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Subhash vs State on 27 August, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 139/2010

Subhash S/o Baga Ram, by caste Bishnoi, resident of Ekalkhori,
District Jodhpur.
(At present lodged at Central Jail, Jodhpur.)
—-Appellant
Versus
State of Rajasthan
—-Respondent

For Appellant(s) : Mr. Dhirendra Singh with Mr. Rajeev
Bishnoi
For Respondent(s) : Mr. R.R. Chhaparwal, Public
Prosecutor.

HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE MR. JUSTICE P.K. LOHRA

Judgment

Judgment reserved date: 7th August, 2019
Date of Pronouncement: 27th August, 2019

BY THE COURT (PER HON’BLE P.K. LOHRA, J.)

Assailing the judgment dated 11th of March, 2010, passed by

Addl. Sessions Judge (Fast Track) No.1, Jodhpur (for short,

‘learned trial Court’), accused-appellant has laid this appeal under

Section 374(2) of the Code of Criminal Procedure, 1973 (for short,

‘SectionCr.P.C.’).

2. By the impugned judgment, the learned trial Court indicted

appellant for offence punishable under Sections 376(2)(g) and Section323

IPC and acquitted him for offence punishable under Sections 363,

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366 and 120-B SectionIPC. For offence under Section 376(2)(g) IPC, the

learned trial Court sentenced appellant punishment of life-term

imprisonment with fine of Rs.10,000/- and in default of payment

of fine to undergo sentence for six months’ simple imprisonment

whereas for offence under Section 323 IPC he is sentenced for six

months’ simple imprisonment. The learned trial Court also

ordered that both the sentences to run concurrently.

3. Succinctly stated, the prosecution case is that on 25 th of

February, 2007, at about 7:30 PM, complainant P.W.3, father of

the prosecutrix, submitted written report Ex.P/7 at Police Station

Osian. It is stated in the report that his daughter (prosecutrix) is

studying at Ghewra School. The report further unfurls that on 23 rd

of February, 2007, at about 1:00 PM, one Ms. Neetu gave a phone

call to the school informing the prosecutrix to leave school

compound immediately for reaching Ghewra Bus-Stand. The

report also contained recitals that at Ghewra Bus-Stand

Bhanwaroo is waiting for her with Bolero Jeep. As per report,

responding to the phone call, prosecutrix left the school after

taking permission from Manager but when she reached the

destination, Bolero Jeep was not available at the bus-stand.

Thereafter, she made a phone call to Bhanwaroo, who then

informed her that he is waiting for her at some distance from bus-

stand on Tinwari Road. The report also revealed some facts

concerning Ms. Neetu, solicited by the prosecutrix from

Bhanwaroo, and his enticing/alluring her to board the jeep on

some pretext.

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4. After travelling for about 3-4 kilometers from Tinwari,

Bhanwaroo allowed appellant waiting there to board the jeep and

later on both of them took jeep at a secluded place and ravished

the prosecutrix is also narrated in the report. Factum of beating

the prosecutrix by both the accused persons on putting resistance

against their nefarious acts and her suffering injuries during

scuffle too find mention in the report. Subsequent to commission

of rape and other offences by the accused persons including the

appellant, as per report, the prosecutrix was dropped outside

Ghewra village with a threat to life and word of caution not to

divulge information about the incident to anyone. Due to threat,

the prosecutrix did not inform anyone in the school but after

returning home narrated tragic saga to her mother, who in turn

conveyed the same to the complainant, also comes to the fore

from the report.

5. Upon completion of investigation, police submitted charge-

sheet against three accused persons. In the charge-sheet

Accused Mukesh Kanwar @ Mugli @ Neetu was charged for offence

punishable under Sections 120-B, Section363, Section366, and Section376 IPC, whereas

accused appellant and Vijay Kumar @ Bhanwarlal were charged

for offence punishable under Sections 363, Section366, Section323, Section376(2)(g)

IPC before the concerned Magistrate. Later on, the concerned

Magistrate, by resorting to Section 209 Cr.P.C., committed the

case to Sessions Court and finally the Sessions Judge transferred

the same to learned trial Court.

