Madhya Pradesh High Court
Ramesh Keshu vs The State Of M.P. on 31 October, 2023
Author: Prakash Chandra Gupta
Bench: Prakash Chandra Gupta
1
CRA No.284/2000
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL No.284 of 2000
BETWEEN:-
RAMESH KESHU (MADHYA PRADESH)
.....APPELLANT
(SHRI M.S. CHOUHAN - ADVOCATE ALONGWITH MS.
NISHA JAISWAL - ADVOCATE)
AND
THE STATE OF M.P. (MADHYA PRADESH)
.....RESPONDENT/STATE
(SHRI VINOD THAKUR - GOVT. ADVOCATE)
Reserved on : 20.09.2023
Pronounced on : 31.10.2023
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This appeal having been heard and reserved for judgement,
coming on for pronouncement this day, this Court pronounced the
following:
JUDGEMENT
The appellant/accused has filed this appeal u/S 374 of Cr.P.C being aggrieved by judgment of conviction and order of sentence dated 23.02.2000 passed by 3rd Additional Sessions Judge, Dewas, in S.T. No.128/1999, whereby the learned trial Court has convicted the appellant u/S 376 and 354 of IPC and sentenced to 07 years R.I. with fine of Rs.1,000/- and 06 months of R.I. respectively, with default 2 CRA No.284/2000 stipulation.
2. Prosecution story, in brief, is that on intervening night, at around 10:00 PM of the incident, the prosecutrix (PW-2) aged around 14 years had gone to his neighbor's/accused's house to watch T.V., then the accused had raped her on his bed. On 06.04.1999, when the prosecutrix was taking bath, the accused entered in bathroom of prosecutrix and had pressed her breast. When the prosecutrix shouted, the accused had pressed her mouth. On hearing the voice of prosecutrix, her mother (PW-3) came, then the accused left and had given life threat to not report. Father (PW-4) of the prosecutrix was not at home. When he came home, the prosecutrix told about the incident to her father and alongwith him she reported the matter in O/P Tonkkalan. SI R.S. Tomar (PW-6), on 07.04.1999 had lodged FIR (Ex.P-3) against the accused. On the basis of FIR (Ex.P-3), an FIR/Crime No.79/1999 (Ex.P-9) was lodged on 08.04.1999 at P/S Tonkkhurd, Distt - Dewas. On 07.04.1999, SI R.S. Tomar (PW-6) with letter (Ex.P-6) had sent prosecutrix for medical examination. Dr. Indira Gupta (PW-7) had examined the prosecutrix and gave MLC report (Ex.P-8). During examination, Dr. Indira Gupta (PW-
7) preserved underwear of the prosecutrix and semen slide. She had sealed them and handed over to the concerning police officer.
3. During investigation, SI R.S. Tomar (PW-6) inspected the place of incident on 08.04.1999 and prepared spot map (Ex.P-4). He seized sealed packet of underwear and semen slide of prosecutrix from constable Vishnu Prasad, produced by him from hospital vide seizure 3 CRA No.284/2000 memo (Ex.P-7). A copy of scholar register (Ex.P-2) of the prosecutrix received from the concerning school and progress card (Ex.P-1) of prosecutrix of Class 4th in year 1996-97 from the prosecutrix. On 01.05.1999, head constable Babulal (PW-8) had arrested appellant/accused Ramesh vide arrest memo (Ex.P-10). Dr. D.K. Rathore (PW-5) examined the accused on 02.05.1999 and gave MLC report (Ex.P-5). After completion of investigation, charge-sheet was filed.
4. After hearing both the parties, the learned trial Court had framed charges u/S 376, 354 and 506-II of IPC against the appellant/accused. The appellant abjured his guilt and claimed for trial. In turn to prove its case, the prosecution has examined 8 witnesses. After completion of prosecution evidence, the appellant was examined u/S 313 of Cr.P.C., wherein the appellant has taken defence that he is innocent and he has falsely been implicated in the case. However, no defence witness has been examined by the appellant.
5. After hearing both the parties, the learned trial Court has passed the impugned judgment, whereby the appellant has been acquitted from the charge u/S 506-II of IPC, while he has been convicted and sentenced u/S 376 and 354 of IPC as mentioned above.
