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2006 DIGILAW 2455 (RAJ)

GANGADHAR v. STATE OF RAJASTHAN

2006-08-11

CHATRA RAM JAT, SHIV KUMAR SHARMA

body2006
Judgment SHIV KUMAR SHARMA, J. ( 1 ) PROSECUTRIX (name withheld by us), a girl of sixteen was gang raped. This was the gravamen of the charge put against the appellants gangadhar and Sumer Singh, who were put to trial before learned Special Judge SC/st (Prevention of Atrocities Cases) Jhunjhunu, and convicted and sentenced vide judgment dated April 30, 2003 as under:- I u/s. 376 (2) IPC : each to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer rigorous imprisonment for one year. u/s. 363 IPC : each to suffer rigorous imprisonment for seven years and fine of Rs. 2000/-, in default to further suffer rigorous imprisonment for six months. u/s. 3 (l) (x) SC/st Act : each to suffer imprisonment for two years and fine of Rs. 500/-, in default to further suffer simple imprisonment for three months. u/s. 3 (2) (v) SC/st Act : each to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. ( 2 ) IT is the prosecution case that on May 23, 2000 the informant Kurd a Ram (PW 2) submitted a written report at Police Station gudha (Jhunjhunu) stating therein that on may 12, 2000 at 8 a. m. his daughter, the prosecutrix, while she was returning from village Gudhagaorji, Sumer Singh, Mool chand and two other persons kidnapped her and committed rape on her. On May 16, 2000 while they were planning to take her to Bombay, she raised cry the neighbours rescued her and took her to the informants house. The report could only be lodged after she regained consciousness. On that report a case was registered and investigation commenced. Necessary memos were drawn. Statements of witnesses were recorded, prosecutrix was medically examined, the appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge SC/st (Prevention of Atrocities) Jhunjhunu. Charges under Sections 363, 376, I. P. C. , 3 (1) (10) and 3 (2) (v) of SC/st (PA) Act, 1989 were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under S. 313, Cr. P. C. , the appellants claimed innocence. Charges under Sections 363, 376, I. P. C. , 3 (1) (10) and 3 (2) (v) of SC/st (PA) Act, 1989 were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under S. 313, Cr. P. C. , the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. ( 3 ) IT is contended by learned counsel for the appellants that unexplained delay in lodging the FIR is fatal to the prosecution case. We find no substance in this submission. In our opinion the delay has properly been explained, on account of unconsciousness of the prosecutrix the FIR could not be lodged promptly. The Apex Court in State of punjab v. Gurmit Singh (1996) 2 SCC 384 : (1996 Cri LJ 1728) indicated thus (Para 8): (Para 7 of Cri LJ) :- "the Courts cannot overlook the fact that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. . . . . . . . . . . the conduct of the prosecutrix in this regard appears to us to be most natural. " ( 4 ) IT is next urged that the prosecutrix has failed to establish that rape was committed on the prosecutrix. Even according to medical evidence prosecutrix was habitual of sexual intercourse and charge against the appellants could not be proved. We have been taken through the statement of prosecutrix and medical officer, who examined the prosecutrix. Having gone through the material on record we find the testimony of prosecutrix trustworthy. She categorically deposed that she was raped by the appellants. Despite lengthy cross examination her evidence could not be shattered. Dr. Sadhu agarwal (PW 11) deposed that the age of prosecutrix was between 14 and 16 years. Having gone through the material on record we find the testimony of prosecutrix trustworthy. She categorically deposed that she was raped by the appellants. Despite lengthy cross examination her evidence could not be shattered. Dr. Sadhu agarwal (PW 11) deposed that the age of prosecutrix was between 14 and 16 years. ( 5 ) IN Rafiq v. State of U. P. (1980) 4 SCC 262 : (1980 Cri LJ 1344), the accused counsel argued that there was absence of corroboration of testimony of the prosecutrix and also injuries on the person of the woman and therefore the conviction was unsustainable. Rejecting these contentions, the Apex court held thus (Para 5 of Cri LJ) :- ". . . . . We cannot accept the argument that regardless of the specific circumstances of a crime and criminal millieu some stands of probative scanning which appealed to a bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed from place to place, from age to age, from varying life styles and behavioural complexes, inference from a given set of facts, oral and circumstantial may have to be drawn not with dead uniformity but realistic diversity test rigidity in the shape of rule of law in this area be introduced through a new type of procedural tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or aggressed. " ( 6 ) IN Gurmit Singhs case (1996 Cri LJ 1728) (supra) the Honble Supreme Court held that if evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The testimony of prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. ( 7 ) THAT takes us to the alternative submission of learned counsel that looking to the age of the appellants imposition of sentence to suffer imprisonment for life is too harsh. This submission if we scan the impugned judgment, we find that the learned trial Judge has not incorporated special circumstances to call for the imposition of maximum sentence of imprisonment for life. This submission if we scan the impugned judgment, we find that the learned trial Judge has not incorporated special circumstances to call for the imposition of maximum sentence of imprisonment for life. Their Lordships of the Supreme Court in pramod Mehto v. State of Bihar ( AIR 1989 sc 1475 ) : (1989 Cri LJ 1479) indicated that where there are no special circumstances to call for the imposition of maximum sentence of imprisonment for life, the ends of justice would be met by awarding minimum sentence of ten years rigorous imprisonment as it is by itself a severe punishment. ( 8 ) IN the ultimate analysis we find that charges under Sections 363 and 376 (2), I. P. C. and Sections 3 (l) (x) and 3 (2) (v) SC/st (PA) Act, 1989 are established beyond reasonable doubt against the appellants gangadhar and Sumer Singh. The prosecution has proved that the appellants had committed gang rape. Learned trial Judge convicted the appellants under Section 376 (2), i. P. C. to suffer imprisonment for life and fine Rs. 5,000/- in default to further suffer one year rigorous imprisonment. In the facts and circumstances of the case on considering the fact that appellants Ganga Dhar and sumer Singh were respectively of 23 and 20 years of age on the date of incident, in our opinion the ends of justice would be met in reducing their sentence from imprisonment for life to ten years rigorous imprisonment and fine. ( 9 ) FOR the reasons aforementioned, we partly allow the appeal and while maintaining the conviction of the appellants under section 376 (2), I. P. C. we reduce their sentence from imprisonment for life to rigorous imprisonment for ten years and fine of Rs. 5,000/- in default to further suffer one year rigorous imprisonment. We however maintain their conviction and sentence under sections 363, I. P. C. and Sections 3 (l) (x)and 3 (2){v) SC/st (PA) Act, 1989. ( 10 ) THE impugned judgment of learned trial Court stands modified as indicated above. Order accordingly.