HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

D.B. Criminal Appeal No. 333/2009

Shri Ram s/o Shri Goparam, b/c Bishnoi, r/o Sangasani, P.S.
Luni, District Jodhpur (Lodged in Central Jail, Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
Connected With
D.B. Criminal Appeal No. 456/2009

Bhanwar Lal s/o Shri Jiya Ram, b/c Bishnoi, r/o Village Jambha,
Tehsil Phalodi, District Jodhpur (Raj.) (Lodged in Central Jail,
Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
D.B. Criminal Appeal No. 590/2010
Baburam S/o Shri Lachharam Ji, b/c Bhil, r/o Koyta, P.S. Sayla,
District Jalore ( Lodged in Central Jail, Jodhpur)
—Appellant
Versus
State of Rajasthan
—-Respondent

For Appellant(s) : Mr. Dhirendra Singh for appellant Shri
Ram.
Mr.Mahaveer Bishnoi for appellant
Bhanwar Lal
Mr.Rajeev Bishnoi, Amicus Curiae for
appellant Babu Ram
For Respondent(s) : Mr.J.P.S.Choudhary, Public Prosecutor.
(2 of 24) [CRLA-333/2009]

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR

Judgment

28th August,2018

Per Hon’ble Mr. Sangeet Lodha, J.

Reportable

1. These appeals are directed against judgment and order

dated 23.3.09 passed by Additional Sessions Judge (Fast Track)

No.1, Jodhpur, in Session Case No. 89/07, whereby the appellants

were convicted and sentenced as under :-

Under Section 363 IPC

To suffer five years rigorous imprisonment with a fine of
Rs.1,000/-; in default of payment of fine to further
undergo three months simple imprisonment.

Under Section 366 IPC

To suffer seven years rigorous imprisonment with a fine
of Rs.5,000/-; in default of payment of fine to further
undergo three months simple imprisonment.

Under Section 376(2)(g) IPC

Life Imprisonment with a fine of Rs.10,000/-; in default
of payment of fine to further undergo six months simple
imprisonment.

The sentences were directed to be run concurrently.

2. The prosecution story in nutshell may be summarized thus :

On 26.3.07 at 5 PM, the complainant Sohan Lal (P.W.2)

submitted a written report (Ex.P/1) to the SHO, Police Station,

Basni, Jodhpur stating that on 25.3.07, his daughter and wife

were sleeping at home in the night. He had gone to Pipar and was
(3 of 24) [CRLA-333/2009]

not at home. Around 1 A.M., complainant’s daughter, the

prosecutrix “S” (the name is concealed by us) came out for using

toilet, on opening the door, four boys were standing outside. On

seeing them, the prosecutrix got frightened and when she was

about to close the door, those boys flicked and caught hold of her

while placing a cloth over her mouth and was taken to a room in

nearby factory. One of the boys namely Bhanwar committed rape

on her, three others namely, Shri Ram, Babu and one another who

could not be identified were standing nearby at home. When

complainant’s wife woke up, switched on light, saw the gate open

and the prosecutrix was not found on the bed, on this she rushed

to nearby neighbour Mahesh. Both Mahesh and complainant’s wife

conducted search for prosecutrix, then they saw two boys

standing outside. On seeing complainant’s wife and Mahesh, both

the boys went inside the room, on being chased they bolted the

door. The door was opened by them, there were four boys inside

the room, who pushed Mahesh and fled away. When they went

inside the room, they saw the prosecutrix in unconscious state

and carpet and blanket were placed over her. Seeing the

prosecutrix, it was revealed that the rape was committed on her.

In unconscious state, the prosecutrix was taken to home. After

two hours on regaining the consciousness, she narrated the

incident. Mahesh and complainant’s wife went to the factory owner

Shri Khiv Raj and Shri Ramesh and apprised them about the

incident. They started rebuking and said that the boys working in

the factory are not like that. They said to the complainant’s wife

that she is telling lie. The complainant’s wife while weeping

humbly said that the incident has occurred. In the meantime, the
(4 of 24) [CRLA-333/2009]

persons living nearby assembled there. The owner of the factory

abused and thrown stones over them and said do whatever you

want. In the next day morning, when the complainant reached

home, he went to meet the factory’s owner but they had already

fled away. On the other side, prosecutrix plunged into a water

tank constructed at home. The son of the complainant who was

standing nearby informed the complainant about the same, who

took out her from the water tank and since she had fell

unconscious, was taken to the hospital.

3. On the basis of the written report (Ex.P/1) the police

registered the FIR No.99 dated 26.3.07 (Ex.P/2) at 1 AM against

the accused Bhanwar Lal and four others for offence under Section

365, 376 IPC and the investigation commenced.

