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(Downloaded on 28/08/2019 at 11:52:16 PM)
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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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