HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
(1) D. B. Criminal Appeal No. 178 / 2016
Rajesh son of Shri Ramsingh Gurjar, resident of Kaleda, Police
Station Sikandra, District Dausa (Raj.)
(At present confined in District Jail Dausa)
—-Accused-Appellant
Versus
The State of Rajasthan through P.P.
—-Respondent
With
(2) D. B. Criminal Appeal No. 122 / 2016
Shimbhu Singh S/o Shri Laxman Gurjar, By Caste Gurjar, R/o
Kailai, P.S. Sikandara, District Dausa
(Presently lodged in Central Jail, Jaipur)
—-Appellant/Accused
Versus
State of Rajasthan through Public Prosecutor
—-Respondent
With
(3) D. B. Criminal Appeal No. 123 / 2016
Dharmendra alias Pappu alias Dalal S/o Shri Bachhu Singh Gurjar,
By Caste Gurjar, R/o Pipalki, P.S. Manpur, District Dausa.
(Presently lodged in Central Jail, Jaipur)
—-Appellant/Accused
Versus
State of Rajasthan through Public Prosecutor
—-Respondent
__
For Appellant(s) : Mr. Anil Upman(In Appeal No. 178/2016)
For Appellant: Mr. Sudhir Jain with Mr. Naresh Kumar Meghwanshi
and Mr. Monu Kumar (In Appeal No.
122/2016)
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For Appellant: Mr. Deepak Asopa (In Appeal No. 123/2016)
For Respondent(s) : Mrs. Sonia Shandilya, Public Prosecutor.
__
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE KAILASH CHANDRA SHARMA
Judgment
25/07/2017
(Per Hon’ble Mr. Justice Mohammad Rafiq)
These three appeals are directed against common
judgment dated 21.11.2015 passed by Additional Sessions Judge,
Bandikui, District Dausa (for short ‘the trial court’) whereby
accused-appellants Rajesh, Shimbhu Singh and Dharmendra alias
Pappu alias Dalal have been convicted and sentenced in the
manner as indicated below:
Under Section 376 (2)(g) IPC: Life imprisonment with fine of Rs.
50,000/-, in default of payment thereof, to further undergo one
year’s simple imprisonment.
Under Section 366 IPC: Ten years’ rigorous imprisonment with fine
of Rs. 10,000/- in default of payment thereof, to further undergo
six months’ simple imprisonment.
Under Section 366-A IPC: Ten years’ rigorous imprisonment with
fine of Rs. 10,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
Under Section 367 IPC: Ten years’ rigorous imprisonment with fine
of Rs. 10,000/- in default of payment thereof, to further undergo
six months’ simple imprisonment.
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Under Section 292 IPC: Two years’ simple imprisonment with fine
of Rs. 2,000/- in default of payment thereof, to further undergo
two months’ simple imprisonment.
Under Section 120-B IPC: Ten years’ rigorous imprisonment with
fine of Rs. 10,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
Under Section 66-E IT Act: Three years’ simple imprisonment with
fine of Rs. 50,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
Under Section 67 IT Act: Three years’ simple imprisonment with
fine of Rs. 50,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
Under Section 67-A IT Act: Five years’ simple imprisonment with
fine of Rs. 1,00,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
Under Section 67-B IT Act: Five years’ simple imprisonment with
fine of Rs. 1,00,000/- in default of payment thereof, to further
undergo six months’ simple imprisonment.
All the sentences were ordered to run concurrently.
The trial court further directed that amount of fine so imposed
shall be given to the prosecutrix as compensation after expiry of
period of filing appeal/revision as per provisions of Section 357
Cr.P.C.
Briefly stated the facts of the case are that a written
complaint (Exhibit P-2) was submitted by the prosecutrix Sharda
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(P.W.3) in the Court of Civil Judge (JD) and Judicial Magistrate,
Sikrai on 01.03.2012 against the accused-appellants and one
Ramveer @ Ballu, with regard to an incident which took place on
16.11.2010. The prosecutrix alleged that at that time her age was
only 17 years and she was student of Bharat Gaurav School,
Sikandara. On that day, she reached the school at 12.00 noon but
the school was closed early due to sudden demise of close relative
of some staff member. She reached Sikandara Crossing by tempo
and from there, she started going towards her village on feet.