4. Necessary memos were drawn. Medical examination of the

prosecutrix was conducted. Age and sex determination report was

obtained. Various samples obtained and articles seized, were sent

to the Forensic Science Laboratory for examination. MLC report

and FSL report were obtained. The statements of witnesses were

recorded under Section 161 Cr.P.C. The prosecutrix was examined

under Section 164 Cr.P.C. After completion of the investigation,

the police filed the charge sheet against the accused Babu Ram @

Dinesh for offences under Sections 363, 366, 376 IPC before the

Judicial Magistrate No.4, Jodhpur. The investigation against

accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi was kept

pending under Section 173 (8) Cr.P.C.

5. The charge was framed against the accused Babu Ram for

offence under Section 363, 366 and 376 (2)(G) IPC, who denied

the charges and claimed trial.

(5 of 24) [CRLA-333/2009]

6. The prosecution got examined the witnesses (P.W.1 to

P.W.8). At this stage, the prosecution made an application under

Section 319 Cr.P.C. to summon the accused Bhanwar Lal Bishnoi

and Shri Ram Bishnoi for trial. The application was allowed vide

order dated 16.5.08 and the accused Bhanwar Lal Bishnoi and Shri

Ram Bishnoi were summoned by way of arrest warrant. After their

arrest, the charges were framed against them for offence under

Section 363, 366 376 (2)(G) IPC. They denied charges and

claimed trial. The witnesses produced on behalf of the prosecution

(P.W.1 to P.W.8) were examined. The documentary evidence was

exhibited as Ex.P/1 to P/14. The accused appellants were

examined under Section 313 Cr.P.C. In defence, three witnesses

D.W.1-Jaipal Singh, D.W.2-Shri Ram and D.W.3-Likhama Ram

were examined and the documentary evidence was exhibited as

Ex.D/1 to D/10.

7. After due consideration of the rival submissions and the

evidence on record, the learned trial Judge held the accused

appellants guilty for commission of the offences under Section

363, 366 and 376(2)(g) IPC and sentenced as indicated above.

Hence, these appeals.

8. Mr.Dhirendra Singh, learned counsel appearing on behalf of

the appellant Shri Ram contended that for the incident alleged to

have occurred on 25.3.07, FIR was lodged on 26.3.07 at 5 PM.

However, the same was sent to the Judicial Magistrate No.4,

Jodhpur on 29.3.07 at 11.15 AM. It is submitted that the delay in

filing the FIR as also in sending the copy thereof to the Judicial

Magistrate concerned remain unexplained and thus, the provisions

of Section 167 Cr.P.C. stands violated, which is fatal to the
(6 of 24) [CRLA-333/2009]

prosecution case. Learned counsel submitted that the deposition

of prosecutrix suffers from contradictions, improvement and

embellishment, which is not supported by any corroborative

evidence and thus, cannot be relied upon. Learned counsel

submitted that at the first instance, in the statement recorded on

27.3.07, by the police under Section 161 Cr.P.C. (Ex.D/1), the

prosecutrix levelled allegation of committing rape on her only

against Bhanwar Lal Bishnoi, however, in her statement recorded

under Section 164 Cr.P.C. (Ex.D/2), she levelled allegation of

committing rape against the appellant-Shri Ram Bishnoi as well.

Learned counsel submitted that even the mother of the

prosecutrix P.W.3-Samu Devi in her statement under Section 161

Cr.P.C. has levelled allegation of rape against Bhanwar Lal Bishnoi

and not against the appellant. That apart, P.W.4-Mahesh also in

his statement recorded under Section 161 Cr.P.C. (Ex.D/5) while

giving the details of the incident as revealed by the prosecutrix

has stated that Bhanwar Lal Bishnoi committed rape on the

prosecutrix and thus, apparently, the appellant-Shri Ram Bishnoi

has been falsely implicated in the case, on the basis of deposition

of the prosecutrix recorded during the trial of Babu Ram. Learned

counsel submitted that as per the investigation made by the

police, the appellant Shri Ram Bishnoi was not present at the

place of occurrence, which stand fortified by communication dated

24.3.08 (Ex.D/10) sent by the SHO, Police Station, Industrial

Area, Basni, Jodhpur. Learned counsel submitted that admittedly

the facility of toilet was available inside the prosecutrix’s house

and therefore, the conduct of the prosecutrix in going out of the

house for use of toilet is against the human nature. Learned
(7 of 24) [CRLA-333/2009]

counsel submitted that site plan (Ex.P/3) was prepared by the

police in presence of the prosecutrix wherein the place of accused

persons committing rape on the prosecutrix was shown to be the

room inside the Bhawani Metal factory and subsequently, on

prosecutrix making improvement in her statement recorded by the

Judicial Magistrate No.7, Jodhpur, bathroom situated outside the

house of Khema Ram Bishnoi was shown as the place of

occurrence. Learned counsel submitted that the statements of the

witnesses suffer from incongruity and embellishments and

therefore, they are wholly unreliable. Lastly, learned counsel

submitted that there is absolutely not an iota of evidence on

record to establish that the appellant had committed rape on

prosecutrix as alleged and therefore, he deserves to be acquitted.

