w w w . L a w y e r S e r v i c e s . i n



Umesh v/s The State of Maharashtra


Company & Directors' Information:- MAHARASHTRA CORPORATION LIMITED [Active] CIN = L71100MH1982PLC028750

    Criminal Appeal No. 464 of 2014

    Decided On, 30 July 2015

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE A.B. CHAUDHARI

    For the Appellant: N.B. Kalwaghe, Advocate. For the Respondent: A.K. Bangadkar, A.P.P.



Judgment Text

1. By the present appeal, the appellant has put to challenge judgment and order dated 21.08.2014 in Sessions Trial No. 60/2012 passed by Additional Sessions Judge, Khamgaon thereby convicting him for an offence punishable under Sections 376 (1) and 506 of the IPC and sentencing him to undergo R.I. for 7 years and also pay a fine of Rs.500/- in default to undergo R.I. for 3 months. This appeal was admitted on 11.09.2011 and record and proceedings were called in order to find out whether the applicant was entitled to bail. This Court, by order dated 11.11.2014 rejected bail application of the appellant and fixed the appeal for final hearing on 18.11.2014.

SUBMISSIONS:

2. In support of the appeal, Mr. Kalwaghe, learned counsel for the appellant, vehemently argued that the finding of conviction recorded by the trial court for an offence punishable under Sections 376 (1) and 506 of the IPC is clearly illegal and, therefore, accused is entitled to acquittal. In the alternative, he submitted that the alleged offence is said to have taken place in or about July-2011 as is clear from the deposition of prosecutrix Ku. S, who deposed that the incident of rape had taken place three years before recording of her deposition which was recorded on 05.07.2014. According to Mr. Kalwaghe, therefore, the incident of rape obviously took place before 18.05.2013 i.e. before the amendment to Section 376 IPC came into force. He, therefore, submitted that proviso to sub section (1) of Section 376 as it stood before the amendment has application in the instant case for reducing the sentence of imprisonment less than 7 years. He then invited my attention to the evidence of mother of the appellant so also of PW1-Ku.S and submitted that there are special reasons reasons by way of evidence brought before the Court for reduction of sentence. He then submitted that the appellant is ready to provide an amount of Rs.1,00,000/- within a period of 8 weeks from his release from jail for being invested into the Fixed Deposit in the name of PW1-Ku.S by way of compensation in that behalf. He submitted that the appellant has two daughters, one of 7 years and other of five years, wife and mother aged about 65 years to be maintained. In fact, the appellant is uncle of the prosecutrix Ku.S.3. Per contra, learned A.P.P. for the respondent-State vehemently supported the impugned order of conviction. The Learned A.P.P. vehemently opposed the proposal given by the learned counsel for the appellant for reduction of sentence and submitted that such a proposal cannot be accepted since the offence is of serious nature and no such offer can be accepted by this Court. Mr. Kalwaghe referred to the decision of the Supreme court in the case of Ram Kumar ..vs.. State of Haryana (2006) 5 SCC 347.

CONSIDERATION:

4. Heard learned counsel for the parties. I have seen the entire record and the evidence. Insofar as the finding of conviction for the offence of rape is concerned, I have checked up the evidence of PW1 Ku.S. and other evidence on record. I find that the evidence produced by the prosecution clearly proves that the appellant committed offence of rape of his niece who was minor i.e. of the age of 15 years. The evidence of prosecution witnesses on the material point about rape has gone unchallenged and, therefore, I confirm the finding of conviction recorded by the learned trial Judge for an offence punishable under Section 376 (1) of IPC so also section 506 of IPC.

5. The next important question raised before me is based on the applicability of amendment brought by the Parliament w.e.f 18.05.2013 by deleting proviso to Section 376 (1) of the IPC since the proviso permitted the Court to bring down the sentence below 7 years for adequate and special reasons. Counsel for the parties were heard with reference to the evidence that was tendered before the trial Court at length on this issue. I have consciously considered the submissions made particularly in the light of proviso to Section 376 (1). I quote Section 376 (1) in entirety as under:

'376. Punishment for rape.-

(1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

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.