After about 1 k.m., accused-appellants came there in a jeep and
asked the prosecutrix to come in the jeep, but the prosecutrix
refused. Thereupon, the accused-appellants forcibly put the
prosecutrix in the jeep and covered rear opening of the jeep by
curtain. The prosecutrix tried to raise hue and cry, but Rajesh
stuffed a cloth in her mouth. Shimbhu overpowered her. Pappu,
who was driving the jeep, accelerated the speed. They took the
jeep through a ‘kaccha rasta’ towards ‘dungar’ (hills). Ramveer
met on the way and the accused-appellants also took him in the
jeep. They stopped the jeep near ‘dungar’. The prosecutrix was
forcibly alighted from the jeep and dragged into jungle till about
half a kilometer where seat cover of the jeep was laid on the
ground and the prosecutrix was laid on the same and her clothes
were stripped. Rajesh and Pappu caught hands and legs of the
prosecutrix. Thereafter, Shimbhu also put off his clothes and
forcibly committed rape upon the prosecutrix. Video clip of this
was also prepared on mobile and then, Shimbhu and Pappu
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overpowered the prosecutrix and Rajesh committed rape with the
prosecutrix. Thereafter, Pappu also committed rape with the
prosecutrix. Video clipping was also prepared on mobile. The
accused-appellants then dropped the prosecutrix in her village and
threatened that if she discloses about this incident to anyone, her
video clipping will be circulated into other mobiles and uploaded
on the internet and the same will also be sent to her in-laws. The
prosecutrix due to fear of her reputation and also apprehending
that her engagement might not be broken, did not disclose about
the incident to anyone.
Thereafter, whenever the prosecutrix used to go to
school, the accused threatened her with reference to video
clippings. The prosecutrix due to fear stopped going to school.
She was under immense mental stress and used to cry while alone
but could not muster courage to disclose this fact to anyone due
to fear of accused that she might be defamed. When the
prosecutrix refused to agree to her physical exploitation, the
accused uploaded her video clippings on internet and circulated
the same to different mobile phones. Sajjan Singh her uncle
(‘fufa’) (husband of father’s sister), happened to see such video
clippings in mobile phone and told her father about the same.
When they made enquiry from the prosecutrix, she disclosed the
entire incident. It was contended that delay in filing criminal case
against the accused occurred owing to reason that the accused
wanted to defame the prosecutrix and due to fear that her
engagement could be broken, she could not muster enough
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courage to lodge the criminal case. The aforesaid complaint was
sent to Police Station Sikandara for investigation by the court with
reference to provision of Section 156(3) Cr.P.C. and regular FIR
No. 80/2012 (Exhibit P-26) was registered and investigation
commenced.
Upon completion of investigation, charge sheet was
filed against the accused in the Court of Judicial Magistrate, First
Class, Sikrai on 05.07.2012. Separate proceedings were initiated
against the accused Ramveer, who was juvenile and his case was
committed to the Juvenile Justice Board. The Court of Magistrate
after taking cognizance of the offence and considering that the
case was exclusively triable by Court of Sessions, committed the
same to the Court of Sessions, wherefrom, the case was made
over to the Court of Additional Sessions Judge Bandikui, District
Dausa. The trial court framed charges against the accused-
appellants under Sections 366, 336A, 367, 292, 376 (2) (g), 120-
B IPC and Sections 66A, 66E, 67, 67A, 67B I.T. Act, which they
denied and claimed to be tried. To secure conviction of the
accused-appellants, the prosecution examined as many as 22
witnesses and exhibited 41 documents. Thereafter, the accused-
appellants were examined under Section 313 Cr.P.C. wherein they
pleaded innocence and stated that they have been falsely
implicated in the case. The defence produced two witnesses and
got exhibited six documents. The trial court, on conclusion of trial,
vide judgment and order dated 21.11.2015 convicted and
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sentenced the accused-appellants in the manner indicated
hereinabove. Hence, these appeals.
