HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 333/2009
Shri Ram s/o Shri Goparam, b/c Bishnoi, r/o Sangasani, P.S.
Luni, District Jodhpur (Lodged in Central Jail, Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
Connected With
D.B. Criminal Appeal No. 456/2009
Bhanwar Lal s/o Shri Jiya Ram, b/c Bishnoi, r/o Village Jambha,
Tehsil Phalodi, District Jodhpur (Raj.) (Lodged in Central Jail,
Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
D.B. Criminal Appeal No. 590/2010
Baburam S/o Shri Lachharam Ji, b/c Bhil, r/o Koyta, P.S. Sayla,
District Jalore ( Lodged in Central Jail, Jodhpur)
—Appellant
Versus
State of Rajasthan
—-Respondent
For Appellant(s) : Mr. Dhirendra Singh for appellant Shri
Ram.
Mr.Mahaveer Bishnoi for appellant
Bhanwar Lal
Mr.Rajeev Bishnoi, Amicus Curiae for
appellant Babu Ram
For Respondent(s) : Mr.J.P.S.Choudhary, Public Prosecutor.
(2 of 24) [CRLA-333/2009]
HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
28th August,2018
Per Hon’ble Mr. Sangeet Lodha, J.
Reportable
1. These appeals are directed against judgment and order
dated 23.3.09 passed by Additional Sessions Judge (Fast Track)
No.1, Jodhpur, in Session Case No. 89/07, whereby the appellants
were convicted and sentenced as under :-
Under Section 363 IPC
To suffer five years rigorous imprisonment with a fine of
Rs.1,000/-; in default of payment of fine to further
undergo three months simple imprisonment.
Under Section 366 IPC
To suffer seven years rigorous imprisonment with a fine
of Rs.5,000/-; in default of payment of fine to further
undergo three months simple imprisonment.
Under Section 376(2)(g) IPC
Life Imprisonment with a fine of Rs.10,000/-; in default
of payment of fine to further undergo six months simple
imprisonment.
The sentences were directed to be run concurrently.
2. The prosecution story in nutshell may be summarized thus :
On 26.3.07 at 5 PM, the complainant Sohan Lal (P.W.2)
submitted a written report (Ex.P/1) to the SHO, Police Station,
Basni, Jodhpur stating that on 25.3.07, his daughter and wife
were sleeping at home in the night. He had gone to Pipar and was
(3 of 24) [CRLA-333/2009]
not at home. Around 1 A.M., complainant’s daughter, the
prosecutrix “S” (the name is concealed by us) came out for using
toilet, on opening the door, four boys were standing outside. On
seeing them, the prosecutrix got frightened and when she was
about to close the door, those boys flicked and caught hold of her
while placing a cloth over her mouth and was taken to a room in
nearby factory. One of the boys namely Bhanwar committed rape
on her, three others namely, Shri Ram, Babu and one another who
could not be identified were standing nearby at home. When
complainant’s wife woke up, switched on light, saw the gate open
and the prosecutrix was not found on the bed, on this she rushed
to nearby neighbour Mahesh. Both Mahesh and complainant’s wife
conducted search for prosecutrix, then they saw two boys
standing outside. On seeing complainant’s wife and Mahesh, both
the boys went inside the room, on being chased they bolted the
door. The door was opened by them, there were four boys inside
the room, who pushed Mahesh and fled away. When they went
inside the room, they saw the prosecutrix in unconscious state
and carpet and blanket were placed over her. Seeing the
prosecutrix, it was revealed that the rape was committed on her.
In unconscious state, the prosecutrix was taken to home. After
two hours on regaining the consciousness, she narrated the
incident. Mahesh and complainant’s wife went to the factory owner
Shri Khiv Raj and Shri Ramesh and apprised them about the
incident. They started rebuking and said that the boys working in
the factory are not like that. They said to the complainant’s wife
that she is telling lie. The complainant’s wife while weeping
humbly said that the incident has occurred. In the meantime, the
(4 of 24) [CRLA-333/2009]
persons living nearby assembled there. The owner of the factory
abused and thrown stones over them and said do whatever you
want. In the next day morning, when the complainant reached
home, he went to meet the factory’s owner but they had already
fled away. On the other side, prosecutrix plunged into a water
tank constructed at home. The son of the complainant who was
standing nearby informed the complainant about the same, who
took out her from the water tank and since she had fell
unconscious, was taken to the hospital.
