Rajesh Patel vs State of Madhya Pradesh

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.

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 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.

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.

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.

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.

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 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.

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.

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.

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

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.

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. 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.

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.

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 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.

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

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.