DBCRLA No.667/2011

1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. CRIMINAL APPEAL NO. 667/2011

Mukesh Kumar s/o Ramgopal, by caste Kumhar resident of Bhedoliya, Police
Station Sadar, Baran. (Presently confined in District Jail Baran)

—-Appellant
Versus

The State Of Rajasthan Through P.P.
—-Respondent

With

D.B. CRIMINAL APPEAL NO. 380/2011
Raju @ Rajendra Kumar son of Durga Shankar, by caste Mehar resident of
Bada Bazar, Atru, District Baran. (Presently confined in District Jail Baran)

—-Appellant

Versus
The State Of Rajasthan Through P.P.

—-Respondent

With
D.B. CRIMINAL (JAIL) APPEAL NO. 1161/2015

Raju @ Rajendra son of Chittar Lal, by caste Mali, resident of Jalwada, Police
Station Nahargarh, District Baran. (Presently confined in Central Jail, Kota)

—-Appellant
Versus

The State Of Rajasthan Through P.P.

—-Respondent

For Appellants : Mr. Ashvin Garg for the appellant Mukesh.

Mr. Sanjay Mehrishi for the appellant Raju @ Rajendra
Kumar son of Durga Shankar.

Mr. Dheeraj Singhal for the appellant Raju @ Rajendra son
of Chittar Lal.

For Respondents : Mr. Aladeen Khan Public Prosecutor

__
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
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Judgment

Per (Kanwaljit Singh Ahluwalia, J.)
21/12/2016

Mukesh Kumar son of Ramgopal by caste Kumhar, Raju @

Rajendra Kumar son of Durga Shankar and Raju @ Rajendra son of Chhitar Lal

by caste Mali, have preferred three separate appeals in this court, bearing

Nos. D.B. Criminal Appeal No. 667/2011, D.B. Criminal Appeal No. 380/2011

and D.B. Criminal (Jail) Appeal No. 1161/2015, respectively to assail

conviction pronounced and sentence awarded upon them by the court of

Additional Sessions Judge (Fast Track), Baran vide impugned judgment and

order dated 15.3.2011. The said court vide impugned judgment dated

15.3.2011 held the appellants guilty of offences under Sections 366 and 376

(2)(G) IPC.

Having convicted the appellants for the above said offences, the

trial court vide order of even date sentenced the appellants as under:-

U/s 376 (2)(G) IPC- to undergo life imprisonment and to pay a fine of

Rs.1,500/- each, in default of payment of fine to further undergo six

months S.I.

U/s. 366 IPC- to undergo seven years R.I. and to pay a fine of

Rs.1,000/- each, in default of payment of fine to further undergo 4

months S.I.

The trial court further ordered that the sentences awarded

upon two counts shall run concurrently.

In the above said three appeals preferred by the appellants

before us, a prayer has been made that the conviction and sentence of the

appellants be set aside and they be acquitted of the charges. Before we

proceed to notice the evidence and contentions raised by the learned counsel

for the parties, to cut long controversy short, it will be necessary for us to

notice following finding given by the trial court regarding age of the
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prosecutrix (name withheld to protect her identity), as under:-