3. On the basis of the written report (Ex.P/1) the police
registered the FIR No.99 dated 26.3.07 (Ex.P/2) at 1 AM against
the accused Bhanwar Lal and four others for offence under Section
365, 376 IPC and the investigation commenced.
4. Necessary memos were drawn. Medical examination of the
prosecutrix was conducted. Age and sex determination report was
obtained. Various samples obtained and articles seized, were sent
to the Forensic Science Laboratory for examination. MLC report
and FSL report were obtained. The statements of witnesses were
recorded under Section 161 Cr.P.C. The prosecutrix was examined
under Section 164 Cr.P.C. After completion of the investigation,
the police filed the charge sheet against the accused Babu Ram @
Dinesh for offences under Sections 363, 366, 376 IPC before the
Judicial Magistrate No.4, Jodhpur. The investigation against
accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi was kept
pending under Section 173 (8) Cr.P.C.
5. The charge was framed against the accused Babu Ram for
offence under Section 363, 366 and 376 (2)(G) IPC, who denied
the charges and claimed trial.
(5 of 24) [CRLA-333/2009]
6. The prosecution got examined the witnesses (P.W.1 to
P.W.8). At this stage, the prosecution made an application under
Section 319 Cr.P.C. to summon the accused Bhanwar Lal Bishnoi
and Shri Ram Bishnoi for trial. The application was allowed vide
order dated 16.5.08 and the accused Bhanwar Lal Bishnoi and Shri
Ram Bishnoi were summoned by way of arrest warrant. After their
arrest, the charges were framed against them for offence under
Section 363, 366 376 (2)(G) IPC. They denied charges and
claimed trial. The witnesses produced on behalf of the prosecution
(P.W.1 to P.W.8) were examined. The documentary evidence was
exhibited as Ex.P/1 to P/14. The accused appellants were
examined under Section 313 Cr.P.C. In defence, three witnesses
D.W.1-Jaipal Singh, D.W.2-Shri Ram and D.W.3-Likhama Ram
were examined and the documentary evidence was exhibited as
Ex.D/1 to D/10.
7. After due consideration of the rival submissions and the
evidence on record, the learned trial Judge held the accused
appellants guilty for commission of the offences under Section
363, 366 and 376(2)(g) IPC and sentenced as indicated above.
Hence, these appeals.
8. Mr.Dhirendra Singh, learned counsel appearing on behalf of
the appellant Shri Ram contended that for the incident alleged to
have occurred on 25.3.07, FIR was lodged on 26.3.07 at 5 PM.
However, the same was sent to the Judicial Magistrate No.4,
Jodhpur on 29.3.07 at 11.15 AM. It is submitted that the delay in
filing the FIR as also in sending the copy thereof to the Judicial
Magistrate concerned remain unexplained and thus, the provisions
of Section 167 Cr.P.C. stands violated, which is fatal to the
(6 of 24) [CRLA-333/2009]
prosecution case. Learned counsel submitted that the deposition
of prosecutrix suffers from contradictions, improvement and
embellishment, which is not supported by any corroborative
evidence and thus, cannot be relied upon. Learned counsel
submitted that at the first instance, in the statement recorded on
27.3.07, by the police under Section 161 Cr.P.C. (Ex.D/1), the
prosecutrix levelled allegation of committing rape on her only
against Bhanwar Lal Bishnoi, however, in her statement recorded
under Section 164 Cr.P.C. (Ex.D/2), she levelled allegation of
committing rape against the appellant-Shri Ram Bishnoi as well.