Learned counsel for the accused-appellants have
argued that the trial court has erred in law in convicting the
accused-appellants, even though there was absolutely no evidence
on record, yet recorded finding of conviction against them for the
alleged offence. The first information report was lodged with the
delay of fifteen months without there being any explanation for
such an enormous delay. The witnesses who have been relied by
the learned trial court are closely related to the prosecutrix and
therefore they are highly interest witnesses. They have not stated
truth before the Court. Allegations contained in the complaint
were substantially diluted by the prosecutrix while appearing as
P.W.3 inasmuch as whatever allegations she has reiterated in her
statement are not corroborated by any evidence whatsoever.
Even the medical evidence did not indicate any injury on any part
of her body which suggested that she was never subjected to any
forcible rape. Thus, there is induction of only two possibilities;
first, there is no rape committed or second that she was a consent
party. It is argued that there are material contradictions in the
statements of the prosecution witnesses. Each one of them has
given different version of story. Some of the circumstances relied
by the trial court were not put to the accused-appellants in their
examination under Section 313 Cr.P.C. It is argued that story
alleged by the prosecutrix that some video clippings were
prepared and circulated and also uploaded on internet has not at
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all been established. In fact, the prosecutrix in cross-examination
has disowned any such allegation and rather stated that after she
had put on the clothes, the accused had taken her photographs.
Therefore, the allegation of preparing video clippings while she
was being raped was totally false. There is no evidence of
preparation of video clippings by the accused as nothing is on
record in this regard. No such video clipping was ever put to the
prosecutrix for her corroboration or otherwise. Even otherwise,
from the video clipping it cannot be proved that any intercourse or
penetration took place. Assertion made by the prosecutrix in the
complaint that she stopped going to school has been disproved as
the evidence has shown that she was regular student even
thereafter.
Learned counsel argued that the trial court was wholly
unjustified in believing birth certificate of the prosecutrix (Exhibit
P-19); Copy of admission form of the prosecutrix in school (Exhibit
P-20); Copy of Scholar Register (Exhibit P-21) to show that date
of birth of the prosecutrix was 01.07.1993. Keshanta (P.W.7),
mother of the prosecutrix was specifically asked as to date of birth
of the prosecutrix, but she denied having any knowledge of this
fact. She in cross-examination when asked about the age of her
other two sons, she expressed ignorance as to what was the exact
date of their birth. Dharam Singh (P.W.2) has though stated that
he does not know date of birth of any of his children but
remembered the date of birth of the prosecutrix, yet he has not
given any specific date of birth of the prosecutrix and merely
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stated that she was aged about 17 years at the time of incident.
He was not confronted with admission form of the prosecutrix
submitted by him. It is, therefore, argued that the fact that the
prosecutrix was minor at the time of incident has not at all been
established and adverse inference ought to be drawn against the
prosecution with reference to Section 114(g) of the Evidence Act
for withholding the best of the available witnesses, who could
have stated about correctness of the aforesaid documents. Medical
examination of the prosecutrix for determination of her age has
also not been got conducted.
