Haseen Khan vs The State Of M.P.
2021 Latest Caselaw 2837 MP

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                                                  Cr.A. No.2113/2000




HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
                AT JABALPUR


Case No.                             Cr.A.No.2113/2000
Parties Name                          Haseen Khan
                                           Vs.
                                 State of M.P. and others
Date of Judgment              30/06/2021
Bench Constituted           Division Bench:
                            Justice Prakash Shrivastava
                            Justice Akhil Kumar Srivastava
Judgment delivered by       Justice Prakash Shrivastava
Whether approved for        No
reporting
Name of counsels for        Shri Amanulla Usmani, learned
parties                     counsel for the appellant.

                            Shri S.K. Kashyap, learned Govt.
                            Advocate for the respondents.
Law laid down                               -
Significant paragraph                         -
numbers

                            JUDGMENT

30.06.2021

Per: Prakash Shrivastava, J.

By this appeal under Section 374(2) of Code of Criminal Procedure, 1973, the appellant has challenged the judgment dated 17.05.2000 passed by the Vth Additional Sessions Judge, Bhopal in Sessions Trial No.390/1999 whereby, the appellant has been convicted for the offences punishable under Sections 376 and 506 of the IPC and sentenced to Life Imprisonment for offence under Section 376 with fine of Rs.1 lakh and also sentenced to one year RI for the offence under Section 506 of IPC and default sentence of six months in case of non-payment of the fine amount. Both sentences are to run concurrently.

2. The prosecution case is that the prosecutrix is the daughter of the appellant and when she was aged about 8 years, her mother Reshma Bi

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had died due to illness. After the death of mother of the prosecutrix, the appellant had married twice and one of the wives had fled away and second had died and the third wife of the appellant was Jarina Bi. Further case of the prosecution is that when the prosecutrix was aged about 12 years, at that time, the appellant had committed rape upon her for the first time inspite of the resistance by the prosecutrix. The prosecutrix was also threatened by the appellant of severe consequence in case of disclosure of the incident to anybody. Thereafter the appellant used to commit rape every now and then. In 1994, the jhuggies were removed and the appellant along with the prosecutrix came to Goutam Nagar Janta Quarter but he had continued to rape the prosecutrix.

3. On the 25th August at night when he was committing rape, at that time, Jarina Bi, the stepmother of the prosecutrix, had seen it and the appellant had beaten Jarina Bi. On the third day, Jarina Bi had asked the prosecutrix to go to Jaitoon Bi, the sister of the appellant (Bua) and disclose the entire incident. On 05.10.1999, in the afternoon, the prosecutrix left the house and went to Bareli where her Bua was residing but on reaching Bareli, she found that Jaitoon Bi had gone to Bhopal, therefore, she waited at Bareili and on 07.10.1999, when Jaitoon Bi came back from Bhopal, the prosecutrix had disclosed the entire incident to Jaitoon Bi, who had taken the prosecutrix to the police station where the FIR (Ex.P/1) was registered and the investigation started. The spot man was prepared, medical examination of the prosecutrix was done and her frock was sent for the chemical examination. After completing the investigation, Police had filed the challan, appellant had abjured the guilt and the trial took place.

4. The trial Court after considering the evidence of the prosecutrix and other relevant witnesses has found that the offence against the appellant is proved. Accordingly, the trial Court has convicted and sentenced the appellant in the manner indicated above.

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5. Learned counsel for the appellant submits that the trial Court has committed an error in convicting the appellant. He further submits that the appellant has already remained in custody for a substantial period, which is much more than 14 years, therefore, he should be released or his sentence should be commuted.

6. Learned counsel for the State has opposed the appeal and has submitted that the offence has duly been proved and the appeal does not have any merit.

7. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that undisputedly, the prosecutrix is the daughter of the appellant. The prosecutrix (PW-1) has narrated the entire incident in detail. She has disclosed that she was residing with the appellant since birth and at the age of 8 years, her mother - Reshma Bi had died and that during the lifetime of her mother, the appellant had married to another lady and thereafter he had also contracted third marriage. She has disclosed that when she was aged about 12 years, her stepmother was admitted in the hospital and she used to live alone in the house. At that time, the appellant had committed rape upon her and had continued to rape her for about 7 years. She has also disclosed that her 4 th stepmother - Jarina Bi had seen the appellant committing rape upon her, therefore, the appellant had beaten Jarina Bi and Jarina Bi had left the house after 2-3 days and while going, she had asked the prosecutrix to go to her Bua's house and disclose the incident. Thereafter the prosecutrix had gone to the house of her Bua - Jaitoon Bi at Bareli and disclosed the incident to her and the report was lodged.

8. The statement of the prosecutrix was duly supported by the statement of Jarina Bi (PW 2), who is the eye-witness of the incident and she has stated about seeing the appellant committing the rape. She has also disclosed that when she had made enquiry from the appellant about the incident, the appellant had tried to strangulate her. After three days, the prosecutrix had disclosed the entire incident to her and she had asked the prosecutix to go and disclose the incident to her Fufi.

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She has also disclosed that after three days, she had left for her maternal house and had refused to go to the house of the appellant as she was afraid that the appellant may commit rape upon her daughter also.

9. The statements of the prosecutrix (PW 1) and Jarina Bi (PW 2) are duly corroborated by the statement of Jaitoon Bi (PW 3) - Bua of the prosecutrix who had disclosed that the prosecutrix had come to her house at Bareli and on 07.10.1999 and had disclosed her the entire incident in detail. She had also disclosed that she was raped for the first time when she was aged about 7 years and since then the appellant was continuously committing rape upon her.

10. Dr. Sandhya Khosla (PW 4), who had medically examined the prosecutrix, has stated that the prosecutrix was habitual of sexual intercourse.

11. As per the mark-sheet (Ex.P-11), at the time of recording the FIR, the prosecutrix was aged about 18 years and the evidence clearly reveals that the offence of rape was committed since seven years prior to that, hence at the time of commission of offence, the prosecutrix was minor. In the chemical examination of the frock seized from the prosecutrix, no sperms have been found but this aspect has already been duly considered by the trial Court in the judgment and has no effect on the offence which is already proved.

12. Thus, from the statements of prosecutrix (PW 1), Jarina Bi (PW/2), Jaitoon Bi (PW 3) and Dr. Sandhya Khosla (PW 4), it has been proved that the appellant had committed the offence of rape upon the prosecutrix. The prosecutrix is the daughter of the appellant and the appellant has committed such a disgusting, abhorrent and descitable offence.

13. The trial Court in the circumstances of the case has rightly awarded the sentence for the imprisonment of life. The report dated 30.03.2021 received from the Office of the Jail Superintendent Central

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Jail Bhopal reveals that the appellant had suffered actual sentence of 21 years 5 months and 19 days till 26.03.2021 and as on 31.12.2020, he had received remission of 9 years, 2 months and 19 days.

14. Coming to the question of sentence, the record reflects that the appellant has suffered the actual sentence of 21 years 5 months and 19 days as on 26.03.2021 as reflected in the communication dated 30th of March, 2021 received from the Superintendent of Jail, Bhopal. As per the said communication, he had also earned remission of 9 years 2 months and 19 days as on 31.12.2020, therefore, following two issues arise for consideration before this Court:-

(i) Whether the sentence of life imprisonment awarded to the appellant means actual sentence of 14 years or 20 years ?

(ii) Whether this Court can commute or reduce the sentence giving the benefit of remission ?

15. Section 53 of the IPC provides for life imprisonment as a punishment as under:

"53. Punishments.--The punishments to which offenders are liable under the provisions of this Code are-- First-Death

[Secondly-Imprisonment for life;]

[***] Fourthly-Imprisonment, which is of two descriptions, namely- (1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly-Forfeiture of property;

Sixthly-Fine"

16. Section 45 of Indian Penal Code defines "Life Imprisonment" as under:

"45. "Life"- The word "life" denotes the life of a human being, unless the contrary appears from the context."

