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2012 Supreme(MP) 361
IN THE HIGH OF MADHYA PRADESH
N.K. Gupta, J.
Chunnu @ Sheoprasad Dubey v. State of M.P.
Criminal Appeal No.861 of 2003 (Jabalpur) : against the judgment of Second Sessions Judge, Chhindwara, passed in
Special Case No.15 of 2011; Decided on 29.6.2012.
A. Usmani for appellant;
Ajay Tamrakar, Panel Lawyer for respondent/State.
Headnote:Penal Code, 1860 -- S.377 -- unnatural offence with a boy proved -- but accused suffered the harassment of the case for last 17 years -- sentence reduced to the period already undergone in the custody for 412 days -- fine amount enhanced from Rs.1,000/- to Rs.10,000/- -- direction of giving Rs.5,000/- to victim out of fine amount.
Held : The incident took place on 1.2.1995 and the appellant was arrested in the month of March 1995. The case was submitted before the Special Judge directly. Thereafter, it was remanded back to submit before the JMFC and thereafter again it was submitted before that Court and committed in the year 2001. The appellant has not remained in the custody only for 412 days, but also suffered the harassment of the case for last 17 years. Under such circumstances, his custody period appears to be sufficient punishment for the crime, and hence his sentence may be reduced to the period which he has already undergone in the custody but it would be proper to impose some fine amount upon him.
naM lafgrk] 1860 & /kkjk 377 & yM+ds ds lkFk izd`fr fo:) vijk/k lkfcr & ijarq] vfHk;qDr us fiNys 17 o”kZ rd ekeys dh izrkM+uk Hkksxh & naMkns’k vfHkj{kk esa 412 fnu ds fy, igys&gh Hkksxh xbZ dkykof/k rd ?kVk;k x;k & tqekZus esa :-1]000@ ls :-10]000@& rd o`f) & tqekZus dh jde ls :-5]000@& ihfM+r dks nsus dk funsZ’kA
vfHkfu/kkZfjr % ?kVuk 1-2-1995 dks gqbZ rFkk vihykFkhZ dks ekpZ 1995 ds ekl esa fxjrkj fd;k x;kA ekeyk lh/ks fo’ks”k U;k;k/kh’k ds le{k izLrqr fd;k x;kA rRi’pkr~ bls izFke Js.kh U;kf;d eftLVsªV ds le{k izLrqr djus ds fy, okil Hkstk x;k rFkk rRi’pkr~ iqu% bls ml U;k;ky; ds le{k izLrqr fd;k x;k rFkk o”kZ 2001 esa lqiqnZ fd;k x;kA vihykFkhZ us dsoy 412 fnu ds fy, vfHkj{kk esa jgk] cfYd mlus fiNys 17 o”kZ rd ekeys dh izrkM+uk Hkh HkksxhA bu ifjfLFkfr;ksa ds v/khu] mldh vfHkj{kk dkykof/k vijk/k ds naM ds fy, i;kZIr izrhr gksrh gS rFkk blfy, mldk naMkns’k ml dkykof/k rd ?kVk;k tk ldrk gS tks og vfHkj{kk esa igys&gh Hkksx pqdk gS ijarq ml ij dqN tqekZuk vf/kjksfir djuk mfpr gksxkA
1. This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 4.4.2003 passed by the Second Sessions Judge, Chhindwara in Special Case No.15/2011, whereby the appellant was convicted for commission of offence punishable under section 377 of IPC and sentenced for two years’ rigorous imprisonment with fine of Rs.1,000/-. In default of payment of fine amount, an additional RI for three months was directed.
2. Prosecution case, in short, is that on 1.2.1995 at about 7:30 p.m. in the evening victim Omprakash (PW1) a boy aged 15 years went to purchase some grocery from a shop in his village Jatachhapar Outpost Badkuhi Police Station Chandameta District Chhindwara. The appellant met with the complainant in the market and took him in a courtyard to a vacant quarter in front of a bank. The appellant held the neck of the complainant and directed him to remove full-pant and underwear. Thereafter the appellant inserted his penis in the anus of the complainant. After completing the act, the appellant ran away from the spot leaving the complainant there. The complainant went to one Mallu (PW2) and informed about the incident. The complainant was taken to the Outpost Badkuhi Police Station Chandameta at about 9:30 p.m. where he lodged the FIR Ex.P-1. The complainant was sent to the Primary Health Centre, Pagara for his medical examination and treatment. Dr. R.K. Bansod (PW5) examined the complainant and gave a report Ex.P-4. He found that there were abrasions around the anus of the victim. There were some abrasions of both the knees and elbows. Police Chandameta had also arrested the appellant and he was directed for his medico legal examination. Dr. Vilash Pethe examined him and gave a report Ex.P-6. No injury was found on person of the appellant. After due investigation, a challan was filed by the police before the Judicial Magistrate First Class, Chhindwara who committed the case to the Special Judge, SC/ST (Prevention of Atrocities) Act, Chhindwara.
3. The appellant-accused abjured his guilt. He did not take any specific plea in defence but simply stated that he was falsely implicated in the matter. No defence evidence was adduced by the appellant.
4. After considering the evidence adduced by the prosecution, the learned Special Judge acquitted the appellant for commission of offence punishable under section 363 of IPC and section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, but convicted him for commission of offence punishable under section 377 of IPC and inflicted the sentence as mentioned above.
5. Heard the learned counsel for the parties.
6. Learned counsel for the appellant-accused has submitted that the appellant was falsely implicated in the matter. The testimony of the victim Omprakash (PW1) cannot be believed. No eye-witness is examined by the prosecution, and therefore the appellant could not be convicted for the offence punishable under section 377 of IPC. In alternate it is submitted that the appellant has undergone in the custody for a longer period of more than one year. He has faced the trial and present appeal since last 11 years. Under such circumstances, he may not be sent to jail again.
7. On the contrary, learned counsel for the State has supported the impugned judgment mainly on the ground that the offence under section 377 of IPC is very well constituted against the present appellant and the sentence directed by the trial Court appears to be proper.
8. Omprakash (PW1) has stated before the trial Court that he was taken by the appellant in a courtyard to a vacant quarter in front of a bank where he held his neck and inserted his penis in his anus in a lying position. Soon after the incident complainant went to one Mallu (PW2) and informed about the incident. Thereafter, Mallu (PW2) took the complainant Omprakash to Outpost Badkuhi Police Station Chandameta where he lodged the FIR Ex.P-1. Mallu (PW2) confirmed the evidence given by the complainant. The FIR was lodged within two
