Pillu @ Suresh Prakash @ Kalyan @ ... vs State Of M.P
2023 Latest Caselaw 17345 MP

                                             (1)

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR

                          BEFORE
               HON'BLE SHRI JUSTICE ROHIT ARYA
                                         &
    HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

          CRIMINAL APPEAL NO. 448 OF 2013
BETWEEN :-

         PILLU ALIAS SURESH PRAKASH
         ALIAS RAMKISHAN S/O CHHATTU
         ALIAS CHATTA ADIWASI, AGED 40
         YEARS, R/O RAMPURA RANNOD,
         DISTRICT  SHIVPURI    (MADHYA
         PRADESH)

                                                               .....APPELLANT
(BY SHRI O. P. MATHUR - ADVOCATE)

AND
         THE STATE OF MADHYA PRADESH
         THROUGH     POLICE  STATION-
         MOHANA,   DISTRICT- GWALIOR
         (MADHYA PRADESH)



                                                            .....RESPONDENT

(BY SMT. DR. ANJALI GYANANI - PUBLIC PROSECUTOR)
--------------------------------------------------------------------------------------
                       Reserved on            :      12/10/2023
                       Delivered on           :      17/10/2023

       This appeal coming on for hearing this day, Hon'ble Shri Justice
Avanindra Kumar Singh passed the following:
                                           (2)

                            JUDGMENT

This jail appeal has been filed by appellants/accused under Section 374 of Cr.P.C. through Legal Aid Committee, against the judgment dated 24/01/2013; passed by Third Additional Judge to the Court of First Additional Sessions Judge, Gwalior in S.T.No. 478/2012; whereby, the appellant has been convicted and sentenced, as thus:-

Section         Act            Sentence            Fine       Default
                                                              stipulation
363             IPC            7 years RI          5,000/-    One year RI
366             IPC            7 years RI          5,000/-    One year RI
376 (1)         IPC            Life Imprisonment   10,000/-   One year RI
506-B           IPC            2 years             2,000/-    six months RI

All the sentences were directed to be run concurrently.

2. In short, the prosecution story is that on 21/6/2012, Dropabai (PW/2) lodged a Missing Person Report, which was registered as Missing Person Report No. 7/12 by Police Station Mohna, District Gwalior to the effect that her minor daughter (hereinafter shall be referred as "prosecutrix") on 20/6/2012 left the house by saying that she was going to her uncle (Mama) Sitaram's house and did not return back. On 27/6/2012, prosecutrix was recovered from Police Station Kishanganj, District Baran, Rajasthan. Supurdgi Panchnama (Ex.P/1) was prepared and the prosecutrix was handed over to her father Bhura (PW/3). Thereafter, on the basis of information given by prosecutrix (PW/1), FIR (Ex.P/4) was registered vide Crime No. 88/12 by Police Station Mohna, District Gwalior against the appellant for offence under Section 363, 366, 376 and 506-B of IPC. The prosecutrix levelled the allegation that one day, one relative (appellant) of her Mama {Sitaram (PW/4)} came to her house in

search of her Mama (Sitaram) and after staying for one day at her house, by enticing her for purchasing clothes for her, took her with him and thereafter committed rape with her in a Forest and thereafter took her with him in train to Radhapura village and thereafter by threatening her committed rape with her. Thereafter, he ran away by leaving her behind alone in a field in District Baran, P.S. Kishanganj, Rajasthan, where, she narrated the story to an old lady. After registration of FIR, she was sent for medical examination. During investigation, the accused was arrested formally from Sabalgarh Jail and on completion of investigation, charge-sheet was filed by Police.

