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2011 Supreme(MP) 907
2012 (II) MPWN 28
S.C. Sinho, J.
Monu @ Bora v. State of M.P.
Criminal Appeal No. 128 of 2009 (J); Decided on 19.12.2011.*
G.P. Tripathi for appellant; Akshay Namdeo, Panel Lawyer for the State.
Headnote:Indian Penal Code, 1860 -- Ss. 457 and 366 -- accused trying to commit rape with prosecutrix -- her mother made hue and cry -- compromise took place between the parties -- no previous criminal conduct of accused proved -- conviction of accused affirmed -- sentence reduced to the period already undergone. [Paras 2 & 6
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1. Appellant has filed this appeal being aggrieved by the judgment and conviction passed by IV th Additional Sessions Judge, Jabalpur in S.T.No. 144/08 vide impugned judgment dated 25.9.08 whereby being convicted section 457 of IPC, he has been sentenced to undergo RI for 2 years with fine of Rs. 500/- in default to suffer further RI for 1 months. Further, being convicted u/s. 366 of IPC, he has been sentenced to undergo RI for 5 years with fine of Rs. 500/- in default to suffer further RI for 1 month.
2. As per the prosecution case on 6.1.08 at about 23.45 O’clock complainant Shakun Bai with her husband and children was sleeping in her house. On hearing the voice of door she got up and saw that her daughter Radha was not in her bed. She started search at nearby places and when they reached towards the house of PW-4 Bhagwati Bai the prosecutrix was seen and accused was trying to commit rape with her. Shakun Bai made hue and cry. Just next day of the incident, named FIR Ex. P-10 was lodged by Shakun Bai, mother of prosecutrix and a case u/ss. 366, 376 (1) read with sections 511, 457 of IPC was registered. After due investigation, charge sheet was filed.
3. Appellant abjured the guilt. However, the Court below relying on the statements of prosecution witnesses held the appellant guilty u/ss. 457 and 366 of IPC and sentenced for the period said above.
4. Learned counsel for appellant Shri Tripathi has submitted that he is only challenging the quantum of sentence. Further, he has submitted that Vinod Choudhary father of prosecutrix and mother of accused are present before the Court today and they have filed a compromise application IANo. 25292/11. The incident took place in the year 2008 and being a residence of same locality adjacent to each other, there has been developed good and amicable relations between both the family members, therefore, they have filed the said compromise application.
5. Learned Sessions Judge has rightly convicted the appellant u/ss. 457 and 366 of IPC. Nothing could be brought on record so as to suggest that appellant is falsely implicated in any extraneous consideration.
6. With regard to sentence is concerned, appellant remained in jail from 8.1.08 to 1.7.08 thereafter from 15.9.08 to 7.5.09 and thereafter from 21.6.11 till today. Compromise has been taken place between the parties. No previous criminal conduct of the appellant has been proved by prosecution. No fruitful purpose will be served by sending applicant for short term of sentence in jail therefore, the jail sentence awarded by the Court below can be reduced to the period already undergone by appellant in jail.
7. Resultantly, appeal is allowed in part.; The conviction of appellant sections 457 and 366 of IPC is affirmed. Appellant is sentenced for the period already undergone.
8. With this modification, the appeal is allowed in part. Copy of this order be sent to the trial Court for information and compliance.
