Babu Singh vs State on 16 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

S.B. Criminal Jail Appeal No. 351 / 2009

Babu Singh Rawat S/o Chaman Singh, by caste Rawat, Resident of
Hirawaton-Ka-Oad, Jojawar, P.S. Siryari, District Pali.

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. Shambhoo Singh.

For Respondent(s) : Mr. S.K. Vyas, AAG-cum-Govt. Advocate
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

JUDGMENT

Date of Judgment ::: 16/09/2017

BY THE COURT:

The instant jail appeal has been filed by the convict, Babu

Singh Rawat, against the judgment dated 15th of April, 2009

passed by learned Addl. Sessions Judge (FT) No.2, Pali (for

brevity, hereafter referred to as „Trial Court‟) in Session Case

No.13/2008, whereby the learned trial court convicted the accused

appellant for offences under Sections 363, 366 376 of IPC and

passed following sentence:

(2 of 7)
[CRLA-351/2009]

363 of IPC Two years‟ Rigorous
Imprisonment along with fine of
Rs.1000/-, with default
stipulation to further undergo one
month‟s additional simple
imprisonment.

366 of IPC Five Years‟ simple imprisonment
along with fine of Rs.2000/-, with
default stipulation to further
undergo two months‟ simple
imprisonment.

376 of IPC Ten Years‟ simple imprisonment
along with fine of Rs.3000/-, with
default stipulation to further
undergo three months‟ simple
imprisonment.

Briefly stated, the facts of the case are that upon a written

complaint (Ex.P/13) submitted by complainant, Surajmal on

27.01.2008, F.I.R. was registered against the accused appellant

for committing offence under Section 363, 366 376 of IPC. In

the complaint (Ex.P/13) the following allegations were levelled by

the complainant, which reads as under:

“lo
s k es
Jheku Fkkuknkj lkgc
efgyk, iqfyl Fkkuk ikyh

fo’k; eqdnek ntZ djkdj dk;oZ kbZ djus grs qA
egkns ;]
vtZ ,d ljw tey S/o n;ky th tkfr pkj.kh;k mez 35 fuoklh
d”s ko uxj u;k cl LV.s M ds ihNs egknos efUnj dh xyh fd ekyqe gkos s
fd ejs h ,d yMd + h “P” tks dy fnukd a 26@1@08 dks flykbZ fl[kus ds
fy, lhek lqFkkj fuoklh d”s ko uxj ds ?kj 2 cts x;h Fkh ftldks “kke dks
5 cts ejs h iRuh yus s ds fy, x;h FkhA rks lhek us crk;k fd rqEgkjh yMd
+ h
(3 of 7)
[CRLA-351/2009]

“P” ?kj tkus dk dgdj FkkMs h+ njs igys pyh x;h tc euaS s o ejs h iRuh
ekgs uh us eksgYys eas b/kj m/kj ykxs ks ls iN
w rkN fd rks irk pyk fd esjh
iqh “P” dks glhuk ckbZ ds edku eas jgus okyk ckcq flxa jkor fuoklh
s koj tks ejs h iqh “P” dks “kknh djus dh fu;r ls Hkxkdj ys x;k gSA
t kt
ftldks fy tkrs oDr HkSjkjke xqtj VªSDVj Mªkoj us ekuqijk Hkkdjh jkMs + ij
tkrs gq, dy “kke dks 5 ls 6 cts ds chp fy tkrs gq,s n[s kk ejs h iqh
fiz;d a k dks tks ukckfyd gSA mlls Hkxkus es glhuk ckw o ckcw flxa dk HkkbZ
lqj”s k flxa dk gkFk gks ldrk gAS budks ckcw flxa ds ckjs es ijw h tkudkjh
gSA tks eSa jhikVs Z djrk gaw ejs h iqh “P” dks cjken djus dh dk;Zokgh
djkoAs a”

During investigation, statements of prosecutrix “P” were

recorded after medical examination and investigation, charge

sheet was filed against the accused appellant in the court of Civil

Judge (Jr. Division)-cum-Judicial Magistrate First Class, Pali, from

where the case was committed to the court of Sessions Judge,

Pali. The learned Sessions Judge transferred the case for trial to

the court of Addl. Sessions Judge (FT) No.2, Pali where after

framing charge under Sections 363, 366 and 376 IPC, the trial

court proceeded to record the evidence of prosecution.

In support of prosecution case, statements of 22 prosecution

witnesses were recorded and 37 documents were exhibited during

trial. Statements of the accused appellant were recorded under

Section 313 Cr.P.C. in which he pleaded not guilty.

In the trial statements of the prosecutrix “P” (PW.9) were

recorded in which allegations were levelled by her against accused

appellant for committing rape with her.

The learned trial court after considering the entire evidence

on record finally convicted the accused appellant for alleged

offence under Sections 363, 366 376 of IPC while giving finding
(4 of 7)
[CRLA-351/2009]

that prosecutor was minor on the date of commission of offence

and she was kidnapped by the accused appellant. In this appeal

the judgment dated 15.07.2009 is under challenge.