Learned counsel submitted that the age of the prosecutrix was

more than 16 years, which is apparent from the MLC Report

(Ex.P/11) wherein the age of the prosecutrix is disclosed to be

around 18 years. Admittedly, she was a married girl. It is not the

case of the prosecution that while committing rape the appellant

indulged in violence and thus, there were no aggravating

circumstances and compelling reasons for awarding maximum

sentence and therefore, the sentence awarded deserves to be

reduced. In support of the contention, learned counsel has relied

upon Bench decisions of this Court in the matters of ‘Yogendra

Singh @ Bablu Vs. State of Rajasthan’ 2015 2 RLW (Raj.) 960 and

‘Dholya @ Rajendra Ors. Vs. State of Rajasthan’ 2014 4 RLW

(Raj.) 3031.

9. Mr. Mahaveer Bishnoi, learned counsel appearing for

appellant -Bhanwar Lal Bishnoi submitted that in the first instance
(8 of 24) [CRLA-333/2009]

in the written report (Ex.P/1) lodged by the father of the

prosecutrix P.W.-2 Sohan Lal, the names of the three accused

persons including the appellant were disclosed, however, in the

statement of the prosecutrix recorded by the police (Ex.D/1), the

persons involved in commission of the crime were disclosed to be

four, however, names of three accused persons, the appellant

herein, were disclosed. Thereafter, in the statement of the

prosecutrix recorded by the Magistrate under Section 164 Cr.P.C.

(Ex.D/2), the allegations of committing rape were levelled against

the appellants Bhanwar Lal Bishnoi Shri Ram Bishnoi. The

presence of appellant Babu Ram was not even disclosed outside

the bathroom, rather his presence was shown at the room in the

factory premises. Learned counsel submitted that inconsistency

and the contradictions in the statement of the prosecutrix at the

different stages make her testimony doubtful and cannot be relied

upon. Learned counsel submitted that as per the investigation

made by the police, the appellant Bhanwar Lal was not present at

the place of occurrence, which stand fortified by communication

dated 24.3.08 (Ex.D/10) sent by the SHO, Police Station,

Industrial Area, Basni, Jodhpur. Thus, on the basis of improvement

made by the prosecutrix at the later stage, the appellant has been

falsely implicated. Learned counsel would submit that the

involvement of the appellant in commission of the crime is not

proved beyond reasonable doubt and therefore, he deserves to be

acquitted.

10. Mr. Rajiv Bishnoi, Amicus Curiae submitted that in the

written report (Ex.P/1), which was lodged by the father of the

prosecutrix P.W.2-Sohan Lal, after making inquiry about the
(9 of 24) [CRLA-333/2009]

incident occurred from prosecutrix ( P.W.1), the mother of the

prosecutrix P.W.3-Samu and P.W.4-Mahesh, son-in-law of

complainant, wherein there is no allegation of appellant

committing rape on the prosecutrix. Learned counsel submitted

that even in the statement of the prosecutrix recorded by the

Magistrate under Section 164 Cr.P.C., the appellant Babu Ram was

not shown to be the person present outside the toilet rather his

presence was shown at the room in the factory premises situated

three plots away from the bathroom outside Khema Ram’s house.

The prosecutrix in her deposition before the court also not levelled

any allegation of appellant Babu Ram committing rape on her. The

father of the prosecutrix Sohan Lal has categorically deposed that

Babu Ram has not committed rape on prosecutrix. Learned

counsel submitted that even on the basis of deposition of P.W.3-

Samu no inference of appellant Babu Ram committing rape on

prosecutrix could be drawn and thus, there is no evidence against

the appellant Babu Ram regarding his involvement in commission

of the crime. Learned counsel submitted that the written report

(Ex.P/1) was submitted by the complainant on 26.3.07 at 5:00

PM, the appellant Babu Ram was arrested on 27.3.07 at 8:30 PM,

he was produced before the Magistrate on 28.3.07, which was

forwarded to the Magistrate on 29.3.07, which is the circumstance

give rise to suspicion about the offence and fatal to the

prosecution case. Learned counsel submitted that the order for

recording the statement of the prosecutrix under Section 164

Cr.P.C. was passed by the learned Magistrate on 28.3.07, which

was recorded on 2.4.07 and thus, the manner in which the

Investigating Officer has proceeded makes the entire prosecution
(10 of 24) [CRLA-333/2009]

story suspicious. Learned counsel submitted that the

contradictions, inconsistency and embellishments in the statement

of prosecutrix at the different stages indicates that the prosecution

has concealed the true story and thus, the appellant deserves to

be acquitted giving benefit of doubt.