The above proviso was, however, deleted by parliament w.e.f 18.05.2013 by which the power of court to reduce or inflict the sentence less than 7 years has been taken away and thus minimum sentence of seven years has to be imposed after coming into force of the amendment w.e.f. 18.05.2013.

6. However, in the present case, I find that the incident is said to have taken place well before 18.05.2013 i.e. before coming into force of the the amendment aforesaid and, therefore, power of this Court to inflict sentence lesser than 7 years can be exercised upon recording adequate and special reasons. In the case of Ram Kuamr (supra) following are the observations

'3. …..However, at the time of hearing it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under Sections 366 and 376 of the Penal Code is on the highside. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly.'

7. Similar are the facts in the present case. PW1-Ku. S in her evidence stated that her marriage took place at about 1 years back. Counting back from the date of recording of her evidence i.e. 05.07.2014, she was married to Mr. P. in February, 2013. The incident of rape took place three years before i.e. in July, 2011. Due to rape on her by her uncle i.e. the appellant, she had delivered a male child and the said male child is kept in Orphanage at Buldana. Thereafter she was married to Mr. P. This Court had asked a specific question to the counsel for the appellant to find out whether the husband of PW1-Ku. S and his family members know about the incident of rape and birth of child therefrom. Learned counsel for the appellant informed this Court that the marriage took place only after all these facts were disclosed to Mr. P. and his family members and still he married with PW1-Ku.S. This Court finds epitomization of the culture and a broad heart and broad perspective, which we are losing slowly and slowly, that PW1-Ku.S. was accepted as the wife.

8. It is, in this background, I proceed further to find out whether there are any adequate and special reasons. It is seen that the girl was thus married and is staying away in a remote village in the District of Aurangabad in her matrimonial house. The child born due to rape is put in Orphanage. Then there is evidence of mother of accused PW1-Panchafula Kolhe, aged 60 years, that the appellant Umesh has a wife and a daughter and that he also supports her. The daughter is aged about 7 years, as informed by the learned counsel for the appellant. PW1-Panchafulabai stated that Umesh is helpful and supports the family. It is also not in dispute that appellant does not have any criminal record.

9. In the wake of above facts and particularly when PW1-Ku. S. is now settled after her marriage and appellant's support is required by his mother, wife and daughter, I think, these are the adequate and special reasons for reducing the sentence awarded to the appellant. In addition, counsel for the appellant has given an undertaking that the appellant would deposit Rs.1,00,000/- with the Sessions Judge, Buldana within 8 weeks after his actual date of release from bail, if an order reducing the sentence is passed. He submitted that the appellant is in jail since after his arrest and has completed sentence of 3 years 1 month and 15 days. In the Supreme Court judgment cited supra, the Supreme Court had found that 3 years sentence was sufficient and thus reduced the same, obviously with reference to the proviso to Section 376 (1) of the IPC. I think, this is a fit case since there is evidence on record showing the above adequate and special reasons to reduce the sentence.

10. For the above reasons, following order is passed.

ORDER

(i) Criminal Appeal No. 464/2014 is partly allowed.

(ii) Impugned judgment and order dated 21.08.2014 in Sessions Trial No.60/2012 passed by Additional Sessions Judge, Khamgaon convicting the appellant for an offence punishable under Sections 376 (1) and 50

Please Login To View The Full Judgment!