6. The learned trial Court, upon consideration of the record and

documents submitted therewith, and hearing submissions of

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accused persons as well as prosecution, discharged Smt. Mukesh

Kanwar @ Mugli @ Neetu for the charged offences by resorting to

Section 227 Cr.P.C. However, the learned trial Court after

considering the submissions of prosecution and accused found

grounds for presuming that appellant has committed offences

which are triable by Sessions Court so as to frame charges against

him for offence under Sections 363, Section366, Section376(2)(g), Section323 and Section120-

B IPC. When the appellant is confronted with the charges, he

denied all of them and thereupon he was put on trial. It so

happened that before the learned trial Court a dispute was raised

about the age of accused Vijay Kumar @ Bhanwarlal and after

inquiry he was declared juvenile but the said order was challenged

before this Court by way of revision. Be that as it may, the

learned trial Court proceeded with the trial of the appellant for the

charged offences.

7. In order to bring home guilt of the accused-appellant,

prosecution examined 18 witnesses including the prosecutrix Ms.

“S” (P.W.1) and complainant Om Prakash as P.W.3. Besides oral

evidence, prosecution also submitted requisite medical reports and

FSL reports for substantiating the charges. During trial, total 33

documents were exhibited.

8. After conclusion of prosecution evidence, appellant was

examined under Section 313 Cr.P.C., wherein he completely

repudiated the prosecution case. In support of his defence,

appellant exhibited 4 documents viz., Ex.D/1 School Admission

Form, D/2 School Admission Register, D/3 D/4 statements under

Section 161 Cr.P.C. of complaint’s brother and Bhanwarlal

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respectively. The learned trial Court, thereafter, heard final

arguments and by the impugned judgment convicted appellant for

the offence punishable under Section 376(2)(g) and Section323 IPC and

awarded sentences as aforementioned. The learned trial Court,

however, acquitted appellant for the offence punishable under

Section 363, Section366 and Section120-B IPC.

9. Learned counsel for the appellant, Mr. Dhirendra Singh,

submits that while convicting appellant for the charged offences,

learned trial Court has completely overlooked visible

improvements, contradictions and inconsistencies in the testimony

of the prosecutrix. It is argued by learned counsel that co-

accused Vijay Kumar @ Bhanwarlal was having intimacy with the

prosecutrix is clearly unfurled from her statements, and her

admission of not knowing appellant before the incident posed a

question of great significance, which has not been addressed in

the impugned judgment. He, therefore, urged that finding of the

learned trial Court indicting appellant for the charged offences is

per-se vulnerable. Learned counsel has strenuously urged that

factum of appellant’s alleged involvement in commission of offence

has come to the fore during trial, therefore, in absence of

identification parade, finding of guilt recorded by the learned trial

Court is under serious clouds.

10. Learned counsel for the appellant would contend that

mentioning name of the appellant in report Ex.P/7 by complainant

(P.W.3) on the basis of information of the prosecutrix, wherein she

has not disclosed his identity and name, is a clear case of false

implication, which has escaped notice of learned trial Court.

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Delay in lodging FIR is also canvassed by learned counsel to

castigate veracity of prosecution story. It is also argued by

learned counsel that statements of the prosecutrix are

incongruous and if her testimony is scrutinized in the light of

statements of complainant P.W.3 and other witnesses then it is

rather difficult to indict the appellant for the charged offences.

11. Learned counsel has also submitted that no tangible

evidence was produced by the prosecution to prove age of the

prosecutrix and yet the learned trial Court has recorded a finding

of guilt against the appellant for commission of rape of a minor.

