Smt. Renu Bhadoriya & Anr vs State Of M.P

This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 10-9-2004 passed by Vth Additional

Sessions Judge and Special Judge (MPDVPK Act), Gwalior in Sessions Trial No. 139/2002 (Special), by which the appellants have been convicted

under Sections 363 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and have been directed to undergo the rigorous imprisonment of 5 years and

fine of Rs.1,000/- with default imprisonment as well as for offence under Section 365 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and have

been directed to undergo the rigorous imprisonment of 5 years and fine of Rs.1,000/- with default imprisonment.

The necessary facts for the disposal of the present appeal in short are that on 1-8-2002, Nirmala, the daughter of the complainant Surajkali, was

admitted in Kamla Raja Hospital and gave birth to a girl child. On 7-8-2002 at about 3-4 P.M., two ladies came to the Hospital and sat by the side of

the bed of Nirmala and developed intimacy with Nirmala. They also assured that they would come on the next day and would take the newly born

baby to Kaul Nursing Home for treatment. They also gave Rs. 50/- to the newly born baby. On the next day, at about 5 P.M., again those ladies

came to the Hospital. At about 7:30, Surajkali took the newly born baby along with those two ladies to Kaul Nursing Home. The two ladies also

accompanied her. At Kaul Nursing Home, the two ladies, took the newly born baby with them, and asked Surajkali to wait outside and instructed that

the hospital staff would demand Rs.400-500, which She should give. Surajkali, waited till 11 and thereafter enquired about the ladies and came to

know that there is no lady in the Nursing Home. Surajkali immediately came back to Kamla Raja Hospital and informed Nirmala about the kidnapping

of the newly born baby. The F.I.R. was lodged. During investigation, the police seized the utensils brought by the ladies. A spot map was prepared

and the statements of the witnesses were recorded. After receiving an information from an informer, the police recovered the newly born baby from

the appellant Priya who was staying in Khandelwal Dharamshala, Paharganj, New Delhi. The recovery memo Ex. P.1 was prepared and the

statements of the witnesses as well as the register of the Dharamshala was seized. The baby girl was handed over to the custody of Nirmala. The

appellant Priya Arora was sent for medical examination, and it was found that She has not given birth to any child. The appellant Priya Arora was

arrested vide arrest memo Ex. P.12. On 26-8-2003, the appellant Renu was arrested. On 27-8-2002, the appellants were put for Test Identification

Parade and they were identified by Nirmala and Suraj Kali. After completing the investigation, the police filed the charge sheet for offence under

Section 363,365 of I.P.C. and under Section 11/13 of M.P.D.V.P.K. Act.Â

The Trial Court by order dated 2-1-2003, framed charges under Sections 363,365 of IPC read with Section 13 of M.P.D.V.P.K. Act.

The appellants abjured their guilt and pleaded not guilty.

The Prosecution, in order to prove its case, examined Surajkali (P.W.1), Ram Avtar Gupta (P.W.2), Munnalal (P.W.3), Vinod Bhargava (P.W.4),

Kamla Shrivastava (P.W.5), Dr. Pankaj Yadav (P.W.6), Tulsiram (P.W.7), Nirmala (P.W.8), Phool Shri (P.W.9), Pinki Singh (P.W.10), Dr.

Yashodhara Batham (P.W.11), Satish Chandra Saxena (P.W.12), Girish Vyas (P.W. 13), Devendra Sikarwar (P.W.14), Rajendra Agrawal (P.W.

15), Dr. Archana Mourya (P.W. 16), Ram Naresh Yadav (P.W. 17), Bheem (P.W. 18), and B.S. Rajawat (P.W. 19). The appellants examined

Lalobai (D.W.1), Akhtar (D.W.2), and Saleem Khan (D.W.3) in support of their defence.Â

The Trial Court after hearing both the parties, convicted the appellants for offence under Section 363 read with Section 13 of M.P.D.V.P.K. Act

and under Section 365 read with Section 13 of M.P.D.V.P.V.K. Act and sentenced them to undergo the rigorous imprisonment of 5 years and fine of

Rs. 1000/- with default imprisonment and rigorous imprisonment of 5 years and fine of Rs. 1000/- with default imprisonment respectively. 7.

Challenging the conviction and sentence passed by the Trial Court, the Counsel for the appellants submitted that the Prosecution has failed to prove

that the appellants had kidnapped the girl and the recovery of the girl from the possession of the appellant Priya Arora is also not proved beyond

reasonable doubt.

Per contra, it is submitted by the counsel for the State that the prosecution has proved the guilt of the appellants beyond reasonable doubt. They

were duly identified by Nirmala and the baby girl was recovered from the possession of the appellant Priya Arora, and Dr. Yashodhara Bathan (P.W.

11) has specifically stated that the appellant Priya Arora had not given birth to any child and thus, it is clear that the baby child recovered from the

possession of the appellant Priya Arora was not of her.

