HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 427 / 2009
Nanu Ram s/o Sri Ram, by caste Bhat, R/o Momasar Bas Sri
Doongarhgarh, District Bikaner.
(at present lodged in Central Jail at Bikaner)
—-Appellant
Versus
State of Rajasthan
—-Respondent
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For Appellant(s) : Mr. Kuldeep Sharma
For Respondent(s) : Mr. C.S.Ojha, Public Prosecutor.
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HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Per Hon’ble Mr. Sangeet Lodha, J.
16th May, 2018
1. This appeal is directed against judgment dated 2.4.09
passed by the Additional Sessions Judge (Fast Track) No.1,
Bikaner in Sessions Case no.53/08, whereby the appellant has
been convicted for offences under Sections 376, 366 363 IPC
and sentenced to suffer the imprisonment as under:
Under Section 376 IPC
Life imprisonment with fine Rs.5000/-; in default of payment
of fine to further undergo rigorous imprisonment for six months.
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Under Section 366 IPC
Rigorous imprisonment for seven years with fine Rs.3000/-;
in default of payment of fine to further undergo rigorous
imprisonment for two months.
Under Section 363 IPC
Three years’ rigorous imprisonment with fine Rs.2000/-; in
default of payment of fine to further undergo one month rigorous
imprisonment.
2. Precisely, the prosecution case unfolded during the trial is
that on 4.3.08, the complainant Ram Gopal’s minor daughter ‘X’
(name withheld to protect her identity) of 8 years of age came out
of the complainant’s house situated at village Momasar Bas on
National Highway No.11 and was standing by the side of the road.
She was enticed away by the appellant herein and was taken to
the land belonging to Forest Department and subjected her to
rape.
3. On the basis of the written report (Ex.P/3) submitted by the
complainant Ram Gopal, the police registered the FIR (Ex.P/34)
and investigation commenced.
4. During investigation, the medical examination of the
prosecutrix was done by the Medical Board consisting of P.W.12-
Dr. Kusum Periwal and Dr.Manju Joshi, necessary memos were
drawn and the statements of the witnesses were recorded under
Section 161 Cr.P.C. The foot mould available at the place of
occurrence were lifted, the hairs alleged to be of the prosecutrix
found at the place of occurrence were seized. The accused was
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arrested. The pent and shirt which the accused was wearing were
seized. The identification parade was conducted.
5. After completion of the investigation, the police filed the
charge sheet against the appellant Nanu Ram for offences under
Sections 363, 366, 369, 376 394 IPC and against the accused
Sawar Mal for offence under Section 412 IPC, before the Judicial
Magistrate, Sri Dungargarh. The matter was committed to the
Sessions Judge, Bikaner, which was later transferred to the court
of Additional Sessions Judge (Fast Track) No.1, Bikaner.
6. The learned trial Judge framed the charges against the
appellant Nanu Ram for offences under Sections 363, 366, 376,
379 IPC and against accused Sawar Mal for offence under Section
411 IPC. The accused persons denied the charges and claimed
trial.
7. During the trial, prosecution in support of its case examined
as many as 16 witnesses (P.W.-1 to P.W.-16) and produced the
documentary evidence (Ex.P/1 to P/51). The accused persons
were examined under Section 313 Cr.P.C. No evidence was led by
the appellant in his defence. However, on behalf of the accused
appellant, some documents produced by the prosecution were
exhibited in evidence as Ex.D/1 to D/4.
8. 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 kidnapped the prosecutrix, a minor girl, and
committed rape on her and accordingly, sentenced him as
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indicated above. The appellant was acquitted of the charge for
offence under Section 379 IPC. The accused Sawar Mal was also
acquitted of the charge for offence under Section 411 IPC.
9. 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 offences under Sections 376, 363 366 IPC, on the
basis of the evidence on record. Learned counsel confined his
arguments only to the extent of quantum of punishment meted
out to the appellant on being convicted for offence under Section
376 IPC.
10. 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 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 Hon’ble Supreme Court in the matters of “Prem
Chand Anr. vs. State of Haryana”, AIR 1989 SC 937 and “Ram
Kumar vs. State of Haryana”, (2006) 4 SCC 347. Learned counsel
has also relied upon Bench decisions of this court in the matters of
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“Amar Chand vs. State of Rajasthan” RLW 2008 (1) Raj. 321,
“Prema vs. State of Rajasthan”, RLW 2008(1) Raj. 176 and
“Jhumar Ram vs. State of Rajasthan”, (D.B.Criminal Appeal
No.352/09, decided on 24.4.18).
11. 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 8 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.
12. We have considered the rival submissions and perused the
material on record.
13. 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 offences
under Sections 376, 366 363 IPC. The only question survives for
consideration of this court is whether for the charge for the
offence under Section 376 IPC being 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.
14. In the matter of ‘Bavo alias Manubhai Ambalal Thakore v.
State of Gujarat’ AIR 2012 SC 979, 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
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[CRLA-427/2009]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
by imposing RI for 10 years. Learned counsel appearing for
the appellant informed this Court that the appellant had
already served nearly 10 years.”
15. In ‘Sunil Dutt Sharma Vs. State (Government of NCT of
Delhi)’ (2014) 4 SCC 375, 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
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[CRLA-427/2009]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.
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.”
16. 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
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[CRLA-427/2009]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
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.”
17. In the matter of “Santosh Kumar @ Johny vs. State of
Rajasthan”, (D.B. Criminal Jail Appeal No.1692/2007, decided on
29.1.15), where the charge of committing rape on a girl of 4
years, 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, Jaipur 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
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the maximum punishment awarded to 10 years rigorous
imprisonment while maintaining the order imposing the fine.
18. In ‘Sohanlal vs. State of Rajasthan’, (D.B.Criminal Appeal
No.13/2006, decided on 18.2.15), this court while following the
decisions of the Supreme Court in Bavo’s case (supra) and Sunil
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.
19. In Jhumar Ram’s case (supra), where the accused was found
guilty of committing rape on a minor girl of 4 years but there was
no other violence involved in the commission of the offence, in
absence of any aggravating circumstances following the decision
of the Supreme Court in Bavo’s case (supra) and decisions of this
court in Santosh Kumar’s case and Sohanlal’s case (supra), the
punishment of life imprisonment awarded by the trial court was
reduced to rigorous imprisonment for ten years.
20. Similarly, in Prema’s case (supra), relied upon by the learned
counsel appearing for the appellant, taking into consideration, the
peculiar facts and circumstances of the case, the sentence of life
imprisonment awarded to the convict by the trial court and
affirmed by the High Court was reduced from life imprisonment to
ten years rigorous imprisonment.
21. In the instant case undoubtedly the appellant accused is
found guilty of committing rape on a minor girl of 8 years. But
then, there is no other violence involved in commission of the
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offence. It is specifically observed by the Medical Board in the
medical report (Ex.P/6) that there is no evidence of any injury on
the body parts other than genitals. It is not the prosecution case
that the appellant is a habitual offender. No other criminal case is
alleged to be pending against the appellant. 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, Sohanlal’s
case and Jhumar Mal’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.
22. In the result, the appeal is partly allowed. The conviction of
the appellant for offences under Sections 376, 366 363 IPC is
maintained. The sentences awarded by the learned trial Judge for
conviction of the appellant for offences under Sections 366 363
IPC are also maintained. However, the order of sentence for
conviction under Section 376 IPC 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
sentence. On release, the appellant shall furnish personal bond in
sum of Rs.25,000/- and a surety of the like amount to the
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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/