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Madhya Pradesh High Court · body

2009 DIGILAW 569 (MP)

BHAGWAN SINGH v. STATE OF M. P.

2009-04-29

N.K.MODY

body2009
JUDGMENT : 1. Being aggrieved by the judgment dated 30-5-2007 passed by ASJ, Mahidpur, Ujjain in S.T. No. 154/2006 whereby the appellant was convicted for the offence punishable under section 376, Indian Penal Code and sentenced for a period of 10 years with fine of Rs. 2500/- and under section 323, Indian Penal Code for a period of six months, the present Appeal has been filed. 2. In short the case of prosecution was that on 11-3-2006 at about 3.00 p.m., a report was lodged at P. S. Mahidpur by the prosecutrix who visited the police station along with her parents. In the report it was alleged that prosecutrix was aged 13 years. It was alleged that when the prosecutrix went to meet out the natural call at that time appellant caught hold her and raped her. Further case of prosecution was that prosecutrix was threatened not to tell about the incident to anyone otherwise she would be killed. Upon the complaint case was registered at P. S. Mahidpur against the appellant. After the investigation, challan was filed. After framing of charges and recording of evidence the appellant was convicted as stated above, against which the present appeal has been filed. 3. Learned counsel for appellant submits that appellant has been convicted illegally while appellant have not committed any offence. Learned counsel further submits that learned Court below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Courts below committed error in not considering the material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned counsel prays that conviction and sentence be set aside. 4. In alternative, learned counsel submits that appellant was in jail w.e.f. 14-3-2006 to 12-6-2006 and again the appellant is in jail from the date of judgment i.e. 30-5-2007. Learned counsel submits that matter has been settled between the appellant and prosecutrix and application I.A. No. 1133/2009 has been filed which is duly signed by the prosecutrix. It is submitted that appellant has also paid a sum of Rs. 40,000/- as compensation to the prosecutrix which has been deposited in the name of appellant with the Bank of India, Sethi Nagar (Kotni Palace Extension Counter Ujjain). It is submitted that appellant has also paid a sum of Rs. 40,000/- as compensation to the prosecutrix which has been deposited in the name of appellant with the Bank of India, Sethi Nagar (Kotni Palace Extension Counter Ujjain). It is submitted that looking to the nature of offence and the fact that appellant has already served part of jail sentence, the sentence may be reduced to the period already undergone. 5. Learned counsel for complainant submits that marriage of the prosecutrix is going to be solemnized on 13-4-2009. It is submitted that since the matter has been settled between the parties in compromise therefore after maintaining the conviction the jail sentence be reduced to the period already undergone for which the complainant has no objection. 6. Learned counsel for respondent submits that findings of learned Court below are based on due appreciation of evidence which requires no interference. So far as compromise is concerned, learned counsel submits that looking to the nature of offence and the fact that offence is non-compoundable, the application for compromise cannot be taken into consideration and the same deserves to be dismissed. It is submitted that appeal be also dismissed. 7. From perusal of record it is evident that to prove the offence, prosecution has filed documents Ex.P/1 to P/10. To prove the age of the victim Tara, a certificate Ex.P/4 has been filed which has been proved by PW-5 Gulzar Khan who has stated that he was posted as Headmaster from the year 2001 at Middle School Bejnath Tehsil Mahidpur District Ujjain. In the certificate it is stated that the name of the victim Tara is shown at S.N. 120 in the school register and date of birth is mentioned as 5-7-1992. The school register is Ex.P/5 but the same is missing. In the cross-examination PW-5 has stated that the certificate Ex.P/4 was issued on the application filed by the father of the victim. Said application has not been filed by PW-5. In the certificate also it is not stated that the same has been issued on the request of Rameshchand, father of the prosecutrix. In the certificate Ex.P/4 no dispatch number is mentioned. The certificate has been issued on small piece of paper. Said application has not been filed by PW-5. In the certificate also it is not stated that the same has been issued on the request of Rameshchand, father of the prosecutrix. In the certificate Ex.P/4 no dispatch number is mentioned. The certificate has been issued on small piece of paper. PW-5 in his cross-examination has admitted that Tara was admitted in school in class VI and marksheet of class V was deposited at the time of her admission along with the application for admission. It is also admitted that date of birth of Tara was mentioned on the basis of marksheet of class V. The said marksheet has not been filed by prosecution during investigation. Apart from this, the prosecution has examined Rupa Bai as PW-7, mother of the prosecutrix who has not supported the version of the prosecutrix. She was declared hostile and was permitted to be cross-examined. In her statement, nothing is there on the basis of which it can be said that Tara was below 16 years. Dr. R. K. Tiwari has been examined as PW-10 who has stated that in the ossification test the age of the prosecutrix was found as 17 years, thus in the opinion of this Court on the date of offence the age of the prosecutrix was above 16 years and the findings of the learned trial Court that the prosecutrix was 14 years of age cannot be accepted. 8. So far as the alleged offence is concerned, the statement of prosecutrix is sufficient who has stated at length how she was raped. The statement of Tara is duly supported by statement of Asha Khandekar PW-9 who has medically examined the victim after the incident. Dr. Asha Khandekar has proved the medical certificate Ex.P/10 and has stated that the victim sustained external and internal injuries which has been caused during course of sexual intercourse. In view of this, the conviction of the appellant for the offence under section 376, Indian Penal Code is maintained. 9. So far as jail sentence is concerned, appellant was in jail from 14-3-2006 to 12-6-2006. Appellant is in jail w.e.f. 30-5-2007. Thus the appellant has completed the jail sentence for more than 2 years. The prosecutrix has already married and is living with her husband. The matter has been settled between the parties amicably and the appellant has also paid the compensation as desired by the prosecutrix. Appellant is in jail w.e.f. 30-5-2007. Thus the appellant has completed the jail sentence for more than 2 years. The prosecutrix has already married and is living with her husband. The matter has been settled between the parties amicably and the appellant has also paid the compensation as desired by the prosecutrix. 10. In the matter of Ram Kumar vs. State of Haryana, (2006) 2 SCC (Cri) 308 where the accused Ram Kumar was convicted under section 376, Indian Penal Code for a period of 7 years, the Hon. Apex Court while maintaining the conviction, observed that it had been brought to the notice that prosecutrix had already married and living with her husband and keeping the view the peculiar facts and circumstances of the case the Hon. Apex Court reduced the sentence to three years. 11. In the matter of Badrilal vs. State of M. P., (2005) 7 SCC 55 wherein the offence was punishable under section 307 Indian Penal Code which is non compoundable, Hon. Apex Court held that compromise cannot be recorded in such a case, however it is well settled that while awarding sentence the effect of compromise can be taken into consideration. 12. In view of the aforesaid position of law and also the fact that marriage of the prosecutrix has already been solemnized and sufficient compensation has been paid to prosecutrix by the appellant and the prosecutrix has moved the application for compromise, the prayer for compromise is accepted. Conviction is hereby maintained however jail sentence is modified and it is directed that appellant suffer jail sentence of two years and 3 months instead of 10 years. 13. With the aforesaid modification in the sentence, the appeal stands disposed of. C.C. as per rules.