Mr. Shambhoo Singh, learned counsel for the appellant

vehemently argued that it is not a case of rape, and it is case of

consent of prosecutrix, therefore, the trial court has committed

grave error while convicting the accused appellant for the alleged

crime rape. Further it is submitted that there is no documentary

evidence on record to prove the date of birth of prosecutrix. The

learned trial court has relied upon the evidence which is not

acceptable to determine the age of the prosecutrix, therefore, the

finding recorded by the learned trial court is perverse and not

sustainable in law.

Learned counsel for the appellant further submitted that FIR

was registered after a delay of five days and as per statements of

Dr. Mridula Vyas (PW.10), no definite opinion was given with

regard to offence of rape alleged to be committed by the accused

appellant.

Lastly it is argued that even if this Court comes to the

conclusion that offence has been committed by the accused

appellant, then also, the sentenced awarded to the accused

appellant for the alleged offences is excessive because as per

statements of doctor, who has determined the age of prosecutrix,

categorically stated that after medical examination the age of the

prosecutrix was in between 16-18 years, therefore it is prayed

that if this Court comes to the conclusion that offence is

committed, then sentence can be reduced in view of judgment
(5 of 7)
[CRLA-351/2009]

rendered by this Court in of Gyarsilal Vs. State of Rajasthan

(D.B. Cri. Appeal No.165/2006, decided on 20.01.2015 at Jaipur

Bench of this Court). In the aforesaid judgment the Division Bench

of this Court reduced the sentence of life imprisonment to ten

years‟ rigorous imprisonment while following the judgment of

Hon‟ble Apex Court in the case of Sunil Dutt Sharma Vs. State

(Govt. of NCT of Delhi) reported in (2014) 4 SCC 375.

Per contra, learned Public Prosecutor Mr. S.K. Vyas,

vehemently opposed these submissions and argued that it is not

an offence against an individual but it is offence against the

society, therefore, the view taken by the trial court does not

require any interference because specific allegation is levelled by

the prosecutrix against the accused appellant for commission of

rape, therefore, no lenient view is required in this case. Learned

Public Prosecutor further submitted that the sentence awarded to

the appellant is appropriate looking to the age of the prosecutrix,

therefore, the present appeal may kindly be dismissed.

After hearing the learned counsel for the parties, I have

perused the statements of the prosecutrix (PW.9), Dr. Mridula

Vyas (PW.10) and Dr. Paras Khichi (PW.11). In my opinion, there

is evidence for committing inter-course with the prosecutrix but at

the same time I cannot loose sight of the fact that PW.10, Dr.

Mridula Vyas, specifically stated in her statement that, “ejs h jk; eas

cykRdkj ds ckjs eas fuf”pr jk; ugha nh tk ldrh Fkh fQj Hkh nks Lokc vkSj Le;s j

ijh{k.k grs q yd s s x;As “.

s j Hkt

Similarly, Dr. Paras Khichi (PW.11) specifically stated that

after examination by Medical Board and radiological examination,
(6 of 7)
[CRLA-351/2009]

the age of the prosecutrix was in between 16-18 years. It is also

very material to mention here that the witness PW.10, Dr. Mridula

Vyas nowhere stated that any injury was found upon the private

part of the prosecutrix, so also, said that no definite opinion can

be given about rape.

In view of above, I am of the opinion that finding arrived at

by the learned trial court to as to hold the appellant guilty for

committing offence under Sections 363, 366 and 376 of IPC is

wrong and require any interference, however, the prayer of the

accused appellant for reducing the sentence require consideration

because as per statements of Dr. Paras Khichi (PW.11), the age of

the prosecutrix was in between 16-18 years, so also, there is no

opinion of the doctor for commission of forcible inter-course with

the prosecutrix. As per record, the accused appellant was arrested

on 31.01.2008 and remain in custody up till 09.08.2012 up till his

sentence was suspended by this Court vide order dated

30.07.2012, therefore, sentence can be reduced to already

undergone.

Upon consideration of entire evidence of prosecution and age

of the prosecutrix at the time of commission of offence, I find that

the prosecutrix is entitled for compensation as per Rajasthan

Victim Compensation Scheme, 2011. Accordingly, the District

Legal Service Authority, Pali, is directed to determine

compensation as per Scheme of 2011 within a period of two

months from today and pay compensation to the

victim/prosecutrix.

(7 of 7)
[CRLA-351/2009]

Consequently, the instant criminal jail appeal is partly

allowed. The finding of conviction recorded by the learned Addl.

Sessions Judge (FT) No.2, Pali vide judgment dated 15.04.2009 in

Session Case No. 13/2008, against the accused appellant is

hereby maintained, however, the sentence of ten years awarded

to the accused appellant is hereby reduced to the period already

undergone by him but order of fine is hereby maintained. The

amount of fine shall be deposited by the accused within one

month, failing which he shall be served the sentence as ordered

by the trial court. The appellant is already on bail, his bail bonds

are hereby discharged.

(GOPAL KRISHAN VYAS)J.

DJ/-

9

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