Learned counsel submitted that even the mother of the
prosecutrix P.W.3-Samu Devi in her statement under Section 161
Cr.P.C. has levelled allegation of rape against Bhanwar Lal Bishnoi
and not against the appellant. That apart, P.W.4-Mahesh also in
his statement recorded under Section 161 Cr.P.C. (Ex.D/5) while
giving the details of the incident as revealed by the prosecutrix
has stated that Bhanwar Lal Bishnoi committed rape on the
prosecutrix and thus, apparently, the appellant-Shri Ram Bishnoi
has been falsely implicated in the case, on the basis of deposition
of the prosecutrix recorded during the trial of Babu Ram. Learned
counsel submitted that as per the investigation made by the
police, the appellant Shri Ram Bishnoi was not present at the
place of occurrence, which stand fortified by communication dated
24.3.08 (Ex.D/10) sent by the SHO, Police Station, Industrial
Area, Basni, Jodhpur. Learned counsel submitted that admittedly
the facility of toilet was available inside the prosecutrix’s house
and therefore, the conduct of the prosecutrix in going out of the
house for use of toilet is against the human nature. Learned
(7 of 24) [CRLA-333/2009]
counsel submitted that site plan (Ex.P/3) was prepared by the
police in presence of the prosecutrix wherein the place of accused
persons committing rape on the prosecutrix was shown to be the
room inside the Bhawani Metal factory and subsequently, on
prosecutrix making improvement in her statement recorded by the
Judicial Magistrate No.7, Jodhpur, bathroom situated outside the
house of Khema Ram Bishnoi was shown as the place of
occurrence. Learned counsel submitted that the statements of the
witnesses suffer from incongruity and embellishments and
therefore, they are wholly unreliable. Lastly, learned counsel
submitted that there is absolutely not an iota of evidence on
record to establish that the appellant had committed rape on
prosecutrix as alleged and therefore, he deserves to be acquitted.
Learned counsel submitted that the age of the prosecutrix was
more than 16 years, which is apparent from the MLC Report
(Ex.P/11) wherein the age of the prosecutrix is disclosed to be
around 18 years. Admittedly, she was a married girl. It is not the
case of the prosecution that while committing rape the appellant
indulged in violence and thus, there were no aggravating
circumstances and compelling reasons for awarding maximum
sentence and therefore, the sentence awarded deserves to be
reduced. In support of the contention, learned counsel has relied
upon Bench decisions of this Court in the matters of ‘Yogendra
Singh @ Bablu Vs. State of Rajasthan’ 2015 2 RLW (Raj.) 960 and
‘Dholya @ Rajendra Ors. Vs. State of Rajasthan’ 2014 4 RLW
(Raj.) 3031.
9. Mr. Mahaveer Bishnoi, learned counsel appearing for
appellant -Bhanwar Lal Bishnoi submitted that in the first instance
(8 of 24) [CRLA-333/2009]
in the written report (Ex.P/1) lodged by the father of the
prosecutrix P.W.-2 Sohan Lal, the names of the three accused
persons including the appellant were disclosed, however, in the
statement of the prosecutrix recorded by the police (Ex.D/1), the
persons involved in commission of the crime were disclosed to be
four, however, names of three accused persons, the appellant
herein, were disclosed. Thereafter, in the statement of the
prosecutrix recorded by the Magistrate under Section 164 Cr.P.C.
(Ex.D/2), the allegations of committing rape were levelled against
the appellants Bhanwar Lal Bishnoi Shri Ram Bishnoi. The
presence of appellant Babu Ram was not even disclosed outside
the bathroom, rather his presence was shown at the room in the
factory premises. Learned counsel submitted that inconsistency
and the contradictions in the statement of the prosecutrix at the
different stages make her testimony doubtful and cannot be relied
upon. Learned counsel submitted that as per the investigation
made by the police, the appellant Bhanwar Lal was not present at
the place of occurrence, which stand fortified by communication
dated 24.3.08 (Ex.D/10) sent by the SHO, Police Station,
Industrial Area, Basni, Jodhpur. Thus, on the basis of improvement
made by the prosecutrix at the later stage, the appellant has been
falsely implicated. Learned counsel would submit that the
involvement of the appellant in commission of the crime is not
proved beyond reasonable doubt and therefore, he deserves to be
acquitted.
