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State Of M.P. vs Halke on 5 April, 2018

1
Criminal Appeal No.365/2001

THE HIGH COURT OF MADHYA PRADESH
Cri.Appeal No.365/2001
(State of M.P.Vs. Halke s/o Paramlal Baretha)
Gwalior Dt. 05/4/2018
Shri Kamal Jain, Public Prosecutor for the appellant-State.
Shri K.S.Tomar, Sr. Advocate for the respondent-accused.

1. The matter was listed on 27/3/2018 when due to paucity of time
it was adjourned to 28/3/2018 for hearing on the question of quantum
of sentence.

2. Learned counsel for the appellant-State and the respondent-
accused are heard.

3. This order is in continuation of earlier judgment pronounced by
this court on 23/3/2018 holding the respondent guilty of the offence
punishable u/S. 376(2)(f) IPC for which he was acquitted by the trial
court. Since the respondent-accused was convicted for the alleged
offence, this court deemed it appropriate to hear him on the question of
quantum of sentence.

4. The learned counsel for the respondent-accused has pointed out
following mitigating circumstances seeking punishment less than 10
years which is prescribed for the offence u/S. 376(2)(f) IPC. It is
submitted by the learned counsel for the respondent that the offence
was committed on 4/7/2000 when the provision of Sec. 376 IPC as it
then stood empowered the court to award sentence less than the
minimum prescribed 10 years R.I. subject to recording valid and special
reasons.

4.1 Learned counsel submitted that the incident in question took
place merely 18 years ago, the respondent was aged only 20 years at
the relevant point of time and that the prosecutrix is presently married
and leading a settled life. It is further submitted that the respondent
suffered physical disability and is a first offender. The decisions of the
Apex Court in T.K.Gopal @ Gopi Vs. State of Karnataka (AIR 2000
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Criminal Appeal No.365/2001

SC 1669), Kamal Kishore etc. Vs. State of Himachal Pradesh
(AIR 2000 SC 1920), and Kakoo Vs. State of Himachal Pradesh
(AIR 1976 SC 1991) are pressed into service.

4.2 On the other hand, learned counsel for the appellant-State
pointing out aggravating circumstances seeking award of sentence
higher than 10 years R.I. submits that the prosecutirx was only 10 years
at the time of being subjected to rape and the offence involves moral
turpitude which is against the society at large and the respondent being
a close neighbour known to the family of the prosecutrix breached the
trust reposed in him by the prosecutrix and that the respondent was a
mature enough man of 20 years to fully understand the consequences
of his action when the offence was committed.

4.3 The Apex Court in one of it’s recent decision rendered in the case
of Atbir vs Govt. Of N.C.T Of Delhi reported in 2010(9) SCC 1 laid
down certain guidelines (though in context of an offence of murder) as
regards the aggravating and mitigating circumstances to be taken into
account while deciding on the quantum of sentence.

“Aggravating Circumstances-A court may, however, in the
following cases impose the penalty of death in its
discretion-

(a) If the murder has been committed after previous
planning and involves extreme brutality; or

(b) If the murder involves exceptional depravity; or

(c) If the murder is of a member of any of the armed forces
of the Union or of a member of any police force or of any
public servant and was committed:-

(i) While such member or public servant was on
duty; or

(ii) In consequence of anything done or
attempted to be done by such member or public
servant in the lawful discharge of his duty as such
member or public servant whether at the time of
murder he was such member or public servant, as
the case may be, or had ceased to be such
member or public servant; or
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Criminal Appeal No.365/2001

(d) If the murder is of a person who had acted in
the lawful discharge of his duty under Section 43 of the
Code of Criminal Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer after
demanding his aid or requiring his assistance under Section
37 and Section 129 of the said Code.”

“Mitigating Circumstances- In exercise of its discretion in
the above cases, the court shall take into account the
following circumstances-

(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.

(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.

(4) The probability that the accused can be reformed and
rehabilitated.

The State shall by evidence prove that the accused
does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.

(6) That the accused acted under the duress or domination
of another person.

(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”

4.4 The above said guidelines have though been laid down in the said
case when the Apex Court was faced with the factual matrix as to
whether death or life sentence be awarded but the said may be of some
help while deciding the quantum of sentence herein.
4.5 No doubt, the respondent was aged 20 years and was suffering
from physical disability but there is nothing to indicate that he was
immature enough to be ignorant of the consequences of his act. The
prosecution has also proved that despite physical disability the
respondent could carry the prosecutrix on his shoulder to take her to the
roof top by climbing the ladder and in that regard no evidence to the
4
Criminal Appeal No.365/2001

contrary has been brought on record by the respondent. The arrest
memo does not disclose presence of criminal antecedents of the
respondent which reflects probability of reformation thereby ruling out
the possibility of imposing the maximum sentence. However, there is no
circumstance to establish that the respondent acted in any duress or
coercion.

4.6 After hearing learned counsel for the rival parties, this court is of
the considered view that looking to the age of the prosecutrix which was
only 10 years, the failure of the respondent to prove that the physical
disability suffered by him in any manner prevented him from reaching
the place of occurrence by climbing the ladder, the offence involving
mortal turpitude and the adverse consequences of far reaching affect
over the tender mind and body of the prosecutrix aged only 10 years,
the respondent deserves a sentence more than the minimum prescribed
for the offence u/s. 376(2)(f) IPC.

5. This court therefore deems it appropriate to impose sentence of
20 years R.I. on the respondent.

6. Pertinently, the jail warrant issued against the respondent seems
to be un-served as there is no office proceeding regarding execution of
the warrant.

7. Let the respondent be arrested for serving the sentence imposed
by this court forthwith failing which the trial court shall take steps to
apprehend him for suffering the punishment awarded above.

8. A copy of this order of sentence alongwith judgment of conviction
be sent to the trial court concerned for immediate compliance and report
to this court.

(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
05/04/2018 05/04/2018
(Bu)

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