collective cry of the
society, a two-Judge Bench has stated that just
punishment would be dependent on the facts of the
case and rationalised judicial discretion. Neither the
personal perception of a Judge nor self- adhered
moralistic vision nor hypothetical apprehensions
should be allowed to have any play. For every
offence, a drastic measure cannot be thought of.

Similarly, an offender cannot be allowed to be
treated with leniency solely on the ground of
discretion vested in a Court. The real requisite is to
weigh the circumstances in which the crime has been
committed and other concomitant factors.

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CRA No. 137 of 2008

19. The aforesaid authorities deal with
sentencing in general. As is seen, various concepts,
namely, gravity of the offence, manner of its
execution, impact on the society, repercussions on
the victim and proportionality of punishment have
been emphasized upon. In the case at hand, we are
concerned with the justification of life imprisonment
in a case of rape committed on an eight year old girl,
helpless and vulnerable and, in a way, hapless. The
victim was both physically and psychologically
vulnerable. It is worthy to note that any kind of
sexual assault has always been viewed with
seriousness and sensitivity by this Court.

15. The Apex Court has clearly held in the aforesaid judgment

that the sexual assault has always been viewed with seriousness

and sensitivity by this Court. The appellant has a criminal history.

16. Looking to overall facts and circumstances of the case, in

our opinion, the trial Court has awarded a proper sentence to the

appellant. We do not find any merit in this appeal. It is hereby

dismissed.

(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge

Digitally signed by VINOD KUMAR TIWARI
Date: 2018.02.20 16:29:47 +05’30’

vkt

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