Omprakash Kukreja, & Anr. vs State of M.P.

The appellant has filed this appeal against the judgment dated 20/11/2007 passed in Sessions Trial No. 35/2007. The allegation against the appellant is that he has committed rape on 11/11/2006 with a minor girl.

Report of the incident was lodged on 12/11/2006 by father of the prosecutrix, thereafter, police conducted the investigation and filed the charge-sheet for commission of offence punishable under Section 376(2)(f) of the IPC against the appellant. The trial court held appellant guilty for commission of offence punishable under Section 376(2)

(f) of IPC and awarded sentence RI for life and imposed fine amount of Rs. 5000/-.

Learned counsel appearing on behalf of the appellant has not argued the appeal on merit, however, she has contended that the appellant is in jail since 09/01/2007. He has completed more than 10 years actual jail sentence and near about 14 years of jail sentence including remission, hence, the sentence of the appellant be modified as already undergone because the appellant has completed more than sentence than minimum sentence of 10 years.

The prosecutrix PW/1 was aged about seven years at the time of incident. She deposed that she was playing at around 2 O'clock near her house on the road. At that time the appellant had called her at his house with a promise to give sweets where the appellant slammed her in the bed thereafter committed sexual intercourse with her, due to which blood was oozing from my private parts. Thereafter, I came back to my house and told the incident to my mother and mother told the father, thereafter father told the incident to other family members. They had taken me to Mandla Hospital where I was treated for a period of twenty days and FIR was lodged.

PW/2 mother of the prosecutrix deposed that the appellant is neighbour and he is also releative. At the time of incident age of the prosecutrix was near about seven

years. When I returned back from the fields at around 5 O'clock, the prosecutrix told me that the appellant had committed rape with her. Blood was oozing from her private part. Thereafter, mother of the appellant came to my house, I told the incident to my husband and thereafter, husband told to other villagers and report was lodged at police station Mohgaon. The prosecutrix was admitted in the Hospital, Mandla. Report is Ex. P/6. She was examined by the doctor.

PW/4 Subbedas father of the prosecutrix deposed that when I returned back to house, my wife told me that the appellant had committed rape with the prosecutrix due to which blood was oozing from her private part. I found the blood on the body of the prosecutrix and on her clothes, thereafter, mother of the appellant came to my

house. I told the facts to other villagers, thereafter, we had gone to police station and lodged report which is Ex. P/6. I signed the same. The prosecutrix was admitted in the hospital Mandla. Patwari prepared spot map which is Ex.

P/8.

PW/5 Motidas, PW/6 Mulludas, PW/7 Balidas who are villagers deposed that the father of the prosecutrix told them about rape committed by the appellant. PW/8 Patwari deposed that he had prepared the spot map which is Ex. P/8 and Panchanama Ex. P/7.

PW/10 Dr. Ravindra Sharma, deposed that I had examined the appellant and found that the appellant was competent to perform sexual intercourse.

Doctor Smt. Reeta Shrivastava PW/3 deposed that I was posted as Assistant Surgeon at District Hospital Mandla on 12/01/2006 and examined the prosecutrix who was aged about seven years. I do not find any sign of injury on her body, however there were signs of blood on private part and lower part of thigh. Hymen was ruptured from where blood was oozing. Doctor gave opinion that the sexual intercourse was committed with her.

The prosecutrix was admitted in the hospital Mandla.

PW/11 R.D. Kanva, deposed that I was posted as station house officer at Police Station Mohgaon. On the report of the complainant Subbedas an offence was registered against the appellant which is Ex.P/6, I signed the same.

Thereafter, I recorded statements of Motidas, Balidas, Mulludas and arrested the appellant vide arrest memo Ex.P/17, I signed the same and send the appellant for medical examination thereafter, the seized articles were send for FSL, Sagar.

Appellant in his defance had examined Nandlal, however, his evidence is not of much important. There is evidence of prosecutrix which is natural, her mother PW/2, her father PW/4 and evidence of other villagers, it is established that the appellant committed rape with the prosecutrix. This fact is also supported from the evidence of PW/3 Doctor who examined the prosecutrix. The report was lodged on the next day and investigating officer who conducted the investigation has verified the facts. On perusal of the aforesaid evidence in our opinion the trial court has rightly held the appellant guilty for commission of offence punishable under Section 376(2)(f) of the IPC.

The next question is that what sentence be awarded to the appellant. At the relevant time when offence was committed the minimum sentence for the offence was ten

years. The appellant has already completed ten years and seven months of the actual jail sentence including remission more than 13 years. As per the certificate given by the concerned jail authority the trial court has awarded the jail sentence of life which is maximum. In the similar circumstances the Apex Court in the case of Bavo Alias Manubhai Ambalal Thakore Vs. State of Gujarat

(2012) 2 SCC 684 has modified the sentence upto ten

years. However, in the present case the appellant has completed jail sentence of near about thirteen and half years including remission.

Learned Panel Lawyer relied on the judgment of Apex Court in the case of State of U.P. Vs. Shri Kishan

(2005) 10 SCC 420 and pleaded that a proper sentence awarded by the Trial Court. Hence, there is no necessity of reducing the sentence.

In the present case, the trial court has awarded the maximum sentence. The Supreme Court in Bavo Alias Manubhai Ambalal Thakore Vs. State of Gujarat

(2012) 2 SCC 684 in similar circumstances reduced the sentence to RI 10 years. The appellant already undergone jail sentence more than 13 years including remission, hence, in our opinion, it would be just and proper that the sentence awarded by the trial court be modified in view of the fact that the appellant has undergone sentence with default stipulation imposed by the trial court. He is poor person.

In view of the above the appeal filed by the appellant is partly allowed. His conviction for commission of offence punishable under Section 376(2)(f) of the IPC is hereby upheld, however, the sentence awarded by the trial court is modified to the extent of already undergone. The appellant is in jail, he be released forthwith, if he is not required in any other case.