11. We have considered the rival submissions and scanned the

evidence on record thoroughly.

12. Indisputably, the prosecution case rests on testimony of the

prosecutrix (P.W.1), her father, the complainant P.W.2-Sohanlal,

her mother, P.W.3- Smt. Samu, and her brother-in-law P.W.4-

Mahesh.

13. P.W.1- Prosecutrix deposed that on 25.3.07 around 10.00

PM, she had gone to bed in her room along with her grand-mother

and younger brother. Around 1.00 PM, when she came out to use

the Bathroom which is located outside the house, four persons

namely Bhanwar Lal Bishnoi, Shri Ram, Babu Bheel and one other

whose name is not known to her, were standing there. Bathroom’s

light was on. Bhanwar Lal Bishnoi lifted her in his lap, Shri Ram

placed a kerchief on her mouth, then Bhanwar Lal and Shri Ram

took away her to Bathroom in Khema Ram Bishnoi’s house which

is after three plots from their residence. Bhanwar Lal Bishnoi

committed rape on her. At that time, Shri Ram was also present

who pressed her mouth, then Bhanwar Lal pressed her mouth and

Shri Ram committed rape on her. They threatened her that if the

factum of their committing rape on her is revealed to anybody,

they will kill her brother. The accused Bhanwar Lal and Shri Ram,

present in the Court, were identified by her. As per her deposition,

after committing rape on her, Bhanwar Lal and Shri Ram took her
(11 of 24) [CRLA-333/2009]

away to Bhawani Art Factory, where Babu Ram was present. Babu

Ram and Bhanwar Lal pressed her mouth with a kerchief, she fell

unconscious due to suffocation. When she woke up in the

morning, she was in the room at her home, his brother-in-law

P.W.4-Mahesh, elder sister Manju, mother P.W.3-Samu and grand-

mother were present there. After regaining the consciousness, she

apprised her mother about entire incident. She had regained

consciousness around 5-6 AM. Then, around 8.30 AM, her father

returned home, he went to Bhawani Art Factory and started

quarreling with the boys, other members of her family also went

to the factory. Under the fear of bad name, she attempted to

commit suicide and jumped into a water tank, her father took her

out from the water tank and she was taken to Purva Hospital.

Thereafter, around 5-6 ‘O clock in the evening, she was taken by

the police personnel for checkup to Government hospital. At the

time, the rape was committed on her, she suffered two injuries on

the back which were shown to the doctor. The police had come to

their residence on 27th, the site plan (Ex.P-5) was prepared which

bears her signature. Her statement (Ex.D-2) was recorded before

the Magistrate. She had shown bathroom in Khema Ram’s house

to the police inasmuch as the rape was committed on her there.

She had handed over her apparels i.e. Pant, undergarments, shirt

and baniyan to the police, which were seized by the police. The

police had taken sample of her saliva vide Ex.P-7. Babu Ram Bheel

is known to her because he was working in the factory nearby and

used to talk with her younger brother. Their factory was let out to

Bhanwar Lal and Shri Ram and therefore, they were known to her.

(12 of 24) [CRLA-333/2009]

At the time, the rape was committed, as her mouth was pressed

by the accused persons, she could not cry.

In cross-examination, she deposed that the incident had

occurred with her on 26.3.07, on that day, she had apprised about

the incident to her mother and not the father. She had apprised

her father about the incident two days prior to recording of her

statement before the Magistrate (Ex.D-2). She denied the

suggestion of the defense that Bhanwar Lal was not present on

25th and 26th of March, 2007 at the place of occurrence. She

deposed that inside their house, there is no latrine, only bathroom

is there.

14. It is true that in her statement under Section 161 Cr.P.C.

(Ex.D-1), the prosecutrix has not levelled allegation regarding

accused Shri Ram Bishnoi committing rape on her, but then, in her

statement under Section 164 Cr.P.C. (Ex.D-2), she has

categorically deposed that Bhanwar Lal and Shri Ram Bishnoi took

away her to the bathroom in Khema Ram Bishnoi’s house and they

committed rape on her one after another. It is pertinent to note

that in her statement under Section 164 Cr.P.C. (Ex.D-2), she has

shown presence of only Bhanwar Lal Bishnoi and Shri Ram Bishnoi

and not of Babu Ram and anybody else, outside the toilet,

whereas in her deposition before the Court, though she has shown

the presence of accused Bhanwar Lal Bishnoi, Shri Ram, Babu

Ram and one other outside the toilet, but the allegation of lifting

her from the toilet and taking her to bathroom in Khema Ram’s

house, is levelled against accused Bhanwar Lal and Shri Ram

Bishnoi and not against Babu Ram. The presence of accused Babu

Ram is thereafter shown in the room at factory premises to whom
(13 of 24) [CRLA-333/2009]

she was handed over by Bhanwar Lal and Shri Ram. There is no

allegation of the prosecutrix in her deposition that Babu Ram

committed rape on her. Rather, according to her, at the room in

the factory premises, Babu Ram and Bhanwar Lal pressed her

mouth and due to suffocation she fell unconscious and when she

woke up in the morning she was in her own room at her

residence.