” ,slh ifjfLFkfr esa fo}ku~ vf/koDrk vfHk;qDrx.k dk ;g rdZ Hkh lkjghu gSA ;g
lgh gS fd vfHk;ksD=h us viuh mez vius c;kuksa esa 15 lky crkbZ gS o mldh
fpfdRlh; fjiksVZ o ih M 9 MkW0 txnh’k ;kno dh lk{; ds vuqlkj mldh mez
15 lky ls vf/kd o 17 lky ls de FkhA ih M 2 nsodhckbZ o ih M 5 T;ksfr
dh lk{; esa tks ftjg esa rF; izdV gq, gS] muds vuqlkj mldh mez ds laca/k esa
iz’u iwNs x;s gSa] ftlds vuqlkj nsodhckbZ us viuh ftjg esa ;g dFku fd;k gS fd
esjh larkuksa esa lcls NksVh T;ksfr gSA T;ksfr ds ckn esjs dksbZ larku iSnk ugha gqbZ]
D;ksafd fQj esjs ifr QkSr gks x;s FksA esjh ‘kknh ds 20 lky ckn esjs ifr dk
nsgkUr gks x;k FkkA bl lkf{k;k us ftjg esa ;g Hkh dgk fd esjs vk;q 3035 lky
gSA esjs ifr dh e`R;q 15 lky igys gks x;h Fkh] rc cPps NksVsNksVs FksA ftjg
esa ;g Hkh dgk gS fd esjs ifr dh ekSr ds le; cMk csVk djhc 10 lky dk FkkA
ckn ds cPpks esa djhc Ms lky dk varj gSA ih M 5 T;ksfr us viuh ftjg esa
dgk gS fd esjs ls cMk HkkbZ jktw gS o NksVh cfgu o NksVk HkkbZ gSA jktw ikapoh rd
ljdkjh Ldwy ckjka esa ik FkkA jktw dh ‘kknh ugha gqbZ gSA esjs ls jktw 23 lky
cMk gSA jktw dh vk;q 22 lky djhc gksxhA esjs firkth ds nsgkUr dks 1718 lky
dk le; gks x;k gksxk rc eSa cgqr NksVh Fkh vkSj nw/k ihrh gh FkhA bu nksuksa
lk{khx.k dh ftjg ls ;g fLFkfr mHkjrh gS fd vfHk;ksD=h dh mez ?kVuk ds oDr
18 lky ls mij FkhA (Emphasis supplied) fpfdRlh; lk{kh ih M 9 MkW0
txnh’k ;kno us Hkh viuh ftjg esa dgk gS fd ;g lgh gS fd mez dh tkap esa
Iyl ;k ekbul nks lky dk varj jgrk gSA ;g dsoy ,LaVhes’ku gksrk gSA vr% ih
M 9 txnh’k ;kno dh lk{; dks o nsodh rFkk T;ksfr dh ftjg esa vk;s rF; dks
n`f”Vxr j[ksa rks ;g Li”V gS fd vfHk;kstu i{k vfHk;ksD=h dh mez 18 lky ls de
dh gksuk ;qfDr;qDr lUnsg ls ijs izekf.kr ugha djk ik;k gSA (Emphasis
supplied)”

We have also perused the evidence recorded by the trial court

and the record so far finding regarding age of the prosecutrix is concerned.

We also accept the finding of age given by the trial court which has been

reproduced above.

Having accepted the finding that the age of the prosecutrix is

more than eighteen years, we have been called upon to examine whether the

appellants have committed offence or not. If so, then what offence and

quantum of sentence.

The criminal proceedings in the present case were set into

motion on the basis of written report (Exhibit-P/5) submitted by the

prosecutrix before Surendra Kumar Danodiya (P.W.13), who was then posted

as SHO, Police Station Kotwali, Baran. The written report when translated
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into English, reads as under:-

“To

SHO, Police Station Kotwali,
Baran.

Subject-Lodging of the report.

Sir,

Yesterday on 17.9.2009, from 1:00 PM onwards I was
alone at my house. From neighbouring house, Raju Mali came
and told me that your mother is calling you in the village fair
(Mela). I was coming along with Raju on foot from our house on
the hospital road. When we reached near Kali Mata temple,
Mukesh Kumar and Raju Mehar met us standing along with
motorcycle. Raju Mali told me to sit with them on the
motorcycle and they will leave me in the fair. I sat along with
Raju Mehar and Mukesh Kumar on the motorcycle. Both did not
take the motorcycle to the fair but they turned the motorcycle
towards Pratap Chowk. I asked them where they are taking me,
then Raju Mehar and Mukesh Kumar gave me threat and said
keep sitting without raising any noise otherwise you will be
killed. Upon which I remained sitting without making any noise.
They both on motorcycle brought me to Atru. They confined me
in a room. Thereafter, Mukesh Kumar, Raju Mehar and Raju Mali
threatened me and removed my clothes. They made me fall on
the ground of plastic Tirpal and all the three by turn committed
bad act with me. When I raised noise all the three gave threat
to finish me. Thereafter, Raju Mehar and Mukesh Kumar made
me sit on the motorcycle and dropped me at 7:00 PM near public
park on Kota Road, Bara. They gave me threat not to disclose
the above incident to anybody otherwise they shall kill me and
my mother. Due to fear I have not disclosed anything to my
mother. Since I was not sleeping, my mother asked me the
reason. I narrated the entire incident. In the morning, I took
bath and changed my clothes. My mother called my maternal
uncle Sobharam and Pawan to our house. I narrated the incident
to my maternal uncle. Along with them I came to lodge the
report. The above said three persons after seducing me have
committed rape with me. All the three forcibly took me away
and have committed wrong act despite my refusal. I am
presenting the report. Legal action be taken.

Date.18.9.2009

Applicant

Prosecutrix
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(name withheld to protect her identity)
d/o Father name withheld, by caste Kumar,
resident of Ramnarayan ki Badi,
Hospital Road, Baran.”