Heard the learned Counsel for the parties.

Dr. Archana Mourya (P.W. 16) has stated that on 1-82002, Nirmala (P.W. 8) had given birth to a girl child and She was treated by this witness.Â

She was discharged on 8-8-2002, however, it was found that the child of Nirmala (P.W. 8) was missing. On enquiry, Nirmala had informed her that

two ladies had come and had taken the child on the pretext of getting her treated at Kaul Nursing Home. The maternal grand mother of the child had

also accompanied them, however, both the ladies took the baby with them. The Bed head ticket of Nirmala is Ex. P.10. Thus, it is clear that

Nirmala (P.W.8) had given birth to a child on 1-8-2002.

Dr. Yashodhara Batham (P.W.11) had examined the appellant Priya Arora, and had given a finding that her uterus was normal and She had not

given birth to a child during the last 15 days. The medical report is Ex. P.8.

Thus, the prosecution has succeeded in establishing that Nirmala (P.W.8) had given birth to a girl child, whereas the appellant Priya Arora had not

given birth to any child.

According to the prosecution case, the police, on 11-82002, had recovered the girl child from the possession of the appellant Priya Chopra from

Khandelwal Dharamshala, Paharganj, Delhi. Ram Avtar Gupta (P.W.2) was working as Manager, Khandelwal Dharamshala, Paharganj, Delhi and

has stated that on 11-8-2002, the police had recovered a baby child from Jagdish Arora and Priya Arora. The Recovery Memo is Ex. P.1(a).

Nirmala (P.W.8) has stated that she was admitted in Kamla Raja Hospital for delivery. She was on Bed No.3 and had given birth to a girl child.

On 7-8-2002, two Ladies, who are present in the Court, came to the hospital and enquired about her health. They tried to pick the child and when it

was objected by this witness, then these two ladies claimed that they are Doctors and gave an amount of Rs. 50 to the child. On the next day, again,

these ladies came to the hospital at around 3-4 P.M. and informed that the child is not well and took her for treatment. Her mother also went along

with those ladies. When her mother did not come back, then her husband also went in search of her mother. Her mother came back at around 10-11

P.M. and informed that the ladies left her outside the Kaul Hospital and have taken away the child. This witness started weeping. The police after 4

days brought her child back and gave to her custody. The custody panchnama is Ex.P.7. The spot map, Ex. P.2 was prepared. The police had also

seized utensil vide seizure memo Ex.P.4. This witness had also identified the appellant Renu in Central Jail, Gwalior and the identification memo is

Ex.P.3. This witness was cross-examined in detail, but she had categorically stated that prior to holding of Test Identification Parade, the appellants

were not shown to her. In cross examination, this witness has further admitted that the police had brought the appellant Priya Arora to her along with

the child. Thus, it is clear that this witness had identified Renu Arora in the Test Identification Parade and had also identified the appellants in the

Dock.Â

Surajkali (P.W.1) has also narrated the entire prosecution story. She has further stated that she had identified the appellant Priya Arora in the

Central Jail, Gwalior. She has further stated that her daughter Nirmala (P.W.8) had given birth to a girl child and two ladies had taken away her grand

daughter from the hospital itself.Â

Vinod Bhargava (P.W.4) was working as Naib Tahsildar, Collectorate, Gwalior. He has stated that on 27-8-2002 he had conducted the Test

Identification Parade of the appellant Renu and Nirmala (P.W.8) had identified. The Identification Parade Memo is Ex.P.3. On the same day, he

had conducted the Test Identification Parade of appellant Priya Arora, and Surajkali (P.W.1) had identified Priya Arora, and the identification memo is

Ex.P.13. These witnesses were cross examined in detail, however, nothing could be elicited from their evidence, which may render their evidence

unreliable.

17 Phool Shree (P.W. 9), Pinki Singh (P.W.10) were the copatients as they were also admitted in the hospital. They have stated that Nirmala was

also admitted in the hospital and two ladies had come and subsequently, they came to know that the child of Nirmala (P.W.8) was stolen.Â

Devendra Sikarwar (P.W.14) is the husband of Nirmala (P.W.8) and he has supported the prosecution story and has also stated that her wife had

given birth to a girl child. On 7th, the appellants came to the hospital and gave Rs.50/- to child, however, this witness returned the amount. On the next

day, again the appellants came there, and took the child and instructed this witness that the child is hungry therefore, he should make arrangement for

milk. Thereafter, the appellants took away the child. His mother-in-law was also accompanying them. The appellants asked his mother-in-law to sit

outside the hospital and went away. His mother-in-law kept on waiting for the appellants to come back and when they did not return, then his mother-

in-law came back to the hospital and she was crying and informed that the appellants have taken away the child. This witness was cross examined

but nothing could be elicited from the cross examination, which may make his evidence unreliable.Â

Bheem (P.W.18) has stated that the police had recovered the child from the appellant Priya Arora from Dharamshala situated in Delhi, and the

recovery Panchnama is Ex. P.1(a).Â

B.S. Rajawat (P.W.19) is the Investigating Officer. He has stated that Devendra Sikarwar had lodged the F.I.R., Ex.P.1. Accordingly, the spot

map was prepared and the utensils brought by the ladies were seized. Thereafter on the information given by an informer, they went to Delhi and

recovered the kidnapped girl from the appellant Priya Arora who was staying in Khandelwal Dharamshala. The Recovery Panchnama is Ex.

