Raju vs State of M.P.

Justice, U.C. Maheshwari

The appellant has preferred this appeal u/s 374 of Criminal Procedure Code being aggrieved by the judgment dated 30.10.1999 passed by the 4th Additional Sessions Judge, Gwalior M.P. in Sessions Trial No. 99/1999, whereby the appellant has been convicted under sections 342 and 376 (2) (g) of Indian Penal Code and sentenced to undergo one year rigorous imprisonment with fine of Rs. 1,000/-and life imprisonment with fine of Rs. 5,000/-respectively with stipulation of sentence in default of depositing the fine. The facts giving rise to this appeal in short are that on dated 27.9.1998 one Arun Pratap Singh (complainant) lodged a First Information Report at police station Janakganj, Lashkar, Gwalior contending that today at about 8.30 in the morning his sister the prosecutrix went to the market to purchase rubber band and when she did not come back for a longer period then he tried to trace her, but could not get success. His parents had gone outside in connection with some work. When he came back to his residence at about 1.00 ''O'' Clock after tracing out his sister at the same time his sister the prosecutrix came and apprised him that while she was going towards market to purchase rubber band, on the way in front of the house of the appellant she was asked by him that he has some work from her father and in continuation of it he took her in his home and detained her in a room where one Raje Mehtar was also present. She was asked by the appellant to place ''Sindur''on her forehead but she refused for the same, on which, she was subjected to beaten by means of fist on her face and chest, thereafter, her undergarment was removed. The appellant had also removed his clothes and inter his private part in her private part and thereby he has committed rape. In the course of performing such act, she tried to cry but her mouth was gagged by showing a knife. Subsequent to the appellant Raje Mehtar had also committed such act of rape on her and on her crying again she was subjected to beaten by means of fist and she was forced to wear her undergarment and clothes. It is also stated that due to such act of the appellant, the blood was profused from her private part as well as from her mouth. She was detained in such room for near about 4 & 1/2 hour and at about 1.00 ''O'' Clock when the door was opened then she came back to her house. Thereafter, she accompanied with her brother came to the police station and lodged First Information Report (Ex. P-1). On lodging of such report, offence punishable under sections 342 and 376 (2) (g) of Indian Penal Code was registered against the appellant and necessary papers with respect to the spot and the incident were prepared. Meanwhile, the prosecutrix was sent to the hospital for her medical examination where her MLC report was prepared as well as ossification test was carried out. Interrogative statements of the witnesses were recorded and on disclosing information by the accused alleged knife was recovered. On completion of the investigation, the ingredients of the alleged offence punishable under sections 342 and 376 (2) (g) of Indian Penal Code were made out against the appellant while the co-accused Raje Mehtar could not be traced out, on which, the appellant was charge sheeted for the aforesaid offence.

After committing the case to the sessions Court, on evaluation of the charge-sheet the charges of sections 342 and 376 (2) (g) of Indian Penal Code were framed against the appellant, he abjured his guilt, on which, evidence was recorded and on appreciation of the same after holding guilty to the appellant for the charged, he was punished with the punishment as stated above. Being dis-satisfied with such judgment of conviction and sentence, the appellant has preferred the present appeal.

Shri Atul Gupta, learned counsel appearing on behalf of the appellant after taking us through the record of the trial Court including the evidence led by the prosecution and the exhibited documents argued the case for extending acquittal to the appellant, but in view of availability of the specific and convincing evidence against the appellant, for committing the alleged offence not only in the testimony of the prosecutrix, but also in the deposition of the supporting witnesses her brother complainant Arun Pratap Singh (PW-1) so also her parents Harbhajan (PW-2) and Rajeshwari (PW-5) alongwith available medical evidence showing the positive sign for committing rape on the prosecutrix, on making certain queries from the appellant''s counsel, on which, he restricted his submission and made his limited prayer for reduction of the awarded jail sentence saying that on the date of the incident i.e. 27.09.1998, the appellant was arrested and since then till disposal of the trial, he remained in the judicial custody and thereafter since the date of judgment impugned till today, he is facing the awarded jail sentence and in such premises, he has suffered near about 14 years sentence in the jail out of the awarded jail sentence. In continuation, he said that in the absence of the appellant his family members comprising of his wife and three children had suffered in a lot. His family life has been destroyed. In addition, it was also argued that the appellant while facing the awarded jail sentence has suffered with the paralysis and now-a-days it is very difficult for him to carry out his regular activities in jail. So keeping in view the welfare of his children and the family of the appellant on affirming the impugned judgment of conviction, considering all such circumstances by invoking the jurisdiction of mercy of this Court, his awarded jail sentence be reduced from life imprisonment upto the aforesaid period for which he has already undergone by maintaining the amount of fine or enhancing the same under the discretion of the Court and prayed to allow this appeal accordingly.

