Madhya Pradesh High Court
Kalamsingh vs The State Of Madhya Pradesh on 5 March, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 5th OF MARCH, 2024
CRIMINAL APPEAL No. 898 of 2019
BETWEEN:-
KALAMSINGH S/O RUPSINGH, AGED
ABOUT 28 YEARS, AMBUA, DHEEKUNDI
FALIYA DISTT ALIRAJPUR (MADHYA
PRADESH)
.....APPELLANT
(BY MS. SONALI GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH P.S.
AMBUA DISTT ALIRAJPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY MS. NISHA TANWAR - G.A./P.L.)
.........................................................................................................
This appeal coming on for judgment this day, the court passed
the following:
JUDGMENT
1] Heard finally, with the consent of the parties.
2] This criminal appeal has been filed under Section 374 of Cr.P.C.
against the judgement dated 08.01.2019, passed in Special Penal Case
No.42 of 2017 by Additional Sessions Judge, Jobat, District Alirajpur
(MP) whereby finding the appellant guilty, the learned Judge of the trial
Court has convicted the appellant under Sections 363, 366, 376(2) (N) &
506-II of IPC and Sections 5(L)/6 of The Protection of Children from
Sexual Offences Act, 2012 and sentenced him to undergo 2 years R.I., 5
years R.I., 10 years R.I., 1 year R.I. and 10 years R.I. with fine of
Rs.1,000/-, Rs.2,000/-, Rs.2,000/-, Rs.1,000/- and Rs.2,000/- respectively
with default stipulations.
3] In brief, the facts of the case are that on 23.05.2017, at around
2:30 in the night, the prosecutrix was taken by the appellant, who
happens to be her uncle, on his motorcycle and thereafter he took her to a
nearby forest and committed rape on her repeatedly two to three times.
First information report was lodged on 25.05.2017 at 5:22 in the evening
and the reason for delay is stated to be that the prosecutrix's father was
not present in the village but he did not come for further two days, the
report was lodged along with her mother. After recording the evidence,
the learned Judge of the trial Court has convicted the appellant as
aforesaid and being aggrieved, the present appeal has been preferred.
4] Counsel for the appellant has submitted that the age of the
prosecutrix is disputed, as even according to the prosecution, it is 16 to
18 years, whereas the age of the prosecutrix is not proved by any
document and thus, a margin of 2 years can be added to her maximum
age and it cannot be said that the prosecutrix was minor at the time of
incident and in such circumstances, the minimum sentence of 7 years can
be imposed upon the appellant, instead of 10 years as the appellant has
already suffered 6 years and 9 months of incarceration as of now.
5] Counsel for the State, on the other hand, has opposed the prayer
and it is submitted that the appellant being his uncle cannot be let off by
imposing the minimum sentence as it was all the more his duty to protect
her and instead he has violated her. Thus, it is submitted that no case for
interference is made out.
6] Having considered the rival submissions and on perusal of the
evidence adduced by the prosecution on record, it is found that so far as
the allegation of rape is concerned, PW-6 Dr. Surabhi Dixit in her
deposition has stated that the prosecutrix had not suffered any external or
internal injury, but she has opined that the definite opinion regarding the
rape can only be given after the forensic report and she had also obtained
the slides of the prosecutrix. The FSL report Ex.P/18 has also been
produced on record in which in the slides obtained from the prosecutrix's
vagina, as also her undergarment, the semen stains and human
spermatozoa has been found, which clearly substantiate the allegation of
the prosecturix regarding rape. Although, DNA report is not produced,
however, the same is not relevant as the prosecutrix has not been
suggested that she was raped by some other person and not the appellant,
and otherwise also the statement of the prosecutrix appears cogent and
consistent regarding the allegation of rape levelled by her against the
appellant and there appears to be no reason for the prosecutrix to falsely
implicate her uncle.
7] On perusal of the deposition of the prosecutrix, it is also found
that she has not been suggested that she was a consenting party. Thus,
the prosecution has been able to establish the factum of rape positively
and in such circumstances, the finding recorded by the learned Judge of
the trial Court regarding the rape is concerned, no interference is called
for. So far as the age of the prosecutrix is concerned, PW-8 Dr. K.C.
Gupta has opined her age to be 16 to 18 years and the counsel for the
appellant has submitted that two years may also be added in that age and
thus, the prosecutrix's age can be considered from 18 to 20 years.
However, this Court does not agree with the aforesaid preposition, as the
age is irrelevant in the present case since the prosecutrix has also stated
that she was raped by the appellant for two or three times, it is a clear
case falling under Section 376(2)(n) of IPC for which the minimum
sentence provided is 10 years.
8] In such circumstances, although the learned Judge of the trial
Court has imposed the minimum sentence, but there is no State appeal
for enhancement of the sentence of the appellant. In such circumstances,
the minimum sentence of 10 years appears to be just and proper in the
facts and circumstances of the case. In view of the same, the appeal
being devoid of merits, is hereby dismissed.
(SUBODH ABHYANKAR)
JUDGE
Pankaj
