— 1 —

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE

S.B.: HON’BLE MR. S. C. SHARMA, J

CRIMINAL APPEAL No. 30 / 2008
YUSUF S/O GULAM MUSTAFA AND ANOTHER

Vs.
STATE OF M.P.

*****
ORDER

( 22/03/2018)

The present appeal is arising out of the judgment dated

25/07/2007 delivered by the 4th Additional Sessions Judge,

Fast Track, Manawar, Distt. Dhar in Sessions Trial No.

286/2006 – State of Madhya Pradesh Vs. Yusuf and

Dayaram.

02. Facts of the case reveal that on 08/06/2006, the

prosecutrix was subjected to rape and she lodged a report on

09/06/2006. It was stated by her that on 08/06/2006 she had

been to Balipur Baba Ashram to obtain certain medicines

and at the Hotel of Dayaram, one Yusuf was present and

they told the girl that your relatives have also arrived and we

will take you to meet your relatives and thereafter she was

— 2 —

locked in a room and rape was committed. The prosecutrix

was subjected to medical examination and Sub Inspector G.

R. Rande (PW 4) requested the Doctor through Ex.P/4 for

medical examination. She was examined by Dr. Asha

Pawaiya (PW 5) and Ex.P/9 is the report in respect of the

medical examination and Ex.P/10 is the report in respect of

X-Ray which was done to ascertain the age of the girl. Sub

Inspector G. R. Rande (PW 4) prepared spot map Ex.P/2.

The appellants were arrested and they were sent for medical

examination. The appellants were examined by Dr.

Awdhesh Swarnkar (PW 3) who has given a report Ex.P/3

stating that the appellant Yusuf was capable of committing

sexual intercourse. The undergarments were sent for

examination to Regional Forensic Science Laboratory, Rau

through Ex.P/8 and after completion of investigation charge

sheet was filed and charges were framed u/S. 342, 376(2)(g)

of the Indian Penal Code. As many as five prosecution

witnesses were examined during trial and the trial Court has

arrived at a conclusion that the prosecutrix is about 18 years

of age. The prosecutrix (PW 1) in her statement has

— 3 —

categorically stated that she went out of her house to obtain

certain medicines and she stopped at the shop of Dayaram to

have Kachoris and at the shop one Yusuf was also present.

She has categorically stated that Dayaram and Yusuf told

her that your relatives has also arrived in their house and

trusting Dayaram and Yusuf, she went to the house of

Dayaram. She was confined inside the house and both the

appellants after consuming liquor, committed rape upon her

and when she was being raped, she started screaming and

the neighbours called the Police and it was the Police who

took the girl to the Police Station and thereafter the FIR was

lodged.

03. The factum of rape by accused Yusuf has been

disclosed by the girl in her examination-in-chief as well as

in cross examination and there are no contradictions and

omissions. The statement given by the prosecutrix have been

supported by her father Amar Singh (PW 1) and he has also

disclosed the entire incident, as narrated by the girl to him.

Dr. Asha Pawaiya (PW 5) in her statement has stated that

she has examined the prosecutrix. The prosecutrix was

— 4 —

having certain injuries, she was subjected to rape, meaning

thereby, the medical evidence has confirmed the factum of

rape by the appellant – Yusuf, in presence of co-accused

Dayaram.

04. It is true that rape was, in fact, committed by Yusuf,

but the other co-accused Dayaram was very much present

and both of them told the girl to go to the house of Dayaram.

Sec. 376 of the Indian Penal Code reads as under :
[376. Punishment for rape.–

(1) Whoever, except in the cases provided for by sub-section (2),
commits rape shall be punished with imprisonment of either
description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years
and shall also be liable to fine unless the women raped is his own
wife and is not under twelve years of age, in which cases, he shall
be punished with imprisonment of either description for a term
which may extend to two years or with fine or with both: Provided
that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment
for a term of less than seven years.

