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2006 DIGILAW 1787 (RAJ)

Vishnu Khan v. State of Rajasthan

2006-05-22

N.K.JAIN

body2006
Judgment N.K. Jain, J.-This appeal, under Section 374, CrPC, on behalf of accused-appellant Vishnu Khan son of Shri Bholu Khan is directed against the Judgment and order dated 30.11.2000 of the Special Judge, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur, in Sessions Case No. 5/95 whereby the accused-appellant was convicted and sentenced as under:- Conviction under Sections Sentence of Imprisonment 366, IPC To undergo seven years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months additional simple imprisonment. 376, IPC To undergo seven years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months additional simple imprisonment. 2. Exhibit P-8, a typed report dated 15.06.1994, was lodged by PW. 2 Ram Chander, the father of the prosecutrix Lalita, at Police Station Kotputali, District Jaipur, stating therein that his daughter Lalita is missing since 14.06.1994 at about 10.00 AM. He suspects that Vishnu Khan S/o Bholu Khan, Jagdish Kanjar and Surgyani Kanjar have abducted his daughter. On the basis of this report, the police registered a case under Section 366, IPC. Exhibit P-9, the FIR, was registered by the police. The prosecutrix Lalita was recovered on 16.06.1994 from the possession of accused Vishnu Khan vide recovery-memo Exhibit P-11. Accused-appellant Vishnu Khan was arrested vide arrest-memo (Exhibit-P-12) on 16.06.1994. The statement of Smt. Lalita was recorded under Section 161, CrPC, on 16.06.1994 itself . Her statement was further recorded under Section 161, CrPC., by Deputy Superintendent of Police, Kotputali, on 30.08.1994. She was medically examined and after completion of investigation the police submitted a charge-sheet against the accused-appellant Vishnu Khan. The learned trial Court framed charge against accused-appellant under Sections, 366, 376, IPC and Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused denied the charges, therefore, trial was conducted against him. The prosecution examined 12 witnesses and produced documentary evidence. The learned trial Court, after considering the prosecution evidence on the record and hearing the arguments from both sides, convicted and sentenced the accused-appellant, as mentioned above. The learned trial Court acquitted the accused-appellant of the offence under Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 giving him the benefit of doubt. 3. The learned trial Court, after considering the prosecution evidence on the record and hearing the arguments from both sides, convicted and sentenced the accused-appellant, as mentioned above. The learned trial Court acquitted the accused-appellant of the offence under Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 giving him the benefit of doubt. 3. The learned Counsel for the accused-appellant contended that as per the medical report of the prosecutrix Lalita dated 16.06.1994, no opinion was given about forcible sexual intercourse and the opinion was reserved. He contended that as per the X-ray-report (Exhibit P-6) it was opined that prosecutrix Lalita was in between 17 to 19 years of age. He referred the statement of prosecutrix Lalita (PW. 12) and contended that from her statement it is clear that it was a case of consent and not a forcible sexual intercourse committed by accused with the prosecutrix. He, therefore, contended that the accused-appellant is liable to be acquitted. He lastly contended that accused-appellant has already remained in jail for about five years and seven months and in the facts and circumstances of the case if this Court does not agree with his contentions for giving the benefit of doubt to the accused-appellant then at least his case for reduction of sentence of imprisonment be considered and his sentence of imprisonment be reduced to a period of sentence of five years and seven months, already undergone by the accused-appellant 4. The learned Public Prosecutor defended the impugned Judgment of the learned trial Court. 5. I have considered the rival submissions and minutely scanned the impugned Judgment as well as the record of the trial Court. 6. Exhibit P-8 is the report dated 15.06.1994 lodged by Ram Chander (PW. 2), the father of prosecutrix Lalita, about abduction of his daughter Lalita and he suspected three persons, namely, Vishnu Khan, Jagdish Kanjar and Surgyani Kanjar. However prosecutrix Lalita was recovered from the possession of accused Vishnu Khan, vide recovery-memo Exhibit P-11 and soon thereafter the statement of prosecutrix Lalita was recorded under Section 161, CrPC. (Exhibit D-1), wherein she alleged that accused-appellant Vishnu Khan committed forcible sexual intercourse with her during the period from 14th to 15th of June, 1994, for number of times after removing her clothes. Mst. Lalita was examined in the case during the course of trial as PW. (Exhibit D-1), wherein she alleged that accused-appellant Vishnu Khan committed forcible sexual intercourse with her during the period from 14th to 15th of June, 1994, for number of times after removing her clothes. Mst. Lalita was examined in the case during the course of trial as PW. 12 and she stated on oath that she was abducted forcefully by accused Vishnu Khan and he took her away to village Tijara, where she was confined in a room and later on at the point of knife her clothes were removed by accused and he committed forcible sexual intercourse with her. 7. I have examined the statement of prosecutrix PW . 