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Rajesh Patel vs The State Of Madhya Pradesh on 1 February, 2018

HIGH COURT OF MADHYA PRADESH : JABALPUR.

DIVISION BENCH

BEFORE: JUSTICE J.K. MAHESHWARI
JUSTICE J.P. GUPTA

Criminal Appeal No. 415/2007

Rajesh Patel

Vs.
State of Madhya Pradesh

For Appellants: Shri Abhishek Tiwari, advocate,

For Respondent: Shri Anubhav Jain, Govt. Advocate.

JUDGMENT

(01/02/2018)

Per- J.K. Maheshwari, J.

This appeal under Section 374(2) of the Code of Criminal
Procedure has been filed by the appellant/accused challenging the
judgment dated 27.1.2007 passed by the Additional Judge to the
Court of Additional Sessions Judge, Mauganj, District Rewa, in ST No.
9/2006 convicting him for the charge under Section 376(2)(f) of the
Indian Penal Code (in short ‘IPC’) and sentencing him to undergo
imprisonment for life and fine of Rupees one lakh. In default of
deposit of fine, additional rigorous imprisonment for five years.

2. The case of the prosecution is that the prosecutrix, aged about
7 years, was living with her grand mother Duasiya (PW-7) in village
Rajgama. The father of prosecutrix was in the employment at Daman
and Diu. Mother of prosecutrix had already expired. As the grand
father of the prosecutrix was working in Rajya Priwahan Nigam,
therefore, he was living at Rewa. As the house of the prosecutrix was
in front of the house of Rajesh Patel (appellant/accused), she used to
go to play in the house of appellant/accused with his children. On
16.9.2005 at about 10.00 O’clock prosecutrix had gone to the house
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of appellant. After about an hour at 11.00 O’clock, the prosecutrix
came back crying to her house. When she came back to the
house, her underwear was smeared with blood and blood was
oozing from her private part. She was also complaining pain on
her private part. On asking Duasiya (PW-7), prosecutrix narrated
all the story to her alleging allegation of commission of rape on
the appellant Rajesh Patel. Duasiya (PW-7) explained the act of
appellant to Babbu Shukla and the wife of Bhola. Thereafter,
appellant, his father Vanshpati and nephew Chintu came to the
house of Duasiya (PW-7) with a doctor for treatment of prosecutrix
and, after treatment, Chintu threatened them for dire
consequences if the report is lodged. Duasiya (PW-7) informed
about the incident to her son. Thereafter when her son and
Phoolkali came back to the village, on the next day on 17.9.2005
they alongwith Sarpanch Umesh Patel, Secretary Shyam Sunder
Patel and other persons of the village went to the police station
and lodged the report. The prosecutrix was sent for X-ray and
medical examination which was done at Rewa. The police
prepared the spot map. The appellant-accused was arrested on
26.9.2005. The medical examination of the accused was also
done. The underwear of the accused was seized from his house as
well as received from the hospital alongwith the slide and the
seized articles were sent to FSL for examination. The other
necessary seizures were also made and sent to FSL for
examination. Accused Pintu was also arrested and offence under
Section 201 of IPC was registered against him. Thereafter
investigation was completed.

3. After completion of investigation challan was filed in the
competent court. As the case was triable by the court of sessions,
therefore, it was committed to the court. The sessions court
framed the charge against the appellant Rajesh Patel under
Section 376 (2)(f) of IPC.

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4. The appellant abjured his guilt and took a defence of false
implication. He stated that when the prosecutrix was playing on
the tractor alongwith other children, she fell down in the trolly of
the tractor. He further stated that on the date of incident he was
not present on the spot, however, he took the plea of alibi.
Accused Pintu has also abjured his guilt and take a defence of
false implication.

5. The trial court has considered the statements of prosecutrix
(PW-10), grandmother Duasiya (PW-10), grandfather Baijnath
Vishvkarma (PW-5), Dr. Kiranbala Mishra (PW-14) and other
witnesses, however, considering the FSL report and relying upon
the testimony of prosecutrix and other witnesses, recorded the
finding of guilt against the appellant and accordingly convicted and
sentenced him as described hereinabove.

6. Learned counsel for the appellant made an unsuccessful
attempt to argue the case on merit contending that the appellant
was not present on the spot on the date of incident, but, during
the course of argument, he switched over his arguments on the
point of quantum of punishment in place of pressing this appeal on
merit. It is his contention that in similar set of facts as are
available in the present case, the Apex Court in the case of Bavo
@ Manubhai Ambalal Thakore V. State of Gujrat report in
2012 AIR 979 reduced the sentence of life imprisonment to the
sentence of ten years which was already served by the appellant
therein. The Apex Court also reduced the amount of fine of from
Rs.20,000/- to Rs. 1,000/-. The reliance has also been placed on
another judgment of the Apex Court in the case of State of
Chhattisgarh V. Derha reported in (2004) 9 SCC 699 wherein
the Apex Court though set aside the judgment of the High Court,
but reduced the sentence of appellant awarded by the trial court
i.e. from ten years to seven years and disposed of the appeal
accordingly. In the case of Bavo (supra) also the girl was about
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seven years of age. In view of the said submissions, it is urged
that the sentence of appellant as awarded by the trial court may
also be reduced to the sentence already served by him. The
amount of fine is excessive and without reasoning, therefore, it
may also be set aside.

7. On the other hand, learned Government Advocate, even on
the point of sentence, opposed the arguments of learned counsel
for the appellant, but he could not distinguish the judgments relied
upon by the learned counsel for the appellant. It urged by him
that the findings of conviction and sentence as recorded by the
trial court in the facts and circumstances of the present case and
looking to the nature of offence where a girl of about seven years
has been raped do not warrant any interference and this appeal
may be dismissed.