10. Mr. Rajiv Bishnoi, Amicus Curiae submitted that in the
written report (Ex.P/1), which was lodged by the father of the
prosecutrix P.W.2-Sohan Lal, after making inquiry about the
(9 of 24) [CRLA-333/2009]
incident occurred from prosecutrix ( P.W.1), the mother of the
prosecutrix P.W.3-Samu and P.W.4-Mahesh, son-in-law of
complainant, wherein there is no allegation of appellant
committing rape on the prosecutrix. Learned counsel submitted
that even in the statement of the prosecutrix recorded by the
Magistrate under Section 164 Cr.P.C., the appellant Babu Ram was
not shown to be the person present outside the toilet rather his
presence was shown at the room in the factory premises situated
three plots away from the bathroom outside Khema Ram’s house.
The prosecutrix in her deposition before the court also not levelled
any allegation of appellant Babu Ram committing rape on her. The
father of the prosecutrix Sohan Lal has categorically deposed that
Babu Ram has not committed rape on prosecutrix. Learned
counsel submitted that even on the basis of deposition of P.W.3-
Samu no inference of appellant Babu Ram committing rape on
prosecutrix could be drawn and thus, there is no evidence against
the appellant Babu Ram regarding his involvement in commission
of the crime. Learned counsel submitted that the written report
(Ex.P/1) was submitted by the complainant on 26.3.07 at 5:00
PM, the appellant Babu Ram was arrested on 27.3.07 at 8:30 PM,
he was produced before the Magistrate on 28.3.07, which was
forwarded to the Magistrate on 29.3.07, which is the circumstance
give rise to suspicion about the offence and fatal to the
prosecution case. Learned counsel submitted that the order for
recording the statement of the prosecutrix under Section 164
Cr.P.C. was passed by the learned Magistrate on 28.3.07, which
was recorded on 2.4.07 and thus, the manner in which the
Investigating Officer has proceeded makes the entire prosecution
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story suspicious. Learned counsel submitted that the
contradictions, inconsistency and embellishments in the statement
of prosecutrix at the different stages indicates that the prosecution
has concealed the true story and thus, the appellant deserves to
be acquitted giving benefit of doubt.
11. We have considered the rival submissions and scanned the
evidence on record thoroughly.
12. Indisputably, the prosecution case rests on testimony of the
prosecutrix (P.W.1), her father, the complainant P.W.2-Sohanlal,
her mother, P.W.3- Smt. Samu, and her brother-in-law P.W.4-
Mahesh.
13. P.W.1- Prosecutrix deposed that on 25.3.07 around 10.00
PM, she had gone to bed in her room along with her grand-mother
and younger brother. Around 1.00 PM, when she came out to use
the Bathroom which is located outside the house, four persons
namely Bhanwar Lal Bishnoi, Shri Ram, Babu Bheel and one other
whose name is not known to her, were standing there. Bathroom’s
light was on. Bhanwar Lal Bishnoi lifted her in his lap, Shri Ram
placed a kerchief on her mouth, then Bhanwar Lal and Shri Ram
took away her to Bathroom in Khema Ram Bishnoi’s house which
is after three plots from their residence. Bhanwar Lal Bishnoi
committed rape on her. At that time, Shri Ram was also present
who pressed her mouth, then Bhanwar Lal pressed her mouth and
Shri Ram committed rape on her. They threatened her that if the
factum of their committing rape on her is revealed to anybody,
they will kill her brother. The accused Bhanwar Lal and Shri Ram,
present in the Court, were identified by her. As per her deposition,
after committing rape on her, Bhanwar Lal and Shri Ram took her
(11 of 24) [CRLA-333/2009]
away to Bhawani Art Factory, where Babu Ram was present. Babu
Ram and Bhanwar Lal pressed her mouth with a kerchief, she fell
unconscious due to suffocation. When she woke up in the
morning, she was in the room at her home, his brother-in-law
P.W.4-Mahesh, elder sister Manju, mother P.W.3-Samu and grand-
mother were present there. After regaining the consciousness, she
apprised her mother about entire incident. She had regained
consciousness around 5-6 AM. Then, around 8.30 AM, her father
returned home, he went to Bhawani Art Factory and started
quarreling with the boys, other members of her family also went
to the factory. Under the fear of bad name, she attempted to
commit suicide and jumped into a water tank, her father took her
out from the water tank and she was taken to Purva Hospital.