6 of the IPC is confirmed. However, the sentence awarded by the trial Judge is modified and is reduced to the sentence already undergone by the appellant with the benefit of Section 428 of I.P.C. (iii) The appellant shall deposit an amount of Rs.1,00,000/- with the Court of Sessions at Buldana within a period of 10 weeks from the date of his actual release from jail. (iv) Upon deposit of the amount of Rs.1,00,000/-, the learned Sessions Judge shall put the same in the name of PW1-Ku. S in her bank account at the place of her choice in Fixed Deposit by making an arrangement for her for receiving interest thereon. (v) In case of default on the part of the appellant in depositing the amount of Rs.1,00,000/- within a period of 10 weeks before the Sessions Judge, he shall be arrested and put in jail to serve out the remaining sentence awarded by the learned Sessions Judge vide judgment and order dated 21.08.2014. No separate sentence of fine is imposed by this judgment.
O R







Judgements of Similar Parties

29-05-2020 The State of Maharashtra through Public Prosecutor, High Court, Bench at Aurangabad Versus Prabhakar Karbhari Ghatmale & Others In the High Court of Bombay at Aurangabad
26-05-2020 State of Maharashtra Versus Mangesh & Others In the High Court of Bombay at Nagpur
26-05-2020 Bhagtam & Others Versus The State of Maharashtra & Others In the High Court of Bombay at Nagpur
26-05-2020 Abhinav Bharat Congress & Another Versus State of Maharashtra & Others High Court of Judicature at Bombay
26-05-2020 Ms. X Versus State of Maharashtra High Court of Judicature at Bombay
22-05-2020 Mohiuddin Vaid Versus State of Maharashtra & Others High Court of Judicature at Bombay
22-05-2020 Grant Medical Foundation Ruby Hall Clinic, Pune Versus State of Maharashtra & Others High Court of Judicature at Bombay
15-05-2020 Yogesh Versus The State of Maharashtra, Through Chief Secretary, School Education & Sports Department, Mantralaya & Another In the High Court of Bombay at Aurangabad
15-05-2020 A.P. Suryaprakasam Versus Superintendent of Police, Sangli District, Maharashtra & Another High Court of Judicature at Madras
15-05-2020 The State of Maharashtra through Secretary, Agriculture, Animal Hubandary, Dairy Development & Fisheries Department, Mantralaya & Another Versus Madhukar Suryabhan Ingale In the High Court of Bombay at Aurangabad
15-05-2020 Amalner Municipal Council, Amalner Versus The State of Maharashtra & Others In the High Court of Bombay at Aurangabad
08-05-2020 Chandrakant Kotecha Charitable Trust Versus The State of Maharashtra & Others High Court of Judicature at Bombay
08-05-2020 Pratik & Others Versus The State of Maharashtra, Through Police Station Mahur Dist. Nanded & Another In the High Court of Bombay at Aurangabad
05-05-2020 Zafar Jamal Khan Versus The State of Maharashtra High Court of Judicature at Bombay
05-05-2020 Shekhar @ Mukesh Sanadi Versus The State of Maharashtra High Court of Judicature at Bombay
05-05-2020 Shobha Versus The State of Maharashtra, Through its Secretary, School Education Department, Mantralaya Annexe, Mumbai & Others In the High Court of Bombay at Nagpur
04-05-2020 Pradeep Gandhy Versus The State of Maharashtra & Others Supreme Court of India
03-05-2020 Mohammad Nishat Versus The State of Maharashtra through its Chief Secretary, Mantralaya, Mumbai & Others In the High Court of Bombay at Nagpur
30-04-2020 Mohan Versus The State of Maharashtra, Through : The Secretary, Public Works Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
30-04-2020 Syed Salim & Others Versus The State of Maharashtra, Secretary, Public Works Department, Mantrayalay & Others In the High Court of Bombay at Aurangabad
30-04-2020 Shivray Kulkarni & Others Versus State of Maharashtra &Others High Court of Judicature at Bombay
