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Nanu Ram vs State on 16 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 427 / 2009

Nanu Ram s/o Sri Ram, by caste Bhat, R/o Momasar Bas Sri
Doongarhgarh, District Bikaner.
(at present lodged in Central Jail at Bikaner)
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr. Kuldeep Sharma
For Respondent(s) : Mr. C.S.Ojha, Public Prosecutor.
__

HON’BLE MR. JUSTICE SANGEET LODHA

HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Per Hon’ble Mr. Sangeet Lodha, J.

16th May, 2018

1. This appeal is directed against judgment dated 2.4.09

passed by the Additional Sessions Judge (Fast Track) No.1,

Bikaner in Sessions Case no.53/08, whereby the appellant has

been convicted for offences under Sections 376, 366 363 IPC

and sentenced to suffer the imprisonment as under:

Under Section 376 IPC

Life imprisonment with fine Rs.5000/-; in default of payment

of fine to further undergo rigorous imprisonment for six months.

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[CRLA-427/2009]

Under Section 366 IPC

Rigorous imprisonment for seven years with fine Rs.3000/-;

in default of payment of fine to further undergo rigorous

imprisonment for two months.

Under Section 363 IPC

Three years’ rigorous imprisonment with fine Rs.2000/-; in

default of payment of fine to further undergo one month rigorous

imprisonment.

2. Precisely, the prosecution case unfolded during the trial is

that on 4.3.08, the complainant Ram Gopal’s minor daughter ‘X’

(name withheld to protect her identity) of 8 years of age came out

of the complainant’s house situated at village Momasar Bas on

National Highway No.11 and was standing by the side of the road.

She was enticed away by the appellant herein and was taken to

the land belonging to Forest Department and subjected her to

rape.

3. On the basis of the written report (Ex.P/3) submitted by the

complainant Ram Gopal, the police registered the FIR (Ex.P/34)

and investigation commenced.

4. During investigation, the medical examination of the

prosecutrix was done by the Medical Board consisting of P.W.12-

Dr. Kusum Periwal and Dr.Manju Joshi, necessary memos were

drawn and the statements of the witnesses were recorded under

Section 161 Cr.P.C. The foot mould available at the place of

occurrence were lifted, the hairs alleged to be of the prosecutrix

found at the place of occurrence were seized. The accused was
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[CRLA-427/2009]

arrested. The pent and shirt which the accused was wearing were

seized. The identification parade was conducted.

5. After completion of the investigation, the police filed the

charge sheet against the appellant Nanu Ram for offences under

Sections 363, 366, 369, 376 394 IPC and against the accused

Sawar Mal for offence under Section 412 IPC, before the Judicial

Magistrate, Sri Dungargarh. The matter was committed to the

Sessions Judge, Bikaner, which was later transferred to the court

of Additional Sessions Judge (Fast Track) No.1, Bikaner.

6. The learned trial Judge framed the charges against the

appellant Nanu Ram for offences under Sections 363, 366, 376,

379 IPC and against accused Sawar Mal for offence under Section

411 IPC. The accused persons denied the charges and claimed

trial.

7. During the trial, prosecution in support of its case examined

as many as 16 witnesses (P.W.-1 to P.W.-16) and produced the

documentary evidence (Ex.P/1 to P/51). The accused persons

were examined under Section 313 Cr.P.C. No evidence was led by

the appellant in his defence. However, on behalf of the accused

appellant, some documents produced by the prosecution were

exhibited in evidence as Ex.D/1 to D/4.

8. After due consideration of the evidence on record and the

submissions of the counsel for the accused and the Public

Prosecutor, the trial Judge arrived at the finding on the basis of

the evidence on record it stands established beyond doubt that

the appellant accused kidnapped the prosecutrix, a minor girl, and

committed rape on her and accordingly, sentenced him as
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[CRLA-427/2009]

indicated above. The appellant was acquitted of the charge for

offence under Section 379 IPC. The accused Sawar Mal was also

acquitted of the charge for offence under Section 411 IPC.

