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

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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
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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
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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
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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
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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
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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
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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
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[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
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[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.”

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[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.”

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[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
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[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/-