15. P.W.2-Sohan Lal, the complainant, deposed that on 25.3.07

in the afternoon he had gone from Jodhpur to Pipar, his mother,

wife, prosecutrix and three other children, son in law Mahesh and

elder daughter Manju were at home. On 26.3.07, he received a

telephonic call of his son in law Mahesh, thereupon he reached

Jodhpur at 8.00 AM and had a talk with his wife and son in law

Mahesh, who apprised him that the prosecutrix was kidnapped by

four persons in the night around 1.00 AM when she had gone to

use the toilet and committed rape on her. When he went to

Bhawani Art Factory and inquired about it, the owner of the

factory and 2-4 labourers started abusing him. After 10-15

minutes, his younger son Kanhaiya came and informed that

prosecutrix has jumped in the tank, he rushed to his house and

took out prosecutrix from the tank, she fell unconscious and was

taken to Purva hospital, where she was treated by the doctor. On

regaining consciousness, she apprised him about the incident a

little bit and started weeping.

In cross-examination, he deposed that the incident of eve

teasing had occurred with the prosecutrix in the month of January,

2007 and February, 2007 and he had lodged complaint at the

Police Station Basni. Explaining the delay in lodging the FIR, he
(14 of 24) [CRLA-333/2009]

deposed that the delay had occurred as prosecutrix was admitted

to the hospital.

In his statement recorded in the first instance as P.W.1

during the trial of Babu Ram alone, he categorically deposed that

his daughter had disclosed the names of Shri Ram and Bhanwar

Lal as the persons who committed the rape. Accused Babu Ram’s

was not named as per the person who committed the rape.

16. P.W.3-Samu, deposed that around 2.00 AM in the night, she

was woken up and told by her mother in law that the prosecutrix

had gone to the toilet but has not returned. She searched the

prosecutrix, but she was not there. She awakened her son in law

Mahesh and went in search of her daughter. Outside Rameshji’s

factory, two persons were standing who seeing them went inside

the factory. They banged the gate of the factory, however, it was

not opened, then, she and Mahesh pushed the gate and opened it.

One person was standing there and three were sleeping, on being

inquired, about the prosecutrix, he told that she is not there.

When she removed the bed lying on the floor, she saw the

prosecutrix naked in injured position. Accused Babu Bheel was

also there in naked position, who pushed them and fled away. The

prosecutrix was unconscious, she was taken home, she regained

consciousness in the morning and apprised about the incident

occurred. According to the said witness, the prosecutrix revealed

that two persons committed rape on her, Shri Ram Bishnoi and

one other. She deposed that she did not remember the other

person named by the prosecutrix whether he was Babu or

somebody else.

(15 of 24) [CRLA-333/2009]

17. P.W.4-Mahesh, deposed that in the room inside the factory,

3-4 persons were sleeping and one was standing. When, they

inquired about the prosecutrix, he said that nobody has come

there. They said to on the light, but they declined. He deposed

that in the dark, he had seen the prosecutrix lying naked and

Babu Ram lying on her with his pant half down, when they

removed the blanket, Babu Ram pushed P.W.3- Smt. Samu and

fled away. The prosecutrix was brought home. In the morning at

8.00 AM, his father in law (P.W.2-Sohanlal) returned from Pipar

and inquired about the incident from P.W.-3 Samu and thereafter

went to Bhawani Factory. After half an hour, the prosecutrix

jumped into water tank, she was taken out from the tank by

P.W.2-Sohan Lal, she had fallen unconscious.

In cross-examination, he deposed that on their entering the

room after pushing the door, everybody sleeping there had

awakened. In the room in Bhawani Factory, the persons present

were sleeping covered in the bed-sheet. He removed the bed-

sheet and saw the face of Babu Ram.

18. As per the Age Sex Examination Report (Ex.P/8), the

hymen of the prosecutrix was showing old tears. There were two

injuries on the back of the prosecutrix. The medical jurist opined

that no opinion can be given regarding recent sexual intercourse,

however, the vagina swab and smear were preserved for evidence

of semen. As per FSL Report (Ex.P/13) on the underwear of

prosecutrix as also of accused Babu Ram, human semen was

detected, however, vaginal swab and smear were sent for

Serological Examination but the report of the Serological

Examination was not exhibited in evidence. As per the deposition
(16 of 24) [CRLA-333/2009]

of the prosecutrix and her father, the date of birth of the

prosecutrix is 7.5.93, which is supported by the school certificate

(Ex.P/4) and thus, as on the date of commission of the offence,

the prosecutrix was about 14 years of age. The mother of the

prosecutrix P.W.3-Samu disclosed her age as 15 years. However,

as per the MLC Report (Ex.P/11), the age of the prosecutrix is

opined to be 17 to 19 years.

