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