9. At the outset, learned counsel appearing for the appellant

submitted that the appellant does not want to press the challenge

to the impugned judgment to the extent of appellant being

convicted for offences under Sections 376, 363 366 IPC, on the

basis of the evidence on record. Learned counsel confined his

arguments only to the extent of quantum of punishment meted

out to the appellant on being convicted for offence under Section

376 IPC.

10. Learned counsel submitted that the imposition of punishment

of life imprisonment upon the appellant is against the principles of

sentencing evolved by the Court over the years. Learned counsel

submitted that on the facts and in the circumstances of the case

where the appellant has not indulged in beating the minor girl or

causing any other harm, the award of life imprisonment, which is

the maximum punishment prescribed, is not warranted. Learned

counsel would submit that the conduct of the appellant during his

stay in Jail was good and thus, a lenient view needs to be taken

and the sentenced awarded deserves to be altered from life

imprisonment to punishment of ten years rigorous imprisonment.

In support of the contention, learned counsel has relied upon the

decisions of the Hon’ble Supreme Court in the matters of “Prem

Chand Anr. vs. State of Haryana”, AIR 1989 SC 937 and “Ram

Kumar vs. State of Haryana”, (2006) 4 SCC 347. Learned counsel

has also relied upon Bench decisions of this court in the matters of
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[CRLA-427/2009]

“Amar Chand vs. State of Rajasthan” RLW 2008 (1) Raj. 321,

“Prema vs. State of Rajasthan”, RLW 2008(1) Raj. 176 and

“Jhumar Ram vs. State of Rajasthan”, (D.B.Criminal Appeal

No.352/09, decided on 24.4.18).

11. On the other hand, learned Public Prosecutor submitted that

the appellant has been held guilty of committing rape on the

prosecutrix, a minor girl of 8 years and therefore, there is

absolutely no reason why the court should take a lenient view and

reduce the sentence awarded by the trial Judge.

12. We have considered the rival submissions and perused the

material on record.

13. In view of the appellant giving up the challenge to the

finding of guilt recorded by the learned trial Judge, we need not go

into the findings regarding conviction of the appellant for offences

under Sections 376, 366 363 IPC. The only question survives for

consideration of this court is whether for the charge for the

offence under Section 376 IPC being proved against the appellant,

the sentence of life imprisonment awarded by the trial Judge is

just and proper or the same deserves to be altered being

excessive.

14. In the matter of ‘Bavo alias Manubhai Ambalal Thakore v.

State of Gujarat’ AIR 2012 SC 979, where the accused was held

guilty for offence under Section 376(2)(f) IPC for committing rape

on 7 years old girl and was awarded life imprisonment by the trial

Judge and confirmed by the High Court, the Supreme Court

observed:

“11. Considering the fact that the victim, in the case on
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[CRLA-427/2009]

hand, was aged about 7 years on the date of the incident
and the accused was in the age of 18/19 years and also of
the fact that the incident occurred nearly 10 years ago, the
award of life imprisonment which is maximum prescribed is
not warranted and also in view of the mandate of Section
376(2)(f) IPC, we feel that the ends of justice would be met
by imposing RI for 10 years. Learned counsel appearing for
the appellant informed this Court that the appellant had
already served nearly 10 years.”

15. In ‘Sunil Dutt Sharma Vs. State (Government of NCT of

Delhi)’ (2014) 4 SCC 375, the Hon’ble Supreme Court while

dealing with a matter regarding conviction for offence under

Section 304 B IPC, wherein the accused was sentenced to suffer

maximum punishment of life imprisonment relying upon the

principles of sentencing evolved by the court over the years in

context of death penalty, observed:

“12. Are we to understand that the quest and search
for a sound jurisprudential basis for imposing a particular
sentence on an offender is destined to remain elusive
and the sentencing parameters in this country are bound
to remain Judge-centric? The issue though
predominantly dealt with in the context of cases
involving the death penalty has tremendous significance
to the Criminal Jurisprudence of the country inasmuch as
in addition to the numerous offences under various
special laws in force, hundreds of offences are
enumerated in the Penal Code, punishment for which
could extend from a single day to 10 years or even for
life, a situation made possible by the use of the
seemingly same expressions in different provisions of
the Penal Code as noticed in the opening part of this
order.

