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Jamna Shankar vs State Of Rajasthan Through Pp on 25 September, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Criminal Appeal No. 367/2015

Jamna Shankar, aged about 24 years, S/o Shri Prabhul Lal
Meena, B/c Meena, R/o Handiya Kheda, P.S. Kapren, District
Bundi (Rajasthan)
(Presently confined at District Jail at Bundi)
—-Appellant
Versus
State Of Rajasthan Through Pp
—-Respondent

Connected With
D.B. Criminal Appeal No. 725/2015
Hari Prasad, S/o Gopal Lal Meena, R/o Kaririya, Police Station
Lakheri, District Bundi (Rajasthan).

(Presently he is confined in Central Jail, Kota)

—-Appellant
Versus
State Of Rajasthan Through Pp

—-Respondent

For Appellant(s) : Mr. Sunil Kumar Jain
Mr. Deepak Soni (Amicus Curiae)
For Respondent(s) : Mr. Javed Choudhary for the State

HON’BLE MRS. JUSTICE SABINA
HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment

25/09/2019

Vide this order above mentioned two appeals would be

disposed of.

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Appellants have filed these appeals challenging their

conviction and sentence ordered by the trial Court under Section

376(D), Section377 and Section394 of Indian Penal Code, 1860 (hereinafter

referred as ‘SectionIPC’).

Prosecution case was set in motion on the basis of the report

Exhibit-P-1 lodged by complainant Ambrish. On the basis of the

report Exhibit-P-1, formal FIR No. 404 dated 2.12.2012 was

registered against the appellants under Sections 376, Section377, Section392,

Section341, Section323/Section34 IPC at police Station Keshoraipatan District Bundi.

As per the FIR, prosecution story, in brief, is that on

12.12.2012, sister-in-law of the complainant had informed him

that she had been raped by the appellants. Appellants had also

taken away her purse, mobile phone and Rs. 2,000/- in cash.

After completion of investigation and necessary formalities,

challan was presented against the appellants.

Charges were framed against the appellants under Sections

376(2)(g), Section377 and Section394 IPC. Appellants did not plead guilty to the

charges framed against them and claimed trial.

In order to prove its case, prosecution examined seventeen

witnesses, during trial. Appellants when examined under Section

313 Cr.P.C., after the close of prosecution evidence prayed that

they were innocent and had been falsely involved in this case.

Appellants did not examine any witness in their defence.

Learned counsel for the appellants have submitted that,

although, charge had been framed against the appellants under

Section 376(2)(g) IPC but the trial Court had erred in ordering

their conviction and sentence under Section 376(D) IPC. Section

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(3 of 7) [CRLA-367/2015]

376(D) SectionIPC was not applicable to the facts of the present case as

incident had occurred before the addition of Section 376(D) IPC.

Learned counsel have further submitted that the appellants had

been falsely involved in this case due to a property dispute with

the complainant. Appellants were young boys aged about 25

years, at the time of incident, whereas, the prosecutrix was aged

about 60/65 years. The conduct of the prosecutrix was most

unnatural as there was no occasion for her to have got down from

the bus after two kilometers from the turn for her parental village.

There was also no occasion for the prosecutrix to have requested

the appellants to drop her to her village after the incident. There

was no evidence on record to establish the ownership of the

motorcycle, which was recovered from the spot as to whether, it

belonged to the appellants or not. Place of incident was on a Mega

Highway and it was not believable that the appellants would have

committed the crime, at the spot, suggested by the prosecution.

Medical evidence did not corroborate the version of the

prosecutrix.

Learned State Counsel has opposed the appeals.

Present case relates to rape of the prosecutrix PW-7. Thus,

the star witness of the prosecution is PW-7.

Prosecutrix while appearing in the witness box has deposed

that on 12.12.2012, she was going to her parental house from her

matrimonial home as her father was unwell. She got down from

the Bus near Ganesh Ji Railway Crossing. She was going on foot

towards her village. The moment, she had crossed the railway

crossing, two boys, who were under the influence of liquor, were

travelling on a motorcycle and they asked her to sit on their

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motorcycle. She raised alarm. Another motorcycle came from

behind and the boys then drove their motorcycle towards the

village. Believing that the boys must have gone ahead, she

continued walking towards her village and when she had walked

for about one mile, she found that those two boys were hiding in

the bushes. The said boys caught hold of her and beat her and

raped her. The said boys also threatened her that in case, she

narrated the incident to anybody, they would kill her. They took

away Rs. 2,000/- lying in her purse and also took away her ticket

and mobile phone. The said persons after threatening her tried to

take her along, on their motorcycle, but the tyre of the motorcycle

was punctured. Then, they made her alight from the motorcycle.