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17. Section 53 of the IPC provides for sentence of imprisonment for life and the definition of 'life' as contained in Section 45 makes it clear that life means the life of a human being i.e. till he breaths his last. The Supreme Court in the matter of Gopal Vinayak Godse vs. State of Maharashtra and others reported in AIR 1961 SC 600 has held that a sentence for transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for whole or remaining period of convicted person's natural life. In the matter of Maru Ram vs. Union of India and others reported in (1981) 1 SCC 107, the Constitution Bench has followed the earlier judgment in the case of Gopal Vinayak Godse(supra) and reiterated in paragraph 72(4) that the imprisonment for life lasts until the last breath and the prisoner can claim release only if the remaining sentence is remitted by the government. The above position of law was reiterated again by the Hon'ble Supreme Court in the matter of State of M.P. vs. Ratan Singh reported in (1976) 3 SCC 470. Hence, from the aforesaid pronouncements, it is clear that a sentence for imprisonment of life will run for the entire life of the convict unless the remission is granted in accordance with law.

18. This takes us to the next question if this Court can grant remission and release a life convict on completion of 14 years or 20 years of actual sentence.

19. Section 432 of the Cr.P.C. gives power to the appropriate Government to suspend or remit sentence and Section 433 of the Cr.P.C. empowers the appropriate Government to commute the sentence. Section 433 reads as under:

"433. Power to commute sentence.- The appropriate Government may, without the consent of the person sentenced commute -

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(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine."

20. The restriction imposed upon the power of remission or commutation of sentence is contained under Section 433-A of the Cr.P.C. which provides that:

"433A- Restriction on powers of remission or Commutation in certain cases- Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."

21. In terms of Section 433 Cr.P.C., the appropriate government is empowered to commute the sentence of a convict for imprisonment for life for a term not exceeding 14 years and in terms of Section 433A Cr.P.C., the power of remission or commutation is restricted and a convict with sentence of imprisonment of life for an offence for which death is one of the punishment, cannot be released before completion of atleast 14 years of imprisonment. Section 432 and 433 of the Cr.P.C. also reveal that the remission can be granted only by the appropriate government. Such an exercise of power is an executive discretion and the same is not available to the High Court in exercise of review jurisdiction.

22. The Constitution Bench of the Supreme Court in the mat- ter of Union of India vs. V. Sriharan @ Murugan and others reported in (2016) 7 SCC 1 has held that the power of remission vests with the State executive and the Court at best can only give a direction to consider any claim for remission and cannot

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grant any remission and provide for premature release. It has further been held that -

"114. Therefore, it must be held that there is every scope and ambit for the Appropriate Government to consider and grant remission under Sections 432 and 433 of the Criminal Procedure Code even if such consideration was earlier made and exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution by this Court is concerned, we have already held that the power under Sections 432 and 433 is to be exercised by the Ap- propriate Government statutorily, it is not for this Court to exercise the said power and it is always left to be de- cided by the Appropriate Government, even if someone approaches this Court under Article 32 of the Constitu- tion. We answer the said question on the above terms."

23. In the matter of Ratan Singh(supra), the Supreme Court has held as under:

"9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge:

(1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure;"

24. Having regard to the aforesaid position in law, we are of the opinion that the life sentence which is awarded to the appellant is for a period of his entire remaining life till his last breath and the power to grant remission lies with the State Government. In view of the fact that the appellant has

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completed more than 20 years of sentence, we are of the opinion that the issue relating to release of the appellant after granting the benefit of remission now needs to be considered by the competent authority of the State Government in accordance with law.

25. Hence, we dispose of the appeal affirming the conviction and sentence of the appellant and by directing the competent authority of the State Government to consider the release of the appellant in accordance with law by granting the benefit of remission. Let this exercise be completed by the competent authority as expeditiously as possible preferably within a period of three months from today.

(PRAKASH SHRIVASTAVA) (AKHIL KUMAR SRIVASTAVA) JUDGE JUDGE Biswal/YS

Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2021.07.01 15:07:31 +05'30'