13. As noticed, the “net value” of the huge number of
in-depth exercises performed since Jagmohan Singh has
been effectively and systematically culled out in Sangeet
and Shanker Kisanrao Khade. The identified principles
could provide a sound objective basis for sentencing
thereby minimising individualised and Judge-centric
perspectives. Such principles bear a fair amount of
affinity to the principles applied in foreign jurisdictions, a
resume of which is available in the decision of this Court
in State of Punjab v. Prem Sagar. The difference is not in
the identity of the principles: it lies in the realm of
application thereof to individual situations. While in India
application of the principles is left to the Judge hearing
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[CRLA-427/2009]

the case, in certain foreign jurisdictions such principles
are formulated under the authority of the statute and are
applied on principles of categorisation of offences which
approach, however, has been found by the Constitution
Bench in Bachan Singh to be inappropriate to our
system. The principles being clearly evolved and
securely entrenched, perhaps, the answer lies in
consistency in approach.

14. To revert to the main stream of the case, we see
no reason as to why the principles of sentencing evolved
by this Court over the years though largely in the
context of the death penalty will not be applicable to all
lesser sentences so long as the sentencing Judge is
vested with the discretion to award a lesser or a higher
sentence resembling the swing of the pendulum from the
minimum to the maximum. In fact, we are reminded of
the age-old infallible logic that what is good to one
situation would hold to be equally good to another like
situation. Besides, para 163(italicised portion) of Bachan
Singh, reproduced earlier (see at SCC p.385-f, above),
bears testimony to the above fact.”

16. In ‘Ram Naresh Ors. vs. the State of Chhatisgarh’ (2012) 4

SCC 257, the Hon’ble Supreme Court while considering the

elaborate principles of sentencing laid down in Bachan Singh vs.

State of Punjab’, (1980) 2 SCC 684 and ‘Machhi Singh Ors. vs.

State of Punjab’, (1983) 3 SCC 470, while dealing with the

question of death sentence, observed that the cumulative effect of

both aggravating and mitigating circumstances need to be taken

into account while awarding the sentence. The court observed :

“76. The law enunciated by this Court in its recent
Judgments, as already noticed adds and elaborates the
principles that were stated in Bachan Singh and
thereafter, in Machhi Singh. The aforesaid Judgments,
primarily dissect these principles into two different
compartments-one being the “aggravating
circumstances” while the other being the “mitigating
circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it
may not be very appropriate for the court to decide the
most significant aspect of sentencing policy with
reference to one of the classes under any of the
following heads while completely ignoring other classes
under other heads. To balance the two is the primary
duty of the court. It will be appropriate for the court to
(8 of 11)
[CRLA-427/2009]

come to a final conclusion balancing the exercise that
would help to administer the criminal justice system
better and provide an effective and meaningful
reasoning by the court as contemplated Under Section
354(3) Code of Criminal Procedure.”

The court while enumerating certain aggravating and

mitigating circumstances and determining the questions relatable

to sentencing policy further observed:

“79. The court then would a draw a balance sheet of
aggravating and mitigating circumstances. Both aspects
have to be given their respective weightage. The court
has to strike a balance between the two and see
towards which side the scale/balance of justice tilts.
The principle of proportion between the crime and the
punishment is the principle of “just deserts” that serves
as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of
proportionality” has a valuable application to the
sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to
examine what is just but also as to what the Accused
deserves keeping in view the impact on the society at
large.

