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 ikyhfo’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