In the meantime, Trilok Sharma and Ramavtar came on a

motorcycle and on seeing them, appellants fled away from the

spot. Then, Ramavtar and Trilok Sharma took her to her parental

home and she narrated the incident to her brother and he lodged

the FIR. She stated that she had been raped by appellants

present in the Court namely, Hariprasad and Jamnashanker.

PW-8 Trilok Sharma and PW-9 Ramavtar, have corroborated

the statement of the prosecutrix to the effect that she was

standing on the road and two persons were also present there

alongwith their motorcycle. The tyre of the motorcycle was

punctured. They dropped the prosecutrix to her parental home.

The said witnesses deposed that the prosecutrix had not narrated

the incident to them and they had come to know about the

incident later, on account of talk in the village.

PW-11 Laxmi Meena deposed that on 13.12.2012, she had

medically examined the prosecutrix and had found that there were

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nail scratches on her cheeks. There were bite marks on her

breasts. There was swelling in her vagina and when swab was

taken from the vagina of the prosecutrix, it was bleeding. There

were scratches on her both thighs. There were black scratches and

nail scratches on her back. From the examination of the

prosecutrix, it could be said that she had been raped. She proved

the report Exhibit-P-11, in this regard.

PW-10 Dr. Vinod Pankaj and PW-16 Dr. Naresh Jatoliya have

proved the medical examination reports of the appellants, Exhibit-

P-18 and Exhibit-P-19. As per the said reports, appellants were fit

to perform sexual intercourse.

Recovery of the purse and mobile phone belonging to the

prosecutrix was effected from the appellants, during investigation

of the case.

Thus, in the present case, statement of the prosecutrix is

duly corroborated by medical evidence. Prosecutrix had suffered

injuries on her cheeks, private part, thighs and back. There was

swelling in the vagina of the prosecutrix. The incident had

occurred on 12.12.2012 at about 7.30 p.m. and the report was

lodged with the police immediately on the same day at about 9.00

p.m. Thus, the offence was promptly reported to the police.

Prosecutrix was medically examined on the next day at 2.00 p.m.

Although, no semen was detected on the clothes of the

prosecutrix but the said fact in itself is not fatal to the prosecution

case. The statement of the prosecutrix being natural inspires

confidence. The prsoecutrix was cross-examined at length by the

defence counsel but her testimony with regard to the offence

committed by the appellants could not be shaken.

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The argument raised by learned counsel for the appellants

that they had been falsely involved in this case due to a property

dispute with the complainant is not substantiated on record.

Moreover, no such plea was taken by the appellants in his

statement recorded under Section 313 Cr.P.C. Hence, the said

argument is liable to be rejected.

In the facts and circumstances of the present case, there is

no force in the arguments raised by learned counsel for the

appellants. Since, prosecution had been successful in proving its

case. Appellants were liable to be convicted qua offence

punishable under Sections 376(2)(g) and Section394 IPC.

However, no offence punishable under Section 376 IPC can

be said to have been committed by the appellants. Hence, the

appellants are liable to be acquitted of the charge framed against

them under Section 377 IPC.

So far as offence under Section 376(D) is concerned, the

same became effective with effect from 03.02.2013, whereas, the

offence in the present case had occurred on 12.12.2012. Due to

this reason, charge had been rightly framed against the appellants

under Section 376(2)(g) IPC. The trial Court fell in error in

ordering the conviction of the appellants under Section 376 (D)

IPC.

Accordingly, the conviction of the appellants under Section

376(D) IPC is altered to conviction under Section 376(2)(g) IPC

and appellants are sentenced to undergo imprisonment for life and

shall pay fine of Rs. 10,000/- each and in default of payment of

fine, appellants shall further undergo rigorous imprisonment for

three months. The sentence awarded to the appellants under

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Section 376(D) IPC consequently stands set aside. Conviction and

sentence of the appellants under Sections 394 IPC is maintained.

Appellants are convicted qua charge framed against them under

Section 377 IPC.

Appeals stand disposed of accordingly.

(GOVERDHAN BARDHAR)J. (SABINA)J.

Sudha/45-46

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