Thereafter, around 5-6 ‘O clock in the evening, she was taken by
the police personnel for checkup to Government hospital. At the
time, the rape was committed on her, she suffered two injuries on
the back which were shown to the doctor. The police had come to
their residence on 27th, the site plan (Ex.P-5) was prepared which
bears her signature. Her statement (Ex.D-2) was recorded before
the Magistrate. She had shown bathroom in Khema Ram’s house
to the police inasmuch as the rape was committed on her there.
She had handed over her apparels i.e. Pant, undergarments, shirt
and baniyan to the police, which were seized by the police. The
police had taken sample of her saliva vide Ex.P-7. Babu Ram Bheel
is known to her because he was working in the factory nearby and
used to talk with her younger brother. Their factory was let out to
Bhanwar Lal and Shri Ram and therefore, they were known to her.
(12 of 24) [CRLA-333/2009]
At the time, the rape was committed, as her mouth was pressed
by the accused persons, she could not cry.
In cross-examination, she deposed that the incident had
occurred with her on 26.3.07, on that day, she had apprised about
the incident to her mother and not the father. She had apprised
her father about the incident two days prior to recording of her
statement before the Magistrate (Ex.D-2). She denied the
suggestion of the defense that Bhanwar Lal was not present on
25th and 26th of March, 2007 at the place of occurrence. She
deposed that inside their house, there is no latrine, only bathroom
is there.
14. It is true that in her statement under Section 161 Cr.P.C.
(Ex.D-1), the prosecutrix has not levelled allegation regarding
accused Shri Ram Bishnoi committing rape on her, but then, in her
statement under Section 164 Cr.P.C. (Ex.D-2), she has
categorically deposed that Bhanwar Lal and Shri Ram Bishnoi took
away her to the bathroom in Khema Ram Bishnoi’s house and they
committed rape on her one after another. It is pertinent to note
that in her statement under Section 164 Cr.P.C. (Ex.D-2), she has
shown presence of only Bhanwar Lal Bishnoi and Shri Ram Bishnoi
and not of Babu Ram and anybody else, outside the toilet,
whereas in her deposition before the Court, though she has shown
the presence of accused Bhanwar Lal Bishnoi, Shri Ram, Babu
Ram and one other outside the toilet, but the allegation of lifting
her from the toilet and taking her to bathroom in Khema Ram’s
house, is levelled against accused Bhanwar Lal and Shri Ram
Bishnoi and not against Babu Ram. The presence of accused Babu
Ram is thereafter shown in the room at factory premises to whom
(13 of 24) [CRLA-333/2009]
she was handed over by Bhanwar Lal and Shri Ram. There is no
allegation of the prosecutrix in her deposition that Babu Ram
committed rape on her. Rather, according to her, at the room in
the factory premises, Babu Ram and Bhanwar Lal pressed her
mouth and due to suffocation she fell unconscious and when she
woke up in the morning she was in her own room at her
residence.
15. P.W.2-Sohan Lal, the complainant, deposed that on 25.3.07
in the afternoon he had gone from Jodhpur to Pipar, his mother,
wife, prosecutrix and three other children, son in law Mahesh and
elder daughter Manju were at home. On 26.3.07, he received a
telephonic call of his son in law Mahesh, thereupon he reached
Jodhpur at 8.00 AM and had a talk with his wife and son in law
Mahesh, who apprised him that the prosecutrix was kidnapped by
four persons in the night around 1.00 AM when she had gone to
use the toilet and committed rape on her. When he went to
Bhawani Art Factory and inquired about it, the owner of the
factory and 2-4 labourers started abusing him. After 10-15
minutes, his younger son Kanhaiya came and informed that
prosecutrix has jumped in the tank, he rushed to his house and
took out prosecutrix from the tank, she fell unconscious and was
taken to Purva hospital, where she was treated by the doctor. On
regaining consciousness, she apprised him about the incident a
little bit and started weeping.
In cross-examination, he deposed that the incident of eve
teasing had occurred with the prosecutrix in the month of January,
2007 and February, 2007 and he had lodged complaint at the
Police Station Basni. Explaining the delay in lodging the FIR, he
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deposed that the delay had occurred as prosecutrix was admitted
to the hospital.
