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2011 DIGILAW 1356 (RAJ)

Jetha Ram v. State of Rajasthan

2011-07-12

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The appellant is aggrieved by the judgment dated 28.8.2004, passed by the Addl. Sessions Judge (Fast Track) No. 1, Bikaner, whereby the learned Judge has convicted the appellant for offences under Sections 363, 376 and 342 IPC. For offence under Section 363 IPC, he has sentenced him to four years of rigorous imprisonment, and imposed a fine of Rs. 1000/-, and has further directed him to undergo a rigorous imprisonment of one month in default thereof; for offence under Section 342 IPC, he has sentenced the appellant for six months of rigorous imprisonment; for offence under Section 376 IPC, he has sentenced the appellant to ten years of rigorous imprisonment, and has imposed a fine of Rs. 2,000/- and has further directed him to undergo two months of rigorous imprisonment in default thereof. 2. The brief facts of the case are that on 26.9.2003, around 5:00 PM, Roopa Ram (PW. 6) had lodged a report at Police Station Nokha, wherein he had claimed that he had sent his niece alongwith his brother Chanda Ram for buying medicines at Nokha Mandi. After his brother Chanda Ram had bought the medicines, the left the niece with the appellant, who was a taxi driver, and asked him to drop his niece at his village. However, around 1 O' clock in the afternoon, his niece came back home covered with blood and she was crying. His niece told her mother and aunt that her uncle had left her with the appellant. But once the taxi reached Nokha, the appellant let go of the other passengers, but told the child that he will take her to her residence. However, instead of taking her to her home, he took her to his house. There, under threat, he disrobed her and ravished her. When the child cried for help, he closed her mouth. After ravishing her, he forced her to put on the clothes and let her go. On the basis of this report, a formal FIR was chalked out for the aforementioned offences. 3. In order to buttress his case, the prosecution examined seventeen witnesses and submitted twenty seven documents. After going through the oral and documentary evidence, vide judgment dated 28.8.2004, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. 3. In order to buttress his case, the prosecution examined seventeen witnesses and submitted twenty seven documents. After going through the oral and documentary evidence, vide judgment dated 28.8.2004, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. B.R. Choudhary, the learned counsel for the appellant has frankly conceded that he does not wish to argue the case on merit and has confined his arguments merely to the age of the prosecutrix. According to him, the medical evidence, in the form of medical report (Ex.P/6), clearly reveals that the prosecutrix was about 12 years of age. Moreover, according to Dr. M.C. Baberwal (PW5) and Dr. Tapasya Chaturvedi (PW17), the prosecutrix would be anywhere from 12 years to 13 years old. According to the learned counsel, therefore, a grave possibility does exists that the prosecutrix was more than 12 years of age. Hence, the learned trial Court was not justified in imposing a sentence of 10 years as required under Section 376(2)(f) IPC. Furthermore, since the appellant has already undergone eight years of sentence, which is more than the minimum sentence of seven years, as laid down by Section 376 IPC, the learned counsel has pleaded that the sentence of the appellant should be reduced to as undergone. 5. On the other hand, the learned Public Prosecution has contended that it is a case of rape with a minor. Therefore, it is a heinous crime, which shocks the conscience of the society. Merely because the appellant has undergone eight years of sentence, would not entitle him to plead that the sentence should be reduced to as undergone. 6. Heard the learned counsel for the parties and perused the impugned judgment. 7. Admittedly, Dr. M.C. Baberwal (PW.5) had admitted in his cross-examination that there can be a variation of six months in the age given for the prosecutrix. According to Dr. Tapasya Chaturvedi (PW.17), the variation can be as much as three years. Thus, according to the learned trial Court, prosecution had failed to prove that the prosecutrix was less than 12 years old at the time of incident. 8. According to Section 376(2), in case, the prosecutrix is under 12 years of age, then a minimum sentence of 10 years shall be prescribed. Thus, according to the learned trial Court, prosecution had failed to prove that the prosecutrix was less than 12 years old at the time of incident. 8. According to Section 376(2), in case, the prosecutrix is under 12 years of age, then a minimum sentence of 10 years shall be prescribed. However, the appellant has not been convicted under Section 376(2)(f) but has been convicted for offence under Section 376(1), therefore, his sentence of 10 years has not been prescribed as a minimum sentence. 9. A perusal of the evidence shows that the appellant was a taxi driver, who was known to Chanda Ram and to the prosecutrix since they belong to the same village. Thus, when Chanda Ram entrusted the child to the care and safety of the appellant, he had left the child with a sense of responsibility that the appellant would lookafter the safety of the child. Instead of safely returning the child to her house, the appellant betrayed the said trust: he took her to his own home, and ravished her. A rape committed upon a child is more traumatic than a rape committed on an adult. For, while a adult is mature enough to come to terms with the unfortunate incident, a child is left more traumatized for the rest of her life. Repeatedly, the Hon'ble Supreme Court has opined that punishment must commensurate with the gravity of the offence. Moreover, the society has a right to expect that offenders who perpetuate heinous crime would be punished adequately. 10. Considering the fact that the appellant had committed rape on a child, considering the fact that the act would not only traumatize the child, but would also adversely affect her social standing, considering the fact that it will mar her future prospects, considering the heinous nature of the crime, this Court is not inclined to reduce the sentence as undergone. 11. Hence, the judgment dated 28.8.2004 is hereby confirmed. This appeal being devoid of merit, is hereby, dismissed.