Madhya Pradesh High Court
Ganesh Katare vs The State Of Madhya Pradesh on 27 October, 2018
1
Cri.A.No.703/2011
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No.703/2011
Ganesh Katare
Vs.
The State of Madhya Pradesh
Shri L.G.S.Baghel, Advocate for the appellant.
Shri A.N.Gupta, G.A. for the respondent / State.
Whether approved for reporting : (Yes / No).
JUDGMENT
(27/10/2018) The appellant has preferred the present appeal being aggrieved with the judgment dated 6.10.2010 passed by the II Addl. Sessions Judge, Hoshangabad, in S.T.No.17/2010 whereby the appellant has been convicted for the offence under Sections 363, 376(1) and sec- tion 506 Part II of the IPC and sentenced to undergo RI for 3 years with fine of Rs.1,000/-, R.I. for ten years along with fine of Rs.2,000/-, and R.I. for one year, with default stipulations and with direction that all the sentences to run concurrently.
2. The prosecution case, in brief, is that on 7.11.2009 when the prosecutrix, PW1 was alone in her house, the appellant entered into the house of the prosecutrix, tied her hands and mouth, forcibly took her towards a Nala situated at the back side of the house and com- mitted rape with her. After the act, he untied the prosecutrix and threatened her that if she would disclose the incident to her parents he would kill her. The parents of the prosecutrix were out of station. When they came back, she narrated the entire incident to them, then lodged the report at Police Station Tawa Nagar, Hoshangabad, on 2 Cri.A.No.703/2011 the basis of which First Information Report, Ex.P/1, was lodged and crime no.25/2009 was registered against the appellant for the of- fence punishable under sections 450, 363, 506 and 376 of the I.P.C. and the matter was investigated. The prosecutrix was sent for her medico legal examination. Dr.R.Paharia (PW-3) examined her at J.S.R. Itarsi and gave her report Ex.P-6. Spot map was prepared. Marksheet of the prosecutrix was seized. Appellant was arrested on 16.11.2009 and his medical examination was conducted. Necessary seizures were made and sent to FSL for chemical examination. After due investigation, a charge sheet was filed before the concerned JMFC, who committed the case to the Court of Sessions. The court of II Addl. Sessions Judge, Hoshangabad, framed the charge against the appellant for the offence under sections 363, 376(2)(f) and 506- B of the I.P.C. The appellant abjured the guilt and claimed to be tried. His defence was that he has been falsely implicated on ac- count of enmity with the family of the prosecutrix.
3. The learned court below after considering the oral as well as documentary evidence on record arrived at the conclusion that at the time of incident, the age of the prosecutrix was below 12 years of age and the appellant committed sexual intercourse with her without her consent and will. Hence, convicted the appellant under sections 363, 376(1) and section 506-B of the I.P.C. and sentenced him, as mentioned above.
4. Learned counsel for the appellant submitted that the appellant is in custody and looking to the period of custody, the appellant does not want to assail the findings of conviction and confine his argu- ments to the point of sentence. His prayer is limited to the extent that the sentence of the appellant be reduced to the minimum sen- tence prescribed under the said provision as it is not a case in which sentence of ten years imprisonment is required. The ends of justice would be met by punishing the appellant with 7 years imprisonment. Hence, the judgment of sentence be modified and the appellant be 3 Cri.A.No.703/2011 sentenced to the minimum sentence prescribed under section 376(1) of the I.P.C.
5. On the other hand, learned Govt. Advocate has contended that so far as conviction is concerned, the finding of the learned court be- low is based on legal and proper appreciation of the evidence, which does not require any interference. However, the imposition of sen- tence is the discretion of the court. Looking to the facts and circum- stances of the case, the sentence may be reduced to the extent as prayed by counsel for the appellant.
6. Having considered the contention advanced by learned coun- sel for the parties and on perusal of record it is found that the con- viction of the appellant is based on sole testimony of the prosecutrix, PW1. So far as medical evidence is concerned, it does not support the prosecution version. Similarly, statement of Kalabai, PW8, mother of the prosecutrix, comes within the purview of hearsay evi- dence, as she was told about the incident by the prosecutrix after 8 days of the incident. However, the statement of the prosecutrix, PW1, is fully reliable. There is nothing to discard her testimony. There is no reason to implicate the appellant falsely in the case. The prosecutrix is a minor girl. She cannot implicate the appellant falsely in the case as it would also cast stigma on her. Hence, in the circumstances, finding of conviction of the appellant for the offence under sections 363, 376(1) and 506-B of the I.P.C. appears to be just and proper and does not require any interference. Hence, the con- viction for the aforesaid offences is hereby confirmed.
7. So far as sentence is concerned, at present, the appellant is in custody. As per the record, during trial he has remained in custody from 16.11.2009 to 6.10.2010 and thereafter till 3.10.2011. There- after, he has been taken into custody on 19.9.2015 and till date he suffering the jail sentence. He is first offender and is a labour. The appellant has not caused any injury to the victim. Hence, in the facts 4 Cri.A.No.703/2011 and circumstances of the case, the sentence may be reduced to the minimum sentence prescribed under section 376(1) of the I.P.C.
8. In view of the foregoing discussion, the sentence of the appel- lant for the offence under sections 363, and 506-B of the I.P.C. ap- pears to be just and proper and the same is hereby confirmed. How- ever, the sentence for the offence under section 376(1) of the I.P.C. is modified and reduced to the minimum sentence prescribed under the said section, i.e. R.I. for 7 years. The sentence of fine and in de- fault, as imposed by the trial court, is affirmed. All the sentences to run concurrently. The period already undergone by the appellant be adjusted in the jail sentence awarded to him.
9. A copy of this judgment be sent to the trial court for informa- tion and compliance.
(J.P.GUPTA) JUDGE HS