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Madhya Pradesh High Court · body

2020 DIGILAW 1271 (MP)

Nanu v. State of M. P.

2020-12-15

S.K.AWASTHI, VIVEK RUSIA

body2020
JUDGMENT 1. This appeal is listed on IA No.1438/2020, i.e. an application filed under section 389 CrPC seeking suspension of sentence on behalf of the appellant along with IA No.7541/2020, an application for urgent hearing during lock- down period. 2. At the very outset Shri Vivek Singh, learned counsel for the appellant submits that he does not wish to press the application for suspension of sentence and the appeal on merit but only praying for reduction of sentence awarded to the appellant from half of the life imprisonment to 10 years RI by way of final disposal of the appeal. Facts of the case in short are as under : 3. As per prosecution story complainant Smt. Surajbai, a resident of Shukla Nagar, Indore (near the Mataji temple) lodged a police report that her daughter (hereinafter referred to as 'the prosecutrix'), aged about two and half years was playing in front of her house and while playing she went inside the house of the present accused/appellant. When she did not find her, she started searching. She heard the sound of crying from the house of the appellant, immediately, she entered inside his house and found the appellant was lying naked over her daughter and trying to sexually abuse her daughter. However, after seeing her, he ran away from the house. The police report registered the FIR at Crime No.1198/13 under sections 376/511 and 506 IPC and under section 7/8 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'the POCSO Act'). After the arrest of the accused and completing the investigation, challan was filed against him before the competent Court. 4. In the trial, he abjured his guilt. He was tried under sections 376/511 and 506 IPC and under section ¾ read with section 18 of the POCSO Act. In trial the prosecution has examined as many as 6 witnesses in order to prove the charges. In defence, the appellant has examined 3 witnesses. After appreciating the evidence came on record, learned trial Court has found the appellant guilty under section 376/511 IPC and under section ¾ read with section 18 of the POCSO Act, however, acquitted from the charge under section 506 IPC and sentenced him to undergo half of the life imprisonment with fine of Rs.4,000/- with further default stipulation of 6 months RI in default of payment of fine. Since he has been awarded life imprisonment under section 376/511 IPC, therefore, he has not been awarded any sentence separately under section ¾ of the POCSO Act. 5. Learned counsel for the appellant submits that as per the evidence came on record , the appellant did not commit any intercourse with the prosecutrix. He was only found lying naked with the prosecutrix and the hymen of the prosecutrix was found intact. The entire conviction and sentence is based on the sole testimony of the mother of the prosecutrix. The appellant came up with the defence that he gave a loan of Rs.5,000/- to the father of the prosecutrix, however, he was not in a position to repay the said loan amount, therefore,falsely implicated him in the case. The appellant has no criminal antecedents. At the time of the commission of the offence he was 50 years of age and now he has become 60 years of age, hence prays for reduction of his life imprisonment into RI for ten years. 6. Learned Panel Advocate supports the impugned judgment and order and submits that the trial Court has rightly convicted and sentenced the appellant which requires no interference in this appeal. 7. Having heard learned counsel for the parties and on perusal of the record, we are of the opinion that the offence committed by the appellant comes under the category of heinous offence and he has rightly been convicted by the trial Court. So far as the punishment under section 376 IPC is concerned, it should not be less than 7 years and may extend up to life imprisonment with fine. As per section 376(1)(2)(i) of the IPC if the woman is under 16 years of age then the minimum sentence should not be less than 10 years. According to section 18 of the POCSO Act whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence in the IPC , for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both. The allegation against the appellant is that he attempted to commit an offence punishable under section 376 IPC, therefore, under section 18 of the POCSO Act he is liable to be punished with half of the description of life imprisonment and under section 376 IPC he has been imprisoned to undergo the life imprisonment. Hence, looking to the age of the appellant and his continuous period of custody from the date of arrest, we are of the opinion that half of the life imprisonment awarded to the appellant is liable to be reduced to the minimum sentence of ten years under section 376/511 IPC which would cover the adequate sentence under section 18 of the POCSO Act also. 8. In view of the above, the appeal is partly allowed. While maintaining the conviction of the appellant under section 376/511 of the IPC, his sentence is reduced to a period of 10 years RI with a fine of Rs.4,000/-. The appellant be released from jail after completion of ten years of RI and on deposit of the fine amount (if already not deposited), if he is not required in any other offence. Vivek Singh for appellant; G.S. Chouhan, Panel Lawyer for respondent /State.