It is argued that recovery of CPU and monitor from
Ganesh Mobile Point vide Exhibit P-8 cannot be held to have been
proved against the accused-appellant Rajesh as attesting witness
to that memo namely Aditya Kumar Saini (P.W.8) has turned
hostile and not supported the case of the prosecution and another
attesting witness Kailash Chand was not produced. This recvoery
was made pursuant to information allegedly given by the accused-
appellant Rajesh under Section 27 of the Evidence Act (Exhibit P-
32). Similarly, recovery of mobile of the accused Rajesh vide
Exhibit P-22 also cannot be held to have been proved because
only attesting witness, Ram Singh(P.W.19) has turned hostile and
another witness Ram Dayal has not been produced. Similarly,
recovery of mobile of the accused Dharmendra (Exhibit P-12)
cannot be held to have been proved against the accused as only
attesting witness produced by the prosecution Malkhan Singh
(P.W.11) turned hostile and another attesting witness Jagan has
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not been produced. Prosecution case is that Shivlal (P.w.5) had
the video clipping in his mobile handset and he transferred the
same by blue tooth to mobile phone of Rajendra Singh (P.W.21),
Deputy Superintendent of Police whereas Shivlal (P.W.5) in his
statement has denied having given any such video clipping to
Rajendra Singh (P.W.21) by blue tooth. Moreover, this also cannot
be believed because mobile handset of Shivlal (P.W.5) has not
been recovered. Statement of Girraj (P.W.15) constable also
cannot be believed. It is argued that none of the offence can be
held proved beyond reasonable doubt. Mere fact that the
complaint was lodged with delay of one year and three months is
sufficient to discard the entire prosecution case. It is argued that
the prosecutrix/complainant falsely implicated the accused-
appellants only because she wanted to extract money which is the
defence of the accused-appellants. Identification of the place of
incident at the instance of accused-appellant Rajesh (Exhibit P-6);
accused-appellant Shimbhu Singh (Exhibit P-7) and accused-
appellant Dharmendra @ Pappu @ Dalal (Exhibit P-14) pursuant to
information obtained from them under Section 27 of the Evidence
Act did not lead to discovery of any new fact as this fact was
already known to the police time before, when similar
identification of the place of incident was got done by them at the
instance of juvenile Ramveer, which fact was also put to Rajendra
Singh (P.W.21) who failed to deny the same.
Alternatively, learned counsel for the accused-
appellants argued that if this Court is not persuaded to interfere
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with the conviction of the accused-appellants, in the facts of the
present case, particularly when much time has gone and that the
accused appellants were in their early twenties, this Court,
considering that the accused-appellants are in jail for more than
five years, may consider sentencing them to the period already
undergone by invoking proviso to Section 376 (2) whereunder the
Court is empowered to award sentence, even lesser than 10
years, which is the minimum sentence. There was no
extraordinary reason in the present case to award the maximum
sentence of life imprisonment.
Learned Public Prosecutor opposed the appeals and
supported the judgment passed by the trial court. She argued
that allegations against the accused-appellants are heinous
inasmuch as charges against them have been proved by cogent
evidence. It is argued that delay in lodging of the complaint
would be inconsequential in the present case because the
prosecutrix was a girl of 17 years of age at the time of incident
and she has sufficiently explained the reason as to why she could
not muster courage to disclose to her family members as to what
happened with her. She was also apprehending that this might
defame not only her reputation but her entire family and endanger
her proposed marriage with Ummed Singh. Learned Public
Prosecutor argued that the prosecutrix was minor at the time of
incident which is proved by her birth certificate (Exhibit P-19A);
copy of admission form of the prosecutrix in the school (Exhibit P-
20A) and Copy of Scholar Register (Exhibit P-21A). Birth
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certificate of the prosecutrix (Exhibit P-19A) has been proved by
Mohan Lal Koli (P.W.18), Head Master of the school concerned. He
has stated that he is the one who issued certificate and proved the
fact that name of the prosecutrix was recorded at Serial No. 31 in
S.R. Register original of which he brought to the Court and
photostat copy of which was Exhibit P-21A. Certificate (Exhibit P-
19A) dated 04.02.2013 was issued under his signatures. Learned
Public Prosecutor argued that this being government record, there
is no possibility of the same being false or forged. Age of the
prosecutrix on the basis of said document as on the date of
incident, i.e. 16.11.2010 comes to about 17 years. It is argued
that the prosecutrix is speaking truth, which is eventually proved
from circular (Exhibit P-24) and photo copy of Attendance Register
(Exhibit P-25), documents of the school dated 01.03.2012 that on
that day the school was closed earlier because of death of brother
of the administrator of that school. The place of incident is a
deserted place on hills in the jungle. The police recovered video
clipping of rape being committed upon the prosecutrix. The police
also recovered cell phone with the help of which said video clip
was prepared. Computer system on which video clipping was
uploaded has also been seized. The jeep which was used in the
crime was recovered at the instance of the accused Dharmendra
vide Exhibit P-13.
