IN TH}; HIGH COURT OF MADHYAPRADESH AT JABZLPU u CRIMINAL APPEAL m {C(Sb of 1995 AWELLANTMCCUSED} “x w ,WEIJ KonU ALIAS sUKHCHARAN, s/o Roopglri Goswamifigg/ed about; 20 years, resident of Narmada, police Station Gandai,” {Myry “A district Raj nandgaon . vv-I’MK g Rx Versus .sw State of M°p.througii the district Magistrate, Rajnandgaon‘. . .m ”- ' ‘x‘ «*~‘*"'””"."“M APPLAL UNDE SECTIQN pRocLDURE. 374 OF THE cénE OF CRIMINAL 74.. ,P v 7%-FR ‘ I > R HIGH COURT OF CHHATTISGARH AT BILASP’Uk’ ’ (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 889 of 1995 APPELLANT Kodu alias Sukhcharan VERSUS State of Madhya Pradesh. RESPONDENT Shrl Mamsh Sharma counsel for appellant Shrl Satlsh Smghanla counsel for the prosecutrlx Shrl Vivek Sharma PL for respondent/State iCRIMlNAL APPEAL UNDER SECTION 374 12! OF THE CODE O CRlMlNAL PROCEDURE Vs J U D G M E N T (31.03.2010) A This appeal is directed against the judgment dated 8.6.1995 passed by Additional Sessions Judge, Khairagarh, in Sessions Trial No. 153/1993 convicting the accused/appellant’t‘for the offences punishable under Sections 363, 366 and 376 IPC and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 500 each under Sections 363 and 366 and rigorous imprisonment for seven years and pay fine of Rs. 500 u/s 376 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 27.5.1993 FIR (Ex. P-4) was lodged by father of the prosecutrix namely Islam Baeg (PW-4) alleging that on 24.5.1993 when he was sleeping in his shop, at about 3 o’clock in the night his wife Bilkish had informed him that his daughter (the prosecutrix herein) was not at home and she had eloped with the present appellant. On the basis of this report, offences under Sections 363 and 366 IPC were registered against the appellant. Thereafter, the prosecutrix was found in the company of accused/appellant on 29.5.1993 and her case diary statement,‘ i was recordediin which she has alleged that she was allured away by J the accused/appellant and was taken to various places andi subjected to sexual intercourse also. On the same day, she was medically examined by Dr (Smt) L D Jindani (PW—2) On the basis of her case diary statement Investigation was done and ultimateiyi challan was filed under Sections 363 366 and 376 IPC i ‘2._ 3. So as to hold the accused/appellants guilty, prosecution has examined 1O witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled égainst him and pleaded his innocence and false implication in the case. J a 4,. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. l 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6'.‘ e Counsel for the a’ppellant and the prosecutrix submit that during the pendency of trial, accused/appellant and the prosecutrix have got married and they are also having three children out the wedlock. They submit that applications under Sections 320 (2) and 320 (5) of the Code of Criminal Procedure duly supported by afhdavit of the prosecutrix, have also been filed by them. Accused/appellant, prosecutrix and Kotwar of the concerned village are also present in the Court. On an enquiry being made, this Courthas been informed that the accused/appellant and the prosecutrix are living in village Narbada, Tehsil Chhuikhadan, District Rajnandgaon and they are also having three children out of the wedlock. 7. Counsel for the appellant submits that in view of the judgment of the Supreme Court in the matter of Sukhwinder Singh v. State of Puniab reported in (2000) 9 SCC 204, the applications tiled by the appellant and the prosecutrix can be considered by this court and in view of the proviso to section 376 IPC, afté‘r considering the special circumstances, this Court can release the appellant after imposing the sentence for the period already undergone by him. He submits that the appellant has remained in jail for about 11 months. 8. On the other hand counsel for the respondent/State opposes 9. From the statement of the prOsecutrix (PW-3) it appears that ‘ she was in love with the accused/appellant and that the appellant had promised her that he would embrace the religion of lslam but they would live in their respective houses. Her statement also shows that on the date of incident when it was dark in the night, she i l the prayer made by the goynsel for the appellant. i i i l l i l i i i i i i ; __3__ along with the appellant went to village Bundeli where after taking rest for some time, they went to Pilibhat, then to village Dhamdha and then by bus they went to Durg Thereafter they went to village Slmga and then to Tilda ln paragraph 1O of her eVIdence she has categorlcally stated that after obtaining her conSent accused/appellant committed sexual intercourse with her. In respect of her age, Smt. Tulsa Ramteke (PW-7) has stated that as per the school certificate Ex. P—6 her date of birth is 27.8.1977 and thus on the date of incident she was 15 years and 09 months of age. Apart frOm this, there is no other evidence available on record in this regard. Even if her date of birth is taken as 27.8.1977, it can be said that she had attained the age in which right of discretion can be exercised. The appellant and the. prosecutrix, both are present before this Coud. They have also informed this Court that they have got married during the pendency of trial and are living happily. The Supreme Court in the matter of Sukhwinder Siagh v. State of Puniab (supra) has held as under: “1 ........The High Court has noticed that the prosecutrix was a consenting party to the act of sexual intercourse and that she had willingly left her parents' house to be with the appellant. She was, however, found to be “not more than 16 years of age” and on that account, the High Court upheld the conviction of the appeilant. 2. During the pendency of the proceedings in the High Court, the prosecutrix and the appellant appear to have compromised and a compromise petition was 'duly tiled in the Court. In the compromise petition, the prosecutrix has stated that she and the, appeilant beionged to neighbouring villages and she had since got married and that “she does not want that she should be put to further ignominy on account of this episode. She wants to put an end to the matter and settle happily with her husband." 3. The learned Single Judge of the High Court noticed the compromise as also the attendant facts of the case i e that the prosecutrix was a consenting party, but expressed helplessness In the matter of awarding of sentence on the ground that under Section 376 IPC the sentence to be awarded could not be less than seven years. lt appears that the High Court overlooked the proviso to Section 376 IPC, which reads thus: “Provided that the Court may, for adequate and special reasons to be mentioned in the judgment Impose a sentence of Imprisonment for a term of less than seven years w 4. That the prosecutrix has since got married and she did not want the matter to be carried any further so as to Iead a happy and healthy married life with her husband and had filed the compromise petition to that effect was an adequate and special reason to invoke the prowso (supra) While maintaining the conVIction the High Court ought to have for the reasons aforesaid reduced the sentence to the period already undergone by the appellant. Such a course was in the interest of the prosecutrix herself. 5. In the peculiar facts and circumstances of this case, as noticed above, in our opinion, this matter should be now given a quietus particularly, when the alleged offence is stated to have taken place almost a decade ago. 6. We, therefore, while maintaining conviction of the _ I . \ appellant for the offences as recorded by the courts ' f , below reduce the sentence to the period already undergone by him The appellant Is on bail His bail bonds shall stand discharged " A 10. ConSIdering the peculiar facts and circumstances of the case and the law laid down by the Apex Court referred to above, the appeal is partly allowed. Conviction part of the judgment impugned is maintained. The sentence imposed by the trial Court is reduced to the period already undergone by him. " Sdl- 7 J Pritinker Diwaker Judge xx '