6. Learned counsel for the appellant submits that the appellant has not committed the offence and he has falsely been implicated in the case. The prosecutrix had not narrated the incident of rape immediately to her mother. It has not been proved that at the time of incident, the 4 CRA No.284/2000 prosecutrix was below 16 years of age. There are no independent witnesses in the case. All of them are related witness. There are material omissions and contradictions in statement of prosecutrix (PW-2) and her mother (PW-3). Statement of prosecutrix is not supported by medical evidence, but the learned trial Court has not appreciated the statement of the prosecutrix and her mother in proper manner and the trial Court has wrongly convicted and sentenced the appellant.
7. In alternate, learned counsel for the appellant submits that the parties have settled the matter amicably and have filed a compromise application. The offence is of year 1999. The appellant has served incarceration for around 11 months. Even if the accused is to be held guilty, the incident is 24 years old. The appellant and the prosecutrix are married (not to each other). Therefore, the accused may be sentenced to the period already undergone. He has placed reliance in the case of Ravindra V State of Madhya Pradesh [CRA No.1410/2013, passed by Apex Court on 26.02.2015]; Habibur Rehman V State of West Bengal [(2018) 4 Crimes 32]; Baldev Singh and Ors. V State of Punjab [(2011) 13 SCC 705]; State of Himachal Pradesh V Mango Ram [(2000) 7 SCC 224] and Santosh Prasad @ Santosh Kumar V State of Bihar [CRA No.264/2020 decided on 14.02.2020].
8. On the other hand, learned counsel for the State has supported the impugned judgment and prayed for rejection of the appeal.
9. I have heard learned counsels for the parties and perused the records.
5 CRA No.284/200010. In the case of Ravindra (Supra) the Apex Court has held Paragraph 15 as under:-
"15. The third ground of defence taken by the accused is that there is no corroboration and there is contradiction in the prosecution case on important aspects, though on the aspect of appreciation of evidence, being the testimony of the prosecutrix, this Court has held in Narendra Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, that minor contradictions or insignificant discrepancies in the evidence of the witnesses are not of a substantial character. However, in Sadashiv Ramrao Hadbe v.
State of Maharashtra & Anr., (2006) 10 SCC 92, where the sole testimony is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable to belie the case set up by the prosecutrix, this Court held that Court shall not act on the solitary evidence of the prosecutrix. Thus, in light of the above the Court should not rely solely on the testimony of the prosecutrix. The statement in the present case requires corroboration as it has minor contradictions and is not corroborated by other prosecution witnesses. The two maternal uncles (PW-4 and PW-5) of the prosecutrix did not support her and were declared hostile. "
11. From the aforementioned case law, it is clear that until and unless contradiction has shaken the ring of truth, once formed, the statement need not to be disbelieved.
12. In the case of Santosh Prasad @ Santosh Kumar (Supra), the Apex Court has considered contradictions and omissions in the statement of prosecutrix and has observed in Paragraph 6 as under:-
"6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen 6 CRA No.284/2000 compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5
-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix - PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt. "
13. In the case of Phool Singh V State of Madhya Pradesh [CRA No.1520/2021] the Apex court has considered evidentiary value of the prosecutrix in rape case and also considered effect of contradiction, omission and exaggeration. In paragraph 5.2 has observed as under:-
"5.2 In the case of Ganesan (supra), this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.
In the aforesaid case, this Court had an occasion to consider the 7 CRA No.284/2000 series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under:
10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under:
(SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.
The Court observed as under: (SCC p. 559, para 16) '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and 8 CRA No.284/2000 circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para
12) '12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], this Court held that in cases 9 CRA No.284/2000 involving sexual harassment, molestation, etc. the court is duty- bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) '8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of 10 CRA No.284/2000 prudence under given circumstances. ...
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.'
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] 11 CRA No.284/2000 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
14. From the foregoing analysis, it is clear that minor contradiction and omission does not cast any shadow on the side of prosecution. Conviction can be made on the basis of sole testimony of victim of rape if her statement is reliable and trustworthy.
15. In the present case, learned trial Court has relied upon the statement of prosecutrix (PW-2) and her mother (PW-3).
16. As per prosecution case, at the time of the incident, the prosecutrix was aged below 16 years. Head master of the school, Sheikh Abdul Rehman (PW-1) stated that the prosecutrix was admitted in the primary school and she was studying in the school in year 1996 - 1997. Her progress card is (Ex.P-1) and scholar register is (Ex.P-2-C) wherein her date of birth is mentioned to be 19.08.1986. In Paragraph 2 of cross- examination, he admitted that the records filled in the scholar register are recorded on the basis of details given by the parents in the admission form and the witness had not brought the admission form of the prosecutrix. As per statement of this witness and scholar register (Ex.P- 2-C), it appears that date of birth of the prosecutrix is mentioned in the scholar register as 19.08.1986 and date of incident is 06.04.1999, 12 CRA No.284/2000 therefore, it appears that as per scholar register, on the date of the incident, the prosecutrix was aged 12 years 07 months and 17 days.