30-04-2020 Sardar Manjieeth Singh Jagan Singh Versus The State of Maharashtra, Through its Secretary, Revenue and Forest Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
30-04-2020 Babu Bhairu Ovhal & Another Versus The State of Maharashtra High Court of Judicature at Bombay
30-04-2020 Gajanan Shahu Keripale Versus The State of Maharashtra Through The Secretary, School Education & Sports Dept, Mantralaya & Others High Court of Judicature at Bombay
30-04-2020 Natural Sugar and Allied Industries Limited & Others Versus The State of Maharashtra, Through the Secretary for Co-operation, Marketing & Textile Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
30-04-2020 The State of Maharashtra Versus Baban Gangaram Chirate & Others High Court of Judicature at Bombay
27-04-2020 Shankar Sarvotam Pai & Others Versus State of Maharashtra & Others High Court of Judicature at Bombay
27-04-2020 Abuzar Shaikh Abdul Kalam Versus The State of Maharashtra High Court of Judicature at Bombay
27-04-2020 Ajay Versus State of Maharashtra, through PSO In the High Court of Bombay at Nagpur
27-04-2020 Aishwarya Atul Pusalkar Versus Maharashtra Housing & Area Development Authority & Others Supreme Court of India
24-04-2020 Arvind Singh Versus The State of Maharashtra Supreme Court of India
23-04-2020 High Court on its own motion Versus The State of Maharashtra & Others High Court of Judicature at Bombay
21-04-2020 Deodutta Gangadhar Marathe Versus The State of Maharashtra through Secretary, Department of Home, Mantralaya & Others High Court of Judicature at Bombay
15-04-2020 The Registrar (Judicial), High Court of Bombay, Bench at Aurangabad Versus The State of Maharashtra & Others In the High Court of Bombay at Aurangabad
15-04-2020 Pankaj Rajmachikar Versus State of Maharashtra & Another High Court of Judicature at Bombay
15-04-2020 Mohammad Zakir Mohammad Bashir Solanki Versus The State of Maharashtra In the High Court of Bombay at Nagpur
08-04-2020 Nilesh Shriniwas Baswant Versus The State of Maharashtra Supreme Court of India
08-04-2020 C.H. Sharma & Another Versus State of Maharashtra & Others In the High Court of Bombay at Nagpur
08-04-2020 Sarva Hara Jan Andolan through Ulka Mahajan & Another Versus State of Maharashtra & Others High Court of Judicature at Bombay
08-04-2020 Rashtrasant Tukdoji Maharaj Nagpur University, Nagpur, Ravindranath Tagore Marg, through its Registrar & Another Versus State of Maharashtra, Department of Higher and Technical Education, Mantralaya, through its Secretary & Another In the High Court of Bombay at Nagpur
08-04-2020 Shahid Bhagat Singh Cooperative Housing Society Versus The State of Maharashtra & Others High Court of Judicature at Bombay
27-03-2020 Azam Khan Versus The State of Maharashtra Supreme Court of India
20-03-2020 The State of Maharashtra Versus Shankar Khandu Thombare & Another High Court of Judicature at Bombay
20-03-2020 The State of Maharashtra Versus Kondiba Bahiru Thambare High Court of Judicature at Bombay
20-03-2020 Professor Smt. Manorama Prakash Khandekar Versus The State of Maharashtra, Higher and Technical Education Department, through its Secretary, Mantralaya & Others In the High Court of Bombay at Nagpur
20-03-2020 The State of Maharashtra Versus Shivaji Shankar Bhintade High Court of Judicature at Bombay
18-03-2020 Manglam Roongta & Others Versus State of Maharashtra & Another High Court of Judicature at Bombay
18-03-2020 Ritesh Rajendra Thakur Versus State of Maharashtra Through its Secretary, Tribal Development Department & Another High Court of Judicature at Bombay
17-03-2020 The State of Maharashtra (Through – PI of Chavani Police Station, Malegaon, District - Nasik) Versus Dr. Baban Lahanu Gangurde & Others High Court of Judicature at Bombay
17-03-2020 Chetan Prabhakar Rajwade Versus The State of Maharashtra, Through Secretary, Tribal Development Department & Others High Court of Judicature at Bombay