12 Lalita in detail but I do not find this case as a consent case as contended by the learned Counsel for the accused-appellant. The statement of prosecutrix PW . 12 Lalita inspires confidence of this Court and her statement is sufficient to convict the accused-appellant for the offence. I have also examined the impugned Judgment passed by the learned trial Court, who has discussed the oral and documentary evidence of the prosecution, in detail, and recorded a finding about commission of offence by the accused-appellant under Sections 366 and 376, IPC. No illegality or perversity has been pointed out by the learned Counsel for the accused-appellant in the findings of the learned trial Court so as to interfere in the same. Therefore, I do not find any force in any of the contentions of the learned Counsel for the accused-appellant, so far as the order of conviction of the accused-appellant is concerned. 8. The last contention of the learned Counsel for the accused-appellant about considering the case of the accused-appellant for the purpose of reduction of sentence of imprisonment is concerned, I find that as per the medical-report her age was found in between 17 to 19 years. She remained with accused-appellant for two days continuously but she did not raise alarm during that period. There are certain contradictions also in the statement of the prosecutrix recorded by the trial Court and her own statement recorded twice under Section 161, CrPC., during the course of investigation of the case. Although such contradictions in her statements are not fatal to the prosecution case but they are certainly relevant for the purpose of reduction of sentence of the accused-appellant. 9. Although such contradictions in her statements are not fatal to the prosecution case but they are certainly relevant for the purpose of reduction of sentence of the accused-appellant. 9. In Prem Chand vs. State of Haryana, AIR 1989 SC 937 , in the peculiar facts and circumstances of that case, the Honble Supreme Court reduced the sentence of imprisonment of ten years awarded under Section 376 (2) IPC, to a period of sentence of imprisonment of five years. The State of Haryana filed review petition before Honble the Supreme Court in the above case and the same was dismissed. The decision of the Honble Supreme Court in that review petition is reported in 1990 (1) SCC 249 State of Haryana vs. Prem Chand & Ors.. 10. Under Sub-section (1) of Section 376, IPC the minimum sentence of seven years is prescribed but it is subject to proviso that the Court may, for adequate and special reasons, impose a sentence of imprisonment for a term of less than seven years. 11. After considering all the facts and circumstances of the case, as stated above, I am of the view that the present case does not call for the minimum sentence as prescribed under Sub-section (1) of Section 376, IPC and this is a fit case where proviso to that section can be invoked. 12. After considering the submissions of the learned Counsel for the accused-appellant and for the reasons mentioned above, I am of the view that the sentence of imprisonment of the accused-appellant is liable to be reduced to a period of sentence of about five years and seven months, already undergone by the accused-appellant. So far as the sentence of accused-appellant under Section 366, IPC is concerned, the same is also liable to be reduced in the facts and circumstances of the present case to a period of sentence of imprisonment already undergone by the accused-appellant. 13. Consequently the appeal of the accused-appellant is partly allowed. The order of conviction of the accused-appellant under Sections 366 and 376 IPC is maintained. However, the sentence of imprisonment of the accused-appellant awarded by the trial Court under Sections 366 and 376, IPC of seven years rigorous imprisonment is reduced to a period of sentence of imprisonment of five years and seven months, already undergone by the accused-appellant and a fine of Rs. However, the sentence of imprisonment of the accused-appellant awarded by the trial Court under Sections 366 and 376, IPC of seven years rigorous imprisonment is reduced to a period of sentence of imprisonment of five years and seven months, already undergone by the accused-appellant and a fine of Rs. 500/-, for each offence; in default of payment of fine, to further undergone seven days additional simple imprisonment for each offence. The accused-appellant is in jail, therefore, he may be released forthwith if his custody is not required in any other case and on deposit of Rs. 1,000/-, (Rs. 500/-for each offence) as fine, or on completion of 14 days simple imprisonment awarded in default of payment of fine for each offence.