P.1(a).Â

Thus, considering the totality of the facts and circumstances of the case, it is clear that the child was recovered from the possession of the

appellant Priya Arora whereas the said child was not of Priya Arora. Priya Arora was also got medically examined and it was found that She had

not given birth to any child. The appellants Priya Arora and Renu have been identified by Surajkali (P.W.1) and Nirmala (P.W.8) respectively. The

appellants have not given any explanation as to why they went to the hospital to see Nirmala (P.W.8) and have also not given any explanation as to

how they came in possession of the minor 11-12 days old child. The Counsel for the appellants also could not point out any discrepancy in the

identification of the appellants in the Test Identification Parade conducted by the police. The appellants were duly identified by the witnesses in the

Court.Â

Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the prosecution has succeeded in

establishing the fact that the appellants had kidnapped the newly born baby of Nirmala (P.W.8) and accordingly, the appellants are held guilty of

offence punishable under Section 363 of I.P.C. read with Section 13 of M.P.D.V.P.K. Act and under Section 365 of I.P.C. read with Section 13 of

M.P.D.V.P.K. Act.

Accordingly the conviction of the appellants for the above mentioned offences recorded by the Trial Court is hereby affirmed.

Heard on the question of sentence.Â

It is submitted by the counsel for the appellants that the offence was committed in the year 2002 and 15 long years have passed therefore, a

lenient view may be adopted.Â

Deterrence is one of the important aspect of the sentencing policy.

The Supreme Court in the case of Shyam Narain Vs. State (NCT of Delhi) reported in (2013) 7 SCC 77 has held as under :

“14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature

of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle

that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The

purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for

such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally

true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this

complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the

immediate collective as well as its repercussions on the victim.

In this context, we may refer with profitto the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of

sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which

it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of

sentence and proceed to impose a sentence commensurate with the gravity of the offence.

In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus: (SCC p. 362, para 7)

“7. … Friedman in his Law in Changing Society stated that: ‘State of criminal law continues to beâ€"as it should beâ€"a decisive reflection of

social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on

factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and

given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,

the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of

consideration.â€​

In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 241-42, paras

23-24)

“23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of

an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of

sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being

imposed therefor.

The object of punishment has been succinctly stated in Halsbury’s Laws of England (4th Edn., Vol. 11, Para 482), thus: ‘482. Object of

punishment.â€"The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing

policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish

the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also

that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at

deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the

offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and

rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection

of society and the other objects frequently receive only secondary consideration when sentences are being decided.’â€​

         (emphasis in original)

In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge

Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception

of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure

cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real

requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.

The aforesaid authorities deal withsentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution,

impact on the society, repercussions on the victim and proportionality of punishment have been emphasised upon. In the case at hand, we are

concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way,

hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed

with seriousness and sensitivity by this Court.â€​

The Supreme Court in the case of Raj Bala Vs. State of Haryana reported in (2016) 1 SCC 463 has held as under :

“4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality,

depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime

objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime

and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of

M.P. v. Bablu, State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh.

 * * * * * * *  *

A court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion

on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and

rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law

and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it

tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural

milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience

to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally

exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a

manner as a consequence of which the expectation inherent in patience, which is the “finest part of fortitude†is destroyed. A Judge should never

feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that

erroneous and fallacious exercise of discretion is perceived by a visible collective.â€​

If the facts of this case are considered, then it is clear that a newly born baby was stolen by the appellants, from the hospital itself. The plight of a

mother who was deprived of her newly born baby can be imagined. Not only the mother was deprived of her newly born baby, but the newly born

baby was also deprived of her mother. Thus, under these circumstances, the jail sentence of rigorous imprisonment of 5 years and a fine of

Rs.1000/- with default imprisonment for each of the offences, cannot be said to be excessive and does not require for interference.

Accordingly, the judgment and sentence dated 10-9-2004 passed by Vth Additional Sessions Judge and Special Judge (MPDVPK Act), Gwalior in

Sessions Trial No. 139/2002 (Special), is hereby affirmed.

The appellants are on bail. Their bail bonds and surety bonds are hereby cancelled. They are directed to immediately surrender before the Trial

Court, for undergoing the remaining jail sentence.

The appeal fails and is dismissed.