HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 479 / 2008
Shesha Ram S/o Moola Ram, by caste Meena, Resident of Bheelo
Ki Dhani, Village Dari, Teshil and District Pali (Raj.)
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr. Narpat Singh.
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
__
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
Date of Judgment: 17th July, 2017
The instant criminal appeal has been filed by the appellant-
Shesha Ram, under Section 374 Cr.P.C. against the judgment
dated 14th of February 2008 passed by Addl. Sessions Judge (FT)
No.2 Pali (Trial Court) in Session Case No.46/2007, whereby the
learned trial court convicted the accused appellant for offence
under Section 376 (2) (f) of IPC and passed sentence for life
(2 of 12)
[CRLA-479/2008]
imprisonment along with fine of Rs.1000/- with default stipulation
to undergo three years’ rigorous imprisonment.
As per facts of the case, on 22.09.2007, complainant
Bhakaram Bheel (uncle of prosecutrix Ms. “D”) submitted a written
report (Ex.P/2) alleging therein that on 21.09.2007 his niece, Ms.
“D” daughter of his brother, Gepar Ram, aged 8 years, went in
forest for grazing goats. But in the evening did not come back at
home, then complainant went in forest to search and to bring her
back at home. During search near the river he saw that accused
appellant- Shesha Ram, was forcibly committing inter-course with
his niece and after seeing him, the accused ran away from the
place of occurrence. The niece of complainant was lying
unconscious at the place of occurrence. The complainant took his
niece Ms. “D” to home and thereafter took her at Govt. Hospital,
Pali for treatment. It was thus prayed that action may be taken
against the culprit.
Upon receipt of the said written report (Ex.P/2), F.I.R.
No.117/2007 (Ex.P/9) was registered on 22.09.2007 at Police
Station- Guda Endla, against the appellant under Section 376 of
IPC.
After registration of FIR, investigation was conducted in
which after arresting the accused appellant and investigation of
the FIR resulted into submission of a charge sheet against the
appellant for offence under Section 376 (2) (f) of IPC in the court
of Chief Judicial Magistrate, Pali, from where the case was
committed to the court of Sessions Judge, Pali, but later on
(3 of 12)
[CRLA-479/2008]
transferred to the court of Addl. Sessions Judge (FT) No.2, Pali for
trial.
The learned trial court after providing opportunity of hearing
to the appellant framed charge under Section 376 (2) (f) of IPC
against the appellant, but the appellant denied the charge and
claimed for trial.
In the trial, statements of 15 prosecution witnesses were
recorded and 18 documents were exhibited in the trial. After
recording the evidence of prosecution statements of accused
appellant were recorded under Section 313 Cr.P.C. in which he
has specifically denied the charges and stated that allegations are
false.
At the conclusion of trial, the learned trial court vide
judgment impugned dated 14th of February 2008 proceeded to
convict the accused appellant for offence u/s 376 (2) (f) of IPC
and sentenced him to life imprisonment along with fine of
Rs.1000/- and in default of payment of fine to undergo three
years’ rigorous imprisonment. The said judgment is under
challenge in this appeal.
Learned counsel for the accused appellant argued that
judgment impugned is total erroneous and contrary to law and the
finding arrived at by the trial court with regard to age of
prosecutrix is perverse because prosecutrix herself did not depose
the fact of age in her statements, more so, stated that she is not
aware about her age. Learned counsel for the appellant submitted
that trial court has further committed an error in not appreciating
the medial evidence available on record to hold the appellant
(4 of 12)
[CRLA-479/2008]
guilty for committing rape with the prosecutrix. As per arguments,
Dr. Arun Nema (PW.12) stated that internal examination of
prosecutrix was conducted by Dr. Sushila Rathi, and it was noticed
by Dr. Sushila Rathi that there was bleeding from private part of
prosecutrix and a little wound was wound upon said part. The
report with respect to internal examination of prosecutrix was
prepared by Dr. Sushila Rathi but it was signed by her, which is
obvious from Ex.P/17 and Dr. Sushila Rathi, has not been
examined by the prosecution through she was the best evidence
to prove the internal examination of prosecutrix and the report
(Ex.P/17).
Learned counsel for the appellant argued that such type of
evidence cannot be treated to be a trustworthy evidence to reach
at the conclusion for commission of offence of rape, therefore, the
judgment impugned deserves to be quashed. It is further
submitted that the alleged eyewitness PW.2- Bhagaram cannot be
treated to be eyewitness as per his statement because he has
narrated altogether different story in his statement than the story
which was narrated by him in the FIR. Therefore, the finding of
conviction arrived at by the trial court suffers from illegality.
