Arun vs State on 10 October, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Criminal Appeal No. 1066 / 2016

Arun Sahani S/o Shri Ramvilas, by caste Mallah, R/o Sukhi, P.S.
Khajoli, District Madhvan (Bihar).

(Presently lodged in Central Jail, Bikaner).

—-Appellant
Versus
The State of Rajasthan.

—-Respondent
__
For Appellant(s) : Mr.PS Chauhan.

For Respondent(s) : Mr.LR Upadhyay, PP.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
10/10/2017

The instant jail appeal has been preferred by the appellant

Arun Sahani who was tried by the learned Additional Sessions

Judge (Fast Track), Anoopgarh in Sessions Case No.22/2008 and

by judgment dated 18.4.2009 and was convicted and sentenced

as below:-

Conviction Sentence

S.376 IPC 10 years’ RI fine of Rs.500/- in default

to further undergo 1 year’s SI.

S.366 IPC 10 years’ RI fine of Rs.500/- in default

to further undergo 1 year’s SI.

S.341 IPC 1 month’s SI.

All the sentences were directed to run concurrently.

The accused is an indigent person and thus this appeal
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against his conviction received through the jail after significant

delay of 2648 days. Considering the fact that the appeal was

preferred by the indigent convict from jail, the delay was

condoned and the appeal has been admitted. Shri P.S. Chouhan

advocate was appointed as Amicus curiae under the free legal aid

scheme to represent the accused in this appeal.

Amicus curiae Shri P.S. Chouhan moved an application for

suspension of sentence on behalf of the appellant but urged that

as the appellant has remained in jail for more than 9 years, the

appeal itself may be finally heard. Accordingly, arguments of

amicus curiae as well as learned Public Prosecutor were heard for

final disposal of the appeal itself.

Facts in brief are that the complainant Chotu Ram husband

of the prosecutrix Smt.S lodged a report at P.S. Rajiyasar on

28.4.2008 alleging inter alia that he was working at his field and

his wife was on her way towards the field, bringing food for him.

The accused appellant way laid the lady, forcibly dragged her

behind the sand dunes where he subjected her to forcible sexual

intercourse. On the basis of this report, an FIR No.80/2008 Ex.P/2

came to be registered at P.S. Rajiyasar for the offences under

Sections 341, 366 and 376 IPC and investigation commenced.

After completing investigation, the appellant herein was charge-

sheeted for the above offences. The trial Court framed charges

against the appellant. He pleaded not guilty and claimed trial. The

prosecution examined as many as 12 witnesses in support of its

case. The accused, upon being questioned under Section 313
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Cr.P.C. denied the prosecution allegations and claimed that he had

been falsely implicated because of a money dispute with the

prosecutrix. The trial Court proceeded to discard the defence

theory ; accepted the testimony of the prosecution witnesses and

convicted and sentenced the appellant as above. Hence, this

appeal.

Shri P.S. Chouhan, learned amicus curiae vehemently urged

that the entire case as set up by the prosecutrix Smt.S PW1 in her

statement is false and fabricated. The allegation of her having

been subjected to rape was not corroborated by medical evidence.

Testimony of the so-called eye witnesses is unworthy of credence.

Their presence at the scene of occurrence is perse unbelievable.

He thus vehemently urged that the appellant’s conviction as

recorded by the trial Court should be quashed and set aside and

he deserves to be acquitted of the charges. In the alternative, he

pleaded that the appellant has remained in custody for a period

well in excess of 8 years. The prosecutrix was more than 50 years

of age on the date of occurrence and as such, he urged that

reducing the sentences awarded to the appellant by the trial Court

to the period already undergone by him would serve the ends of

justice.

Per contra, learned P.P. vehemently opposed the submissions

advanced by the appellant’s counsel. He contended that the FIR

was lodged within hours of the incident. The story as set up in the

FIR and statements of the prosecution witnesses is absolutely

natural and credible. The prosecutrix had no occasion or motive to
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falsely implicate the appellant for the ghastly crime of rape. He

thus urged that neither does the impugned judgment warrant

interference nor has the appellant’s counsel been able to point out

any circumstance which entitles the appellant to leniency on the

aspect of sentence. He thus submitted that the appeal should be

dismissed in entirety.

I have given my thoughtful consideration to the arguments

advanced at the Bar and have gone through the impugned

judgment as well as the original record.

Ex-facie I am satisfied that the prosecutrix had no occasion

or motive to falsely implicate the appellant for the grave offence of

rape. By launching the prosecution, she faced a risk of putting her

own reputation in the society at stake. The plea put forth by the

appellant in defence that some amount towards labour charges

was due to be paid to him by the prosecutrix and that he was

falsely implicated because of the said money dispute is perse

farfetched and unbelievable. Neither the amount, nor time nor the

purpose for which the appellant worked with the prosecutrix has

been specified, either in the suggestions given to the prosecution

witnesses or in the statement of the accused recorded under

Section 313 Cr.P.C. Thus, I am not inclined to interfere in the

conviction of the appellant recorded by the trial Court for the

offences under Sections 376, 366 and 341 IPC as the impugned

judgment ex-facie does not suffer from any shortcoming either

factual or legal so as to interfere therein on the aspect of the

appellant’s conviction.

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Now coming to the aspect of the sentences awarded by the

trial Court. The appellant reportedly does not have any criminal

antecedents. The age of the prosecutrix was about 53 years at the

time of the offence. No injuries were suffered by her during her

alleged ravishment by the appellant. Thus evidently, the appellant

did not indulge in any vicious physical violence with the

prosecutrix. The incident purely appears to be perpetrated

because of youthful lust. In this background, I am of the opinion

that the ends of justice would be served by reducing the

sentences awarded to the appellant for the offences under

Sections 376 and 366 IPC from 10 years R.I. as awarded by the

trial Court to the period already undergone by him (which is more

than 9 years as per the custody certificate).

The appeal thus succeeds in part. While affirming conviction

of the appellant as recorded by the trial Court for the offences

under Sections 376, 366 and 341 IPC by the judgment dated

18.4.2009, the sentence of 10 years RI each awarded to him by

the trial Court for the offences under Sections 376 and 366 IPC is

reduced to the period already undergone by him on both counts.

The sentence of fine is maintained. In default of payment of fine,

the appellant shall undergo one month’s additional SI.

Record be returned forthwith.

(SANDEEP MEHTA)J.

S.Phophaliya/-

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