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Shri Kishan S/O Late Ramdev Khatik vs State Of Rajasthan on 23 September, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Criminal Appeal No. 103/2019

Shri Kishan S/o Late Ramdev, B/c Khatik, aged 72 years, R/o
Nimeda, P.S. Phagi, District Jaipur.
(At present confined in Central Jail, Jaipur)
—-Accused-Appellant
Versus
State Of Rajasthan Through P.P.
—-Respondent

For Appellant(s) : Mr. Asad Ali

For Respondent(s) : Mr. Javed Chaudhary for the State

HON’BLE MRS. JUSTICE SABINA

HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment / Order

23/09/2019

Appellant has filed this appeal challenging

judgment/order dated 10.12.2018 passed by the Trial Court,

whereby, appellant was convicted and sentenced qua offence

punishable under Section 376(2)(i) Indian Penal Code, 1860

(hereinafter referred to as ‘SectionIPC’) and appellant was convicted

qua offence punishable under Section 5(M)/Section6 of the Protection

of Children from Sexual Offences Act, 2012 (hereinafter

referred to as the ‘Act’) and separate sentence was not

passed qua the said offence in view of sentence passed under

Section 376(2)(i) IPC.

Prosecution story was set in motion on the basis of the

statement of the report lodged by complainant Hansraj. On

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the basis of the said report Exhibit P-5, formal FIR No.263

dated 14.07.2017 registered at Police Station Phagi, District

Jaipur under Sections 354, Section354(A), Section354(B), Section376 IPC and 3/4

of the Act.

Prosecution story, in brief, as per the FIR is that on

11.07.2017 victim (sister of the complainant), aged about

twelve years had gone to the forest for grazing goats.

Shrikishan was also grazing goats and at about 2.00 p.m., he

started teasing the victim. When sister of the complainant

said ‘no’ to Shrikishan then he tore her clothes and raped her.

Victim ran home and her father took her to the hospital for

treatment.

After completion of investigation and necessary

formalities, challan was presented against the appellant.

Trial Court framed charges against the appellant under

Section 376 IPC and 3/4 of the Act. Appellant did not plead

guilty to the charges framed against him and claimed trial.

In order to prove its case, prosecution examined twelve

witnesses, during trial. Appellant when examined under

Section 313 Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘SectionCr.P.C.’), prayed that he was innocent.

Appellant did not examine any witness in his defence.

Learned counsel for the appellant has submitted that the

Trial Court had erred in ordering the conviction and sentence

of the appellant. In-fact, victim was aged about twenty years.

No reliance could be placed on the school record Exhibit P-

7(A) as the victim had stated in her cross-examination that

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she had never gone to the school. As per the medical

evidence, prosecutrix was habitual of intercourse. Lastly,

learned counsel for the appellant submitted that, in case, the

conviction of the appellant was liable to be upheld, then his

sentence was liable to be reduced as the appellant is aged

about seventy years and is suffering from various age related

illness.

Learned state counsel, has opposed the appeal.

Prosecutrix while appearing in the witness-box as PW-1

has categorically deposed that on 11.07.2017, she had gone

for grazing goats. At about 2.00 p.m., appellant had raped

her.

Exhibit P-4 is the medico legal examination report of the

prosecutrix. The said document was proved by PW-11 Dr.

Sadhna Chatargee. A perusal of Exhibit P-4 reveals that the

hymen of the prosecutrix was absent. She had suffered

abrasion of her left arm.

Thus, the version of the prosecutrix stands duly

corroborated by medical evidence. Prosecutrix was cross-

examined by the defence counsel, but her testimony with

regard to the offence committed by the appellant could not be

shaken.

PW-4 Hansraj (brother of the prosecutrix), PW-5 Failiram

(uncle of the prosecutrix), PW-6 Shayar Devi (aunt of the

prosecutrix) and PW-8 Chauthi Devi (mother of the

prosecutrix) have supported the version of the prosecutrix as

narrated to them by her.

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In order to establish the age of the prosecutrix,

prosecution examined PW-3 Dilip Kumar. The said witness

deposed that he was principal of Government High School

Nimera, Phagi. He proved Exhibit P-7(A) relevant entry in the

register with regard to the admission of the prosecutrix. A

perusal of Exhibit P-7(A) reveals that the date of birth of the

prosecutrix was 4.6.2008 and she was admitted in the school

on 29.06.2015. It further shows that the name of the

prosecutrix was struck-off from the school on 30.04.2016 on

account of her continued absence.

Since, the entry in the register Exhibit P-7(A) relates to

a Government School, there is no reason to doubt the

genuineness of the same. Keeping in view Exhibit P-7(A), age

of the prosecutrix at the time of the incident was less than ten

years. Thus, the prosecutrix was aged about nine years at the

time of the incident. Prosecutrix has stated that she had

never gone to the school. It appears from Exhibit P-7(A) that,

although, admission of the prosecutrix was done in the

school, but she did not attend the school and due to this

reason, her name was struck-off by the school authorities.

In the facts and circumstances of the present case,

learned trial court had, thus, rightly placed reliance on Exhibit

P-7(A) as the same cannot be said to be in conflict with the

testimony of the prosecutrix.

As per Exhibit P-11 which was proved by PW-10 Dr.

Mukesh Kumar Nogiya, there was nothing suggestive that

appellant was not capable of doing sexual intercourse.

Thus, in the present case, prosecution had been

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successful in establishing its case. The statement of the

prosecutrix inspires confidence and moreover, she had no

reason to falsely involve the appellant in this case.

Hence, learned trial court had, thus, rightly ordered the

conviction of the appellant under Section 376(2)(i) IPC and

Section 5(M)/Section6 of the Act.

Appellant is aged more than seventy years. Hence, we

are of the opinion that the sentence of imprisonment awarded

to the appellant is on a higher side.

Accordingly, conviction of the appellant under Section

376(2)(i) IPC and Section 5(M)/Section6 of the Act is maintained.

However, the sentence qua imprisonment under Section

376(2)(i) IPC of the appellant is reduced from imprisonment

for life to rigorous imprisonment for ten years. The sentence

qua fine as ordered by the trial court is reduced from Rupees

one lac to Rupees ten thousand and in default of payment of

fine, appellant shall further undergo rigorous imprisonment

for two months.

With this modification in the sentence, appeal stands

disposed of accordingly.

(GOVERDHAN BARDHAR),J (SABINA),J

Mohita/-

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