While inviting our attention towards the statements of PW.7-
Smt. Sayari (mother of prosecutrix) submitted that she has
negated the prosecution story of committing rape by accused
appellant with her daughter. The crux of the argument of learned
counsel for the appellant is that prosecution has failed to prove its
case beyond reasonable doubt for committing offence of rape by
the accused appellant because there is no eyewitness of the
(5 of 12)
[CRLA-479/2008]
incident, therefore, the judgment impugned may kindly be set
aside.
In the alternative, it is submitted by the learned counsel for
the appellant that as per prosecution allegations it is not a rarest
of rate case in which life imprisonment is to be imposed for
committing offence under Section 376 (2) and (f) of IPC.
Therefore, even if this Court comes to the conclusion that
prosecution has proved its case beyond reasonable doubt, then
also in view of judgment passed by Hon’ble Apex Court in Sunil
Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in
(2014) 4 SCC 375 and in recent judgment of Hon’ble Apex Court
in the case of State of Himachal Pradesh Vs. Sanjay Kumar @
Sunny, reported in 2017 Cr.L.J. 1443, the sentence of life
imprisonment may kindly be reduced to the period already
undergone because the appellant is behind the bars since
February, 2008 and that at the time of commission of offence, he
was 19 years of age.
Per contra, learned Public Prosecutor vehemently opposed
these submissions and argued that the judgment passed by the
trial court does not require any interference because as per
evidence on record, more specifically, statement of prosecutrix
(PW.3- Ms. “D”), which is corroborated by the medical evidence,
there is no question to disbelieve the testimony of prosecutrix,
who was less than nine years of age. Learned Public Prosecutor
further submitted that after committing rape with her, the
prosecutrix was admitted in the hospital and she was medially
examined by Dr. Arun Nema (PW.12), in which it was stated by
(6 of 12)
[CRLA-479/2008]
Dr. Arun Nema that blood was oozing out from her private part
and there were two injuries upon her private part. Dr. Arun Nema
(PW.12), proved the medical examination report (Ex.P/7),
therefore, there is no question to disbelieve the evidence on
record so as to upset the finding of conviction recorded by the trial
court against the appellant for committing offence under Section
376 (2) (f) IPC.
Learned Public Prosecutor further argued that it is not a case
in which any lenient view is required to reduce the sentence
because the appellant is guilty for committing offence not only
with small girl but it is a offence against the society, therefore, the
instant appeal may kindly be dismissed.
After hearing learned counsel for the parties, we have
considered the arguments of learned counsel for the appellant as
well as learned Public Prosecutor.
In this case, statements of fifteen witnesses were recorded
by the trial court including statements of prosecutrix Ms. “D”
(PW.3). The prosecutrix stated in her statements that when I went
near the river, our neighbour Shesha Ram (accused appellant)
came there, where her goats were grazing near the bank of river.
The accused appellant came there and asked to give drinking
water and being the neighbour, I provided him drinking water
from my bottle but all of sudden he caught hold my neck and
forcibly took me in a pit and after pushing me, he undressed and
turn my clothes and opened his paint and penetrated his private
part into my vagina. At that time I made cries, but he committed
rape upon me. It is further stated by her that my uncle took her
(7 of 12)
[CRLA-479/2008]
from the place of occurrence and ultimately I was admitted in the
hospital. It is also stated by her that blood was oozing out from
her private part and I was examined by the doctor in the hospital.
After perusing the statement of prosecutrix Ms. “D”, we have
perused the statements of PW.-12 Dr. Aruna Nema, who stated
before the court on oath that on 22.09.2007 when I was posted as
Medical Jurist at Govt. Bangad Hospital, Pali, upon request made
by the police, I made medical examination of prosecutrix Ms. “D”
to ascertain the age and commission of rape upon her. The said
witness categorically stated that upon examination, two injuries
were found upon the private part of the prosecutrix and blood was
oozing out from her private part of the prosecutrix. After
examination, I referred prosecutrix to higher hospital.
The prosecutrix thereafter was admitted at Ummaid Hospital,
Jodhpur on 23.09.2007, where she was medically treated by Dr.
Sunil Kothari (PW.15). We have perused the statement of Dr.