A perusal of the above written report, reveals that the present

occurrence had taken place on 17.9.2009 at around 1:00 PM. The prosecutrix

thereafter, was left by the accused on 17.9.2009 at 7:00 PM in a public park.

The prosecutrix returned to her house and in the night narrated the incident

to Devki Bai (P.W.2) her mother. Thereafter, she took bath and changed the

clothes. In the morning when maternal uncle Sobharam (P.W.3) and Pawan

(P.W.4) came then the written report (Exhibit-P/5) was presented on

18.9.2009 at 7:40 PM at Police Station Kotwali, Baran. The case was

registered at Police Station Kotwali, Baran at the same time. The special

report reached Illaqa Magistrate on 22.9.2009 at 11:00 AM. Two days after the

incident on 19.9.2009, Dr. Pratibha Meena (P.W.8) at 10:30 AM had examined

the prosecutrix and in the medico-legal report (Exhibit-P/16) had noted

following two injuries:-

i) Abrasion 1 x 1cm, on mid of back.

ii) Abrasion 1 x 1cm, on right elbow.

Both the injuries were simple in nature and caused with blunt weapon and

duration of injuries was 24-48 hours.

Dr. Pratibha Meena (P.W.8) further noticed that there was

swelling on valva wall. On touch, there was pain. Blood was oozing. There

was three day old tear of hymen accompanied by swelling also and vagina

admitted two fingers easily. Doctor had sent blood, saliva and vaginal swabs

as sample to State Forensic Science Laboratory. In cross-examination, this

witness in the court admitted that from the injuries, fresh blood was coming.

However, this witness stated that the possibility that both the injuries were

self suffered cannot be ruled out. This witness further stated that the

injuries to private parts are possible due to masturbation.

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The prosecution proved on record Exhibit-P/23 the

acknowledgment receipt from State Forensic Science Laboratory, Jaipur.

However, the report of State Forensic Science Laboratory is not part of the

paper book.

Dr. Jagdish Yadav (P.W.9) had conducted ossification test of

prosecutrix and came to conclusion that the age of prosecutrix was between

15 to 17 years. This witness in cross-examination admitted to be correct that

after ossification test, age is given by estimation and there can be difference

of two years on either side.

We have already reproduced the finding regarding age given by

the trial court in the earlier part of the judgment.

Dr. Brijesh Goyal (P.W.10) had examined all the three accused-

appellants and came to conclusion that there was nothing to suggest that

the accused were not capable of performing sexual intercourse.

The prosecution in all had examined thirteen witnesses in the

present case. We have already referred to the medical evidence.

Devki Bai (P.W.2) mother of the prosecutrix in the court stated

that six months ago, she had gone to attend village fair. When she returned

at 5:00 PM her daughter was not present in the house. She returned at about

6:00 PM. When she asked the prosecutrix where she was, the prosecutrix

started weeping. Thereafter, she had narrated the incident. In the exact

words, this witness stated in the court that “tgka ,d dejs esa cUn dj fn;k o mlds

lkFk diMs mrkjdj yMds mlds mij p x;s] fQj vV: ls ykdj ikdZ ds ;gka mrkj fn;kA”

Devki Bai (P.W.2) in cross-examination stated that she knew

Raju Mali earlier and other accused were not known to her. This witness

further stated that she had two sons and one daughter. This witness further

admitted that daughter is illiterate. Thereafter, this witness stated in the

cross-examination as under:-

“T;ksfr igys ls jktw ekyh dks tkurh Fkh] ckdh nksuksa eqfYteku dks igys ls ugha
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tkurh FkhA eSaus esys esa T;ksfr ds ckcr iwNrkN dh FkhA”

Regarding identity of the remaining two accused, Devki Bai

(P.W.2) stated that name of other two accused were told to her by police.

This witness stated as under:-

“;g lgh gS fd jktw ekyh ds vykok nksuksa eqfYteku ds uke ckn esa iqfylokyksa
ds crkus ij pyk pys FksA”

In cross-examination, Devki Bai (P.W.2) further admitted that

her daughter is having low Intelligence Quotient (I.Q.). This witness stated

that her daughter was imbecile. We shall reproduced the exact words in

vernacular from the testimony of Devki Bai (P.W.2), as under:-

“esjh yMdh T;ksfr dk fnekx FkksMk Bl gS] mls tSlk lekrs gSa] oSlk gh og
le tkrh gSA ”

Devki Bai (P.W.2) further stated as under:-

“eSa T;ksfr dk fnekx detksj gksus ds dkj.k mls ?kj ls ckgj ugha tkus nsrh FkhA”

Sobharam (P.W.3) in the court stated that he was called by his

sister and she narrated the incident as told to him by the prosecutrix.