17. Prosecutrix (PW-2) in Paragraph 5 of examination-in-chief has stated that her age is 14 years. Her mother (PW-3) stated that the prosecutrix is aged around 10 - 12 years. Her father (PW-4) stated that the prosecutrix is aged around 13 years. There is nothing in their cross- examination, which can make their statement to be disbelieved. Statement of prosecutrix and her parents is also supported by scholar register (Ex.P-2-C), therefore, it appears that at the time of the incident, the prosecutrix was below the age of 16 years. Hence, the trial Court has rightly relied upon statement of aforementioned witnesses and has rightly held that the prosecutrix was below 16 years of age at the time of incident.
18. In respect of alleged incident, the prosecutrix (PW-2) deposed that on the date of the incident, during 09:00 - 10:00 PM, the prosecutrix had gone to the house of appellant and was watching a movie in his house. Then the appellant had thrown her on bed and had raped her. She further submitted that 03 days later, at around 09:00 PM, her mother had gone to her neighbor's house. The prosecutrix was inside her bathroom, then the appellant had come inside the bathroom and had grabbed her breast and closed her mouth. When the prosecutrix cried, her mother had come and caught hold the appellant, but the appellant had fled away. Then, on being asked by her mother, the prosecutrix told about the incident of rape to her mother. She further stated that her 13 CRA No.284/2000 father was not present at house and when he came back, she had narrated the incident to him as well and had reported the matter in the police station.
19. Mother of the prosecutrix (PW-3) stated that on the date of incident, at around 08:30 - 09:00 PM, she had gone to the neighbor's house to watch T.V. and the prosecutrix was in the bathroom, when she heard the scream of her daughter, she rushed towards her house and saw appellant fleeing away. She further stated that thereafter, the prosecutrix told her that when she had gone to watch movie in the house of the appellant, then the appellant had raped her. The appellant had threatened her to not share about the incident to anyone or else he will kill her and her parents.
20. Father of the prosecutrix (PW-4) deposed that at the time of the incident, he was out of village and when he returned, then the mother of the prosecutrix (PW-3) had told him that the appellant has raped the prosecutrix. He further stated that mother of prosecutrix had also told that the appellant had sexually molested the prosecutrix (PW-2) in bathroom. After hearing about the incident, the father of the prosecutrix took her to report the matter.
21. Dr. Indira Gupta (PW-7) stated that she had examined the prosecutrix on 08.04.1999 and it was found that there was no internal or external injury on the body of the prosecutrix. Hymen was old torn. She opined that definite opinion about rape cannot be given. She preserved pubic hair, vaginal slides and the same was handed over to the 14 CRA No.284/2000 concerning constable for further examination. Therefore, it appears that the case of prosecution is not supported by this witness. FSL report has not been produced by the prosecution in this case. Dr. K. Rathore (PW-
5) stated that on 02.05.1999, he examined the appellant/accused and it was found that he was capable to perform sexual intercourse. Therefore, it appears that the accused was capable to perform sexual intercourse.
22. SI R.S. Tomar (PW-6) deposed that on 07.04.1999, he had lodged an FIR (Ex.P-3) at O/P Tonkkalan at the instance of the prosecutrix (PW-2). His statement is also supported by prosecutrix (PW-
2). Head constable Babu Lal (PW-8) stated that on 08.04.1999, he had lodged an FIR (Ex.P-9) at P/S Tonkkhurd on the basis of FIR (Ex.P-3). SI R.S. Tomar (PW-6) further stated that during investigation he prepared spot map (Ex.P-4) at the instance of prosecutrix (PW-2). His statement is also supported by prosecutrix (PW-2). Therefore, statement of this witness is reliable.
23. On the basis of foregoing statements of witnesses, it appears that the prosecutrix is sole direct witness of the incident. She narrated the incident to her mother. As per statement of father of prosecutrix (PW-4), the prosecutrix had not narrated the incident to him. Mother of prosecutrix is also a witness to have seen the appellant fleeing from the place in the latter incident. Statement of prosecutrix (PW-2) is not supported by medical evidence. FSL report also has not been produced in this case. Therefore, statement of prosecutrix (PW-2) and her mother (PW-3) is to be considered in this case.
