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2005 DIGILAW 2839 (RAJ)

Gopal v. State of Rajasthan

2005-10-27

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-The matter came up on board on the application for suspension of sentence filed on behalf of accused-appellant Gopal, however, at the request of learned Amicus Curiae, not opposed by other side, the appeal itself was heard. 2. The appeal from jail filed under Section 383 CrPC by accused-appellant Gopal has challenged the Judgment of conviction and order of sentence dated 13.02.2003 passed by Addl. Sessions Judge, (Atrocities on Women) Cases, Bhilwara in Sessions case No.59/2002 -State vs. Gopal, whereby the accused-appellant has been convicted for the offence under Sections 376/511, 363 and 368 IPC and under each of the Sections sentenced to rigorous imprisonment for 5 years with fine of Rs.1,000/-and in default of payment of fine to suffer further rigorous imprisonment for a period of three months. 3. The facts as may be summarized for the just decision of the appeal are that on 17.08.2002 at 4:15 PM, PW. 3 Smt. Chandi Devi, widow of Nathu Bheel, submitted Ex. P/3, a written report at police outpost Aasind stating, inter-alia, to the effect that on that day at 3 O Clock in the day when she was sitting on Chabootri (a place for sitting outside house), at that time Gopal of Kaliyas called her grand-draughter Soni from the house of Chauthu and took her towards his house. As Gopal was not a person of good character, she told Ladu Daroga and Jagdish Regar that Gopal after taking her grand-daughter inside his house has closed the doors and will kill her grand daughter and she requested them to come with her. Thereafter, Ladu, Jagdish, Devi and she herself went to the house of Gopal and by giving a leg stroke when the door was opened, it was found that Soni was lying naked there without underwear on a coat and Gopal seeing them stood up. All the persons caught hold of Gopal and took him to the Rawala Chowk. It was also stated in the report that had they not reached at the spot, Gopal would have committed rape with Soni. The witnesses have seen Gopal attempting to commit rape with Soni and Soni, on asking, told that on the pretext of giving her sweetmeats Gopal had taken her to his house and there got her underwear put off , gently rubbed his hand on her private part and laid down on her. 4. The witnesses have seen Gopal attempting to commit rape with Soni and Soni, on asking, told that on the pretext of giving her sweetmeats Gopal had taken her to his house and there got her underwear put off , gently rubbed his hand on her private part and laid down on her. 4. On the basis of aforesaid report Ex. P/3, Ex. P/6 First Information Report No.219/02 for the offence under Sections 363, 342 and 376/511 IPC was registered and investigation commenced. During investigation, statements of the witnesses were recorded. Gopal was arrested through Arrest Memo Ex. P/7 and was medically examined. On completion of investigation, challan was filed against accused appellant in the Court of Judicial Magistrate, 1st Class, Aasind and in due course of time came up for trial before the Addl. Sessions Judge, (Atrocities on Women) Cases, Bhilwara. 5. The learned trial Court, after hearing the parties on charge, framed charge against the accused-appellant under Sections 363/366, 368 and 376/511 IPC and read over and explained the same to the accused, who denied the charges and claimed trial. 6. The prosecution, in support of its case, examined as many as 11 witnesses and produced some documents in evidence. Thereafter, statement of accused was recorded under Section 313 CrPC in which he pleaded innocence. In defence, no evidence was produced. 7. The learned trial Court after hearing the arguments of Counsel appearing for the parties, convicted and sentenced the accused appellant as aforesaid vide its order dated 13.02.2003, hence this appeal. 8. I have heard learned Amicus Curiae and the learned Public Prosecutor and have gone through the record of the case tagged with the file. 9. It has been contended by Amicus Curiae that a false case has been lodged against the appellant as he has not made any attempt to rape. It has also been submitted that the prosecution evidence is not enough to base conviction for an offence of attempting rape. It has also been submitted that for arriving at the correct age no radiological report is available on record. It has also been submitted that the prosecution evidence is not enough to base conviction for an offence of attempting rape. It has also been submitted that for arriving at the correct age no radiological report is available on record. The learned Amicus Curiae in last submitted that in case it is found that accused has attempted to commit rape with the prosecutrix then taking into consideration the age of the accused and also the fact that the accused is in jail since last two years and 9 months and he has also suffered sufficient punishment, he may be sentenced to the period already undergone by him. 10. On the other hand, learned Public Prosecutor has submitted that the prosecution has proved this case on the basis of evidence brought on record. 11. In this case, the prosecutrix PW. 6 Kumari Soni has stated in her statement that on the day of incident when she was playing outside the house and her brother Bhanwar was inside as he was sick, accused came there and persuaded her to accompany him. He told that he would give her sweetmeats. She has further stated that accused gave her sweetmeats and thereafter took her to his house and laid her on a cot. She has also stated that her underwear was removed and she was made naked and accused thereafter rubbed her hand gently on her vagina. She stated that at that time she made cries and her grand-mother, Jagdish, Dadu and Devi came there. She stated that if those persons had not come there, accused would have killed her. In the cross examination, she has stated that accused is her brother in relation and he on the pretext of giving her sweetmeats had taken her with him. She has also stated that accused took her to his house, there she was laid on a cot, undressed and the accused tried to commit intercourse with her. There appears nothing in her statement which may create suspicion that she was making a wrong statement or her statement was not reliable one. The other witness namely Chandi, the grandmother of the prosecutrix, has supported her statement. Nothing in the cross examination has been elicited so as to believe that her statement was not reliable. PW. 2 Devi though has been turned hostile but the statement of Devi also supports the statement of prosecutrix and PW. The other witness namely Chandi, the grandmother of the prosecutrix, has supported her statement. Nothing in the cross examination has been elicited so as to believe that her statement was not reliable. PW. 2 Devi though has been turned hostile but the statement of Devi also supports the statement of prosecutrix and PW. 3 Chandi. PW. 5 Jagdish has stated that on hearing a cry of Soni he reached at the spot and found that accused and Kumari Soni both were naked. He has also stated that accused took Soni to his house assuring that she will be given sweetmeats and there rubbed his hand on her vagina. PW. 8 Sugan Singh, SHO has stated that on 17.08.2002 he received a telephonic information that one boy was caught attempting rape with a minor girl, he reached at the spot and there found the accused alongwith the girl. Smt. Chandi Bai submitted a report to him at the spot and he arrested the accused. 