19. A perusal of the statement of the prosecutrix before the

Court reveals that her deposition regarding accused Shri Ram

Bishnoi and Bhanwar Lal lifting her from the toilet outside her

house, taking her to the bathroom in Khema Ram’s house and

committing rape on her one after another is consistent and there

is no such contradictions so as to make her testimony

untrustworthy and unreliable. It is true that in the first instance,

when written report (Ex.P-1) was submitted by the complainant,

the allegation of rape was levelled only against accused Shri Ram

Bishnoi, but it has come on record, that the prosecutrix had not

immediately revealed the entire incident to the complainant. It is

noticed that in her statement recorded under Section 164 Cr.P.C.

(Ex.D-2), also the prosecutrix has categorically stated that

accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi were the

persons who committed rape on her. In the statement recorded

under Section 164 Cr.P.C. (Ex.D-2) as also in the deposition before

the Court, the prosecutrix has categorically deposed that after

committing rape on her accused Bhanwar Lal and Shri Ram

handed over her to accused Babu Ram at the room in the factory

premises and said to do what they had already done. She has

categorically deposed that at the room in the factory premises
(17 of 24) [CRLA-333/2009]

Babu Ram and Bhanwar Lal pressed her mouth with kerchief and

she fell unconscious due to suffocation. According to her, when

she regain consciousness in the morning, she was in the room at

her home. Thus, obviously, she had no knowledge as to what Babu

Ram had done with her at the room in the factory premises. But

then, as per P.W.3-Samu Devi and P.W.4-Mahesh, they had seen

prosecutrix lying naked on the bed in the room and Babu Ram was

lying on her with his pant half down, when they removed the

blanket, Babu Ram pushed P.W.3-Samu Devi and fled away. They

have categorically deposed that when the prosecutrix was taken to

home, she was unconscious and regained the consciousness only

in the morning next day. It is pertinent to note that Babu Ram’s

presence was there out side the toilet of prosecutrix’s house and

thereafter, he was there at the room in the factory, when

prosecutrix was taken there by the accused Bhanwar Lal and Shri

Ram Bishnoi. Thus, on the facts and in the circumstances of the

case, on the basis of the deposition of the witnesses discussed

hereinabove, it is apparent that the accused persons acted in

concert, lifted the victim from the toilet outside her house and

committed rape on her. For the sake of argument, even if it is

assumed that on the basis of deposition of the witnesses the

factum of Babu Ram actually committing rape on the prosecutrix

is not proved, by virtue of Explanation I to clause (g) of Section

376(2) IPC, all of them can be held guilty of committing rape on

prosecutrix and it is not necessary for the prosecution to adduce

clinching proof of completed act of rape by each one of the

accused on the victim or each one of the victims where there are
(18 of 24) [CRLA-333/2009]

more than one. (Vide Pramod Mahto Vs. State of Bihar, AIR 1989

SC 1475)

20. Coming to the communication dated 24.3.08 (Ex.D/10) sent

by SHO, Police Station Basni to Additional Public Prosecutor,

Additional Session Judge (Fast Track) No.1, Jodhpur, suffice is to

say that under the provisions of Section 319 Cr.P.C., where in the

course of trial of an offence, it appears from evidence that any

person not being the accused has committed any offence for which

such person could be tried together with the accused, the court

may proceed against such person for the offence which he appears

to have committed. It is pertinent to note that the charge-sheet

was filed by the prosecution against the accused Babu Ram while

keeping the investigation against Bhanwar Lal and Shri Ram

Bishnoi pending under Section 173(8) Cr.P.C. It is really surprising

that there is ample evidence available against the accused persons

in the first instance when the charge-sheet was filed against

accused Babu Ram yet the Investigating Officer only on the basis

of the statement made by some of the persons regarding the

presence of the said accused somewhere else did not file charge-

sheet against the accused Bhanwar Lal and Shri Ram

notwithstanding the fact that the prosecutrix in her statement

under Section 164 Cr.P.C., had categorically deposed that the

accused Bhanwar Lal and Shri Ram Bishnoi had committed rape on

her. In any case, on the basis of the evidence on the record,

learned trial Judge has committed no error in proceeding against

the co-accused Bhanwar Lal and Shri Ram and conducting their

trial together with the accused Babu Ram.

(19 of 24) [CRLA-333/2009]

21. In view of the discussion above, in our considered opinion,

the learned trial Judge after due appreciation of the evidence

rightly held accused appellants guilty of the charges framed

against them.

22. Now the only question survives for consideration of this

Court is whether for charge for offence under Section 376(2)(g)

being proved against the accused appellants the sentence of life

imprisonment awarded by the trial Judge is just and proper or the

same deserves to be altered being excessive.

