Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 1444 (RAJ)

Pappu v. State of Rajasthan

2008-05-22

MAHESH BHAGWATI, SHIV KUMAR SHARMA

body2008
Honble BHAGWATI, J.–The condemned prisoners Pappu and Pintu have impugned the judgments and orders dated 27.5.2003 and 28.6.2002 rendered by the learned Additional Sessions Judge (Fast Track) Gangapur City whereby both the appellants Pappu and Pintu have been convicted in the offence under Section 376 (2)g of the IPC and sentenced to life imprisonment along with a fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment of two months. Two separate criminal appeals have been filed by the appellants against the aforesaid judgments but since both these appellants pertain to one F.I.R. No. 210/2001 of Police Station Bamanwas Distt. Swai Madhopur registered in the offence under Section 376 and 323 IPC, they are being disposed of by this common judgment. (2). The prosecution story as unfolded by prosecutrix PW/1 (name withheld by us) in her written report Ex.P/1 succinctly, runs as under: (3). That on 29th September, 2001 at about 7.30 PM, prosecutrix, a girl of 15 years of age, daughter of Shri Nathu Lal took her niece Vandana from her house to Kohra (Nala) to answer her (Vandanas) natural call and after answering the natural call, while way back home reached at the back of old Panchayat Bhawan, accused appellants Pappu and Pintu came there and Pappu caught hold of her forcibly. It is alleged that when the prosecutrix cried, the accused-appellants gaged her mouth and dragged her near to a Kund and there made her to lie on the ground. It is further alleged that they broke the string of her Kadia she was wearing and thereafter both the accused-appellants Pappu and Pintu in their hurried heat ravished her one after another in succession and on interception of Giriraj and Deendayal fled away after fulfilling their erotic sortie. The prosecutrix somehow restlessly reached her home where she narrated the entire incident to her family members and on 30th September, 2001, went with her father to Police Station, Bamanwas where she lodged the F.I.R., Ex. P/1. (4). During the course of investigation, the Investigating Officer prepared the site-plan Ex. P/3, seized one string vide Ex. P/4, torn Braassiere vide Ex. P/5, got the prosecutrix medically examined to ascertain the rape and determine her age, arrested the accused appellants and after usual investigation, submitted the police report in the competent Court. (5). P/1. (4). During the course of investigation, the Investigating Officer prepared the site-plan Ex. P/3, seized one string vide Ex. P/4, torn Braassiere vide Ex. P/5, got the prosecutrix medically examined to ascertain the rape and determine her age, arrested the accused appellants and after usual investigation, submitted the police report in the competent Court. (5). The learned Additional Sessions Judge framed the charge for the offence under Section 376(2) g of IPC, and read over to the accused appellants who denied the guilt and claimed to be tried. (6). In order to further its version, the prosecution has examined 15 witnesses in all. The defence of the appellants is that they were innocent, had no complicity with the crime and have been falsely implicated in this case. Two witnesses DW/1 Nathu Lal and DW/2 Kamlesh have been examined in defence. After the trial, the accused appellants have been convicted and sentenced as indicated herein above. (7). Heard the learned counsel Shri S.K. Gupta, appearing for the accused appellant Pappu, learned counsel Mr. A.K. Gupta appearing on behalf of accused appellant Pintu as also learned Public Prosecutor Shri Ashivini Sharma, considered the submissions made at the Bar and scanned the impugned judgment, prosecution and defence evidence and relevant material available on record. (8). Albeit the appellants have assailed both their conviction and sentence in the memo of appeal but during the course of hearing in the Court, learned counsel Mr. S.K. Gupta and Mr. A.K. Gupta appearing on behalf of the appellants have focused their submissions only on the quantum of sentence and urged that the accused Pappu was 19 years and Pintu was 18 years of age on the date of occurrence. They have been in custody for more than 5 years. The sentence awarded to them is too harsh in the facts and circumstances of the case, hence looking to their tender age, minimum sentence of 7 years could be awarded to them which shall serve the ends of justice. (9). On the other hand, the learned Public Prosecutor has supported the impugned judgment in toto. (10). The sentence awarded to them is too harsh in the facts and circumstances of the case, hence looking to their tender age, minimum sentence of 7 years could be awarded to them which shall serve the ends of justice. (9). On the other hand, the learned Public Prosecutor has supported the impugned judgment in toto. (10). Having carefully scanned the material available on record, we notice the following features in the case: (i) Age of the prosecutrix PW/1 was approximately 15 years on the date of occurrence; (ii) Age of accused Pappu was 19 