Sunil Kothari (PW.15), in which following statement was given by
him, which reads as under: –
“fnukd
a 23-09-2007 dks eSa lgk;d vkpk;Z f”k”kq “kU; fpfdRlk ds
in ij mEens vLirky] tk/s kiqj eas dk;Zjr FkkA ml jkt s /kudh mez8 lky
mEens vLirky] tk/s kiqj dh vkikrdkyhu los k eas HkrhZ gbq Z Fkh] ftl ij e
q s
vkikrdkyhu dkWy ij cqyk;k x;k] eSua s ,oa Lh jkxs fo”k’s kK MkW j[s kk
tk[kM+ us ejht /kudh dh tkp a dh ,oa ;g fu.kZ; fy;k fd bldh cgs k”s kh
eas tkp
a djds vkWij”s ku fd;k tkoAs
Mlds iS;fs jfu;e eas pkVs Fkh] tks Qkp
s qV ls xqnk}kjk ds vkxs rd Fkh]
vUnj ;kfs u eas Hkh fV;j Fkk tks ikLs fV;jy okWy ls ,DlVus dj jgk Fkk vkSj
yVs jy okWy rd tk jgk FkkA bu pkVs dks Vkd a s yxkdj fji;s j fd;k x;kA
ckxa M+ vLirky] ikyh ls pkVs xzLr et:ck dks ;g dgjdj jQ s j
fd;k x;kFkk fd cPph dh ltjZ h ds vkStkj ugha gS tks et:c vLirky eas
(8 of 12)
[CRLA-479/2008]pkVs ds dkj.k HkrhZ jgh FkhA yMd + h ds firkth us pkVs ds ckj eas ;g crk;k
Fkk fd mlds lSDlqvy ,lkYs V gqvk gAS mDr pkVs fdlh Hkh vkcs tDs V l]s
cns u ls vkuk lEHko gS og fyxa Hkh gks ldrk gS vkSj vU; dkbs Z gkMZ
vkcs tDs V gks ldrk gSA et:c dk cSM , fVfdV inz “kZ ih15 gS] ftldh
Nk;k izfr ikoyh ij inz “kZ ih15, gSA inz “kZ ih15 ij , ls ch i`’Bkd a u
ejs k gS vkSj lh ls Mh Hkkx eas vkWij”s ku ukVs gS] bZ ls ,Q ejs s gLrk{kj o th
ls ,p MkW- j[s kk tk[kM+ ds gLrk{kj gS] tks Lh jkxs fo”k’s kK gS tks vkWij”s ku
eas ejs s lkFk FkhA”
We have perused the statements of other witnesses PW.2-
Bhagaram, PW.4- Sanwalram, PW.7 Sayri (mother of prosecutrix),
PW.9- Kajodmal, and investigating officer, PW.12- Dr. Arun Nema,
and also considered recovery of clothes and FSL report (Ex.P/19
and Ex.P/20). In our opinion, the allegation against the accused
appellant have been proved by the prosecution for committing
offence rape with prosecutrix Ms. “D”, therefore, it is not a case in
which finding of guilt recorded by trial court is required to be
disturbed.
In view of above discussion, we are of the opinion that
prosecution has proved the allegation for committing rape with
eight years old prosecutrix Ms. “D” against the accused appellant
punishable u/s 376 (2) (f) of IPC, therefore, we are not inclined to
disturb the finding of learned trial court whereby the accused
appellant has been held guilty for offence under Section 376 (2)
(f) of IPC because prosecutrix was eight years of age.
We have considered the prayer of learned counsel for the
appellant that it is not a rarest of rare case in which maximum
punishment of life imprisonment was to be awarded in view of
judgment of this Court in the case of Gyarsilal Vs. State of
(9 of 12)
[CRLA-479/2008]
Rajasthan (D.B. Cri. Appeal No.165/2006, decided on
20.01.2015 at Jaipur Bench of this Court). In the aforesaid
judgment the Division Bench of this Court reduced the sentence of
life imprisonment to ten years’ rigorous imprisonment while
following the judgment of Hon’ble Apex Court in the case of Sunil
Dutt Sharma (supra).
In the case of Chandalal @ Harchand Vs. State of
Rajasthan (D.B. Cri. Appeal No.947/2005, decided on
26.11.2014), the Division Bench of this Court (Jaipur Bench) while
considering the judgment of Hon’ble Apex Court in the case of
Sunil Dutt Sharma (supra), the coordinate bench gave following
verdict: –
“Hence, taking ratio of law laid in Sunil Dutt
Sharma (supra) which in turn had relied upon Sangeet
and Another Vs. State of Haryana (2013) Volume 2 SCC
452 and taking aggravated circumstances i.e. age of
the prosecutrix and the mitigating circumstance that
appellant is sole bread earner of the family, he is in the
corridors of the Court from last 11 years, we follow the
mandate of law laid in case of Bavo @ Manubhai
Ambalal Thakore (supra) and while maintaining the
conviction of the appellant, reduce the sentence of life
imprisonment awarded upon the appellant by the trial
court to ten years rigorous imprisonment. However, we
enhance the fine awarded by the trial court from
Rs.5,000/- to Rs.10,000/- while maintaining the default
clause prescribed by the trial court.