23. In ‘Sunil Dutt Sharma Vs. State (Government of NCT of

Delhi)’ (2014) 4 SCC 375, the Hon’ble Supreme Court while

dealing with a matter regarding conviction for offence under

Section 304 B IPC, wherein the accused was sentenced to suffer

maximum punishment of life imprisonment relying upon the

principles of sentencing evolved by the court over the years in

context of death penalty, observed:

“12. Are we to understand that the quest and search for
a sound jurisprudential basis for imposing a particular
sentence on an offender is destined to remain elusive
and the sentencing parameters in this country are bound
to remain Judge-centric? The issue though
predominantly dealt with in the context of cases
involving the death penalty has tremendous significance
to the Criminal Jurisprudence of the country inasmuch as
in addition to the numerous offences under various
special laws in force, hundreds of offences are
enumerated in the Penal Code, punishment for which
could extend from a single day to 10 years or even for
life, a situation made possible by the use of the
seemingly same expressions in different provisions of
the Penal Code as noticed in the opening part of this
order.

13. As noticed, the “net value” of the huge number of
in-depth exercises performed since Jagmohan Singh has
been effectively and systematically culled out in Sangeet
and Shanker Kisanrao Khade. The identified principles
could provide a sound objective basis for sentencing
(20 of 24) [CRLA-333/2009]

thereby minimising individualised and Judge-centric
perspectives. Such principles bear a fair amount of
affinity to the principles applied in foreign jurisdictions, a
resume of which is available in the decision of this Court
in State of Punjab v. Prem Sagar. The difference is not in
the identity of the principles: it lies in the realm of
application thereof to individual situations. While in India
application of the principles is left to the Judge hearing
the case, in certain foreign jurisdictions such principles
are formulated under the authority of the statute and are
applied on principles of categorisation of offences which
approach, however, has been found by the Constitution
Bench in Bachan Singh to be inappropriate to our
system. The principles being clearly evolved and
securely entrenched, perhaps, the answer lies in
consistency in approach.

14. To revert to the main stream of the case, we see no
reason as to why the principles of sentencing evolved by
this Court over the years though largely in the context of
the death penalty will not be applicable to all lesser
sentences so long as the sentencing Judge is vested with
the discretion to award a lesser or a higher sentence
resembling the swing of the pendulum from the
minimum to the maximum. In fact, we are reminded of
the age-old infallible logic that what is good to one
situation would hold to be equally good to another like
situation. Besides, para 163(italicised portion) of Bachan
Singh, reproduced earlier (see at SCC p.385-f, above),
bears testimony to the above fact.”

24. In ‘Ram Naresh Ors. vs. the State of Chhatisgarh’ (2012) 4

SCC 257, the Hon’ble Supreme Court while considering the

elaborate principles of sentencing laid down in Bachan Singh vs.

State of Punjab’, (1980) 2 SCC 684 and ‘Machhi Singh Ors. vs.

State of Punjab’, (1983) 3 SCC 470, while dealing with the

question of death sentence, observed that the cumulative effect of

both aggravating and mitigating circumstances need to be taken

into account while awarding the sentence. The court observed :

“76. The law enunciated by this Court in its recent
Judgments, as already noticed adds and elaborates the
principles that were stated in Bachan Singh and
thereafter, in Machhi Singh. The aforesaid Judgments,
primarily dissect these principles into two different
compartments-one being the “aggravating
circumstances” while the other being the “mitigating
(21 of 24) [CRLA-333/2009]

circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it
may not be very appropriate for the court to decide the
most significant aspect of sentencing policy with
reference to one of the classes under any of the
following heads while completely ignoring other classes
under other heads. To balance the two is the primary
duty of the court. It will be appropriate for the court to
come to a final conclusion balancing the exercise that
would help to administer the criminal justice system
better and provide an effective and meaningful
reasoning by the court as contemplated Under Section
354(3) Code of Criminal Procedure.”

The court while enumerating certain aggravating and

mitigating circumstances and determining the questions relatable

to sentencing policy further observed:

“79. The court then would a draw a balance sheet of
aggravating and mitigating circumstances. Both aspects
have to be given their respective weightage. The court
has to strike a balance between the two and see
towards which side the scale/balance of justice tilts.
The principle of proportion between the crime and the
punishment is the principle of “just deserts” that serves
as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of
proportionality” has a valuable application to the
sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to
examine what is just but also as to what the Accused
deserves keeping in view the impact on the society at
large.

80. Every punishment imposed is bound to have its
effect not only on the Accused alone, but also on the
society as a whole. Thus, the courts should consider
retributive and deterrent aspect of punishment while
imposing the extreme punishment of death.”

