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Kesa Bhai @ Rahim Bhai vs State on 2 July, 2019

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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