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Lallu Kol @ Premma vs The State Of Madhya Pradesh on 3 May, 2018

HIGH COURT OF MADHYA PRADESH AT JABALPUR

CRA No. 1601/2008

Lallu Kol @ Premma
Vs.
State of Madhya Pradesh

Present : Hon’ble Shri Justice S.K.Gangele, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge
————————————————————————————-
Smt. Mamta Dubey, Amicus Curiae for the appellant.
Shri Ajay Shukla, Government Advocate for the
respondent/State.
————————————————————————————-

JUDGMENT

(03/05/2018)

Per : S.K.Gangele, J :-

1. Appellant has filed this appeal against the judgment

dated 02.04.2008 passed by the Sessions Judge, Shahdol in

Sessions Trial No. 164/2007 whereby the appellant has been

convicted and sentenced as under :

Section of Indian Sentence Fine In default of fine
Penal Code (in Rs.)
450 R.I. for 3 years 1,000/- R.I. for 3
months
376 Life Imprisonment 1,000/- R.I. for 6
months
323 R.I. for 3 months – –
506-B R.I. for 1 year – –

2. The prosecution story in brief is that, on 09.06.2007

at around 9 o’ clock at night, the appellant came to the house of
2 CRA No. 1601/2008

the prosecutrix. He tried to strip her. The prosecutrix resisted.

Thereafter, appellant had inflicted blows by hands and fist on her

face and chest. He tied her mouth with gamcha (cloth), removed

her saree and thereafter committed rape with her. Thereafter, he

ran away from the place. Report of the incident was lodged at the

police station. After investigation charge-sheet was filed against

the appellant.

4. During trial appellant abjured guilt and pleaded

innocence. The trial Court held the appellant guilty and

convicted him as mentioned hereinabove.

5. Gulbasua (PW-1) is the prosecutrix. At the time of

incident, she was aged near about 60 years. She deposed that I

returned to my house after doing labour work. I was lying on the

bed and sleeping. At around 2:00-2:30 am in the night, appellant

entered my house. He sat on my chest. He pressed my mouth

and slapped me. Thereafter, he opened my saree and tore my

saya (petticoat) which I was wearing. He had also closed my

mouth and committed rape with me. I resisted. However, the

appellant had inflicted injuries on me and committed rape 3-4

times with me. He was in a drunken condition. I told the

incident to my neighbour Lachchu (PW-2). Thereafter, Choubey

Maharaj, Babbu, Nathu reached on the spot and the appellant ran
3 CRA No. 1601/2008

away from the house. I went to the Police Station, Amlai on a

bicycle along with Nathhu and lodged the report which is Ex.

P/1. I was examined by the doctor.

6. Lachchu (PW-2) is another witness. He deposed that

at around 2:30 am in the night, prosecutrix came to my house.

She was naked. She told me that some thief had entered her

house. I asked her why you are naked. She told me that rape was

committed with me. Thereafter, I went to the house of the

prosecutrix and noticed that appellant was in the house. He was

in a drunk condition. We had caught the appellant but thereafter

he ran away. Other persons also reached on the spot.

7. Ramnaresh Chaturvedi (PW-3) also deposed that

Lachchu (PW-2) came to my house and thereafter I went to the

house of the prosecutrix. Appellant was in the house and

thereafter, he ran away from the house. Prosecutrix told me that

the appellant had committed rape with her.

8. Dr. D.P.Mohanti (PW-5) deposed that on 09.06.2007,

I was posted as medical officer at Community Health Centre,

Dhanpuri. On the aforesaid date I had examined the prosecutrix.

She was aged about 60 years. I noticed the following injuries on

the person of the prosecutrix.

(i) An Abrasion of 2×1 cms. above the left knee.
4 CRA No. 1601/2008

(ii) One injury of swelling, 2×2 cms. on the left jaw bone.

9. Dr. Mohanti opined that injuries were caused by hard

and blunt object. He further deposed that the lady was

complaining pain in her breast. I examined her private parts

also. However, I did not notice any injury on her private parts.

Hymen was ruptured. The lady was habitual of sexual

intercourse. I did not give any opinion about rape.

10. R.P.Tripathi (PW-6) deposed that on 09.06.2007,

prosecutrix lodged report. I recorded her statement and registered

the offence. Ex. P/1 is the report. It was read over to the

complainant (prosecutrix). She affixed her thumb impression on

the report. The prosecutrix was sent for medical examination. I

recorded statements of complainant Gulbasua, Nathu Kol, Babbu

Singh, Lachchu Kol, Ramnaresh Chaturvedi and Ramji Kol. I

also prepared spot map Ex. P/2. I also seized some articles vide

seizure memo Ex. P/3. On 14.06.2007, appellant was arrested.

The undergarments of the appellant were seized vide seizure

memo Ex. P/10. Appellant was sent for medical examination.

Patwari also prepared spot map Ex. P/13.

11. From the evidence of prosecutrix (PW-1) this fact has

been proved that the appellant entered into the house of the

prosecutrix. He slapped her and committed rape with her.
5 CRA No. 1601/2008

Lachchu (PW-2) and Ramnaresh Chaturvedi (PW-3) further

deposed that they went to the house of the prosecutrix and

appellant was present there. On seeing them, appellant had ran

away from the spot. In our opinion, on the basis of aforesaid

evidence, trial Court has rightly held the appellant guilty for

commission of offence punishable under Section 450, 376, 323

and 506-B of the Indian Penal Code.

12. Now, the question for consideration is “what sentence

be awarded to the appellant?” The minimum sentence at the time

of commission of offence punishable under Section 376 of IPC

was 7 years. The maximum sentence is life imprisonment, as

awarded by the trial Court in the present case. The appellant is in

jail since 14.06.2007. He has completed more than 10 years’ of

actual jail sentence.

13. The Apex Court in the case of Hazara Singh Vs. Raj

Kumar Ors. (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. …. 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
6 CRA No. 1601/2008

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 Cr.PC 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
Court has enhanced the fine and compensated
the injured and, therefore, we should not
enhance the sentence. Accepting such a
7 CRA No. 1601/2008

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.”

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

Kumar Jayanti Lal Dabgar Vs. State of Gujarat [(2015) 7

SCC 259 has upheld the sentence awarded by the High Court for

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 10 years. Hence, in our opinion, it would

be just and proper to award sentence to the appellant as already

undergone.

21. Consequently, the appeal filed by the appellant is

partly allowed. His conviction and sentence awarded by the trial

Court punishable under Sections 450, 323 and 506-B of Indian

Penal Code is hereby upheld. The conviction of the appellant for
8 CRA No. 1601/2008

commission of offence under Section 376 of the Indian Penal

Code is hereby upheld, however, the sentence of life

imprisonment awarded by the trial Court is modified to 10 years.

All the sentences shall run concurrently.

22. Appellant is in jail. He has already completed jail

sentence of more than 10 years. He be released forthwith, if not

required in any other case.

23. Copy of this judgment be sent to the Court below

for information and compliance along with its record.

(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya

Digitally signed by
SREEVIDYA
Date: 2018.05.05 11:53:09
+05’30’

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