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2003 DIGILAW 587 (RAJ)

Nekiya @ Neka Ram v. State of Rajasthan

2003-04-21

SUNIL KUMAR GARG

body2003
JUDGMENT 1. - This appeal has been preferred by the accused appellants from Jail against the judgment and order dated 22.8.2001 passed by the learned Additional Sessions Judge (Fast Track), Pali in Sessions Case No. 19/2001 by which the learned Additional Sessions Judge convicted and sentenced the accused appellants as under: Name of accused-appellants Convicted under Section Sentence awarded Nekia Madia 376 IPC 10 years' R.I. and a fine of Rs. 5,000/- each in default to further undergo 1 year's S.I. each Nekia Madia 341 IPC 1 month's S.I. and a fine of Rs. 100/- each in default to further undergo 1 week's S.I. each Both the sentence were ordered to run concurrently. It maybe stated here that by the same judgment dated 22.8.2001, the learned Additional Sessions Judge acquitted the accused appellants for offence u/s. 323 IPC.It may further be stated here that on behalf of the accused appellants Mr. Sandeep Sarupria has appeared as amicus curiae. 2. It arises in the following circumstances: (i) That Dala Ram PW-11 lodged an oral report Ex.P/10 on 27.10.1995 with the Police Station Guda Endla, Dist. Pali stating that her wife Gavri PW-14 (hereinafter referred to as the prosecutrix) had gone to her parents' house on 22.10.1995 and re- turned back on 26.10.1995. After coming back to the house of the complainant (Dala Ram PW-11), the prosecutrix narrated that when she was returning from her parents' house, at that time, accused appellant took her towards bushes and committed rape with her. 3. On this report, police registered a case and started investigation. 4. During investigation, medical examination of Gavri PW-14 was got conducted by Dr. Roshan Lal PW-13 for determining her age and Dr. Roshan Lal PW-13 through medical report Ex.P/19 opined her age to be above 16 years but below 18 years. The prosecutrix in her statement u/s. 164 Cr.P.C. Ex.P/16 has stated her age as near about 18 years. 5. The accused appellant Nekia was arrested through Fard Ex.P/4 on 31.10.1995 and the accused appellant Madia was arrested through fard Ex.P/5 on 22.11.1995. 6. After investigation, the police filed challan against the accused appellants for offence u/ss. 376, 341 and 323 IPC. 7. On 20.1.1997, charges were framed by the learned Additional Sessions Judge for offence u/ss. 376, 341 and 323 IPC against the accused appellants. Both pleaded not guilty and claimed trial. 8. 6. After investigation, the police filed challan against the accused appellants for offence u/ss. 376, 341 and 323 IPC. 7. On 20.1.1997, charges were framed by the learned Additional Sessions Judge for offence u/ss. 376, 341 and 323 IPC against the accused appellants. Both pleaded not guilty and claimed trial. 8. That during trial, prosecution examined as many as 14 witnesses in support of its case. The accused appellants in their statements u/s. 313 Cr.P.C. denied to have committed any offence. However, no witness was examined in defence. 9. At the conclusion of the trial, the learned trial Judge through his judgment and order dated 22.8.2001 acquitted the accused appellants for offence u/s. 323 IPC but convicted them for offence u/ss. 376 and 341 IPC and sentenced them as stated above. 10. Aggrieved from the said judgment and order dated 22.8.2001, this appeal has been filed by the accused appellants from jail. 11. In this appeal, the learned counsel for the accused appellants has not assailed the findings of conviction recorded by the learned Additional Sessions Judge (Fast Track), Pali by her judgment dated 22.8.2001 for offence u/ss. 341 and 376 IPC but it has been argued on behalf of the accused appellants that minimum sentence as provided u/s. 376(1) IPC may be awarded to the accused appellants. 12. On the other hand, the learned Public Prosecutor submits that u/s. 376(1) IPC the minimum sentence provided in the law is seven years and, therefore, less than seven years' imprisonment should not be imposed on the accused appellants. 13. I have heard both and perused the record and impugned judgment. 14. Since in this case, findings of conviction recorded by the learned Additional Sessions Judge (Fast Track), Pali vide her judgment dated 22.8.2001 for offence u/ss. 376 and 341 IPC have not been challenged, therefore, they are liable to be confirmed one and the appeal of the accused appellants against their conviction u/ss. 376 and 341 IPC is liable to be dismissed. 15. That in this case, since the age of the prosecutrix was found to be above 16 years, therefore, the case of the accused appellants would be covered by Section 376 (1) IPC. 16. 376 and 341 IPC is liable to be dismissed. 15. That in this case, since the age of the prosecutrix was found to be above 16 years, therefore, the case of the accused appellants would be covered by Section 376 (1) IPC. 16. 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 u/s. 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. 17. Looking to the facts and circumstances of the case, ends of justice would be met if the accused appellants are sentenced to seven years' R.I. instead of 10 years for the offence u/s. 376 IPC.For the reasons mentioned above, in the result : (i) The appeal of the accused appellants against their conviction for offence u/ss. 376 and 341 IPC is dismissed after confirming the judgment dated 22.8.2001 passed by the learned Additional Sessions Judge (Fast Track), Pali. (ii) But the order of sentence dated 22.8.2001 passed by the learned Additional Sessions Judge (Fast Track), Pali for offence u/s. 376 IPC is altered to the extent that both the accused appellants are sentenced for the offence u/s. 376 IPC to seven years' R.I. instead of 10 years. However, the order of fine dated 22.8.2001 passed by the learned Additional Sessions Judge (Fast Track), Pali for offence u/s. 376 IPC is maintained. (iii) However, the order of sentence dated 22.8.2001 passed by the learned Additional Sessions Judge (Fast Track), Pali for the offence u/s. 341 IPC is maintained. (iv) If the accused appellants have served out sentence of 7 year's R.I. they may be released if not wanted in any other case. (v) The appeal stands disposed of accordingly. Appeal disposed of. *******