17-03-2020 Rajendra & Others Versus The State of Maharashtra In the High Court of Bombay at Aurangabad
17-03-2020 Maharashtra State Electricity Distribution Company Limited Through its Superintending Engineer, Admn. Versus M/.Pranavditya Spinning Mills Ltd. High Court of Judicature at Bombay
16-03-2020 CEAT Limited (formerly known as Ceat Tyres of India Ltd.) Versus The State of Maharashtra & Others High Court of Judicature at Bombay
16-03-2020 Jeevan Niwas Co-operative Housing Society Ltd. & Another Versus The State of Maharashtra through Department of Co-operation & Textiles, Mantralaya & Others High Court of Judicature at Bombay
16-03-2020 Bhavna Kisan Uradya & Others Versus The State of Maharashtra, Through the Secretary, School Education Department & Others High Court of Judicature at Bombay
13-03-2020 Ram Pralhad Khatri & Others Versus State of Maharashtra, through Principal Secretary, Urban Development Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
13-03-2020 Chirag Sundarlal Gupta Versus The State of Maharashtra (through Kurar Village Police Station High Court of Judicature at Bombay
13-03-2020 Nagrik Samanvya Samiti & Others Versus The State of Maharashtra, Through Principal Secretary, Urban Development Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
13-03-2020 Sheetal Medicare Products Pvt. Ltd., Maharashtra Versus New India Assurance Co. Ltd., Maharashtra & Another National Consumer Disputes Redressal Commission NCDRC
12-03-2020 Rajendra & Others Versus The State of Maharashtra In the High Court of Bombay at Aurangabad
11-03-2020 Ishwar & Others Versus The State of Maharashtra, Through the Secretary, Co-operation and Textile Department, Maharashtra State Mantralaya & Others In the High Court of Bombay at Aurangabad
11-03-2020 Nivrutti Versus The State of Maharashtra & Another In the High Court of Bombay at Aurangabad
11-03-2020 Dnyaneshwar Versus The State of Maharashtra, Through its Secretary, School Education & Sports Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
11-03-2020 Sayyad Azim Sayyad Mnazur & Others Versus The State of Maharashtra Through Police Inspector In the High Court of Bombay at Aurangabad
11-03-2020 New India Assurance Co. Ltd., Maharashtra & Another Versus Mohd. Nazir & Others National Consumer Disputes Redressal Commission NCDRC
09-03-2020 Milind Bhimsing Shirsath Versus The State of Maharashtra Through its Tribal Development Department, Mantralaya & Others High Court of Judicature at Bombay
09-03-2020 Sanjay Devaji Ramteke Versus The State of Maharashtra, through PSO In the High Court of Bombay at Nagpur
09-03-2020 Kumari Shaikh Shashim Mhamulal Versus The State of Maharashtra & Others High Court of Judicature at Bombay
09-03-2020 Lahu Bhausaheb Sonwane Versus The State of Maharashtra, Through Police Inspector & Another In the High Court of Bombay at Aurangabad
09-03-2020 Jaggu Sardar @ Jagdish Tirathsing Labana @ Punjabi Versus The State of Maharashtra (Through the Office of the Government Pleader, High Court, A.S. Mumbai) & Others High Court of Judicature at Bombay
09-03-2020 Hasina Siraj Shaikh Versus State of Maharashtra Secretary through Department of Secondary & Higher Secondary Education Department & Others High Court of Judicature at Bombay
06-03-2020 Dr. Nishigandha Ramchandra Naik Versus State of Maharashtra through Principal Secretary, Medical Education and Drugs Department Mantralaya & Another High Court of Judicature at Bombay
06-03-2020 Manohar Bhimraoji Mahalle & Others Versus State of Maharashtra & Others In the High Court of Bombay at Nagpur
05-03-2020 The State of Maharashtra Versus Balaso Gulab Pendhari & Another High Court of Judicature at Bombay
05-03-2020 Vikrant Vikas Raikar, Proprietor of M/s. Elegant Constructions Versus State of Maharashtra, through Government Pleader & Others High Court of Judicature at Bombay
05-03-2020 Gopal Versus State of Maharashtra In the High Court of Bombay at Nagpur
