Madhya Pradesh High Court
Ajay vs The State Of Madhya Pradesh on 22 August, 2024
Author: Prakash Chandra Gupta
Bench: Prem Narayan Singh, Prakash Chandra Gupta
NEUTRAL CITATION NO. 2024:MPHC-IND:24228
1 CRA-1958-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 22nd OF AUGUST, 2024
CRIMINAL APPEAL No. 1958 of 2020
AJAY
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Manish Gadkar, learned counsel for the Petitioner.
Shri Anand Bhatt, learned Govt. Advocate for the
respondent/State.
Heard on: 14.08.2024
Pronounced on:22.08.2024
ORDER
This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 19.03.2019, passed by Additional Sessions Judge, Jawad, District Neemuch in S.T. No. No.32/2016, whereby the appellant has been convicted for the offence punishable under Section 376(2)(n), 376(2)(i), 366 of IPC, 1860 and sentenced to undergo 7 years, 10 years and 10 years R.I., with fine of Rs.5000/-, Rs.5000/- and Rs.5000/-, with usual default stipulations.
Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57NEUTRAL CITATION NO. 2024:MPHC-IND:24228 2 CRA-1958-2020
2. Prosecution story in nutshell is that on 30.03.2016, complainant lodged a missing report at Police Station Jawad that on 29.03.2016 he left his daughter in school and went to his work, thereafter when he returned back to home, his daughter was found missing. On that basis FIR was registered against unknown person.
3. During investigation prosecutrix was recovered from Gujarat and her statement was recorded. On the basis of her statement the appellant was arrested and his statement was recorded. Prosecutrix and appellant were sent for medical examination. Police after following the due procedure, recorded the statements of the witnesses, seized the articles, prepared the medical documents and after due investigation filed the charge sheet. The matter was committed to the Court of Sessions where upon the charges were framed under Sections 363, 366, 376(2)(f), 376(2)(n) of IPC, 1860 and Sections 5(l)/6 of Protection of Children from Sexual Offences Act, 2012. The appellant abjured his guilt and took a plea that he has been falsely implicated and prayed for trial.
4. The prosecution on its behalf has examined as many as seven 15 witnesses namely Complainant Vinod (PW-1), Victim (PW-2), Lalit Singh Mehta (PW-3), Chandabai (PW-4), Yogesh Sharma (PW-5), Ramsingh (PW-6), Nandsingh Chandravat (PW-7), Kailash Chandra (PW-8), Sudha Bairagi (PW-9), C.K. Singh Parihar Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57 NEUTRAL CITATION NO. 2024:MPHC-IND:24228 3 CRA-1958-2020 (PW-10), Dr. Dinesh Patidar (P.W.-11), Lakshminarayan (P.W-12), Kamlesh Sengar (P.W.13), Dr. Namita Tiwari Ojha (P.W.14), Prashant Jayant (P.W.15). No. witness has been adduced in defence by the appellants.
5. Learned trial Court, on appreciation of the evidence and arguments adduced by the parties, pronounced the impugned judgment on 19.03.2019 and finally concluded the case and convicted the appellant for commission of offence under the provisions of Sections 366, 376(2)(n) and 376(2)(i) of IPC and sentenced to undergo 7 years, 10 years and 10 years R.I., with fine of Rs.5000/-, Rs.5000/- and Rs.5000/-, with usual default stipulations.
6. The appellant has preferred this criminal appeal on several grounds, he has contended that the statement of prosecutrix has neither been supported by any independent witnesses nor it finds support from the medical testimony. Other prosecution witnesses are also having many omissions and contradictions hence on that basis appellant cannot be convicted. In the course of arguments learned counsel also submitted that appellant has already completed more than 9 years in jail, therefore, he has already suffered approximately the whole sentence. Further he has also submitted that since appellant is belonging to a poor family the default sentence of six months should be reduced so that after completing the original sentence he may be released from jail as early as Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57 NEUTRAL CITATION NO. 2024:MPHC-IND:24228 4 CRA-1958-2020 possible.
7. Learned counsel for the State on the other hand supports the impugned judgment and prays for dismissal of this appeal. It is further submitted that the learned trial Court has passed the impugned judgement after considering each and every circumstances of the case and convicted the appellant rightly.
