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2011 DIGILAW 2424 (ALL)

Rajjan v. State of U. P.

2011-10-18

SHRI KANT TRIPATHI

body2011
Shri Kant Tripathi, J.:- 1. Heard Mr. Jay Narain Pandey for the appellant Rajjan and Mr. Vishnu Swaroop Srivastava learned AGA for the State and perused the record. 2. By this appeal the appellant Rajjan has impugned the judgment and order dated 17.01.2007 rendered by Smt. Renu Agrawal, the then Additional Sessions Judge, Fast Track Court No. 1, Unnao in Sessions Trial No. 358 of 2005, State vs. Rajjan, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under sections 363, 366 and 376 I.P.C. to undergo rigorous imprisonment of ten years and also to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo additional imprisonment of two months. 3. In view of section 228-A of Indian Penal Code, it is not legally permissible to disclose the identity of the victim, therefore, in this judgment, she will be referred to as 'M'. 4. The prosecution story may be stated as under: The complainant Sushil lodged the F.I.R., Exhibit ka-1, at the police station Hasanganj district Unnao on 30.5.2005 with the allegation that the appellant Rajjan had kidnapped the prosecutrix 'M' on 17.5.2005, which was witnessed by the witnesses Ramesh and Shri Kant. It was also stated in the FIR that on 30.5.2005 the appellant and the prosecutrix were apprehended by the complainant and the witnesses Jata Shankar, Basdev, Ramesh and Shri Kant and produced them before the police. On the basis of the said FIR, the police registered the case and proceeded to make investigation. The prosecutrix was referred to a lady doctor and was medically examined on 30.5.2005 at about 5:30 PM. The lady doctor, on medical examination of the prosecutrix, found that hymen was old torn and healed and vagina used to admit two fingers easily. Thereafter, the lady doctor referred the prosecutrix for x-ray. Dr. R.C. Verma did x-ray of wrist, elbow and knee joint of the prosecutrix and found all of the joints fused. On the basis of the x-ray report, the lady doctor P. Niranjan gave supplementary report and opined that the prosecutrix could be of 15-16 years of age on the date of occurrence. Vaginal smear was sent for pathological examination, and according to the pathological report, Exhibit ka-6, dead sperms were found in the smear. The investigating officer, after concluding the investigation, submitted charge sheet Exhibit ka-9 against the appellant. 5. Vaginal smear was sent for pathological examination, and according to the pathological report, Exhibit ka-6, dead sperms were found in the smear. The investigating officer, after concluding the investigation, submitted charge sheet Exhibit ka-9 against the appellant. 5. The learned trial court framed the charges under sections 363, 366 and 376 I.P.C. against the appellant, who denied the charges and alleged that he had been falsely implicated due to enmity. 6. The prosecution examined as many as nine witnesses to prove the aforesaid charges. PW-1, Sushil is the complainant, who has proved the F.I.R. Ext. Ka-1 and has also proved the factum of recovery of the prosecutrix from the possession of the appellant and his arrest, as alleged in the FIR. PW-2, 'M' is the prosecutrix. She has stated that the appellant took her to Hasangnj on his cycle where the appellant took one motor cycle and then took her to Village Firozpur, where he kept her in his maternal uncle's house. She has further stated that the appellant used to commit rape on her during the period she had been kept in the house of his maternal uncle. She remained in the said house for about 7-8 days. This witness further stated that when the appellant took her for the court marriage in Unnao and proceeded therefor, the complainant and witnesses Vasdev, Jatashankar Misra and Shri Kant apprehended the appellant and recovered her from his possession. In this way, PW-2 'M' has also supported the prosecution story in its entirety. PW-3, Constable Ram Sahai, has proved the chick report, Exhibit ka-2 and copy of G.D., Exhibit ka-3 and Fard, Exhibit ka-4. Evidence of this witness is formal in nature. PW-4, Dr. R.C. Verma had done x-ray of the aforesaid joints of the prosecutrix and has proved the x-ray report, Exhibit ka-5 and x-ray plates, material exhibits 1, 2 and 3. PW-5, Ramawati has given the evidence that she had gone to the police station immediately after kidnapping of the prosecutrix but the police did not receive the report. PW-6, Ranjeet Srivastava, who was posted as Chief Pharmacist, Zila Mahila hospital, Unnao proved the x-ray report. The report ka-6 is the pathological report prepared by Dr. A.K. Gupta. PW-7 Dr. P. Niranjan had medically examined the prosecutrix and has