With the above modification and reduction in the
sentence i.e. from life imprisonment to ten years, the
present appeal stands disposed of by enhancing fine
from Rs. Five thousand to rupees Ten thousand, while
maintaining default clause.”
(10 of 12)
[CRLA-479/2008]We have also perused the judgment of Hon’ble Apex Court in
the case of Sunil Dutt Sharma (supra), so also, recent judgment
of Hon’ble Apex Court in the case of State of Himachal Pradesh
Vs. Sanjay Kumar @ Sunny (supra), in which the Hon’ble Apex
Court while consider earlier judgment in the case of State of
Rajasthan Vs. Om Prakash, reported in (2002) 5 SCC 745 imposed
sentence of 12 years for the offence u/s 376 (2) (f) and imposed
fine of Rs.50,000/-. The relevant paragraphs 33 and 34 of the said
judgment, are quoted herein below for ready reference: –
“33 At this juncture, we would also like to
reproduce the following passage from the judgment of
this Court in State of Rajasthan v. Om Prakash[5]:
“19. Child rape cases are cases of perverse
lust for sex where even innocent children are not
spared in pursuit of sexual pleasure. There cannot
be anything more obscene than this. It is a crime
against humanity. Many such cases are not even
brought to light because of the social stigma
attached thereto. According to some surveys,
there has been a steep rise in child rape cases.
Children need special care and protection. In such
cases, responsibility on the shoulders of the courts
is more onerous so as to provide proper legal
protection to these children. Their physical and
mental immobility call for such protection. Children
are the natural resource of our country. They are
the country’s future. Hope of tomorrow rests on
them. In our country, a girl child is in a very
vulnerable position and one of the modes of her
exploitation is rape besides other modes of sexual
abuse. These factors point towards a different
approach required to be adopted. The overturning
of a well-considered and well- analysed judgment
of the trial court on grounds like non-examination
of other witnesses, when the case against the
respondent otherwise stood established beyond
any reasonable doubt was not called for. The
minor contradiction of recovery of one or two
underwears was wholly insignificant.”
(11 of 12)
[CRLA-479/2008]In the result, we allow this appeal, set aside the
judgment of the High Court and restore the conviction
recorded by the trial court. The respondent shall
undergo rigorous imprisonment for a period of twelve
years for the offence under Section 376(2) (f) and shall
also pay a fine of Rs.50,000, failing which he shall
undergo further sentence of one year. He is also
convicted for committing offence under Section 506 IPC
for which he is sentenced to rigorous imprisonment for
two years. Both the sentences shall run concurrently.
The respondent be taken into custody forthwith to
serve out his remaining sentence.”
From evaluation of entire evidence, it is abundantly clear
that evidence brought on record contain positive proof, credible
sequence of evidence and factual linking of appellant for
committing rape with prosecutrix but in the aforesaid judgments,
while considering identical facts, in the case of State of Himachal
Pradesh Vs. Sanjay Kumar @ Sunny, the Hon’ble Apex Court
punished the accused for a period of 12 years for committing
offence u/s 376 (2) (f) IPC and also imposed fine of Rs.50,000/-.
Therefore, while following the aforesaid judgments in the
case of Sunil Dutt Sharma (supra), State Himachal Pradesh Vs.
Sanjay Kumar @ Sunny (supra), and Chandalal @ Harchand
(supra), we deem it appropriate to reduce the sentence of life
imprisonment of appellant.
Consequently, the instant criminal appeal is hereby partly
allowed and while maintaining the finding of conviction recorded
by Addl. Sessions Judge (FT) No.2 Pali in Session Case
No.46/2007 vide judgment dated 14.02.2008 for offence u/s 376
(12 of 12)
[CRLA-479/2008]
(2) (f) IPC, the sentence of life imprisonment is hereby reduced to
12 years’ rigorous imprisonment but fine is enhanced to
Rs.50,000/- with default stipulation to further undergo one year
additional imprisonment. Upon deposition of fine amount, the
same be paid to the prosecutrix.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.
DJ/-