12. The evidence of PW. 9 Chouthu is hearsay. He has stated that his mother Chandi told him about the incident. PW. 11 Ladu has supported the statement of PW. 6 Soni so also PW. 3 Smt. Chandi and other witnesses. PW. 7 Dr. Mangilal examined the accused for his potency and found him fit for sexual activity. 13. From a perusal of the statements of above witnesses, particularly the statement of prosecutrix, it appears that the accused, who had taken the prosecutrix to his house, attempted to commit rape and the accused and prosecutrix were found in naked condition. The learned trial Court, while considering the age aspect, at Para 22 of the impugned Judgment has admitted that at the time of recording the statement of prosecutrix, it appeared that she was a minor girl between 8 to 10 yeas. The trial Court further found the age factor to be correct on the basis of evidence of PW. 3 Chandi. The trial Court further found the age factor to be correct on the basis of evidence of PW. 3 Chandi. In view of the fact that the trial Court has seen the evidence and found the prosecutrix to be a child and there appeared no doubt in the mind of the learned Presiding Officer that she was a child witness, then only on the reason that her radiologically examination was not done and x-rays for assessing the age were not taken, then in my considered opinion to believe that she was not minor would not be correct. When the witness has been seen by the Presiding Officer of the Court and he has assessed her age, then in my opinion that can be considered sufficient for determining the age particularly in the cases where investigating agency has not taken proper care to see that proper medical examination should take place of the prosecutrix. The lacunae left by the Investigating agency, particularly in such type of cases, in view of oral evidence, will not entitle the accused to get benefit of doubt in relation to the age of the prosecutrix. 14. After having considered the entire matter cautiously, I find that the statement of child witness is reliable and the learned trial Court has correctly placed reliance on her testimony. The conviction recorded on the basis of aforesaid discussed material, appears to be just, reasonable and proper. 15. Now, the submission of learned Amicus Curiae with regard to reducing the sentence of accused. 16. It has been submitted that looking to the facts and circumstances that the accused is the only bread earner of the family, who has remained in jail for last 2 years 9 months, and has sufficiently been punished and as due to this incident his image in the society has tarnished, his sentence may be reduced to the period already undergone. 17. In Khalikuddin vs. State of Rajasthan, 2003 (2) CrLR 850 (Raj), at para 7 and 8 of the Judgment , the Court has observed as under,-“Section 376(1) IPC provides that the punishment for such an offence shall not be less than seven years but a proviso has been added which provides that the Court may, for adequate and special reasons to be mentioned in the Judgment , impose a sentence of imprisonment for a term of less than seven years. Learned Counsel contended that in view of the consent of the victim, lessor sentence may be awarded. Reliance was placed upon Ummaid Nath vs. State of Rajasthan, 1999 (2) RCC1383, wherein the age of the prosecutrix was found below 16 years at the time of occurrence and the prosecutrix went with the accused willingly and thus the rigorous imprisonment of ten years under Section 376 IPC was reduced to five years rigorous imprisonment. In Rajan & Ors. vs. State of Rajasthan, 2002 (1) CrLR 778 (Raj), the age of the girl was found thirteen and half years i.e. below16 years at the relevant time and she was found a consenting party, therefore, in view of the proviso to Section 376 (1) IPC, the sentence of ten years rigorous imprisonment awarded by the trial Court was reduced to three years rigorous imprisonment. In the present case the accused-appellant has served the sentence for more than a period of three years and six months and keeping in view the entire discussion made hereinabove, and in light of the two Judgment s of this Court, it would meet the ends of justice to sentence the accused-appellant with the sentence already undergone”. In the aforesaid case, this Court relying on the decisions rendered in the case of Ummaid Nath vs. State of Rajasthan, 1999 (2) RCC 1383, and Rajan & Ors. vs. State of Rajasthan, 2002 (1) CrLR 778 (Raj), and after assigning reasons reduced the sentence of accused from 5 years to 3½ years. 18. In Nekiya @ Neka Ram & Anr. vs. State of Rajasthan, 2003 (2) CrLR 1603 (Raj), this Court found the age of the prosecutrix above 16 years and taking into consideration the entire facts and circumstances reduced the sentence from 10years to 7 years. 19. In Kallem Shankar Reddy vs. State of A.P., 2004 CrLJ 3270 , the Andhra Pradesh High Court taking into consideration the age of the accused to be 28 years, reduced his sentence from 10 years to 7 years. 20. After having considered the entire matter and also taking into consideration the submission of learned Amicus Curiae that the accused is only bread earner of his family and the matter is one falling under Section 376/511 IPC, I deem it proper to reduce his sentence to the period already undergone. 21. 20. After having considered the entire matter and also taking into consideration the submission of learned Amicus Curiae that the accused is only bread earner of his family and the matter is one falling under Section 376/511 IPC, I deem it proper to reduce his sentence to the period already undergone. 21. In the result, the appeal is partly allowed and while maintaining the conviction of accused appellant, his sentence is reduced to the period already undergone. To that extent, the order of learned trial Court stands modified. 22. The appeal stands disposed of accordingly.