On the other hand, responding the aforesaid arguments, Shri Raghvendra Dixit, learned Public Prosecutor for the respondent/State by justifying the impugned judgment of conviction and sentence said that the conviction of the appellant being based on proper appreciation of the evidence is in conformity with law. It does not require any interference at this stage either for extending the benefit of acquittal to the appellant or in any case for reducing the jail sentence awarded by the trial Court. In continuation, he said that looking to the nature of the offence in which the appellant has committed the alleged rape with the assistance of his friend on a minor girl below the age of 12 years, he does not deserve for adopting any leniency to reduce the jail sentence and prayed for dismissal of the appeal.

Having heard the counsel, keeping in view their arguments, we have carefully gone through the record of the trial court, so also the impugned judgment. The story put forth by the prosecution in the First Information Report (Ex. P-1) till the extent of the appellant has been supported by the prosecutrix on recording her deposition. On going through her deposition despite her lengthy cross examination we have not found any averment destroying the version stated by her in chief about committing the alleged offence. Her version is further supported by her brother Arun Pratap Singh (PW-1) whom immediately after incident she apprised about the incident. In his cross examination also we have not found any material circumstances to draw any interference in favour of the appellant. The version of these witnesses is further supported by the parents of the prosecutrix Harbajan (PW-2) and Rajeshwari (PW-5). Their entire cross examination are also not giving any benefit to the appellant. The aforesaid occular testimony of the witnesses is further supported by the medical evidence. In MLC report of the prosecutrix (Ex. P-8) it is specifically stated that the prosecutrix was subjected to intercourse and the same has been proved by the Doctor. The aforesaid medical examination of the prosecutrix was carried out by Dr. S. Mata alongwith Dr. Kamna Kaushal. As per medical report, the blood was also found to be profused from the private part of the prosecutrix and the hymen of the prosecutrix was also found to be ruptured.

In view of the aforesaid evidence, there is no scope in the matter to extend the benefit of acquittal to the appellant. Pursuant to it, the findings of the trial Court holding the conviction against the appellant u/s 376 (2) (g) of Indian Penal Code deserves to be and is hereby affirmed.

So far as the findings holding the conviction against the appellant u/s 342 of Indian Penal Code is concerned there are sufficient evidence in the testimonies of the aforesaid examined witnesses specifically in the deposition of the prosecutrix, in such premises, the conviction of the appellant u/s 342 of IPC also deserves to be and is hereby affirmed.

Coming to consider the prayer of the appellant''s counsel for reduction of the awarded jail sentence of section 376 (2) (g) of Indian Penal Code from life imprisonment to the period of jail sentence already suffered by the appellant since the date of his arrest till today. We have found some substance in such prayer. It is apparent from the record that on the date of the alleged offence, the appellant was arrested and thereafter was sent to the judicial custody and since then till today he is in jail. In such premises, he has suffered near about 14 years sentence in the jail. In such premises and also considering the arguments of the appellant''s counsel that during last 14 years the family of the appellant has suffered a lot and future of his three children has also come in dark. Besides this he is also suffering with the disease of paralysis and is not in a position to perform his regular activities or in any case he has suffered more than 10 years mandatory minimum jail sentence provided u/s 376 (2) (g) of Indian Penal Code, we deem it fit to reduce the awarded jail sentence of the appellant u/s 376 (2) (g) of Indian Penal Code from life imprisonment to the aforesaid period of near about 14 years sentence suffered by the appellant in jail by maintaining the amount of deposited fine and the same is ordered.

In the aforesaid premises by affirming the impugned conviction of the appellant under sections 376 (2) (g) and 342 of Indian Penal Code and also by affirming the awarded impugned punishment of section 342 of Indian Penal Code, this appeal is allowed in part and the awarded jail sentence of the appellant u/s 376 (2) (g) of Indian Penal Code is hereby reduced from life imprisonment upto the aforesaid period of near about 14 years sentence suffered by the appellant in jail till today by maintaining the amount of fine imposed by the trial Court. The aforesaid imposed sentence of both the sections shall be deemed to run concurrently. Till this extent, the impugned judgment is modified while other findings of the same are hereby affirmed. The concerned jail authorities be intimated immediately to set the appellant at liberty, if his presence is not required in any other case. The appeal is allowed in part, as indicated above.