HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 820/2016
Kesa Bhai @ Rahim Bhai S/o Shri Manji @ Ahmed Bhai, by
caste Thakur @ Musalman, Resident of Village Sami, Police
Station Sami, District Patan (Gujarat), presently Resident of
Village Sakari, Police Station Mehsana (Gujarat) (Presently
lodged in District Jail, Sirohi)
—-Appellant
Versus
State of Rajasthan
—-Respondent
For Appellant(s) : Mr. Pradeep Shah
For Respondent(s) : Mr. N.S. Bhati, PP
HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE ABHAY CHATURVEDI
Judgment
02/07/2019
(Per Hon’ble Mehta,J.)
The appellant herein has been convicted and sentenced
as below vide the impugned judgment dated 27.08.2016
passed by the learned Special Judge, SC/ST (Prevention of
Atrocities) Act Cases, Sirohi in Special Sessions Case
No.39/2012 (CIS No.12/2012):-
Section 363 IPC Seven years’ RI and a fine of Rs.2,000/-.
In default of payment of fine to further
undergo two month’s rigorous
imprisonment.
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Section 376 IPC Ten years’ RI and a fine of Rs.2,000/-. In
default of payment of fine to further
undergo two month’s rigorous
imprisonment.
Section 3 (2)(v) of SC/ST Act
Life Imprisonment and a fine of
Rs.2,000/-. In default of payment of fine
to further undergo two month’s rigorous
imprisonment.
(All the sentences were ordered to run concurrently)
The brief facts of the case are that Asha Bhai, the
complainant lodged a First Information Report at the Police
Station GRP Abu Road on 12.06.2011 alleging inter alia that
he had five sons and a daughter. His two sons namely Indu
Bhai and Bachchu Bhai had been convicted for the offence
under Section 302 IPC and were serving life imprisonment at
Sabarmati Jail, Ahmedabad. While his sons were in jail, they
came in touch with certain other prisoners. In the winters, a
person named Kesaji came to his house, had food and gave
an allurement that he could get his sons released. Kesaji
stayed there for a night and went back on the next day. He
returned to his house on 19.04.2011 and told that Indu Bhai
would be released on parole and that for this purpose, Indu’s
wife and Indu’s son were taken to Sabarmati Jail. Indu was
got released on parole and thereafter they came back to
Village Beri. Kesaji stayed at Indu’s house in the night and
then went back. On 06.05.2011, one Mansukh Bhai called
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and told the complainant that he should come to Ahmedabad
with Kesaji and Indu’s daughter Mst. ‘M’ because her
signatures were required to get Indu Bhai released. On this,
the complainant accompanied Mst. ‘M’ and Kesaji and started
for Ahmedabad. They reached Abu Road Railway Station.
Kesaji brought tea from somewhere. All the three consumed
the tea brought by him; and he told that the train would be
coming at 4 O’ clock. The complainant went to sleep. He
woke up at 2 O’ clock and found that Mst. ‘M’ and Kesaji were
nowhere to be seen. He made a search for the girl and Kesaji
but could not find them. He approached the police officials of
PS Posina, Gujarat and apprised them of these facts. The
statement of the complainant (marked as Ex.P/31 during
trial) to this effect was recorded by the police officials of
Police Station Posina on 12.06.2011. They were received at
the GRP Station Abu Road on 16.10.2011 whereupon an FIR
No.63/2011 (Ex.P/51) was registered and the investigation
commenced. After investigation, a charge sheet came to be
filed against the accused Kesa Bhai @ Rahim Bhai in the court
of Addl. Chief Metropolitan Magistrate, Railways, Jodhpur
Metropolitan for the offences under Sections 363, Section366, Section376,
Section120B IPC and Section 3(1)(xii) of SC/ST (Prevention of
Atrocities) Act and against the accused Mansukh Bhai for the
offences under Sections 366A, Section109 and Section120B IPC. The case
was committed and transferred to the court of Special Judge,
SC/ST (Prevention of Atrocities) Act Cases, Sirohi for trial.
By order dated 14.01.2013, the trial court discharged
the accused Mansukh Bhai and the accused-appellant herein
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from the offences under Sections 366A, Section109 and Section120B IPC.
The accused Kesa Bhai @ Rahim Bhai was charged for the
offences under Sections 363 and Section376, SectionIPC and under Section
3 (2) (v) of SC/ST (Prevention of Atrocities) Act. The
prosecution examined as many as 28 witnesses and exhibited
61 documents to prove its case. After hearing the arguments
advanced by the learned Public Prosecutor and the learned
defence counsel and upon appreciating the evidence available
on record, the trial court proceeded to convict the accused
appellant as above. Hence, this appeal.
Learned Counsel Shri Shah representing the appellant
canvassed that the impugned judgment whereby the
appellant has been convicted and sentenced, is bad in the
eyes of law. He urged that there is no allegation of any of the
prosecution witnesses that the accused kidnapped or
subjected the victim to rape with the intention that he would
be committing offence on a member of the Scheduled Caste
community. He thus, urged that the conviction of the accused
for the offence under Section 3(2)(v) of the SC/SectionST Act is
prima facie illegal. Regarding the charge under Section 376
IPC, the contention of Shri Shah was that the prosecutrix was
a major girl on the date of incident. She stayed with the
accused for a period of more than one month without raising
any protest whatsoever and thus, the case at hand is of
consensual sexual relations plain and simple. He thus, urged
that the conviction of the accused as recorded by the trial
court for the offences under Sections 363 and Section376 IPC cannot
be sustained. In the alternative, the contention of Shri Shah
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was that the sentence of 10 years awarded to the accused for
the offence under Section 376 IPC is excessive and deserves
to be reduced suitably.