Pawan Kumar (P.W.4) also deposed in the court that the police

came on 19.9.2009 and Devki Bai (P.W.2) had told them about the place of

incident in the presence of the prosecutrix.

The prosecutrix appeared in the court as P.W.5. She reiterated

the story given by her in the written report (Exhibit-P/5), to the extent that

Raju Mali came to her house took her out of the house on the pretext that

she has been called by her mother to village fair. On the way, other two

accused namely Raju Mehar and Mukesh Kumar met on motorcycle near Kali

Mata temple. Thereafter, she was taken to a room. Thereafter, the accused

asked the prosecutrix to remove clothes and when she refused, she was given

threat and thereafter, the accused removed her clothes. In the court, the

prosecutrix stated that Raju Mali pressed her breasts, then Mukesh Kumar

also pressed her breast and thereafter Raju Mehar pressed her breasts.

Thereafter, Raju Mali told to wear clothes. Then they brought the prosecutrix
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on motorcycle to Baran and left her near Deendayal Park. The prosecutrix in

the last stated that besides pressing her breasts, all the three accused also

caused penetration in her anus. We shall reproduce the exact portion from

the testimony of the prosecutrix as under:-

“fQj jktw ekyh us esjh Nkrh nckbz vkSj eqds’k us Hkh Nkrh nckbZ vkSj fQj jktw
esgj us Hkh Nkrh nck;h fQj jktw ekyh us dgk diMs igu ys] fQj eksVjlk;fdy
ij ckjka ysdj vk;s vkSj nhun;ky ikdZ ds ;gka NksM fn;k FkkA nhun;ky ikdZ ls
esjs ?kj rd tkus dh esjh fgEer ugha FkhA eqfYteku rhuksa us vV: esa esjh Nkrh
nckus ds vykok rhuks eqfYteku us esjh xkaM ekjh FkhA “

We have seen the Dictionary. The word **xkaM** has been described

as anus.

The Additional Public Prosecutor had drawn attention of

prosecutrix to the previous statement Exhibit-P/10, where she admitted that

she had correctly narrated the portion A to B. However, we may notice here

that the portion A to B of Exhibit-P/10 was not read to the witness. This

witness also admitted that her statement (Exhibit-P/12) bears thumb

impression, recorded by the Magistrate.

We have perused the portion A to B in statement Exhibit-P/10.

This witness in her statement has stated that the accused had forcibly

committed wrong act with her (tcjnLrh esjs lkFk [kksVk dke fd;k). The prosecutrix

admitted in the court that the police had made site plan and police informed

her that the house in the Atru belonged to Raju Mehar. This witness further

admitted that the accused told her that the house belonged to Raju Mehar.

This witness further stated that she was given beating by nobody, and she

lodged the report as her mother had asked her.

We shall reproduce the following portion from the cross-

examination as under:-

“eka ds vykok fdlh us ugha ekjkA eka us dgk Fkk fd esjs dgs vuqlkj fjiksVZ
djokukA esjh eka dks fjiksVZ fy[kkuk ugha vkrk] esjs ekek us fjiksVZ fy[kh FkhA tks
Fkkus esa gh fy[kh FkhA”

The prosecutrix in the court further stated that after the
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incident, she washed her clothes. She further admitted that today in the

court, she was tutored by her mother to give the statement and she had

given the statement as told by her mother. This witness in the court stated as

under:-

“D;kD;k fy[kk;kA eSaus vV: ls vkus ds ckn igus gq, diM+s /kks fy;s FksA eqs
fjiksVZ djkus ds ckn vkt c;ku ds ckcr esjh eka us lek;k Fkk] eSa mlh vuqlkj
c;ku ns jgh gksmaA eSa c;ku ugha nwaxh rks esjh eEeh eqs ekj ldrh gSA “

The prosecutrix further stated that her maternal uncle had also

tutored her. She further stated that mother and maternal uncle had told her

not to divulge the truth to the court. We shall reproduce the following

portion from her statement as under:-

“esjs ekek us Hkh c;ku nsus ckcr lek;k Fkk rc eSaus mlh vuqlkj c;ku fn;s FksA
eqs lPph ckr crkus ls eka o ekek us euk fd;k FkkA”

The prosecutrix further stated that she learnt about the names

of the accused after they were given beating by the police. The prosecutrix

stated as under:-

“eqs eqfYteku ds uke mudh Fkkus esa fiVkbZ gq;h] rc irk pys FksA ”

We need not notice the testimony of other witnesses, who had

participated in the investigation, as the entire case of the prosecution rests

upon the testimony of the prosecutrix and her mother.