Learned counsel has further argued that entire prosecution case is

edificed on the phone call from Ms. Neetu, who was arraigned as

one of the accused in the charge-sheet but later on discharged

was a mitigating circumstance not taken into consideration by the

learned trial Court while indicting the appellant. Emphasizing on

a vital fact that prosecutrix had intimate relationship with co-

accused Vijay Kumar @ Bhanwarlal, at whose instance she left her

school for the destination, learned counsel submits that the same

has unequivocally unearthed serious loopholes and pitfalls in the

prosecution story which is completely eschewed by the learned

trial Court.

12. Acquittal of the appellant by the learned trial Court for

offence punishable under Sections 363, Section366 and Section120-B IPC is also

buttressed by the learned counsel to question reliability of

prosecution case. Dilating on the medical evidence, it is

argued by learned counsel that the same ought to have been

examined by learned trial Court in the light of other ocular

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evidence and some of the admitted facts surfacing a real doubt or

a doubt founded upon the reasons in adherence of golden rule of

criminal jurisprudence, i.e., proof beyond reasonable doubt.

Learned counsel, therefore, contends that the impugned judgment

is not sustainable.

13. Alternatively, learned counsel has submitted that even if

conviction of the appellant is sustained for the charged offences,

he deserves some reprive in the matter of punishment.

Elaborating his submissions in this regard, learned counsel

contends that appellant is under incarceration for last almost

twelve and half years, which is sufficiently adequate sentence for

the charged offences in the backdrop of peculiar facts and

circumstance of the instant case.

14. E. Converso, learned Public Prosecutor submits that

conviction of the appellant for the charged offences is based on

sound appreciation of evidence which warrants no interference. It

is further submitted by learned Public Prosecutor that testimony of

prosecutrix is clear and unequivocal showing involvement of the

appellant in commission of rape on her, besides causing injuries of

simple hurt.

15. Learned Public Prosecutor would contend that medical

evidence was a clinching evidence to establish commission of rape

on prosecutrix, therefore, rightly construed by the learned trial

Court. While referring to FSL Reports, learned Public Prosecutor

submits that traces of human sperm on panty of prosecutrix

(Ex.P/4) and report (Ex.P/5) are properly considered by the

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learned trial Court while recording finding of guilt against the

appellant. It is also urged by learned Public Prosecutor that a

cumulative reading of statements of the prosecutrix in conjunction

with medical evidence has conclusively proved the offence of rape,

and therefore, said finding of the learned trial Court cannot be

faulted.

16. Countering argument of learned counsel for the appellant, it

is submitted by the learned Public Prosecutor that discharge of Ms.

Neetu and alleged intimacy of the prosecturix with co-accused

Bhanwarlal was not of any credence in the backdrop of appellant’s

criminal delinquency. He, therefore, submits that this ambitious

plea of learned counsel merits repudiation. Learned Public

Prosecutor would contend that acquittal of the appellant for

offence punishable under Sections 363, Section366 and Section120-B IPC is

having no consequence insofar as conviction of the appellant for

offence of gang rape inasmuch as the learned trial Court has

convicted appellant by relying on cogent and reliable evidence of

prosecutrix as well as corroborating medical evidence. Refuting

argument of learned counsel for the appellant about delay in

lodging FIR, learned Public Prosecutor submits that the FIR was

lodged within 48 hours, therefore, considering the rural

background of the victim’s family, same cannot be construed as

delayed action.

17. Joining issue with the learned counsel for the appellant on

alternative plea of reducing the sentence, it is submitted by

learned Public Prosecutor that considering the age of prosecutrix,

interference in sentence is not warranted.

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We have bestowed our considerations to the arguments

advanced at Bar, perused the impugned judgment and also

scanned entire record of the case.

18. In a case involving an accused for offence of ravishing a

girl/lady, her deposition is most fundamental to prove the charge.

What should be the methodology of proof in a case of rape cannot

be put in a straight-jacket and every case depends on its own

peculiar facts and circumstances. When evidence of the

prosecutrix is cogent and trustworthy a contrary opinion of the

doctor, which is not based on any reason, deserves no credence

for recording conviction of the accused.