years and accused Pintu was 18 years on the fateful day; (iii) On oscification test too, her age has been found to be 15-17 years. (iv) As per medical examination report Ex. P/6 of the prosecutrix, there were signs of profuse vaginal bleeding and tear 0.5 cm x 0.5 cm on lower junction of labia pernial, one tear of inner side left vaginal was 0.5 cm x 0.5 cm interior of vagina is congested and blood filled; (v) Injury report Ex. P/6 drawn by the Medical Board depicts that the prosecutrix sustained the following injuries on her body during her rape: (i) Abrasion 1.5 cm x 1.5 cm, clotted blood over it on dorsum of left toe-blunt-simple (ii) Abrasion 2cm x 2cm left lateral aspect of ankle-blunt-simple (iii) Abrasion 3 cm x 1.5 4 finger below left knee-blunt-simple (iv) Abrasion 2 x cm x 2 cm front of left knee blunt-simple (v) Abrasion 1 cm x 1 cm right foot inner side blunt-simple (vi) Abrasion 3 in no. 0.5 cm x 0.5 cm dorsal of right palm blunt-simple. (vii) Contused abrasion 2 cm x 1.5 cm left back, below scapula- blunt-simple (vi) With regard to rape PW/6 Dr. G.V. Singh has opined that something was introduced forcefully in the vagina which caused injuries. (vii) The testimony of the prosecutrix has been corroborated by PW/9 Mamta and PW/10 Vandana. The medical examination report Ex. P/6 has confirmed the forcible sexual intercourse with the prosecutrix, her hymen being ruptured showing inflammation, tenderness and the vagina having fresh bleeding. (11). Though the statement of prosecutrix coupled with medical evidence is enough to establish the prosecution case, yet it is further corroborated by the FSL report Ex.P/17 wherein the cloths of prosecutrix salwar and underwear have been found stained with human blood. (11). Though the statement of prosecutrix coupled with medical evidence is enough to establish the prosecution case, yet it is further corroborated by the FSL report Ex.P/17 wherein the cloths of prosecutrix salwar and underwear have been found stained with human blood. The absence of womans consent is an essential feature of the actus reus of rape and from the testimony of the prosecutrix herself, PW/9 Mamta, PW/10 Vandana and other documentary evidence, the guilt of gang rape is found to be established beyond reasonable doubt. (12). The charge of rape and sexual aggression in the present set of society involves disgrace to victims family especially when the prosecutrix is of tender age. Rape is a crime against basic human rights and is violative of victims most cherished of the fundamental rights mainly Right to Life guaranteed under Article 21 of the Constitution. According to Section 376 IPC, the person guilty of rape can be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years but sub-section (2) g of Section 376 IPC mandates that whoever commits gang rape on a woman shall be punished with imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. (13). Coming to the question of sentence, we notice that in the arrest memo Ex. P/25, accused Pappu has been shown as 19 years of age and accused Pintu has been shown to be of 18 years of age on the date of occurrence. The prosecutrix is also found to be in between 15-17 years of age. The learned trial Judge was required to incorporate special circumstances to call for the imposition of maximum sentence of imprisonment for life. The Apex Court in Pramod Mohto vs. State of Bihar, AIR 1989 SC 1475 has held 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 10 years rigorous imprisonment as it is by itself a severe punishment. (14). The Apex Court in Pramod Mohto vs. State of Bihar, AIR 1989 SC 1475 has held 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 10 years rigorous imprisonment as it is by itself a severe punishment. (14). It appears to us that the offence of rape was committed by the appellants in their youthful exuberance, hence keeping in view the teen age of the accused appellants having found no special circumstance to impose the maximum sentence of imprisonment for life, we are of the view that the ends of justice would be served if the accused appellants are awarded minimum sentence of 10 years rigorous imprisonment as a period of 10 years by itself is a severe punishment. (15). In the ultimate analysis we hold that charge under Section 376(2)(g) IPC is established against the appellants beyond reasonable doubt. It is proved that the appellants had acted in concert in commission of offence of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. In furtherance of such common intention, they actually committed offence of rape on victim. But in the facts and circumstances of the case, in our opinion, ends of justice would be served in awarding minimum sentence of ten years rigorous imprisonment. (16). For these reasons, we partly allow the appeals and while maintaining conviction of appellants under Section 376(2)(g) IPC we reduce their sentence from imprisonment for life to ten years rigorous imprisonment and fine of Rs. 5,000/- in default to further suffer one year rigorous imprisonment. (17). The impugned judgments of learned trial Judge stands modified as indicated above.