15 CRA No.284/200024. Prosecutrix (PW-2) in cross-examination has stated that there is no door in the bathroom just a curtain was hung. Her mother (PW-3) in Paragraph 10 of cross-examination also admitted that a curtain was hung in bathroom, therefore, it appears that there was no door at the entrance of the bathroom rather a curtain was hung.
25. Prosecutrix (PW-2) in Paragraph 10 of cross-examination has further stated that the rape incident took place 3-4 days after the bathroom incident. She also stated that it took place in the evening of Friday and she had told about the incident to her mother on Monday. On Tuesday, her father had come. In Paragraph 11 of cross-examination, she again clarified that the rape incident took place in T.V. room and 3 - 4 days later, the bathroom incident took place. S.I. R.S. Tomar (PW-6) in Paragraph 5 of cross-examination has admitted that prosecutrix had not stated that the offence had taken place on Friday but she had stated that the incident took place in the T.V. room. He further admitted that the prosecutrix had stated that the incident took place on Monday. Therefore, it appears that there are some discrepancies regarding the day of happening of the incidents but as per statement of the prosecutrix it appears that firstly she was subjected to rape by the appellant in his T.V. room and three days later, on 05.04.1999, at night, she was subjected to outraging of her modesty by the appellant in her bathroom. Statement of the prosecutrix is also supported by the FIR and statement of her mother (PW-3), it also appears that mother of the prosecutrix (PW-3) is illiterate person and the prosecutrix was of a tender age, below 13 years. Both the 16 CRA No.284/2000 witnesses belonged to rural background. There is no material contradictions and omissions in their statement. It also appears that there was no inimical relation between the parties. It appears from the statement of prosecutrix (PW-2), her mother (PW-3) and her father (PW-
4) that there was healthy relation between both the parties. Therefore, it does not appear that the prosecutrix (PW-2) was interested to falsely implicate the accused in the aforementioned offence. However, there were some discrepancies as discussed above, but they are not material. These type of discrepancies in the statement of a minor child are natural. Therefore, on the basis of aforementioned discrepancies the testimony of the prosecutrix cannot be discarded. Hence, the statement of prosecutrix (PW-2) and her mother (PW-3) is reliable and it appears that at the relevant time, the accused had committed rape upon the prosecutrix and 3 days later, the accused had also committed an act which outraged the modesty of the prosecutrix when she was in the bathroom. The case law cited by the appellant on this subject relevant is based on different footing, therefore, the same is not applicable.
26. It appears from the statement of prosecutrix (PW-2), her mother (PW-3), her father (PW-4) and SI RS Tomar (PW-6) that the FIR was lodged right on the next day when the bathroom incident at night took place, but around 4 days later from the incident of rape in the T.V. room. Statement of prosecutrix (PW-2), her mother (PW-3) and father (PW-4) appears that the father (PW-4) was out of village, but as soon as he got to know about the incident on his arrival, he had taken the prosecutrix to 17 CRA No.284/2000 O/P Tonkkalan to report the matter. Thus, the delay in lodging of FIR appears to be justified.
27. So far as the alternate submission of the learned counsel for the appellant is concerned that the sentence of the appellant be reduced to the period already undergone by him as 24 years have already elapsed since the date of offence, Hon'ble Supreme Court in the case of Mango Ram (Supra) in Paragraph 16 has observed as under:-
"16. In view of the foregoing conclusions, we reverse the findings of the learned Sessions Judge which was confirmed by learned Single Judge and find that the accused is guilty of the offence punishable under Section 376 I.P.C. As regards the sentence, we take a lenient view for the reason that the prosecutrix and accused are related. They were both teenagers with an age difference of about 2-3 years. Both were immature and young. Evidence indicates no marks of violence at all on any part of the body of the prosecutrix. The incident happened in 1993. After the acquittal by passage of time, the members of the two families must have buried their hatchet if any arisen on account of this incident. The learned Counsel for the respondent argued that a further order for custodial sentence at this distance of time may cause rapture to social harmony in the village life and may only help to rekindle the flames of anger which have been smouldering for so long between near relatives. Having regard to all these matters, we hold that sentence already undergone by the accused would be sufficient to meet the ends of justice, and we do accordingly. "
28. In the case of Ravindra (Supra) the Apex court in paragraph 16 has observed as under:-
