HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
S.B. Criminal Appeal No. 1000 / 2014
State Of Rajasthan Through Pp
For Appellant(s) : Mr. Amit Ratnawat
For Respondent(s) : Mr. NS Dhakad PP
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
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
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
“;g lgh gS fd eqs esjs ekrkfirk us esjh mez 19 lky crk;h gSA ”
(2 of 5)
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
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)
This witness had also examined accused and had opined that
there was nothing to suggest that accused was not fit to perform
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
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
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
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)
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)
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
(KANWALJIT SINGH AHLUWALIA)J.