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