"16. The fourth ground of defence taken by the appellant is that under proviso to Section 376(2) of IPC, the legislature has empowered the Court to award lesser sentence where "adequate and special reasons" exist. The incident in the present case had 18 CRA No.284/2000 taken place 20 years ago. The victim (prosecutrix) and the accused have entered into a compromise stating therein that the prosecutrix does not want to proceed with the case against the accused and wants to close the case. Both of them are married (not to each other) and have settled in life. Learned counsel for the appellant contends that this is an "adequate and special reason" for awarding lesser sentence. "
29. The Apex Court in the case of Habibur Rehman (Supra) has held in Paragraph 16 as under:-
"16. In the present case, the incident occurred more than 16 years ago. A supplementary affidavit affirmed by Hasina Bibi has been filed on behalf of the appellant stating that during the pendency of this appeal the appellant married the prosecutrix in the year 2009 and their marriage was registered on 10.09.2009. In support of such contention a copy of the marriage registration certificate has been produced. It has also been averred in the supplementary affidavit that out of the wedlock the prosecutrix gave birth to two children in the year 2011 and 2013. A copy of the birth certificate of the son Raj Rahaman and daughter Muskan Parvin have been brought on record to substantiate such contention It has further been stated in the supplementary affidavit that Hasina Bibi is residing in her matrimonial home with her husband and children. The fact that the prosecutrix and the appellant are married (to each other) and have settled in life with their children appears to be "adequate and special reason"
for imposing lesser sentence. Considering the facts and circumstances hereinabove discussed and in view of the aforesaid decisions, I am of the opinion that the present case is an appropriate one for invoking the proviso to Section 376 of IPC for imposing lesser sentence.
30. In the case of Baldev Singh (Supra) the Apex court in Paragraph 6 has opined as-
"6. On the fact of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence 19 CRA No.284/2000 already undergone in view of the proviso to Section 376(2)(g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rs.50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be give to the victim.
31. From the foregoing case-laws, it is apparent that the sentence of the accused in the cases where he has suffered the ordeal of trial for a long period, enters into compromise with the prosecutrix who has been subjected to such kind of sexual offences, considering such elongated procedure and the compromise between the parties as special reason, such sentence can be reduced to the period already undergone by him.
32. In the instant case, the learned counsel for the appellant submits that the appellant has served incarceration for around 11 months. It also appears that the prosecutrix was minor therefore, her parents have filed an application (I.A. No.4046/2000) u/S 320(2) of Cr.P.C., seeking permission to compromise in the offence, on 05.12.2000. The appellant and the parents of the prosecutrix have also filed a compromise application on the same day supported by affidavit of parents of prosecutrix. On 04.01.2001, the prosecutrix (PW-2) had also filed an affidavit to effect that both the parties belong to same community and are also relative. There is good relationship between family of the both the parties. The prosecutrix and her parents do not want further proceeding against the appellant. Therefore, it appears that the incident is of year 1999 and the appellant has served 11 months in incarceration.
20 CRA No.284/2000During appeal, parents of the prosecutrix and the appellant have filed a compromise application.
33. S. 376 (1) of the IPC is non-compoundable offence and prior to the Criminal Procedure Code (Amendment) Act, 2008, (5 of 2009) with effect from 21.12.2009, S.354 of IPC was compoundable. The trial Court has given minimum sentence of 7 years as provided u/S 376(1) of IPC to the appellant.
34. The Apex Court in the case of Shimbu And Anr. V State Of Haryana [(2014) 13 SCC 318] has held as under:-
"19. Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or the victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation."
35. The Apex Court in the case of State of Madhya Pradesh V Madanlal [(2015) 7 SCC 681] in Paragraph 18 - 22 has held as under:-
"18. The aforesaid view was expressed while dealing with the imposition of sentence. We would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her 21 CRA No.284/2000 non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.
19. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the élan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. It has to be kept in mind, as has been held in Shyam Narain v. State (NCT of Delhi) [(2013) 7 SCC 77 : (2013) 3 SCC (Cri) 1] that: (SCC pp. 88-89, para 27) "27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilised norm i.e. 'physical morality'. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on the one hand, society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanise the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men."