Learned Public Prosecutor argued that the fact that no
injury was found on any part of the body of the prosecutrix would
be inconsequential as in the present case admittedly criminal case
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was registered against the accused-appellants after more than a
year and by that time, all such injuries would have healed.
Therefore, guilt of the accused has rightly been held to have been
proved by the learned trial court. Video clip was in circulation
which fact is proved from the fact that the uncle of the prosecutrix
watched the video clipping in circulation and disclosed this fact to
father of the prosecutrix. It is on their assurance and
encouragement that the prosecutrix could muster courage of
going to the court and file criminal complaint against the culprits.
It is, therefore, prayed that the appeals be dismissed.
We have given our anxious consideration to rival
submissions and carefully perused the record of the case.
The prosecutrix herself is the leading witness in the
present case. She has substantially proved what she alleged in
the complaint, although with minor deviations here and there.
What she has stated is that she was student in senior class of
Bharat Gaurav Public School. On 16.11.2010, she started from
her home at 11.00 A.M. for going to school. On that day, there
was bereavement in the family of the Head Master of the school,
therefore, the school was closed early. She came from her school
in the tempo to Sikandara at about 1.30 P.M. She was waiting for
another vehicle to go to her native but when no vehicle came, she
started on her feet. Even as she had covered a distance of about
one kilometer, suddenly a jeep came from behind and stopped
near her. Dharmendra, Shimbhu and Rajesh were sitting in the
jeep. Dharmendra was driving the jeep and enquired from the
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prosecutrix where she was going. When she stated that she was
going to her village, Dharmendra offered lift to her. The
prosecutrix refused. Then Rajesh, who was sitting in the rear, got
down from the jeep and forcibly threw her inside the jeep and
covered hood of the jeep. When she tried to raise hue and cry,
Rajesh stuffed a piece of cloth in her mouth. Then jeep moved in
the direction of a hill on a ‘kaccha rasta’. After five minutes, the
jeep stopped. Ramveer also climbed into the jeep. She knew
Ramveer because he was her classmate. Then jeep moved in the
direction of the hills. Thereafter, the jeep stopped and all four of
them got down from the jeep. She started crying. They forcibly
dragged her out of the jeep and moved in the direction of a
‘pagdandi’. Seat cover of jeep was laid on the ground and these
people forcibly put off her clothes. She started crying. Then each
one of them, one after another, committed rape upon her. They
threatened the prosecutrix that if she disclosed this to anyone,
they would murder her. The prosecutrix put on her clothes.
Pappu @ Dharmendra took her photographs by mobile phone. In
the court, the prosecutrix correctly identified all the three
accused-appellants and stated that one of the accused Ramveer
was not present in the court. She stated that her age was 17
years and date of birth was 01.07.1993. She further stated that
thereafter, the accused dropped her in the village and again
threatened that if she disclosed about this incident to anyone,
they would murder her. After 4-5 days, these people again met
her on the way of Sikandara Crossing and asked the prosecutrix to
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come with them. When the prosecutrix refused, they threatened
that they would show the photographs which they had taken to
her in-laws and would upload them on the internet. The
prosecutrix further stated that these people used to frequently
threaten her so much so that she even stopped going to school.
One of her ‘fufa’ (uncle), Sajjan Singh (P.W.9) informed her father
that he had seen photographs of the prosecutrix which were in
circulation in the mobile phones of several boys. After this, when
her family members enquired, the prosecutrix disclosed entire
story to her mother, father, uncle and aunt. Then, she went to
Police Station Sikandara with her family members. The police
personnel refused to lodge the report saying that the incident was
too old. Thereafter, they filed criminal complaint (Exhibit P-2) in
the Court of Civil Judge (JD) and Judicial Magistrate, Sikrai. Her
medical examination took place vide Exhibit P-3. Her statement
under Section 164 Cr.P.C. was recorded on 22.03.2012 which is
Exhibit P-4.