05-03-2020 The State of Maharashtra Versus Shaikh Jabbarlal Mohamad High Court of Judicature at Bombay
05-03-2020 Devyani Versus The State of Maharashtra Through its Secretary Home Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
05-03-2020 The State of Maharashtra Versus Anant Dattatraya Pashilkar High Court of Judicature at Bombay
05-03-2020 Mohammed Aslam Azad Shaikh Versus The State of Maharashtra Through Secretary Home Department (Special) Mantralaya & Others High Court of Judicature at Bombay
04-03-2020 Dr. Anil D. Garje Versus The State of Maharashtra Through its Principal Secretary Higher & Technical Education Department Mantralaya & Others High Court of Judicature at Bombay
04-03-2020 Radhabai Gabaji Rokade Versus The State of Maharashtra High Court of Judicature at Bombay
04-03-2020 Kishor Laxman Lonari, Convict No. C/52 Versus The State of Maharashtra, Through the Secretary, Prison – 3, State of Maharashtra, Home Department, Mantralaya In the High Court of Bombay at Aurangabad
04-03-2020 Ravindra Manik Shinde & Another Versus State of Maharashtra through its Secretary, Tribal Development Department, Mantralaya & Another High Court of Judicature at Bombay
04-03-2020 Haseena Babu Sanadi @ Haseena Rasul Tadwal Versus State of Maharashtra through its Secretary, Social Justice & Special Assistance Department & Others High Court of Judicature at Bombay
03-03-2020 Sainath Annasaheb Waghchaure & Others Versus The State of Maharashtra In the High Court of Bombay at Aurangabad
03-03-2020 Dadarao & Others Versus The State of Maharashtra In the High Court of Bombay at Aurangabad
03-03-2020 Priyanka Versus The State of Maharashtra Through the Principle Secretary, Home Department, Mantralaya & Others In the High Court of Bombay at Aurangabad
02-03-2020 The State of Maharashtra Versus Shivaji Daulu Patil & Others High Court of Judicature at Bombay
02-03-2020 The State of Maharashtra Versus Mansing Shankarrao Mane & Another High Court of Judicature at Bombay
28-02-2020 Vikrant Prataprao Gaikwad & Another Versus The State of Maharashtra Through the Secretary School Education Department Mantralaya & Others High Court of Judicature at Bombay
28-02-2020 Vikrant Prataprao Gaikwad & Another Versus The State of Maharashtra Through the Secretary School Education Department & Others High Court of Judicature at Bombay
28-02-2020 Vijay Kishanrao Kurundkar & Another Versus State of Maharashtra & Others Supreme Court of India
28-02-2020 Maharashtra State Electricity Distribution Co. Ltd. Versus Union of India & Others Supreme Court of India
28-02-2020 The State of Maharashtra Versus Suresh Navnath Londhe & Others High Court of Judicature at Bombay
28-02-2020 Chandrakant @ Gotya Ramdas Pawar Versus The State of Maharashtra High Court of Judicature at Bombay
28-02-2020 The State of Maharashtra (Through Anti Corruption Bureau) Greater Bombay Unit, Gr. Bombay) Versus Talimunisa Rais Ahmed High Court of Judicature at Bombay
28-02-2020 Sahel Ahmad Wakeel Ahmad Quadri & Another Versus The State of Maharashtra Through its Principal Secretary Public Health Department Mantralaya & Others High Court of Judicature at Bombay
27-02-2020 Shri Maruti Tukaram Bagawe & Others Versus State of Maharashtra & Another Supreme Court of India
27-02-2020 Salauddin Imamuddin Ansari Versus The State of Maharashtra, Through Secretary, Home, Department (Special), Mantralaya & Others High Court of Judicature at Bombay


LawyerServices is a Premium Legal Tech solution.


Lawyers, Law Firms, Government Departments and Corporates rely on us for, Workflow Automation, Data Aggregation, Timely Updates, Case Management, Intelligent Research, Latest Legal Data Updates and a LOT more!

If you are a legal professional, CONTACT US, in order to see how our UNIQUE solution can benefit your organization.

Features Intro Close Box