In his statement recorded in the first instance as P.W.1
during the trial of Babu Ram alone, he categorically deposed that
his daughter had disclosed the names of Shri Ram and Bhanwar
Lal as the persons who committed the rape. Accused Babu Ram’s
was not named as per the person who committed the rape.
16. P.W.3-Samu, deposed that around 2.00 AM in the night, she
was woken up and told by her mother in law that the prosecutrix
had gone to the toilet but has not returned. She searched the
prosecutrix, but she was not there. She awakened her son in law
Mahesh and went in search of her daughter. Outside Rameshji’s
factory, two persons were standing who seeing them went inside
the factory. They banged the gate of the factory, however, it was
not opened, then, she and Mahesh pushed the gate and opened it.
One person was standing there and three were sleeping, on being
inquired, about the prosecutrix, he told that she is not there.
When she removed the bed lying on the floor, she saw the
prosecutrix naked in injured position. Accused Babu Bheel was
also there in naked position, who pushed them and fled away. The
prosecutrix was unconscious, she was taken home, she regained
consciousness in the morning and apprised about the incident
occurred. According to the said witness, the prosecutrix revealed
that two persons committed rape on her, Shri Ram Bishnoi and
one other. She deposed that she did not remember the other
person named by the prosecutrix whether he was Babu or
somebody else.
(15 of 24) [CRLA-333/2009]
17. P.W.4-Mahesh, deposed that in the room inside the factory,
3-4 persons were sleeping and one was standing. When, they
inquired about the prosecutrix, he said that nobody has come
there. They said to on the light, but they declined. He deposed
that in the dark, he had seen the prosecutrix lying naked and
Babu Ram lying on her with his pant half down, when they
removed the blanket, Babu Ram pushed P.W.3- Smt. Samu and
fled away. The prosecutrix was brought home. In the morning at
8.00 AM, his father in law (P.W.2-Sohanlal) returned from Pipar
and inquired about the incident from P.W.-3 Samu and thereafter
went to Bhawani Factory. After half an hour, the prosecutrix
jumped into water tank, she was taken out from the tank by
P.W.2-Sohan Lal, she had fallen unconscious.
In cross-examination, he deposed that on their entering the
room after pushing the door, everybody sleeping there had
awakened. In the room in Bhawani Factory, the persons present
were sleeping covered in the bed-sheet. He removed the bed-
sheet and saw the face of Babu Ram.
18. As per the Age Sex Examination Report (Ex.P/8), the
hymen of the prosecutrix was showing old tears. There were two
injuries on the back of the prosecutrix. The medical jurist opined
that no opinion can be given regarding recent sexual intercourse,
however, the vagina swab and smear were preserved for evidence
of semen. As per FSL Report (Ex.P/13) on the underwear of
prosecutrix as also of accused Babu Ram, human semen was
detected, however, vaginal swab and smear were sent for
Serological Examination but the report of the Serological
Examination was not exhibited in evidence. As per the deposition
(16 of 24) [CRLA-333/2009]
of the prosecutrix and her father, the date of birth of the
prosecutrix is 7.5.93, which is supported by the school certificate
(Ex.P/4) and thus, as on the date of commission of the offence,
the prosecutrix was about 14 years of age. The mother of the
prosecutrix P.W.3-Samu disclosed her age as 15 years. However,
as per the MLC Report (Ex.P/11), the age of the prosecutrix is
opined to be 17 to 19 years.
19. A perusal of the statement of the prosecutrix before the
Court reveals that her deposition regarding accused Shri Ram
Bishnoi and Bhanwar Lal lifting her from the toilet outside her
house, taking her to the bathroom in Khema Ram’s house and
committing rape on her one after another is consistent and there
is no such contradictions so as to make her testimony
untrustworthy and unreliable. It is true that in the first instance,
when written report (Ex.P-1) was submitted by the complainant,
the allegation of rape was levelled only against accused Shri Ram
Bishnoi, but it has come on record, that the prosecutrix had not
immediately revealed the entire incident to the complainant. It is
noticed that in her statement recorded under Section 164 Cr.P.C.
