Full Judgment
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.973/1998 Khushram @ Khattan VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Sankalp Kochar, counsel for the applicant. Shri Ajay Tamrakar, Panel Lawyer for the State/respondent. ---------------------------------------------------------------------------
ORDER(Passed on the 19th day of February, 2013) The applicant was convicted for the offence punishable under section 377 of IPC vide judgment dated 30.6.1998 passed by the JMFC, Banda, District Sagar in criminal case No.509/1991 and sentenced for 2 years' rigorous imprisonment with fine of Rs.500/-. In criminal appeal No.130/1998 vide judgment dated 10.8.1998 passed by the learned Additional Sessions Judge, Sagar, the appeal filed by the applicant was dismissed in toto. Being aggrieved with the judgments passed by both the Courts below, the applicant has preferred the present revision.
2. The prosecution's case, in short, is that, on 5.5.1991, at about 5 p.m. in the evening, the applicant took - 2 - Criminal Revision No.973 of 1998 one Kallo Bai, daughter of Hemraj to field for picking some fruits. When the prosecutrix came back, she was weeping and she had informed that the applicant committed sodomy with her. The blood was oozing from her anus. The complainant Hemraj had lodged an FIR and the victim Kallo Bai was sent for her medico legal examination. Dr.V.K.Jain (P.W.6) examined the prosecutrix and found that there was redness around her anal area and one laceration was also found on the margins of anus. After due investigation, a charge-sheet was filed before the trial Court.
3. The applicant abjured his guilt. He did not take any specific plea in the case and therefore, no defence evidence was adduced.
4. The learned Judicial Magistrate First Class, Banda, after considering the prosecution evidence, convicted and sentenced the applicant as mentioned above, whereas, the appeal filed by the applicant was dismissed in toto.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant informs that the applicant does not challenge the conviction directed against him. Looking to the concurrent findings of both the Courts below and evidence adduced against the applicant, there is no basis by which the concurrent findings of both the Courts below can be disturbed. So far as the sentence is - 3 - Criminal Revision No.973 of 1998 concerned, the learned counsel for the applicant submits that the applicant has faced the trial, appeal and revision since last 20 years. He is settled in his life and he remained in the custody for two months during the present revision. Looking to his overt-act and harassment, which he borne in last 20 years in attending so many Courts from time to time, not he may not be sent to the jail again.
7. After considering the submissions made by learned counsel for the applicant and considering the entire situation, including the overt-act of the applicant as well as the harassment, which he faced in last 20 years in attending so many Court, it would be proper not to sent him to the jail again but, fine imposed against the applicant can be enhanced.
8. On the basis of the aforesaid discussion, revision petition filed by the applicant is hereby partly allowed. Conviction directed against the applicant for the offence punishable under section 377 of IPC is hereby maintained but, the sentence is reduced to the period, which he has already undergone in the custody, whereas, fine is enhanced from a sum of Rs.500/- to a sum of Rs.5,000/-. The applicant is directed to deposit the remaining fine amount before the trial Court within two months from today, failing which he shall undergo for 6 months rigorous imprisonment, - 4 - Criminal Revision No.973 of 1998 in default of payment of fine. If fine is deposited then, a sum of Rs.4,000/- be given to the complainant Hemraj S/o Gajadhar, R/o Amarmau, Police Station Shahgarh, Tahsil Banda, District Sagar (M.P.) by way of a compensation for his daughter.
9. The applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
10. A copy of the order be sent to both the Courts below along with their records for information and compliance.
11. The trial Court is directed that if fine is not deposited within two months from today then, arrest warrant be issued against the applicant for execution of default sentence. (N.K.GUPTA) JUDGE 19 2/2013 Pushpendra