20. At this juncture, we are obliged to refer to two authorities, namely, Baldev Singh v. State of Punjab [(2011) 13 SCC 705 :
(2012) 2 SCC (Cri) 706] and Ravindra v. State of M.P. [(2015) 4 SCC 491 : (2015) 2 SCC (Cri) 679] Baldev Singh [(2011) 13 22 CRA No.284/2000 SCC 705 : (2012) 2 SCC (Cri) 706] was considered by the three-Judge Bench in Shimbhu [(2014) 13 SCC 318 : (2014) 5 SCC (Cri) 651] and in that case it has been stated that:
(Shimbhu case [(2014) 13 SCC 318 : (2014) 5 SCC (Cri) 651] , SCC pp. 327-28, para 18) "18.1. In Baldev Singh v. State of Punjab [(2011) 13 SCC 705 : (2012) 2 SCC (Cri) 706] , though the courts below awarded a sentence of ten years, taking note of the facts that the occurrence was 14 years old, the appellants therein had undergone about 3½ years of imprisonment, the prosecutrix and the appellants married (not to each other) and entered into a compromise, this Court, while considering peculiar circumstances, reduced the sentence to the period already undergone, but enhanced the fine from Rs 1000 to Rs 50,000.
In the light of a series of decisions, taking contrary view, we hold that the said decision in Baldev Singh v. State of Punjab [(2011) 13 SCC 705 : (2012) 2 SCC (Cri) 706] cannot be cited as a precedent and it should be confined to that case."
21. Recently, in Ravindra [(2015) 4 SCC 491 : (2015) 2 SCC (Cri) 679] , a two-Judge Bench taking note of the fact that there was a compromise has opined thus: (SCC p. 497, paras 17-18) "17. This Court has in Baldev Singh v. State of Punjab [(2011) 13 SCC 705 : (2012) 2 SCC (Cri) 706] , invoked the proviso to Section 376(2) IPC on the consideration that the case was an old one. The facts of the above case also state that there was compromise entered into between the parties.
18. In light of the discussion in the foregoing paragraphs, we are of the opinion that the case of the appellant is a fit case for invoking the proviso to Section 376(2) IPC for awarding lesser sentence, as the incident is 20 years old and the fact that the parties are married and have entered into a compromise, are the adequate and special reasons. Therefore, although we uphold the conviction of the appellant but reduce the sentence to the period already undergone by the appellant. The appeal is disposed of accordingly."
22. Placing reliance on Shimbhu [(2014) 13 SCC 318 : (2014) 5 SCC (Cri) 651] , we also say that the judgments in Baldev Singh 23 CRA No.284/2000 [(2011) 13 SCC 705 : (2012) 2 SCC (Cri) 706] and Ravindra [(2015) 4 SCC 491 : (2015) 2 SCC (Cri) 679] have to be confined to the facts of the said cases and are not to be regarded as binding precedents.
36. It is clear that the case laws cited by the appellant are not binding and further it has been clarified by the Apex Court in the aforementioned case laws that reduction of sentence of accused in these kinds of case cannot be used in a routine manner and shall be used sparingly.
37. Further looking to the tender age of the prosecutrix when she was subjected to sexual offence, it would not be justified to accept the compromise application of the appellant and reduce his sentence in respect of S.376 of IPC, but at the relevant time the offence punishable u/S 354 of IPC was compoundable, therefore, compromise application may be accepted partly.
38. Resultantly, the appeal is partly allowed. The compromise application filed by both the parties is partly allowed and conviction and the sentence u/S 354 of IPC passed by the learned trial Court against the appellant is set aside. He is acquitted u/S 354 of IPC. In respect of conviction and sentence passed by learned trial Court u/S 376 of IPC, in this respect, the learned trial Court has properly assessed the evidence available on record. The learned trial Court has not committed any error in convicting and sentencing the appellant u/S 376 of IPC. As discussed above, compromise filed by the parties in respect of the S.376 of IPC is hereby rejected. Consequently, the conviction and sentence of the 24 CRA No.284/2000 appellant u/S 376 is hereby upheld.
39. Appellant is directed to surrender forthwith before the learned trial Court to undergo his remaining jail sentence, failing which the trial Court shall be at liberty to take necessary steps against the appellant. After his surrender before the trial Court, his bail bonds shall be discharged.
40. Registry is directed that a copy of this judgement shall be given to the appellant through his counsel.
41. Copy of this judgment alongwith records of the trial court be sent to the learned trial court for necessary compliance.
42. Accordingly, the appeal is disposed off.
CC as per rules.
(PRAKASH CHANDRA GUPTA) JUDGE Shruti SHRUTI Digitally signed by SHRUTI JHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=46283ba6a215e3d40573a7f0ced0632 c8b8e41b29405387437111f0f1c897b84, JHA postalCode=452001, st=Madhya Pradesh, serialNumber=975D0201B09C38473541A4907 EE0732D1EA079B8EE35C9E2D19845AF26B0FB F4, cn=SHRUTI JHA Date: 2023.11.01 10:25:07 +05'30'