8. In view of the rival submissions I have gone through the statement of prosecutrix as well as other witnesses. Prosecutrix (P.W.2) has elucidated in her statement that when she was returning from her school at 1.30 pm the appellant came and forcefully taken her in the Alto car. He has taken her to Neemuch, Singoli, Rawatbatta, Chotisadhdi and kept her in Ambika Lodge, wherein he has committed rape three to four times. Further he has taken her to Pratapgarh and committed rape with her twice. He has also taken her to Gujarat and kept her for 15 days and committed rape twenty times. Prosecutrix has been duly cross examined but her statement regarding kidnaping and rape has not been rebutted in whole cross-examination. That apart the statement of prosecutrix has been supported by her father (P.W.1) and mother (P.W.3).
9. In this regard the statement of Dr. Namita Tiwari Ojha (P.W.14) is also adduced in support of the prosecution case. Although she has not found any extra injury and also submitted that no opinion Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57 NEUTRAL CITATION NO. 2024:MPHC-IND:24228 5 CRA-1958-2020 can be given regarding rape, yet, in spite of the statement Dr. Namita Tiwari Ojha, the statement of prosecutrix is sufficient to establish the allegation of rape. The statement of prosecutrix has been supported by the statement of Yogesh Sharma (P.W.5) and other prosecution witnesses Nandsingh Chandrawat (P.W.7). Investigating Officer Kamlesh Singar (P.W.13) has also supported the prosecution case. Sudha Bairagi (P.W.9) has stated regarding the age of the prosecutrix. As such the prosecution case is well supported by witnesses, therefore the finding of learned trial Court regarding conviction is found immaculate and infallible in the eyes of law and facts.
10. So far as the sentence is concerned, as per the submissions of the counsel for the appellant and on perusal of record, it appears that the appellant is going to complete his entire jail sentence. However, the request of learned counsel regarding default sentence can be considered. In this regard, the following excerpt of Shantilal (supra) is worth referring here as under:-
"37. For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lakh is also upheld. But an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57 NEUTRAL CITATION NO. 2024:MPHC-IND:24228 6 CRA-1958-2020 substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for six months as modified by us in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period, he will be released after the period indicated hereinabove is over. The appeal is accordingly disposed of."
11. Further, in the case of Shahejadkhan Mahebubkhan, Pathan vs. State of Gujarat [2013 1 SCC (Cri) 558], the observations regarding the issue involved in the present case is worth referring here as under:-
15. For the reasons stated above, the appeals are partly allowed. The conviction recorded is confirmed and sentence imposed upon the appellants to undergo RI for 15 years is modified to 10 years. The order of payment of fine of Rs.1.5 lakhs each is also upheld but the order that in default of payment of fine, the appellants shall undergo RI for 3 years is reduced to RI for 6 months. Since the appellants have already served nearly 12 years in jail, we are of the view that as per the modified period of sentence in respect of default in payment of fine, there is no need for them to continue in prison. The appellants shall be set at liberty forthwith unless they are required in any other offence. It is further made clear that for any reasons, if the appellants have not completed the modified period of sentence, they will be released after the period indicated hereinabove is over."
12. In view of the aforesaid law laid down by Hon'ble Apex Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57 NEUTRAL CITATION NO. 2024:MPHC-IND:24228 7 CRA-1958-2020 Court, it is revealed that the sentence of penalty was distinct from the main sentence of imprisonment and therefore, even where minimum sentence is prescribed, the sentence in default of penalty may be minimized to any extent.
13. In view of the settled position of law laid down in the case of Shantilal and Shahejadkhan Mahebubkhan Pathan (supra) his default sentence in lieu of total fine amount is reduced to the period of 1 month R.I (for total fine amount) by maintaining his conviction of imprisonment. It is clarified that the substantive imprisonment sentence will run concurrently.
14. The criminal appeal is disposed of on above terms. The appellant is directed to be released from jail after completing the aforesaid sentence of 10 years and after depositing the fine amount. However, if he fails in depositing the fine amount, he will suffer the sentence in default as mentioned aforesaid, thereafter he would be released from jail, if he is not required in any other criminal case.
15. The order of trial Court regarding disposal of the seized article stands confirmed.
16. A copy of this order be sent to the trial Court concerned for necessary compliance.
17. Pending I.As. if any, stand closed.
Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57NEUTRAL CITATION NO. 2024:MPHC-IND:24228 8 CRA-1958-2020 (PREM NARAYAN SINGH) JUDGE sumathi Signature Not Verified Signed by: SUMATHI Signing time: 23-08- 2024 14:44:57