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Jhumar Ram vs State on 24 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 352 / 2009
Jhumar Ram s/o Maga Ram, aged 40 years, b/c Nat, r/o Kankray,
P.S.Bhawanda, District Nagore.
(presently lodged in Central Jail, Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr. K.R. Bhati
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.

24th April, 2018

1. This appeal is directed against judgment dated 28.2.09

passed by the Additional Session Judge (Fast Track) No.2, Jodhpur

in Session Case No.24/08, whereby the appellant accused has

been convicted for offence under Section 376(2)(f) IPC and

sentenced to suffer life imprisonment with fine Rs.1,000/-; in

default to further undergo rigorous imprisonment for two months.

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

that on 25.9.08 at 1 P.M. the complainant Smt. Vimla (P.W.-9)

went to Stone Park at some distance from her hut for the purpose

of breaking ‘kankari’ (stone). Her husband was sleeping in the hut
(2 of 10)
[CRLA-352/2009]

and her minor daughter ‘X’ (name withheld to protect her identity)

was playing under the neem tree and her another daughter

Sushila (P.W.-8) and son Mukesh (P.W.-11) were also there. His

son Mukesh rushed to her and told her that Jhumar Ram Nat is

beating ‘X’ in nearby ‘nala’ (drain). On this, when she rushed near

the hut, she heard the scream of her minor daughter in nearby

cement drain. She and her daughter Sushila saw in the drain that

Jhumar Ram Nat had naked, her daughter and himself in naked

condition, committed rape on her. She and her daughter Sushila

took out her daughter from beneath of Jhumar Ram. She was

ailing and blood was oozing out from her private parts then she

took her daughter to Police Station. When she rescued her

daughter from the hold of Jhumar Ram, he rushed towards jungle.

3. P.W.9-Smt. Vimla narrated the incident orally as aforesaid,

which was reduced in writing by the police vide Ex.P/13 and

registered the FIR (Ex.P/14) for offence under Section 376 (2)(f)

IPC and the investigation commenced.

4. During the investigation, the medical examination of the

prosecutrix and the accused were conducted, necessary memos

were drawn and the statements of witnesses were recorded under

Section 161 Cr.P.C. Blood stained plastic sack was seized. The

accused Jhumar Ram was arrested. At the instance of accused

Jhumar Ram, his blood stained pant was recovered. Blood

smeared plastic sack and pant were sent for examination to

Forensic Science Laboratory (FSL) and reported was obtained.

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

charge sheet against the accused Jhumar Ram under Section 376
(3 of 10)
[CRLA-352/2009]

(2)(f) IPC for committing rape on the girl below 12 years, before

the Judicial Magistrate No.5, Jodhpur. The matter was committed

to the Sessions Judge, Jodhpur, which was later transferred to the

court of Additional Sessions Judge (Fast Track) No.2, Jodhpur.

6. The charge was framed against the accused Jhumar Ram for

offence under Section 376 (2)(f) IPC. He denied the charges and

claimed trial.

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

as many as 13 witnesses (P.W.-1 to P.W.-13) and produced the

documentary evidence (Ex.P/1 to P/22). No evidence was led by

the appellant in his defence.

8. The appellant accused was examined under Section 313

Cr.P.C., wherein he denied his involvement in the commission of

the offence, stating that he had not committed rape on

prosecutrix, he was not capable of sexual intercourse, he had got

no residence in Jodhpur, he didn’t go to the drain, he had no

knowledge as to who had thrown prosecutrix in the drain, some

girl was screaming, he was going by that side, went to rescue,

seeing him alone at the place of occurrence doubt of committing

rape was casted upon him.

9. 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 committed rape on prosecutrix, who is 4-5

years minor child and accordingly, sentenced him as indicated

above. Hence, this appeal.

(4 of 10)
[CRLA-352/2009]

10. 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 offence under Section 376(2)(f) IPC, on the basis of

the evidence on record. Learned counsel confined his arguments

only to the quantum of punishment to be meted out to the

appellant.

11. 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 taking into consideration his good

conduct, he has even been assigned duties of watchman 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 Supreme

Court in the matters of ‘Bavo alias Manubhai Ambalal Thakore v.

State of Gujarat’ AIR 2012 SC 979 and ‘Sunil Dutt Sharma Vs.

State (Government of NCT of Delhi)’ (2014) 4 SCC 375 and Bench

decisions of this Court in the matters of ‘Yogendra Singh @ Bablu

Anr. Vs. State of Rajasthan’ 2015(2) Cr.L.R. (Raj.) 649, ‘Santosh

Kumar @ Johny v. State of Rajasthan’ (D.B. Criminal Jail Appeal
(5 of 10)
[CRLA-352/2009]

No.1692/2007, decided on 29.1.15) and ‘Sohan Lal v. State of

Rajasthan’ (D.B. Criminal Appeal No.13/2006, decided on

18.2.15).

12. 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 4 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.

13. We have considered the rival submissions and perused the

material on record.

14. 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 offence

under Section 376 (2)(f) IPC. The only question survives for

consideration of this court is whether for the charge 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.

15. In Bavo’s case (supra), 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
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
(6 of 10)
[CRLA-352/2009]

by imposing RI for 10 years. Learned counsel appearing for
the appellant informed this Court that the appellant had
already served nearly 10 years.”

16. In Sunil Dutt Sharma’s case (supra), 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
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.

(7 of 10)
[CRLA-352/2009]

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.”

17. 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
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
(8 of 10)
[CRLA-352/2009]

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.”

18. In Santosh Kumar’s case (supra), where the charge of

committing rape of prosecutrix, 4 years old girl, 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, a 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 the maximum punishment

awarded to 10 years rigorous imprisonment while maintaining the

order imposing the fine.

19. In Sohanlal’s case (supra), this court while following the

decisions of the Supreme Court in Bavo’s case (supra) and Sunil
(9 of 10)
[CRLA-352/2009]

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.

20. In the instant case undoubtedly the appellant accused is

found guilty of committing rape on a minor girl of 4 years, which

by itself is a brutal act. But then, there is no other violence

involved in commission of the offence. It is not the prosecution

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

case is alleged to be pending against him. 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 and

Sohanlal’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.

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

the appellant for offence under Section 376 (2)(f) IPC is

maintained. However, the order of sentence 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
(10 of 10)
[CRLA-352/2009]

sentence. On the appellant being released, his bail bonds shall

stand discharged. However, the appellant shall furnish personal

bond in sum of Rs.25,000/- and a surety of the like amount to the

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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