80. Every punishment imposed is bound to have its
effect not only on the Accused alone, but also on the
society as a whole. Thus, the courts should consider
retributive and deterrent aspect of punishment while
imposing the extreme punishment of death.”

17. In the matter of “Santosh Kumar @ Johny vs. State of

Rajasthan”, (D.B. Criminal Jail Appeal No.1692/2007, decided on

29.1.15), where the charge of committing rape on a girl of 4

years, was found proved and the trial Judge while convicting the

appellant under Section 376(2)(f) IPC sentenced him to suffer life

imprisonment with fine Rs.500/-; in default to further undergo

three months of simple imprisonment, Jaipur Bench of this court

observing that there was no aggravating circumstances beyond

the age of the prosecutrix and the accused happens to be a young

man aged about 31 years when the occurrence occurred, reduced
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[CRLA-427/2009]

the maximum punishment awarded to 10 years rigorous

imprisonment while maintaining the order imposing the fine.

18. In ‘Sohanlal vs. State of Rajasthan’, (D.B.Criminal Appeal

No.13/2006, decided on 18.2.15), this court while following the

decisions of the Supreme Court in Bavo’s case (supra) and Sunil

Dutt Sharma’s case (supra), where the appellant therein was

found guilty of committing rape on the prosecutrix, a minor girl, in

absence of any other aggravating circumstances beyond the age

of the victim reduced the sentence awarded from life

imprisonment to ten years.

19. In Jhumar Ram’s case (supra), where the accused was found

guilty of committing rape on a minor girl of 4 years but there was

no other violence involved in the commission of the offence, in

absence of any aggravating circumstances following the decision

of the Supreme Court in Bavo’s case (supra) and decisions of this

court in Santosh Kumar’s case and Sohanlal’s case (supra), the

punishment of life imprisonment awarded by the trial court was

reduced to rigorous imprisonment for ten years.

20. Similarly, in Prema’s case (supra), relied upon by the learned

counsel appearing for the appellant, taking into consideration, the

peculiar facts and circumstances of the case, the sentence of life

imprisonment awarded to the convict by the trial court and

affirmed by the High Court was reduced from life imprisonment to

ten years rigorous imprisonment.

21. In the instant case undoubtedly the appellant accused is

found guilty of committing rape on a minor girl of 8 years. But

then, there is no other violence involved in commission of the
(10 of 11)
[CRLA-427/2009]

offence. It is specifically observed by the Medical Board in the

medical report (Ex.P/6) that there is no evidence of any injury on

the body parts other than genitals. It is not the prosecution case

that the appellant is a habitual offender. No other criminal case is

alleged to be pending against the appellant. The conduct of the

appellant in jail has been satisfactory. Thus, taking into

consideration the aggravating and mitigating circumstances

following the view taken by the Hon’ble Supreme Court in Bavo’s

case (supra) and by this court in Santosh Kumar’s case, Sohanlal’s

case and Jhumar Mal’s case (supra), we consider it appropriate to

modify the order on sentence and reduce the sentence of life

imprisonment awarded by the learned trial Judge to rigorous

imprisonment for ten years.

22. In the result, the appeal is partly allowed. The conviction of

the appellant for offences under Sections 376, 366 363 IPC is

maintained. The sentences awarded by the learned trial Judge for

conviction of the appellant for offences under Sections 366 363

IPC are also maintained. However, the order of sentence for

conviction under Section 376 IPC is modified in terms that instead

of life imprisonment, the appellant shall be sentenced to rigorous

imprisonment for ten years. The order with regard to the fine

passed by the learned trial Judge shall remain unaltered. If the

appellant has already undergone the sentence awarded, he shall

be released forthwith else, he will undergo the remaining

sentence. On release, the appellant shall furnish personal bond in

sum of Rs.25,000/- and a surety of the like amount to the
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satisfaction of the learned trial Judge in terms of provisions of

Section 437A Cr.P.C., which shall remain in force for six months.

(VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J.

aditya/

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