25. In ‘Bavo alias Manubhai Ambalal Thakore Vs. State of

Gujarat’ AIR 2012 SC 979, where the accused was held guilty for

offence under Section 376(2)(f) IPC for committing rape on 7

years old girl and was awarded life imprisonment by the trial

Judge and confirmed by the High Court, the Supreme Court

observed:

(22 of 24) [CRLA-333/2009]

“11. Considering the fact that the victim, in the case on
hand, was aged about 7 years on the date of the incident
and the accused was in the age of 18/19 years and also of
the fact that the incident occurred nearly 10 years ago, the
award of life imprisonment which is maximum prescribed is
not warranted and also in view of the mandate of Section
376(2)(f) IPC, we feel that the ends of justice would be met
by imposing RI for 10 years. Learned counsel appearing for
the appellant informed this Court that the appellant had
already served nearly 10 years.”

26. In Shimbhu Ors. vs. State of Haryana, AIR 2014 SC 739,

the Supreme Court while dealing with the issue with regard to

imposition of sentence for the offence of gang rape, observed:

“11. A perusal of the above provision shows that the
legislative mandate is to impose a sentence, for the offence
of gang rape, for a term, which shall not be less than 10
years, but it may extend to life and shall also be liable to
fine. The proviso to Section 376(2) Indian Penal Code, of
course, lays down that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose
sentence of imprisonment of either description for a term of
less than 10 years. Thus, the normal sentence in a case,
where gang rape is committed is not less than 10 years
though in exceptional cases, the Court by giving “special
and adequate reasons”, can also award the sentence of less
than 10 years.

12. It is a fundamental rule of construction that a proviso
must be considered in relation to the main provision to
which it stands as a proviso, particularly, in such penal
provisions. Whether there exist any “special and adequate
reason” would depend upon a variety of factors and the
peculiar facts and circumstances of each case. This Court, in
various judgments, has reached the consensus that no hard
and fast rule can be laid down in that behalf for universal
application.”

27. In Dholya @ Rajendra Ors. vs. State of Rajasthan through

Public Prosecutor, 2014 (4) RLW (Raj.) 3031, where the trial court

in making the choice of sentence of life imprisonment did not

make any discussion whatsoever why it has chosen maximum

sentence and further that why the minimum sentence of 10 years

would not be sufficient, a Bench of this court while taking into
(23 of 24) [CRLA-333/2009]

consideration the facts and circumstances of the case, imposed

sentence of 10 years imprisonment instead of life imprisonment.

28. Similarly, in “Yogendra Singh @ Bablu vs. State of

Rajasthan”, 2015 RLW 960, relying upon decision of the Hon’ble

Supreme Court in Bavo’s case (supra), a Bench of this court taking

into consideration the aggravated circumstances as also the

mitigating circumstances, reduced the sentence awarded from life

imprisonment to 10 years rigorous imprisonment.

29. In the instant case, undoubtedly, the appellants have been

found guilty of committing rape on a girl, who was though already

married, was only 14 years of age. But then, there is no other

violence involved in commission of the offence. It is not the case

of the prosecution that appellants are habitual offenders. Thus,

while following the mandate in Bavo’s case (supra) and while

taking into consideration the facts and circumstances of the

presence, we consider it appropriate to modify the order of

sentence and reduce the sentence of life imprisonment awarded

by the learned trial Judge to rigorous imprisonment for 10 years.

Further, we consider it appropriate to enhance the fine imposed by

the learned trial Judge from Rs.10,000/- to Rs.50,000/-, while

maintaining the default clause prescribed by the learned trial

Judge.

30. Accordingly, the appeals are partly allowed. The conviction

of the appellants Shri Ram, Bhanwar Lal and Baburam for offences

under Sections 363, 366 and 376(2)(g) IPC is upheld. The

sentences imposed by the learned trial Judge for conviction of the

appellants for offences under Sections 363 and 366 IPC are also
(24 of 24) [CRLA-333/2009]

maintained. However, the sentence imposed by the learned trial

Judge for conviction of the appellants for offence under Section

376 (2)(g) IPC is reduced from life imprisonment to ten years

rigorous imprisonment. The sentence of fine of Rs.10,000/- each

on this count is enhanced to Rs.50,000/- each, while maintaining

the default clause.

31. The appellants Shri Ram and Baburam are behind the bars.

They shall be released forthwith, if they have already served the

sentence imposed else, they will serve out the remaining

sentence. The trial Judge shall issue standing warrant for arrest of

appellant Bhanwar Lal, who is absconding. On being taken in

custody, he will serve out the remaining sentence. The appellants

Shri Ram and Baburam, on being released from imprisonment

pursuant to this order, shall furnish a personal bond in sum of

Rs.50,000/- each to the satisfaction of the learned trial Judge in

terms of provisions of Section 437A Cr.P.C.

(VIRENDRA KUMAR MATHUR),J (SANGEET LODHA),J

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