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2019 DIGILAW 723 (MP)

Sunil @ Deepak @ Ranji Dhurve v. State of M. P.

2019-10-05

J.P.GUPTA

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JUDGMENT 1. This appeal has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 7.10.2013 passed by First Additional Sessions Judge, District Betul in S.T. No. 276/12 whereby the appellant has been convicted and sentenced as under : Conviction Sentence U/Sec. 366 of the IPC RI for 5 years with fine of Rs. 1000/- in default additional 1 month RI U/Sec. 376 (1) of the IPC RI for 10 years with fine of Rs. 5000/- in default additional 5 months RI U/Sec. 406 of the IPC RI for 1 year Both the sentenced are ordered to run concurrently. 2. The facts, in brief, giving rise to this appeal are that on 5.8.2012 the complainant Metram (PW4), father of the prosecutrix (PW6) lodged a missing person report about her minor daughter from 14.7.2012 in the police station Aathner, District Betul. During enquiry of missing person, on 18.9.2012 the prosecutrix was recovered from the house of the appellant / accused situated at Gautampura, Bhopal and statement of the prosecutrix (PW6) was recorded in which she stated that on 14.7.2012 she was standing on the road for going to Hidli for studying in Class 10th, at that time, the appellant / accused came over on the motorcycle which was taken from one Sumat Kumar for a short period and told the prosecutrix that he is going to Aathner and he will drop the prosecutrix at Hidli and he forcibly took her on her motorcycle and did not leave her at Hidli and took her to Aathner and then Bhopal on the motorcycle and kept her in his house situated at Gautampura, Bhopal and committed sexual intercourse with her several times without her consent and also committed marpeet and the motorcycle was also not returned. Thereafter, FIR (Ex.P-9) at crime No. 184/12 under sections 363, 366, 376 and 406 of the IPC was registered against the appellant / accused. After investigation was over, charge sheet was filed before the concerned Magistrate who on its turn committed the case to the Court of Session for trial and the appellant was tried for the offence under sections 363, 366, 376 (1) and 406 of the IPC by First Additional Sessions Judge, Betul. The defence of the appellant was that he is innocent. He has been falsely implicated in the case. In defence he has not produced any witness. The defence of the appellant was that he is innocent. He has been falsely implicated in the case. In defence he has not produced any witness. After trial, learned trial Court acquitted the appellant /accused of the charge under section 363 of the IPC but convicted and sentenced the appellant as mentioned above. Hence, this appeal. 3. Learned counsel appointed on behalf of the Legal Aid has contended that looking to the evidence available on record against the appellant and period of custody of the appellant, he does not want to challenge the finding of conviction recorded by the trial Court and his only prayer is that the appellant has completed more than 7 years in the imprisonment as he is in jail since 19.9.2012. The incident took place on 14.7.2012 and at that time, the offence under section 376 (1) of the IPC was not punishable with minimum imprisonment of 10 years, therefore, in such circumstances, the sentence may be reduced to the minimum period of 7 years prescribed for the offence under section 376 of the IPC and the appellant has completed the aforesaid period, hence, the appellant be released forth with. 4. Learned GA appearing for the State has contended that the appellant / accused has committed sexual intercourse forcibly with the prosecutrix without her consent or will. Hence, his conviction is based on legal evidence and finding of the conviction is not impeachable. So far as the sentence part is concerned, looking to the facts and circumstances of the case exercising discretionary powers the Court may pass appropriate orders and the sentence may be reduced proportionately. 5. Having considered the aforesaid contentions of learned counsel for the parties and on perusal of the record, from the statement of the prosecutrix (PW6) it is found proved that she was forcibly abducted and thereafter forcible sexual intercourse was committed with her by the appellant without her consent or will. Her statement is also supported by her father Metram (PW4) and also by medical evidence of Dr. Lipi Padmakar (PW10). Hence, the finding with regard to conviction under sections 366, 376 (1) and 406 of the IPC is hereby affirmed. 6. Her statement is also supported by her father Metram (PW4) and also by medical evidence of Dr. Lipi Padmakar (PW10). Hence, the finding with regard to conviction under sections 366, 376 (1) and 406 of the IPC is hereby affirmed. 6. So far as the sentence part is concerned, from the facts and circumstances of the case, in view of this Court, the ends of justice will be met by punishing the accused with minimum sentence of 7 years prescribed under section 376 of the IPC as this is not a case which requires 10 years rigorous imprisonment. 7. Consequently, the criminal appeal is partly allowed. The conviction of the appellant recorded by the trial Court under sections 366, 376 (1) and 406 of the IPC is hereby affirmed and the sentences awarded under sections 366 and 406 of the IPC are also affirmed. However, so far as the jail sentence awarded under section 376 (1) of the IPC is con-cerned, it is reduced and modified to 7 years RI with fine of Rs. 5000/-, in default further additional 5 months RI. Both the sentences shall run concurrently. 8. As the appellant has undergone the above period being in jail since 19.9.2012, if the appellant is not required in any other case, he be released forth with subject to payment of fine amount. 9. A copy of this judgment be sent to the trial Court with record and the jail authority for necessary action.