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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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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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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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/