19. As usual, the prosecution case in the instant matter is

essentially founded on the version of the prosecutrix duly

supported by the statements of her father complainant P.W.3 and

other witnesses. For ascertaining the finding of guilt recorded by

learned trial Court, at the threshold, it would be appropriate for us

to examine the testimony of prosecutrix Ms.”S”(P.W.1).

Prosecutrix P.W.1, in her statements, has castigated appellant for

commission of rape on her and further disclosed his name and

identity on the basis of information by co-accused Bhanwarlal.

Prosecutrix (P.W.1) has further deposed that upon her resistance

against commission of rape, she was given beatings by the

appellant and other co-accused Bhanwarlal. During her

statements, she has also identified appellant. The factum of

narrating the entire incident to her mother is also clear and

unequivocal from the statement of P.W.1.

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20. Although prosecutrix (P.W.1) was subjected to thorough

cross-examination by the defence counsel, but, in our opinion,

defence has miserably failed to impeach her testimony. Attempts

made by the defence counsel to discredit her testimony are

essentially with reference to her age and factum of leaving school

upon receiving phone call of Ms. Neetu, which we feel, is unworthy

of any credence, in the backdrop of attributed criminal

delinquency to the appellant as well as testimony of P.W.3

complainant and P.W.7 Bhanwarlal. That apart, in her cross-

examination, P.W.1 has also stated that she was forced to board

the Bolero Jeep. The suggestion of the defence counsel about

implication of the appellant in the case due to previous scuffle

between him and complainant is also denied by the witness. In

totality, if the statements of prosecutrix (P.W.1) are critically

analyzed then there remains no room of doubt to record our

indignation about veracity of her testimony. Therefore, reliance

placed on the testimony of prosecutrix PW1, by the learned trial

Court, cannot be fouled.

21. Besides statement of P.W.1, Complainant Om Prakash

(P.W.3) is also corroborating her version. That apart, P.W.3 has

also proved date of birth of the prosecutrix. Smt. Gomti (P.W.5),

mother of the prosecutrix, too has also corroborated her

testimony. Likewise, Piyush Kumar (P.W.6) has also supported

the prosecution case. Dr. Jagdish Jugtawat (P.W.18) Medical

Jurist has also testified to prove commission of rape on the

prosecutrix besides six other simple injuries on her person,

allegedly caused by blunt weapon. P.W.18 has also proved

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duration of the injuries as two to four days old from the date of

examination of the prosecutrix. The testimony of P.W.18 is further

corroborated by report dated 26th of February, 2007 (Ex.P-5/Ex.P-

20). This report of the Medical Board contained recitals “there is

evidence of recent sexual intercourse”. Similarly, Injury Report of

the prosecutrix (Ex.P-6/Ex.P-19) is also in consonance and

conformity with the statement of Dr. Jagdish Jugtawat. In

common parlance, for an offence of rape testimony of the victim is

sufficient to bring home guilt, however, in the instant case, the

ocular evidence of the prosecutrix is further strengthened by the

medical evidence, and therefore, challenge to the findings

recorded by the learned trial Court by the appellant is not

sustainable.

22. The contention of learned counsel for the appellant that

prosecutrix went with co-accused Bhanwarlal of her own volition

and duly acknowledged by the learned trial Court is also not worth

any credence vis-a-vis offence of rape. By applying normal rule of

prudency victim’s volition to accompany accused cannot be

construed as her concurrence for commission of rape. Therefore,

acquittal of appellant for offence punishable under Sections 363,

Section366 and Section120-B IPC is by no means a mitigating circumstance

having even indirect ramification on his conviction recorded by the

learned trial Court. Law is trite that in case victim is minor her

consent is immaterial and cannot be a valid defence against

offence of rape much less gang rape. The clear and unequivocal

deposition of the victim (P.W.1) that she was subjected to gang

rape by the appellant and co-accused Bhanwarlal conclusively

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attracts statutory presumption about absence of her consent

envisaged under Section 114A of the Indian Evidence Act, 1872.