(2) Whoever,–

(a) being a police officer commits rape–

(i) within the limits of the police station to which he is appointed;
or

(ii) in the premises of any station house whether or not situated in
the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police
officer subordinate to him; or

(b) being a public servant, takes advantage of his official position
and commits rape on a woman in his custody as such public
servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand
home or other place of custody established by or under any law
for the time being in force or of a woman’s or children’s insti-
tution takes advantage of his official position and commits rape on
any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes
advantage of his official position and commits rape on a woman
in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

— 5 —

(f) commits rape on a woman when she is under twelve years of
age; or

(g) commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years but
which may be for life and shall also be liable to fine: Provided
that the Court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years.
Explanation 1.–Where a woman is raped by one or more in a
group of persons acting in furtherance of their common intention,
each of the persons shall be deemed to have committed gang rape
within the meaning of this sub-section.
Explanation 2.–“Women’s or children’s institution” means an
institution, whether called an orphanage or a home for neglected
woman or children or a widows’ home or by any other name,
which is established and maintained for the reception and care of
woman or children.

Explanation 3.–“Hospital” means the precincts of the hospital
and includes the precincts of any institution for the reception and
treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation.]

05. As per Section 376(2)(g) read with Explanation 1,

even when a woman is raped by one person in a group of

persons acting in furtherance of their common intention,

each of the person shall be deemed to have committed gang

rape within the meaning of sub-Section (g) and, therefore,

the factum of committing offence u/S. 376(2)(g), as the girl

was raped by Yusuf, in present of Dayaram, stands

established.

06. Report Ex.P/3 given by Dr. Awdhesh Swarnkar (PW

3) establishes that the articles were sent for Forensic Test

and the clothes of the prosecutrix, as per report P/3 were

— 6 —

having presence of semen.

07. In the light of the clinching evidence adduced before

the trial Court, especially the testimony of the prosecutrix,

Dr. Asha Pawaiya (PW 5), Dr. Awdhesh Swarnkar (PW 3)

and Amar Singh (PW 2), the factum of rape stands

established and this Court is of the considered opinion that

the trial Court was justified in convicting the appellants for

offence u/Ss. 376(2)(g) of the Indian Penal Code. They have

been rightly sentenced to undergo 10 years RI each with fine

Rs.5,000/- and for offence u/S.342, they have been

sentenced to undergo one year RI.

08. The appeal is of the year 2008. The judgment of

conviction is dated 25/7/2007 and the incident is dated

8/6/2006. The letter of Jail Superintendent, Dhar which is on

record dated 9/12/2017 reveals that appellant Yusuf, though

was sentenced for a heinous crime like gang rape, was

released on 10/2/2010 on account of International Human

Rights Day. He was released on account of the order passed

by the Jail Department dated 4/12/2010 State of Madhya

Pradesh as he has completed half of the sentence. The other

— 7 —

accused Dayaram was also released on 4/12/2010 on

account of International Human Rights Day as reflected

from the letter dated 3/3/2018 of the Jail Superintendent,

Central Jail, Dhar, meaning thereby, both the accused

persons have been released on account of some order of the

State Government passed in the matter. The details of the

orders granting remission are not on record.

09. It is true that Chapter 32 of the Code of Criminal

Procedure, 1973 provides for suspension, remission,

commutation of sentences. The appropriate Government is

certainly competent to pass appropriate order in respect of

suspension, remission and commutation of sentence. But,

the power has to be exercised sparingly with due care and

caution. The discretion does rests with the State Government

but in case of offences like gang rape, this Court is of the

considered opinion that due care and caution should be

taken while passing orders of release of convicts who have

committed rape, especially in the light of the fact that such

offences are at rise in the society.

10. This Court hopes and trust that in future the

— 8 —

appropriate Government will exercise its powers judiciously

with great care and caution, especially when it comes to

offences against children and women.

11. In the present case, as the order has already been

passed for releasing the accused-appellants, this Court will

not comment upon the orders releasing them, however, in

future in such cases, the powers conferred under the statute

ie., under the Code of Criminal Procedure, 1973 should be

exercised with great care and caution.

12. A copy of the judgment be forwarded to the Director

General of Police, Director General of Prison and to the

Chief Secretary, Government of Madhya Pradesh, for

ensuring necessary compliance.

13. With the aforesaid, the present appeal stands dismissed

and the appellants have already been released, no further

orders are required in the matter.

(S. C. SHARMA)
JUDGE
KR

Digitally signed by Kamal Rathor
Date: 2018.03.22 16:34:24 +05’30’