Taufiq vs State Of Rajasthan Through Pp on 28 November, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 1000 / 2014
Taufiq
—-Appellant
Versus
State Of Rajasthan Through Pp
—-Respondent

__
For Appellant(s) : Mr. Amit Ratnawat
For Respondent(s) : Mr. NS Dhakad PP
__
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Judgment
28/11/2017

The case of the prosecution is that the appellant on

28.4.2012 at about 9:00 PM, committed rape upon prosecutrix

(P.W.1) (name withheld to protect her identity and hereinafter

called as prosecutrix). The prosecutrix in the court stated that she

knew the accused. She had gone to attend marriage of son of her

uncle, when the accused took her to Dhani and committed rape

upon her. She narrated the above facts to her mother. The

prosecution proved report (Exhibit-P/1), which was signed by her

at Point X. She also proved formal FIR (Exhibit-P/2) and site plan

(Exhibit-P/3).

In cross-examination the prosecutrix admitted that her

parents have conveyed to her that her age is 19 years. The exact

words stated by the prosecutrix in her cross-examination, reads as

under:-

“;g lgh gS fd eqs esjs ekrkfirk us esjh mez 19 lky crk;h gSA ”

(2 of 5)
[CRLA-1000/2014]

In cross-examination the prosecutrix further stated that

in the morning she had taken a bath and also washed clothes

worn by her on the night of occurrence.

Balkesh (P.W.2) mother of the prosecutrix in the court

stated that the prosecutrix was aged 15 years. In cross-

examination, this witness admitted that police in statement

(Exhibit-D/1) had recorded age of her daughter as 18 years. The

exact line referred by the learned counsel for the appellant in

cross-examination of Balkesh, reads as under:-

“iqfyl c;ku ,Dth Mh1 dk Hkkx ,ch **esjh yM+dh jger ckuks dh mez 18 lky
gS** lquk eSus fy[kk;k FkkA ”

Hasam (P.W.3) uncle of the prosecutrix stated that on

28.4.2012 his son Sajid was to be married and on the next day

marriage of his daughter Sayana was to be solemnized. Accused

had arrived in the marriage. Taufiq is son of sister of his wife and

he had also come to attend the marriage. In the night, everybody

had slept. Later, this witness had not identified accused and was

declared hostile to the prosecution. Hasam (P.W.3) had attested

the memos.

Manjoor (P.W.5) is father of the prosecutrix. In cross-

examination, this witness stated that he is having no birth

certificate of her daughter and he is not in possession of any

document regarding age.

Dr. Veer Singh (P.W.6) stated that the prosecutrix was

not having any external or internal injury on the private parts. Her

hymen was torn. However, this doctor stated that the Board of

Doctors could not rule out factum of rape upon the prosecutrix.

(3 of 5)
[CRLA-1000/2014]

This witness had also examined accused and had opined that

there was nothing to suggest that accused was not fit to perform

sexual intercourse.

Radiologist, Harphool Singh (P.W.7) conducted

ossification test upon the prosecutrix and as per report of the

Radiologist, age of the prosecutrix was between 15 to 17 years.

Having taken note of the statement of the prosecutrix,

statement made by her mother and father, I have heard the

learned counsel for the parties.

In the present case, the trial court vide impugned

judgment dated 20.9.2013, convicted the appellant for the

offences under Section 363, 366 and 376 IPC. Having convicted

the appellant for the above said offences, the trial court vide a

separate order of even date sentenced the appellant as under:-

U/s. 363 IPC- to undergo three years RI and to pay a fine of
Rs.200/-, in default thereof to undergo additional two months
additional imprisonment.

U/s. 366 IPC- to undergo five years RI and to pay a fine of
Rs.400/-, in default thereof to undergo additional four months
additional imprisonment.

U/s. 376 IPC- to undergo ten years RI and to pay a fine of
Rs.2,000/-, in default thereof to undergo additional six months
additional imprisonment.

The trial court further ordered that the sentence upon

the appellant on all counts shall run concurrently.

The learned counsel for the appellant has submitted

that the prosecutrix and the appellant as per prosecution story

had gone to attend marriage and in the night when everybody
(4 of 5)
[CRLA-1000/2014]

slept, accused had committed sexual intercourse. The learned

counsel for the appellant has submitted that the prosecutrix has

given her age as 19 years, whereas her mother Balkesh (P.W.2) in

her police statement Exhibit-D/1, had given age of the prosecutrix

as 18 years. The learned counsel for the appellant has submitted

that father of the prosecutrix, Manjoor (P.W.5) has wrongly given

age of the prosecutrix as 15 years. The learned counsel for the

appellant has submitted that it is admitted by Manjoor (P.W.5) that

he is not having any document from which the age of the

prosecutrix can be inferred. The learned counsel for the appellant

has submitted that as per ossification test, age of the prosecutrix

has been determined between 15 to 17 years. The learned counsel

for the appellant has contended that as per settled legal position,

margin of two years is to be assigned on either side for

determination of age on the report of ossification test.

Considering the statement made by the prosecutrix,

her mother and report of ossification test, this Court shall extend

benefit to the accused to arrive at a conclusion that the

prosecutrix was hovering around age of 18 years. Thus, she was

above the age of 16 years.

The learned counsel for the appellant has contended

that the prosecutrix was consenting party and there was delay in

lodging of the report. FIR has been lodged after four days, as the

date of occurrence is 28.4.2012 and FIR was lodged on 2.5.2012.

Delay in every case is not fatal to the prosecution as family

members of the prosecutrix have to muster lot of courage to

report the matter to the police as future matrimonial prospects of
(5 of 5)
[CRLA-1000/2014]

the prosecutrix and reputation of family are involved.

In the present case, the prosecutrix has specifically

stated that the appellant has committed rape against her consent.

Even though no external or internal injury has been found on the

person of prosecutrix.

At this stage, the learned counsel for the appellant has

submitted that the appellant is in custody since 4.4.2012 and has

undergone four years, seven months and six days.

Taking totality of circumstances noted above, this Court

is of the view that sentence of ten years awarded upon the

appellant for offence under Section 376 IPC is on higher side,

hence, sentence awarded upon the appellant for the offence under

Section 376 IPC is reduced from ten years RI to seven years RI.

Considering that the appellant is in custody for long,

sentence of fine is maintained. However, sentence of fine in

default is reduced from six months SI to one month SI. Sentence

awarded upon the appellant for offences under Section 363 and

366 IPC is maintained. Sentence awarded upon the appellant on

all the three counts shall run concurrently. Needless to say, the

appellant shall be entitled to benefit of Section 428 Cr.P.C. and the

period already undergone by the appellant during the trial and

after conviction shall be set off from the sentence reduced by this

Court.

(KANWALJIT SINGH AHLUWALIA)J.

Mak/-

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