(Ex.D-2), also the prosecutrix has categorically stated that
accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi were the
persons who committed rape on her. In the statement recorded
under Section 164 Cr.P.C. (Ex.D-2) as also in the deposition before
the Court, the prosecutrix has categorically deposed that after
committing rape on her accused Bhanwar Lal and Shri Ram
handed over her to accused Babu Ram at the room in the factory
premises and said to do what they had already done. She has
categorically deposed that at the room in the factory premises
(17 of 24) [CRLA-333/2009]
Babu Ram and Bhanwar Lal pressed her mouth with kerchief and
she fell unconscious due to suffocation. According to her, when
she regain consciousness in the morning, she was in the room at
her home. Thus, obviously, she had no knowledge as to what Babu
Ram had done with her at the room in the factory premises. But
then, as per P.W.3-Samu Devi and P.W.4-Mahesh, they had seen
prosecutrix lying naked on the bed in the room and Babu Ram was
lying on her with his pant half down, when they removed the
blanket, Babu Ram pushed P.W.3-Samu Devi and fled away. They
have categorically deposed that when the prosecutrix was taken to
home, she was unconscious and regained the consciousness only
in the morning next day. It is pertinent to note that Babu Ram’s
presence was there out side the toilet of prosecutrix’s house and
thereafter, he was there at the room in the factory, when
prosecutrix was taken there by the accused Bhanwar Lal and Shri
Ram Bishnoi. Thus, on the facts and in the circumstances of the
case, on the basis of the deposition of the witnesses discussed
hereinabove, it is apparent that the accused persons acted in
concert, lifted the victim from the toilet outside her house and
committed rape on her. For the sake of argument, even if it is
assumed that on the basis of deposition of the witnesses the
factum of Babu Ram actually committing rape on the prosecutrix
is not proved, by virtue of Explanation I to clause (g) of Section
376(2) IPC, all of them can be held guilty of committing rape on
prosecutrix and it is not necessary for the prosecution to adduce
clinching proof of completed act of rape by each one of the
accused on the victim or each one of the victims where there are
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more than one. (Vide Pramod Mahto Vs. State of Bihar, AIR 1989
SC 1475)
20. Coming to the communication dated 24.3.08 (Ex.D/10) sent
by SHO, Police Station Basni to Additional Public Prosecutor,
Additional Session Judge (Fast Track) No.1, Jodhpur, suffice is to
say that under the provisions of Section 319 Cr.P.C., where in the
course of trial of an offence, it appears from evidence that any
person not being the accused has committed any offence for which
such person could be tried together with the accused, the court
may proceed against such person for the offence which he appears
to have committed. It is pertinent to note that the charge-sheet
was filed by the prosecution against the accused Babu Ram while
keeping the investigation against Bhanwar Lal and Shri Ram
Bishnoi pending under Section 173(8) Cr.P.C. It is really surprising
that there is ample evidence available against the accused persons
in the first instance when the charge-sheet was filed against
accused Babu Ram yet the Investigating Officer only on the basis
of the statement made by some of the persons regarding the
presence of the said accused somewhere else did not file charge-
sheet against the accused Bhanwar Lal and Shri Ram
notwithstanding the fact that the prosecutrix in her statement
under Section 164 Cr.P.C., had categorically deposed that the
accused Bhanwar Lal and Shri Ram Bishnoi had committed rape on
her. In any case, on the basis of the evidence on the record,
learned trial Judge has committed no error in proceeding against
the co-accused Bhanwar Lal and Shri Ram and conducting their
trial together with the accused Babu Ram.
(19 of 24) [CRLA-333/2009]
21. In view of the discussion above, in our considered opinion,
the learned trial Judge after due appreciation of the evidence
rightly held accused appellants guilty of the charges framed
against them.
22. Now the only question survives for consideration of this
Court is whether for charge for offence under Section 376(2)(g)
being proved against the accused appellants the sentence of life
imprisonment awarded by the trial Judge is just and proper or the
same deserves to be altered being excessive.
23. 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
(20 of 24) [CRLA-333/2009]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
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.”
24. 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
(21 of 24) [CRLA-333/2009]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
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.”