23. Plea of the accused about delay in lodging FIR too is

superfluous and looking to the rustic background of the victim’s

family, same cannot be construed as fatal to discard the

prosecution case. Moreover, the so called delay of hardly 48 hours

in case of serious offence of rape is wholly insignificant because it

involves the prestige and reputation of the family of the victim.

Thus, in overall fact scenario, we are unable to find any infirmity

in the finding of guilt recorded by learned trial Court and therefore

record our satisfaction that finding of guilt recorded by the learned

trial Court is based on sound appreciation of evidence.

24. Now adverting to the alternative plea of the learned counsel

for appellant for giving him some respite in the matter of

punishment, we would like to examine it with pragmatic approach

by invoking ideal scheme of criminal justice. The doctrine of Lek

Talionix, i.e., law of retaliation has gone obsolete in the modern

criminal jurisprudence and therefore it requires metaphorical and

symbolical application. The object of punishment in the scheme

of modern social science is correction of the wrong-doer and not

wrecking gratuitous punitive vengeance on the criminals. In the

present era, Courts are by and large adopting therapeutic

approach in the matter of punishment while shunning punitive

approach with the solemn object of correction and eventual

reformation of the accused persons.

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25. Supreme Court, 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:

“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

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reached the consensus that no hard and fast rule can
be laid down in that behalf for universal application.”

27. From the available material including the arrest memo of the

appellant, it is amply clear that he was arrested on 28.02.2007

and therefore, by now he has completed total incarceration period

of almost twelve and half years. A very relevant fact that incident

relates back to 2007, i.e. more than a decade old, and the

appellant is acquitted for offence punishable under Sections 363,

Section366 and Section120-B IPC too cannot lose our sight to examine

alternative plea with objectivity. Admittedly, at the time of

committing offence under Section 376(2)(g) IPC by the appellant,

minimum sentence of ten years rigorous imprisonment was

prescribed with a discretion conferred on the Court to extend the

same upto life imprisonment. If the sentence handed down to

the appellant is examined in the backdrop of peculiar facts and

circumstances of the instant case, then, unhesitatingly, in our

view, reasons recorded by the learned trial Court are not

convincing. The factors, which were relevant and germane to the

matter, apart from some of the mitigating circumstances, are

completely overlooked by the learned trial Court while exercising

its sentencing discretion. In totality, we feel that sentence of life

imprisonment, awarded by the learned trial Court, is excessive

and harsh. Our view finds support of a Bench decision in the

matter of Shri Ram Vs. State of Rajasthan [2018 (4) RLW 3212

(Raj), wherein, in almost identical circumstances, substantive

sentence of life imprisonment is altered and reduced to minimum

sentence of ten years.

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28. It is also noteworthy that in the instant case the appellant

has been found guilty of committing gang rape on a minor girl, but

it is not the case of the prosecution that appellant is a habitual

offender. Moreover, at the time of commission of offence accused

was in his prime youth, aged about 23 years, which too is a

legitimate consideration for slashing the substantive sentence in

adherence of reformative approach. Thus, while following the

mandate in Bavo’s case (supra) and taking into consideration the

peculiar facts and circumstances of the present case, we consider

it appropriate to give some reprieve to the appellant in the order

of sentence by reducing the same commensurating with his

proven delinquency.

29. Consequently, the appeal of the appellant is allowed in part

and while maintaining his conviction for offences punishable under

Sections 376(2)(g) and Section323 IPC, the concurrent substantive

sentence awarded to him is altered and reduced to twelve and half

years, which he has already undergone. The fine imposed by the

learned trial Court for both the offences and default sentences are

also affirmed. The appellant may be set at liberty, if not required

in any other case, upon his depositing the requisite fine and

furnishing a personal bond in a sum of Rs.50,000/- to the

satisfaction of learned trial Court, in terms of Section 437-A Cr.P.C.

(P.K. LOHRA),J (SANGEET LODHA),J

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