Devji & Anr vs State Of Raj on 16 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 533 / 2010

1. Devji S/o Shri Veera aged 30 years, by caste Jogi, resident
of Dholi Sadar Majra P.S. Kalinjara, District Banswara.

2. Kishan S/o Shri Dalji, aged 25 years, by caste Jogi, resident
of Borkhedi, P.S. Kushalgarh, District Banswara.
(At present lodged in Central Jail, Udaipur).

—-Appellant
Versus
The State Of Rajasthan.

—-Respondent
__
For Appellant(s) : Mr. J.V.S. Deora.

For Respondent(s) : Mr. Rajesh Bhati, PP.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
16/08/2017

By way of this appeal, the appellants herein have

approached this Court for challenging the judgment dated

11.10.2010 passed by the learned Additional Sessions Judge (Fast

Track), Banswara in Sessions Case No.60/2009 whereby, they

were convicted for the offence under Section 376(2)(G) IPC and

were sentenced to 10 years’ R.I. and a fine of Rs.1,000/- in

default of payment of fine to further undergo 1 month’s R.I.

Briefly stated, facts essential and relevant for disposal of the

instant appeal are noted hereinbelow:

The victim Sushri ‘S’ aged about 15 years, lodged a written

report with the SHO, Police Station Kalinjara on 03.05.2009

alleging inter alia that she had gone to attend the wedding of a

girl named Huki. They were singing and celebrating till 3 o ‘clock’
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in the night. She felt the urge to attend the call of nature and

went out to ease herself at a little distance from the place where

the celebration was going on. When she was about to rise, Devji,

who belonged to her own village and his brother-in-law Kishan

came there suddenly, gagged her mouth and took her to a nearby

isolated place. Devji was carrying a knife with him which he used

for threatening the victim so as to fulfill their motive. She was

forced down on the ground and first Devji subjected her to rape

and thereafter, Kishan also sexually assaulted her. She pleaded

with them to spare her, but the accused did not pay any heed to

the request. After subjecting her to rape, the accused threatened

her with the knife and looted her Sankli and Kandora. She was

threatened that if she uter any word of the incident to anybody,

she would be killed. She returned to the house of Huki with great

difficulty and told her grandfather Gatu of the incident. Thereafter,

she was brought to the police station where she lodged the report.

On the basis of this complaint, an FIR was registered for the

offences under Sections 376(2)(G) and 392 IPC against the

appellants herein and investigation commenced. After

investigation, charge-sheet was filed against the accused. The

case was committed to the court of Sessions Judge, Banswara

from where the same was transferred for trial to the Court of

Additional Sessions Judge (Fast Track), Banswara. The trial court

framed charges against the accused persons for the offences

under Sections 376(2)(G) and 392 IPC. The accused denied the

charges and claimed trial. The prosecution examined as many as

13 witnesses in support of its case. Upon being questioned under
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[CRLA-533/2010]

Section 313 Cr.P.C., the accused denied the prosecution

allegations and stated that they had been falsely implicated for

oblique motive. Two witnesses were examined in defence. Upon

conclusion of trial, the learned Trial Judge, while accepting the

prosecution evidence, rejected the defence theory regarding

innocence of the accused and proceeded to convict and sentence

the appellants as above. Hence this appeal.

Shri JVS Deora, learned counsel representing the appellants

did not seriously challenge the conviction of the appellant Devji,

however, he urged that the victim Sushri ‘S’, upon being

examined, admitted that she did not know the accused Kishan

from before. Thus, he contended that the appellant Kishan

deserves to be acquitted of the charge. He further submitted that

the trial court acquitted the accused persons from the charge

under Section 392 IPC and as such apparently, the prosecution

case has been disbelieved in part and consequently, the accused

are entitled to benefit of doubt even for the offence under Section

376(2)(G) IPC. He further contended that the complainant party,

accepted a settlement offered by the accused persons and the

settlement document was exhibited on behalf of the defence as

Ex.D/2. Pursuant to the said settlement, father of the girl Shri Lalu

accepted a sum of Rs.33,000/- for the ornaments allegedly

snatched from the victim. He urged that in the document Ex.D/2,

there is no reference of the accused having subjected the victim to

rape and thus, it is a fit case wherein the accused persons should

be acquitted by giving them benefit of doubt. In the alternative,

he craved for a lenient consideration on the aspect of sentences
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[CRLA-533/2010]

awarded to the appellants.

Per contra, learned Public Prosecutor vehemently opposed

the submissions of the appellants’ counsel and urged that the

prosecutrix has given unimpeachable evidence pointing to the guilt

of the accused for the henious offence of gang-rape. The accused

were given lenient consideration by the trial court while acquitting

them from the charge under Section 392 IPC and as such, as per

the learned Public Prosecutor, no interference is called for in the

trial court’s judgment.

I have heard and considered the arguments advanced by the

learned counsel for the parties and have gone through the

material available on record.

The victim Sushri ‘S’, categorically stated in her evidence

that both the accused appellants caught hold of her while she had

gone in the fields for attending the call of nature. Nothing

significant could be elicited despite lengthy cross-examination

from the victim which could create any doubt on her testimony

and come to the aid of the accused persons in their quest of

exoneration from the grave charge of gang-rape. The minor

contradictions pointed out by the accused regarding identity of the

accused Kishan looses significance when considered in light of the

defence document (Ex.D/2), wherein it is clearly mentioned that

two accused Kishan and Devji had caught hold of the girl and took

away her ornaments. Thus, participation of both the accused at

the time of incident is virtually admitted even in the defence

evidence. The FIR was lodged with utmost promptitude and

contains the requisite details for bringing home the guilt of the
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[CRLA-533/2010]

accused. The prosecutrix withstood grueling cross-examination

made on behalf of the accused and stuck to her allegations

regarding the accused having subjected her to gang-rape. The

medical officer (PW-13) Dr. S.K. Bhatnagar clearly stated that

when the victim was examined by Dr. Shalini, numerous abrasions

were noted on her back and a laceration was observed on her

vaginal region. The doctor gave opinion that the victim had been

subjected to sexual assault.

In view of the impeachable prosecution evidence and the

virtual admission of guilt as manifested from the defence

document (Ex./D/2), I am of the firm opinion that the trial court

committed no error whatsoever, either factual or legal, in holding

the appellants guilty of the grave charge of gang-rape with the

minor prosecutrix. Thus, there is no reason or justification to

interfere in the conviction of the appellants as recorded by the

trial court vide impugned judgment dated 11.10.2010. The prayer

of Shri Deora that lenient consideration be made on the aspect of

sentences awarded to the accused appellants cannot be accepted

because the offence under Section 376(2)(G) provides for

minimum sentence of 10 years. There is no such significant special

feature in the case which could persuade the court to reduce the

sentence awarded to the appellants to less than the minimum

sentence prescribed by law.

Consequently, the appeal is hereby dismissed as being

devoid of merit.

(SANDEEP MEHTA)J.

tikam daiya/

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