25. In ‘Bavo alias Manubhai Ambalal Thakore Vs. 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:
(22 of 24) [CRLA-333/2009]
“11. Considering the fact that the victim, in the case on
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.”
26. In Shimbhu Ors. vs. State of Haryana, AIR 2014 SC 739,
the Supreme Court while dealing with the issue with regard to
imposition of sentence for the offence of gang rape, observed:
“11. A perusal of the above provision shows that the
legislative mandate is to impose a sentence, for the offence
of gang rape, for a term, which shall not be less than 10
years, but it may extend to life and shall also be liable to
fine. The proviso to Section 376(2) Indian Penal Code, of
course, lays down that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose
sentence of imprisonment of either description for a term of
less than 10 years. Thus, the normal sentence in a case,
where gang rape is committed is not less than 10 years
though in exceptional cases, the Court by giving “special
and adequate reasons”, can also award the sentence of less
than 10 years.
12. It is a fundamental rule of construction that a proviso
must be considered in relation to the main provision to
which it stands as a proviso, particularly, in such penal
provisions. Whether there exist any “special and adequate
reason” would depend upon a variety of factors and the
peculiar facts and circumstances of each case. This Court, in
various judgments, has reached the consensus that no hard
and fast rule can be laid down in that behalf for universal
application.”
27. In Dholya @ Rajendra Ors. vs. State of Rajasthan through
Public Prosecutor, 2014 (4) RLW (Raj.) 3031, where the trial court
in making the choice of sentence of life imprisonment did not
make any discussion whatsoever why it has chosen maximum
sentence and further that why the minimum sentence of 10 years
would not be sufficient, a Bench of this court while taking into
(23 of 24) [CRLA-333/2009]
consideration the facts and circumstances of the case, imposed
sentence of 10 years imprisonment instead of life imprisonment.
28. Similarly, in “Yogendra Singh @ Bablu vs. State of
Rajasthan”, 2015 RLW 960, relying upon decision of the Hon’ble
Supreme Court in Bavo’s case (supra), a Bench of this court taking
into consideration the aggravated circumstances as also the
mitigating circumstances, reduced the sentence awarded from life
imprisonment to 10 years rigorous imprisonment.
29. In the instant case, undoubtedly, the appellants have been
found guilty of committing rape on a girl, who was though already
married, was only 14 years of age. But then, there is no other
violence involved in commission of the offence. It is not the case
of the prosecution that appellants are habitual offenders. Thus,
while following the mandate in Bavo’s case (supra) and while
taking into consideration the facts and circumstances of the
presence, we consider it appropriate to modify the order of
sentence and reduce the sentence of life imprisonment awarded
by the learned trial Judge to rigorous imprisonment for 10 years.
Further, we consider it appropriate to enhance the fine imposed by
the learned trial Judge from Rs.10,000/- to Rs.50,000/-, while
maintaining the default clause prescribed by the learned trial
Judge.
30. Accordingly, the appeals are partly allowed. The conviction
of the appellants Shri Ram, Bhanwar Lal and Baburam for offences
under Sections 363, 366 and 376(2)(g) IPC is upheld. The
sentences imposed by the learned trial Judge for conviction of the
appellants for offences under Sections 363 and 366 IPC are also
(24 of 24) [CRLA-333/2009]
maintained. However, the sentence imposed by the learned trial
Judge for conviction of the appellants for offence under Section
376 (2)(g) IPC is reduced from life imprisonment to ten years
rigorous imprisonment. The sentence of fine of Rs.10,000/- each
on this count is enhanced to Rs.50,000/- each, while maintaining
the default clause.
31. The appellants Shri Ram and Baburam are behind the bars.
They shall be released forthwith, if they have already served the
sentence imposed else, they will serve out the remaining
sentence. The trial Judge shall issue standing warrant for arrest of
appellant Bhanwar Lal, who is absconding. On being taken in
custody, he will serve out the remaining sentence. The appellants
Shri Ram and Baburam, on being released from imprisonment
pursuant to this order, shall furnish a personal bond in sum of
Rs.50,000/- each to the satisfaction of the learned trial Judge in
terms of provisions of Section 437A Cr.P.C.
(VIRENDRA KUMAR MATHUR),J (SANGEET LODHA),J
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