Shiv Singh and Mahendra Singh vs State of M.P.

Hon''ble Mrs. Justice S.R. Waghmare

These two appeals are taken up together since they arise out of the same judgment and this common order shall govern both the cases. hese two appeals have been filed u/s 374 of the Cr.P.C. by appellants Shivsingh and Mahendrasingh and Mansingh have challenged their judgment dated 28.11.96 passed by Ist Additional Sessions Judge, Shajapur in Sessions Trial No.221/95 convicting and sentencing the accused for offence under Sections 366 & 376 of the IPC and sentencing them to undergo RI for 3 years and 10 years each respectively nd fine of Rs.500/-and Rs.1000/-each respectively, in default of payment of fine they were to undergo three months and one year''s SI each.

Brief facts of the prosecution case are that the complainant Pabitrabai used to live with her husband in village Nichhma, however on the date of the incident i.e.,3.7.95 her husband Mansingh had gone to live with her aunt who was alone; whereas the father-in-law and mother-in-law of the prosecutrix were her neighbours. At 10 PM in the night since the prosecutrix was sleeping near the door way she had kept the door open as it was very hot summer night. Accused Shivsingh and his brother co-accused Mahendrasingh and one more person whom she did not know entered into her house. Shivsing caught hold of her mouth and Mahendrasingh and other person carried the prosecutrix forcibly and took her to the house of Bhagwansingh in Nichma itself. They closed the door and each of the accused raped her in turn. At around 4 or 5 AM in the morning they left her at Molta Kankad and threatened if that she told anybody they would finish her. They asked her to go her parents house. Thereupon the prosecutrix went to near Molta and to the house of one Yashwantsingh Rajput whom she knew and she asked him to fetch her father-in-law and mother-in-law. They arrived in the evening and thereafter the FIR was filed at Police Station, Shajapur vide Ex.P/1. The offence was registered and the prosecution machinery was set into motion. The spot map Ex.P/11 was prepared. By the seizure memo Ex.P/9 the clothes of the rosecutrix were recovered and the accused were duly arrested vide arrest memo Ex.P/12, P/13 and P/14. The clothes of the accused were also recovered and all the affected persons were sent for their medical examination. On completion of medical exdamination the chargesheet was filed. The accused were charged from offence under Sections 366, 376 and on committal they abjured their guilt and stated that they were falsely implicated in the matter since Kumersingh was stopped by mere using the road by Shivsingh and Mahendrasingh. There was old enmity and hence they were falsely implicated in the matter. The trial Court on considering the evidence, however convicted and sentenced the accused as herein above indicated and hence the present appeal.

Counsel for the appellants has not put forth much vehement arguments against the conviction primarily because he stated that there were talks of compromise going on between the parties and he relied on Baldev Singh Vs. State of Punjab 2011-Supreme-2-173 to state that the Apex Court had considered that although the offence u/s 376 is a non compoundable, in the said case the incident was an old one, is a circumstance for invoking the proviso to Section 376(2)(g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so. And the Apex Court had directed each appellant to pay Rs.50,000/-by way of enhancement of fine and to the victim envisaged u/s 376 of the IPC itself and the custodial entence was reduced to the period already undergone in view of the proviso to Section 376(2)(g). Counsel prayed that the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. In alternate Counsel has prayed that if the Court is satisfied regarding the conviction the custodial sentence be reduced to the period already undergone.

Counsel for the State has per contra stated that the judgment of the Trial Court is in accordance with law and does not require any interference and both the appeals filed by the appellants be dismissed. onsidering the above submissions I find that the impugned judgment is based on valid and cogent reasons and proper marshalling of evidence and no infirmity can be found with the impugned judgment of the trial Court. The only question that arises for my consideration is whether the custodial sentence can be reduced to the period already undergone in terms of Baldev Singh (supra). And I find that the conduct of the prosecutrix is highly unnatural; so also the fact she did not tell anybody in the house, but went to one Jashwant Singh and asked him to fetch her father-in-law and mother-in-law. Besides this, the FIR was also delayed and under these circumstances benefit of doubt could be granted to the accused Shivsingh, Mahendrasingh and Mansingh. And although the conviction of the accused is upheld; saying that the short question of custodial sentence is involved in the present appeals the custodial sentence is reduced to the period already undergone. The fine amount however is raised to s.5,000/-each which shall be paid to the prosecutrix as compensation u/s 357 of the Cr.P.C. within a period of two months from the date of this judgment. Needless to say any amount already paid as fine shall be adjusted. On failure to pay the fine within the stipulated period and the appellants shall undergo the remaining sentence as directed by the lower Court.

With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellants are on bail. Their bail bonds and surety bonds are hereby discharged.

A copy of this judgment be sent to the concerned lower Court for compliance. A copy of this judgment be kept in the record of Criminal Appeal No.290/97.