Learned Public Prosecutor, on the other hand
vehemently and fervently opposed the submissions advanced
by Shri Shah. He urged that the victim Mst.’M’ has given
cogent testimony at the trial stating that she was a minor on
the date of the incident. The accused lured her away on the
premise that he would get her father Shri Indu Bhai released
from prison. Entertaining this bonafide belief, she
accompanied the accused and her grandfather for going to
Ahmedabad. The accused gave a slip to her grandfather and
forced her to board a train. She was taken to Mahsana where
she was kept in a house which is at an isolated place. There,
the accused repeatedly subjected her to sexual intercourse.
Learned Public Prosecutor also drew the Court’s
attention to the deposition of Medical Officer PW.10 Dr.
Kusumlata Agarwal who categorically stated that the
possibility of penetration by a hard non-rough object in the
vagina of the victim could not be ruled out. He further urged
that as per the age determination report (Ex.P/14), the age
of girl was between 13 to 15 years and as per the learned
Public Prosecutor, since the accused subjected a minor girl of
below 16 years to rape, after kidnapping her from lawful
guardianship, he does not deserve any clemency on the
aspect of sentence as well and prayed to affirm the impugned
judgment and dismiss the appeal.
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We have given our thoughtful consideration to the
arguments advanced at bar and have gone through the
material available on record. Prima facie, from the evidence
available on record, it is duly established and we are fully
satisfied that the accused committed the offence under
Sections 363 Section376 IPC not because he wanted to sexually
assault a member of the scheduled caste community but
these offences were perpetrated by the accused in order to
satisfy his carnal desires. Thus, relying on the Supreme Court
Judgment in the case of Masumsha Hasanasha Musalman
Vs. State of Maharashtra reported in AIR 2000 SC
1876, we are of the firm opinion that the finding recorded by
the trial court whereby the accused was held liable for the
offence under Section 3(2)(v) of the SC/SectionST Act and was
sentenced to life imprisonment on this count is ex-facie illegal
and contrary to record. Hence, we set aside the impugned
judgment to that extent.
Now coming to the remaining charges under Sections
363 and Section376 IPC for which the trial court convicted and
sentenced the accused-appellant as above. Mr. Shah, learned
counsel representing the appellant had buttressed that the
case is of consensual relations between two major persons.
We have thoroughly appreciated the statement of the girl who
was examined at the trial as PW.12 and find that she has
given clinching and cogent testimony proving the fact that the
accused subjected her to rape after kidnapping her from the
lawful guardianship of her grandfather. The fact that the
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victim had been subjected to sexual assault is duly
corroborated by the testimony of Medical Officer Dr.
Kusumlata Agarwal (PW.10). The contention of learned
Counsel Shri Shah that the prosecution could not prove the
fact that the victim was below 16 years of age is absolutely
untenable. After having gone through the evidence of victim
herself and the evidence of the medical officer Dr. Kusumlata
(PW.10) and after examining the report of the radiological
tests carried out on the victim, we are in consonance with the
opinion of the Medical Officer Dr. Kusumlata Agarwal that the
victim Mst. ‘M’ was between 13 to 15 years of age when she
was medically examined. Thus, we have no hesitation in
affirming the finding of the trial court that the accused
subjected the girl below 16 years to rape and the said finding
recorded in the impugned judgment is well established by the
evidence available on record.
In this background, the theory of consent putforth by
Shri Shah to assail the impugned judgment looses all
significance. Hence, we are of the firm opinion that the
finding recorded by the trial court in convicting the appellant
for the offence under Section 366 Section376 IPC was perfectly
justified and the impugned judgment does not warrant any
interference on this count as well. Regarding the sentence of
ten years awarded to the appellant for the offence under
Section 376 IPC, we are of the view that since the accused
lured away and kidnapped the minor girl on the pretext that
he would be getting her father released from prison and
thereafter took her away and kept her with himself and
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subjected her to repeated sexual assault, the sentence of ten
years awarded by the trial court to the accused-appellant for
the offence under Section 376 IPC cannot be termed as
excessive. Thus, we are not inclined to treat the accused with
clemency on the aspect of sentences awarded by the trial
court for the offences, mentioned above.
In wake of the discussion made hereinabove, the appeal
deserves to be accepted in part. The conviction of the
appellant as recorded by the trial court for the offence under
Sections 3(2)(v) of SC/ST (Prevention of Atrocities) Act is
hereby set aside. The impugned judgment dated 27.08.2016
passed by learned Special Judge, SC/ST (Prevention of
Atrocities) Act Cases, Sirohi in Sessions Case No.39/2012
(CIS No.12/2012) is modified to that extent. However, the
conviction of the accused-appellant and sentences awarded to
him by the trial court for the offences under Sections 363
Section376 IPC are maintained. The appeal is partly allowed in these
terms. Record be returned to the trial court forthwith.
(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J
6-Sudhir Asopa/-
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