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Madhya Pradesh High Court · body

2014 DIGILAW 460 (MP)

Shiva v. State of M. P.

2014-04-25

S.R.WAGHMARE

body2014
ORDER 1. By this application filed under section 439 of the CrPC the applicants Shiva and Raghu have moved the application for grant of bail being implicated in criminal case No.261/2013 registered by police station Petlawad, Distt. Jhabua for offence under sections 342, 366, 450, 376(gha), 506 of the IPC and S.25-B of the Arms Act. 2. Counsel for the applicants has vehemently urged the fact that although this was second application moved on behalf of the applicants, the case was one of false implication and there had been a cross-case filed by the accused against the complainant party and in fact the complainants had also raped woman belonging to the family of the accused and hence the dispute had arisen. In fact the complainant Mukesh was relative of the accused persons and both of them were married and having children. Counsel vehemently urged the fact that the offence would not be made out against these applicants since the offence of rape has been alleged only against the other co-accused. Moreover PW 1 Shantibai, PW 2 Nanibai, PW 3 Savita, PW 4 Bhagawati and PW 5 Angurwala had also turned hostile and not supported the prosecution case. So also counsel urged that a compromise had been worked out between the parties and in the cross-case the complainant party have already been granted bail. Counsel prayed that the application be allowed. More so since in the other case filed the accused/complainants have already been enlarged on bail. 3. Counsel for the respondent State, on the other hand, has opposed the submissions of the counsel for the applicants and submitted that these facts were available before the trial Court. The trial Court has candidly observed that it was a case of gang rape and the way in which the offence is said to have been committed is not conducive to sympathy and the eyewitness account and the evidence of the prosecutrix was also reliable. Considering the effect that it would have on the society, the application has been rightly rejected. Counsel prayed that the application be dismissed. 4. On considering the above submissions, the impugned order and looking to the nature of allegations and materials collected in the case diary, I find that it is not a fit case for grant of bail to the applicants. Counsel prayed that the application be dismissed. 4. On considering the above submissions, the impugned order and looking to the nature of allegations and materials collected in the case diary, I find that it is not a fit case for grant of bail to the applicants. The allegations and the offence involved are very grave in nature and as already observed by the learned Judge of the lower Court; it is a crime against society. Moreover I find that it would be proper to place reliance on Shimbhu and another v. State of Haryana [In the Supreme Court of India, Criminal Appellate Jurisdiction, I Criminal Appeals No.1278-1279 of 2013 (arising out of SLP (Cri.) Nos.1011-1012 of 2012], whereby the apex Court has held thus : “22. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all they years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of section 376(2) of IPC. 23. It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed. 24. 24. This is yet another opportunity to inform the subordinate Court and the High Courts that despite stringent provisions for rape under section 376 of IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases. 25. In the light of the above discussion, we reject the request of learned counsel for the appellants for reduction of sentence, consequently, the appeals fail and the same are dismissed. 5. And in view of the above, the application for grant of bail is dismissed as being without merit.