We cannot brush aside evidence of even other
prosecution witnesses only because some of them are related to
the prosecutrix. In fact, the fact about photographs and video
clipping became known to the family only when a close relative of
the prosecutrix Sajjan Singh (P.W.9) came across the photographs
and video clipping under circulation. Rajendra Singh (P.W.21) has
also stated that pursuant to information given by accused Rajesh
under Section 27 of the Evidence Act vide Exhibit P-32, monitor
and CPU of a computer system were recovered at his instance
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from a shop, Ganesh Mobile Point, situated at Geejgarh Road,
Sikandara from possession of one Dinesh Kumar vide recovery
memo Exhibit P-8, site plan of which was Exhibit P-9. Aditya
Kumar Saini (P.W.8) has also proved that monitor and CPU were
taken from possession of Dinesh Kumar and his signatures are on
Exhibit P-8.
Ram Singh (P.W.19), attesting witness of Exhibit P-22
has proved that mobile handset of Nokia C-5 make of Rajesh
contained obnoxious video clipping which was recovered at his
instance from an iron almirah of his house. As per information
given by Dharmendra under Section 27 of the Evidence Act vide
Exhibit P-34, his mobile handset with memory card was recovered
from his house vide Exhibit P-12. Video clipping from his cell
phone was sent through Bluetooth by Shiv Lal (P.W.5) on the basis
of which a CD was prepared in the Computer Branch of
Superintendent of Police Office, Dausa and memo (Exhibit P-5)
was prepared for this purpose. Shiv Lal (P.W.5) put his signatures
on such memo. He has stated that prosecutrix happens to be his
cousin through her mother. He has admitted that he sent the
video clipping through Bluetooth to cell phone of Deputy
Superintendent of Police from which the CD was prepared. Sajjan
Singh (P.W.9) has also proved that such video clipping was in
circulation. Girraj Prasad (P.W.15) has stated that on 14.03.2012,
he was working as Assistant Sub Inspector in the Computer
Section of the Office of Superintendent of Police, Dausa. Witness
Shiv Lal forwarded a video clipping through Bluetooth of his
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mobile phone on the mobile handset of Deputy Superintendent of
Police and he prepared two cassettes and CD Player, each of which
was containing such video clipping, which were sealed vide Exhibit
P-5. Tej Singh (P.W.17) has stated that on 15.03.2012, he was
working as Malkhana Incharge in Police Station Sikandara. On
that day, two cassettes along with CD player of the make of Sony
Company, one old mobile phone, one monitor, one CPU, another
mobile phone and two other mobile phones were deposited in
Malkhana, which were entered in Malkhana Register (Exhibit P-
18), certified copy of which was Exhibit P-18A. Rajendra Singh
(P.W.21) has proved deposit of these articles in Forensic Science
Laboratory. FSL Report is Exhibit P-41 which proves that video file
namely ‘Ppk video0006000(01).3gp’ and video file namely ‘Ppk
video0006000.3gp’ found stored in the memory card exhibits H-3
and I-3 respectively, which are copied alongwith the other video
files in the folder namely ‘Exhibit-H-3_Phys-202-12’ and ‘Exhibit-
H-3_Phys-202’ respectively stored in the CD marked-X, in this
laboratory. Video files namely ‘Ppk video0006000(01).3gp’ and
video file namely ‘Ppk video0006000.3gp’ found stored in the
mobile phone exhibit-I-1. The video files are found stored in the
hard disc exhibit G-2-1 but some of video file exhibit could not be
accessed with the available software. However, video files found
stored in the hard disc exhibit-G-2-1are also copied in the folder
namely ‘Exhibit-G-2-1_Phys-202-12’ stored in the CD marked-X.