Mr. Ashvin Garg the learned counsel appearing on behalf of the

appellant Mukesh Kumar, Mr. Sanjay Mehrishi learned counsel appearing for

the appellant Raju @ Rajendra Kumar son of Durga Shankar and Mr. Dheeraj

Singhal learned counsel appearing for the appellant Raju @ Rajendra son of

Chhitar Lal, have vehemently urged that we should discard the testimony of

the prosecutrix as she had admitted that she had deposed in the court, as she

was tutored by her mother. According to the learned counsel, the prosecutrix

further admitted that she was persuaded by her mother and maternal uncle

not to tell the truth to the court. The learned counsel for the appellants

further submitted that the prosecutrix has admitted that she learnt about the
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names of the accused when they were given beating by the police. In the

context of above, the learned counsel for the appellants have suggested that

delay in lodging of the report assume importance. It is urged before us that

the occurrence had taken place on 17.9.2009 between 1:00 PM to 7:00 PM.

The written report (Exhibit-P/5) was submitted before the police on

18.9.2009 at 7:40 PM, after a delay of more than 24 hours. The learned

counsel for the appellants have also drawn our attention to the statement

made by mother Devki Bai (P.W.2) that on 17.9.2009, at 6:00 PM, the

prosecutrix had reached her house and had narrated the incident. It is

contended that the identity of the two accused was not known as has been

admitted by the prosecutrix and her mother Devki Bai (P.W.2). They in

categorical terms have admitted that the two accused were named, after

their names were disclosed by the police.

We would have accepted this argument raised, had it not come

in evidence that Raju @ Rajendra son of Chhitar Lal is neighbour of the

prosecutrix. Therefore, the prosecutrix accompanied Raju Mali. The

prosecutrix in the court has stated that unnatural offence was committed

with her. The trial court had declared the prosecutrix as hostile to the

prosecution. The Additional Public Prosecutor drew the attention of the

witness to her statement (Exhibit-P/10) recorded under Section 161 Cr.P.C.

by the police. She admitted that portion A to B was correctly recorded at her

instance.

A perusal of the portion A to B of statement (Exhibit-P/10)

reveals that the prosecutrix stated that accused had committed wrong act

with her ([kksVk dke fd;k). The commission of unnatural offence also amounts to

committing wrong act. We have to strictly go by the statement made by the

prosecutrix. The prosecutrix had not made any assertion that she was raped

by the accused. She stated that accused caused penetration in her anus and

committed unnatural act.

Dr. Pratibha Meena (P.W.8) has specifically deposed that hymen
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was torn three days ago, but we of the view that nobody can say with

certainty regarding the duration when the hymen was torn. We also cannot

ignore that in the present case, vagina of the prosecutrix admitted two

fingers easily. Be that as it may, medical evidence cannot substitute the

ocular version. The prosecutrix in the court has specifically stated that the

accused had caused penetration in the anus. Thus, to us, offence in the

present case is made out under Section 377 IPC and not under Section 376(2)

(G) IPC.

Having said that the offence is made out under Section 377 IPC,

we have to determine quantum of sentence.

We cannot ignore that the mother Devki Bai (P.W.2) of the

prosecutrix has stated that the prosecutrix is having low Intelligence

Quotient. She is imbecile. In the exact words of her mother Devki Bai (P.W.2),

“esjh yMdh T;ksfr dk fnekx FkksMk Bl gS”. Thus, to us, it is apparent that the accused

exploited a girl who was not having a good mental health. Considering that

three accused have caused penetration in the anus of a girl, who was not of

sound mind, as an aggravating circumstance along with mitigating

circumstance i.e. age of the accused, their antecedents, along with the fact

that they have suffered a protracted trial from the last seven years, we are

of the view that award of sentence of ten years will serve ends of justice.

Consequently, we convert the offence from Section 376(2)(G)

IPC to Section 377 IPC. We set aside the life imprisonment awarded upon the

appellants under Section 376 (2) (G) IPC, and sentence them to undergo ten

years R.I., for offence under Section 377 IPC.

With the above modification in offence and sentence, all the

present three appeals stand disposed of.

(VINIT KUMAR MATHUR)J. (KANWALJIT SINGH AHLUWALIA)J.

Mak/-