3. The accused/appellant denied the charges, therefore, he was put on trial. The prosecution produced as many as 11 prosecution witnesses and exhibited 11 documents. In statement under Section 313 of Cr.P.C., the accused persons in answer to question based on prosecution evidence against him, has denied the allegations. No defence witness has been produced by appellant in support of his case and after hearing the final arguments, the learned trial Court has passed the impugned judgment dated 24/1/2013, against which this appeal has been filed on the grounds that:-

(i) Impugned judgment and conviction is bad in law, illegal, arbitrary and against the settled principles of law;

(ii) Learned counsel for appellant submits that the judgment and findings of learned Court below are perverse and contrary both on facts and law and liable to be set aside. Learned Court below failed to appreciate the material available on record and passed the judgment and findings on conjunctures and surmises. There are number of contradictions and omissions in the testimonies of

prosecution witnesses;

(iii) The evidence brought on record is not properly appreciated by the learned trial Court, thereby Court below erred in law while convicting and sentencing the appellant;

(iv) Alternatively, it is submitted on behalf of appellant that the appellant has already undergone 11 years jail sentence and is now aged about 52 years, therefore, even if this Court finds that there is no merit in the appeal, then looking to the age of the appellant and the period of jail sentence already undergone by him, his jail sentence may be reduced to the period already undergone by him.

Accordingly prayed for setting aside the impugned judgment of conviction and sentence.

4. Learned Public Prosecutor for the respondent State has submitted that after appreciating the evidence produced by the prosecution, the Court below has rightly found the appellant guilty for the aforesaid offence, therefore, no grounds are available to the appellant for either setting aside the impugned judgment or reducing the jail sentence awarded to the appellant, hence, she prayed for dismissal of the appeal.

5. We have heard the learned counsel for rival parties and perused the record of sessions trial.

6. It is a case where the accused is facing the allegation of kidnapping and rape with the prosecutrix. Commission of rape along with internal injuries over the private part of the prosecutrix is well supported by the document of medical examination of the prosecutrix Ex-P/6 proved by the Dr. Renu Jain (PW-8) who categorically stated

that there were injuries over the private part of the prosecutrix and she has given definite opinion about commission of rape. Other prosecution witnesses mother Dropabai (PW/2), father- Bhura Adiwasi (PW/3) and mama - Sitaram (PW/4) supported the version of prosecutrix and there is due corroboration with the version of prosecutrix, statements of prosecution witnesses and medical evidence.

7. Dr. Renu Jain (PW-8) who conducted MLC of the prosecutrix (PW-1) opined that prosecutrix sustained injuries over her private part and given definite opinion about commission of rape with her. On internal examination, she opined that there were several injuries over her private part and bleeding was also there. Thus, the version of complainant in relation to commission of rape is duly corroborated through medical evidence. therefore, the findings of Court below convicting the appellant as referred hereinabove is hereby affirmed.

07. Now the question arises as to whether the sentence already undergone by the appellant is sufficient to release him ?

08. The Court below while convicting the appellant for offence under Section 376(1) of IPC, sentenced him to undergo Life Imprisonment, not for 20 years but for life. The Court below has awarded maximum sentence which can be given for offence under Section 376(1) of IPC. The appellant is in jail since beginning i.e. from 3/10/2012 i.e. has already undergone jail sentence for more than 15 years one month 28 days including remission period and in actual 11 years 14 days as on today.

09. Considering the fact that the victim, in the case on hand, was aged about 11 years on the date of the incident and the accused was in the age of 40 years and also of the fact that the incident occurred nearly

12 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(1) IPC, we feel that the ends of justice would be met by sentencing the appellant to the jail sentence already undergone by him.

10. Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs.17,000/-, in default, to undergo RI for three years six months RI in tota., learned counsel for the appellant submitted that the accused hails from a poor family and is not in a position to pay such a huge amount as fine which is not disputed by the State as the appeal is filed through Legal Aid Committee. Taking note of all these aspects, we reduce the fine of Rs. 17,000/- to Rs. 1,700/-, in default, to further undergo RI for one month.

11. In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to the extent indicated hereinabove.

12. Resultantly, the appeal is allowed in part. Appellant is in jail, he is directed to be released forthwith if not required to be detained in any other criminal case.

A copy of this judgment be sent to the concerned jail authorities as well as to the trial Court along with record for information and compliance.

                                                                        (ROHIT ARYA)                       (AVANINDRA KUMAR SINGH)
                                                                          JUDGE                                    JUDGE
    jps/-
JAI         Digitally signed by JAI PRAKASH SOLANKI
            DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH

GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH

PRAKASH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7633f4cfb9e3 8ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193780D8357, serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8C01433EB

SOLANKI D48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2023.10.18 13:34:07 +05'30'