8. After having heard learned counsel for both the parties and
on perusal of the facts of the present case, it is apparent that the
allegation of commission of rape against the appellant was found
proved by the trial court relying upon the testimony of the
prosecutrix (PW-10), grandmother Duasiya (PW-7) and
grandfather Baijnath Vishvkarma (PW-5). The said allegation also
finds support from the medical evidence of Dr. Kiranbala Mishra
(PW-14), therefore, the finding of conviction, as recorded by the
trial court, disbelieving the plea of alibi taken by the appellant is in
accordance with law and such findings do not warrant interference
in this appeal.

9. Now reverting to the arguments, as advanced by the
learned counsel for the appellant on the point of sentence as
awarded by the trial court, the judgment of Apex Court in the case
of Bavo (supra) is relevant wherein the charge under Section
376(2)(f) of IPC was framed against the appellant therein and the
Apex Court relying upon the judgment of Rajendra Datta
Zarekar vs. State of Goa, (2007) 14 SCC 560 in paras 11,12
5

and 13, the Apex Court has observed as under:-

11) Considering the fact that the victim, in the case in hand,
was aged about 7 years on the date of the incident and the
accused was in the age of 18/19 years and also of the fact
that the incident occurred nearly 10 years ago, the award of
life imprisonment which is maximum prescribed is not
warranted and also in view of the mandate of Section
376(2)(f) IPC, we feel that the ends of justice would be met
by imposing RI for 10 years. Learned counsel appearing for
the appellant informed this Court that the appellant had
already served nearly 10 years of sentence.

12) Coming to the quantum of fine, in the case in hand, the
learned trial Judge has imposed Rs.20,000/-, in default, to
undergo RI for three years, learned counsel for the
appellant submitted that the accused hails from a poor
family and was working as an agricultural labourer and is
not in a position to pay such a huge amount as fine which is
not disputed by the State. Taking note of all these aspects,
we reduce the fine of Rs. 20,000/- to Rs. 1,000/-, in default,
to further undergo RI for one month.

13) In view of the above discussion, the conviction imposed
on the appellant herein is confirmed. However, the sentence
of life imprisonment is modified to RI for 10 years with a
fine of Rs.1,000/-, in default, to further undergo RI for one
month.

In the case of Derha (supra), the accused was convicted for
the charge under Section 376(2)(f) with respect to a girl about
eight years of age wherein the trial court convicted the accused
and directed to undergo the sentence of ten years, but, the High
Court set aside the conviction and sentence, however, the State of
Chattisgarh preferred an appeal before the Supreme Court, which
was allowed, but, on the point of quantum of punishment, the
sentence as awarded by the trial court was reduced from ten years
to seven years.

10. In view of the above and looking to the provisions as
contained in Section 376(2)(f) of IPC, the sentence of life
imprisonment is excessive and the minimum sentence prescribed
in this section is seven years. The facts of the present are not
distinguishable from the facts of the cases of Bavo and Derha
(supra). It is also to be noted here that from the date of arrest i.e.
6

26.9.2005 the appellant is in jail and if the total actual period of
his custody is counted, he has already served the sentence of 12
years and 4 months and if the period of remission is added, the
period of sentence would be more than the actual period of
sentence served by the appellant. Therefore, in the light of the
aforesaid judgments of Apex Court in the cases of Bavo and
Dehra (supra), in our considered view, the sentence of life
imprisonment awarded by the trial court to the appellant may be
reduced to the period of sentenced already served by him.
Further, while imposing fine of Rs.1 lakh on the appellant, the trial
court has not assigned any reason for the same, therefore, in our
considered opinion, the said amount of fine and the sentence
awarded in default thereof are excessive, however, the amount of
fine is also reduced from Rs.1 lakh to Rs.5,000/- and in default
thereof, the appellant shall serve one month’s rigorous
imprisonment.

11. It is a case wherein the victim, who was a minor and aged
about seven years, went to play in the house of appellant and he
committed rape with her and the charge of rape is proved. As per
the provisions contained in Section 357-A of the Code of Criminal
Procedure (for short ‘Cr.P.C.’), the victim may be compensated if
directed by the Court. In the facts of the present case in which a
minor girl is raped, however, she would have faced the mental
agony and also the adverse social impact. In this view of the
matter, it is directed that appropriate steps shall be taken by the
State/District Legal Services Authority within the stipulated time as
specified in Section 357A(5) of Cr.P.C. and also take necessary
steps for rehabilitation of the victim, paying her compensation.

12. In view of the foregoing, this appeal is partly allowed. The
finding of conviction and sentence as recorded by the trial court is
hereby affirmed, however, in the facts and circumstances of the
case and also in view of the judgments of Apex Court in the cases
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of Bavo and Dehra (supra), the sentence of appellant is reduced
to the sentence which he has already undergone i.e. 12 years and
4 months. The appellant be released forthwith from the jail if he
has already undergone the sentence as aforesaid and not required
in any other case.

13. A copy of this judgment be sent to the jail authorities as well
as to the court concerned for necessary compliance.

14. At the end, it is our duty to record the words of appreciation
in favour of the amicus curaie who has assisted this Court in
disposal of this appeal which was pending since 2007 wherein the
accused was in custody since last more than 12 years and 4
months, however, his assistance is hereby acknowledged.

(J.K. Maheshwari) (J.P. Gupta)
Judge Judge

rs shukla

Digitally signed by
RAGHVENDRA SHARAN SHUKLA
Date: 2018.02.06 20:00:28 +05’30’

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