Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 1177 (RAJ)

Phoondia v. State of Rajasthan

2000-09-19

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - The accused appellant has preferred this appeal against the judgment and order dated 1.3.2000 passed by the learned Additional Sessions Judge. Barmer in Sessions Case No. 4/1999 by which he convicted and sentenced accused appellant in the following manner:- Name of accused appellant Convicted under Section Sentence awarded Phoondia 376 IPC R.l. for eight years and a fine of Rs. 2000/- in default of payment of fine to further underqo six months R.l. 341 IPC Simple imprisonment for one months. Both sentences were ordered run concurrently. 2. The facts necessary for the disposal of this appeal in short are as follows:- 3. On 10.12.1998 at about 4.00 RM. PW/2 Achlaram lodged a report to Ex.P/3 in the police station, Barmer stating that PW 1 Jasoda Studies in Class Vllth in Government Upper Primary School. Harsani and on 9.12.1998 at about 5.00 PM in the evening the PW 1 Jasoda was returning to her house, accused appellant took PW 1 Josoda forcibly from the way and committed rape on her and, thereafter, she reached the house and informed about the incident and, thereafter, the report was lodged. On this report, police chalked out FIR Ex.P/16 and started investigation. 4. PW/1 Jasoda was got medically examined and she was also examined for the purpose of determination of her age and her age has been determined as 13 years by the doctor. 5. After usual investigation, the police submitted the challan in the Court of Magistrate and, thereafter, the case was committed to the Court of Sessions. 6. On 16.3.1999 the learned Additional Sessions Judge, Barmer framed Charges under Section 376 and 341 IPC against the accused appellant. The charges were read over and explained to the accused appellant who pleaded not guilty and claimed trial. 7. In support of the case, the prosecution claimed as many as 14 witnesses and, thereafter statement of the accused appellant under Section 313 Cr.P.C. was recorded and one witness was produced in defence by the accused appellant. 8. After recording evidence and conclusion of trial, the learned Additional Sessions Judge, Barmer through his judgment and order dated 1.3.2000 convicted the accused appellant under Section 376 and 341 IPC and sentenced in the manner stated above. 9. Aggrieved from the said judgment and order dated 1.3.2000 passed by the learned Additional Sessions Judge, Barmer, the present appeal has been filed by the accused appellant. 9. Aggrieved from the said judgment and order dated 1.3.2000 passed by the learned Additional Sessions Judge, Barmer, the present appeal has been filed by the accused appellant. 10. In this appeal, the learned counsel for the accused appellant during the course of arguments, has not assailed the findings of conviction recorded by the learned Additional Sessions Judge. Barmer, though his judgment dated 1.3.2000, but it has been argued on behalf of the accused appellant that on the date of occurrence accused appellant was of about 21 years of age and thus, lenient view be taken in awarding sentence and atleast he may be awarded the sentence of 5 years RI instead of 8 years RI for the offence under Section 376 IPC. 11. On the other hand, the learned Public Prosecutor submitted that under Section 376(1) IPC, the minimum sentence provided in the law is even year and, therefore, less than seven years imprisonment cannot be imposed on the accused appellant. 12. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 13. Since the findings of conviction under Section 376 and 341 IPC recorded against the accused appellant by learned Additional Sessions Judge, Barmer through his judgment dated 1.3.2000 have not been challenged by the learned counsel for the accused appellant, therefore, they are liable to be confirmed and his appeal against the conviction under Section 376 and 341 IPC is liable to be dismissed. 14. In this case, the age of the prosecutrix PW 1 Jasoda has been assessed by the learned Additional Sessions Judge as 13 years, meaning thereby she was minor, but above the age of 12 years on the date of occurrence. Thus, the case would not fall under Section 376(2) sub-clause (f), but would fall under Section 376(1). 15. Sub-Section (1) of Section 376 IPC, after it was amended in 1983, has prescribed minimum sentence of rigorous imprisonment of seven years upon a person convicted under Section 376 IPC unless the case is covered by the proviso. Proviso to above Section says that the Court may, for adequate special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than seven years. 16. Proviso to above Section says that the Court may, for adequate special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than seven years. 16. The point for determination in this case is whether the accused appellant is entitled to imprisonment for a term less than seven years or not. 17. In my humble opinion, looking to the fact that PW 1 prosecutrix Jasoda was about 13 years of age at the time of occurrence when the accused appellant committed rape on her forcibly and it is not a case where the proposed theory of consent may be applicable and thus, the minimum sentence of seven years prescribed under Section 376(1) IPC should be imposed on the accused appellant. 18. The mere fact that the accused appellant was about 21 years of age on the date of occurrence would not make the case of adequate special reasons imposing sentence of less than seven years. 19. Thus, for the reasons stated above, the prayer that accused appellant be sentenced to five years is rejected. 20. However, looking to facts and circumstances of the case, end of justice would be met if accused appellant is sentenced to seven years RI instead of eight years for the offence under Section 376 IPC. 21. In the result:- (1) The appeal of the accused appellant against conviction under Section 376 and 341 IPC is dismissed after confirming the judgment dated 1.3.2000 passed by the learned Additional Sessions Judge, Barmer. (2) But, the order of sentence passed by the learned Additional Sessions Judge, Barmer dated 1.3.2000 for the offence under Section 376 I.P.C. is altered to the extent that accused appellant is sentenced for the offence under Section 376 IPC to seven years RI instead of 8 years. However, the sentence passed by the learned Additional Sessions Judge, Barmer for the offence under Section 341 IPC is maintained. 22. The appeal stands disposed of accordingly.Appeal partly allowed. *******