Besides, the prosecutrix has asserted that the school
was closed down early on the day of incident which fact finds
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corroboration from statement of Dharam Singh (P.W.2), who has
stated that on 16.11.2010 school was closed early. Keshanta
(P.W.7) has also stated that on that day, school was closed early
because some relative of the Headmaster had died. In view of
above, the trial court cannot be held to have acted contrary to law
in punishing the accused-appellants for the alleged offences as
mentioned above. Therefore, this Court is not inclined to interfere
with the findings recorded by the trial court.
Coming now to the alternate submission on the
question of sentence, we find that the accused-appellants were in
their early twenties and prosecutrix was aged 17 years at the time
of incident. They are in jail for more than five years. According to
Section 376(2)(g) IPC though the sentence awardable to an
accused may extend to life imprisonment, but minimum sentence
is prescribed as ten years. True it is that every case of rape should
be viewed seriously and convicts should be awarded the befitting
sentence. But the learned trial court in making the choice of
sentence of life imprisonment in the present case has not made
any discussion whatsoever. It has not given any reason why it has
chosen to award the maximum sentence and for what reason, the
minimum sentence of ten years would not be sufficient
considering that appellants were in their early twenties. At the
same time, however, we are not inclined to accept the argument
that lessor sentence than ten years by invoking proviso to Section
376(2)(g) should be awarded only because the appellants have
not completed the sentence of ten years in prison. Proviso to
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Section 376(2) though does give such power to the Court, which
can be invoked only for adequate and special reasons to be
mentioned in the judgment, which may justify the award of
sentence of imprisonment of less than ten years. Emphasis on the
adequate special reasons has been made because the legislature
has otherwise intended “imprisonment for a term which shall not
be less than ten years” as the minimum sentence.
The Supreme Court in Bavo @ Manubhai Ambalal
Thakore vs. State of Gujarat-(2012) 2 SCC 684 was dealing
with a case where the victim was aged 7 years on the date of
incident and the accused was in the age of 18/19 years and also
the fact that the incident occurred nearly 10 years ago. It was
observed therein by the Supreme Court that the award of life
imprisonment, which was a maximum prescribed, is not
warranted. That was a case in which the conviction was recorded
under Section 376(2)(f). The Supreme Court held that ends of
justice would be met if sentence of rigorous imprisonment of 10
years is awarded. In doing so, the Supreme Court relied on its
earlier judgement in Rajendra Datta Zarekar vs. State of Goa-
(2007) 14 SCC 560, which case also relates to an offence under
Section 376 (2) (g) where the victim was aged 6 years and the
accused was aged 20 years and the Supreme Court ultimately
confirmed the sentence of 10 years as awarded by the High Court.
In the facts of the case, therefore, while we reject the
argument of learned counsel for the appellants to reduce the
sentence to the period already undergone by the accused-
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appellants, we are persuaded to accept the alternative prayer of
awarding the minimum prescribed sentence of 10 years to the
accused-appellants for their conviction under Section 376 (2)(g)
IPC instead of life imprisonment and accordingly we modify the
sentence.
In the result, the appeals are partly allowed.
Conviction of the accused-appellants under Section 376(2)(g) IPC
is maintained but instead of life imprisonment, they are sentenced
to ten years rigorous imprisonment and fine of Rs. 50,000/-, in
default of payment of fine, each of the accused-appellant shall
further undergo one year’s simple imprisonment. Conviction and
sentence of the accused-appellants for offences under Sections
366, 366-A, 367, 292, 120-B IPC and under Sections 66-E, 67,
67-A, 67-B of IT Act along with fine as imposed by the trial court
is maintained. All the sentences shall run concurrently. It is
directed that amount of fine so imposed shall be given to the
prosecutrix as compensation after expiry of period of filing special
leave petition/appeal as per provision of Section 357 Cr.P.C.
Office is directed to place a copy of this order on record
of each connected criminal appeal.
(KAILASH CHANDRA SHARMA)J. (MOHAMMAD RAFIQ) J.
Manoj