proved the pathological report, exhibit ka-7 and the age of the girl on the basis of x-ray report and x-ray plates. The report ka-6 is the pathological report prepared by Dr. A.K. Gupta. PW-7 Dr. P. Niranjan had medically examined the prosecutrix and has proved the pathological report, exhibit ka-7 and the age of the girl on the basis of x-ray report and x-ray plates. According to this witness, dead sperms were found in the vaginal smear and the prosecutrix was aged about 15-16 years on the date of occurrence. The lady doctor denied the suggestion that age of the prosecutrix was 18-19 years. PW-8, Sub Inspector R.K. Srivastava and PW-9, Sub Inspector Raghvendra Singh had investigated the matter and have given evidence of formal in nature. 7. The learned trial court examined the appellant under section 313 I.P.C. He denied the allegations made against him and stated that he has been falsely implicated. However, the appellant has not adduced any evidence in defence. 8. The learned counsel for the appellant submitted that he does not want to press the appeal on merit as the finding of guilt recorded by the learned lower court is based on proper appraisal of evidence of the prosecutrix duly corroborated by the medical evidence and statement of other witnesses. The learned counsel for the appellant, however, submitted that in view of the facts and circumstances of the case, the prosecutrix was a consenting party but the question of consent was irrelevant in view of the fact that the prosecutrix was aged about nearly 15-16 years and was minor but this circumstance ought to have been given due consideration on the point of sentence. The learned counsel further submitted that the learned trial court has passed a composite sentence for all the offences punishable under sections 363, 366 and 376 IPC, without specifying separate sentence for each offence. The sentence of ten year imprisonment in view of the facts and circumstances of the case, was not proper. 9. So far as the merits of the case is concerned, the charges under sections 363, 366 and 376 IPC seem to have been proved beyond all reasonable doubts. According to the prosecution evidence, the prosecutrix was of fourteen years on the date of the occurrence and even according to the statement of PW-7, Dr. 9. So far as the merits of the case is concerned, the charges under sections 363, 366 and 376 IPC seem to have been proved beyond all reasonable doubts. According to the prosecution evidence, the prosecutrix was of fourteen years on the date of the occurrence and even according to the statement of PW-7, Dr. P. Niranjan, the prosecutrix was aged about 15-16 years, therefore, it is established beyond all reasonable doubts that the prosecutrix was 15-16 years of age on the date of the occurrence, therefore, she could not be a consenting party. The most important witness in the case is the prosecutrix 'M' (PW-2). She has supported the story of kidnapping and rape and has very clearly proved that it was the appellant, who kidnapped her in a deceptive manner and committed rape on her. After the kidnapping, the appellant kept her in the house of his maternal uncle. She has further supported the story of her recovery from the possession of the appellant. The proscutrix has been subjected to cross-examination at length but nothing material could be brought on record to discredit her testimony. PW-1, Sushil and PW-5 Ramawati have also corroborated the statements of the prosecutrix. In this view of the matter, the learned trial court seems to have properly appreciated the evidence on record and arrived at the correct conclusion that the charges under sections 363, 366 and 376 IPC were proved beyond all reasonable doubts against the appellant. To this extent, the finding of the learned trial court, which has not been disputed by the learned counsel for the appellant, is confirmed. 10. On the point of sentence, the submissions of the learned counsel for the appellant have much substance. The learned trial court convicted the appellant under sections 363, 366 and 376 IPC, but did not record sentences under these sections separately. The learned trial court passed the sentence of ten year with regard to all the offences under sections 363, 366 and 376 IPC, which can not be said to be justified in any way. In view of the fact that the prosecutrix had attained sufficient maturity and lived with the appellant for about eight days and did not raise any protest during that period, a lenient view needs to be taken so far as the sentence is concerned. In view of the fact that the prosecutrix had attained sufficient maturity and lived with the appellant for about eight days and did not raise any protest during that period, a lenient view needs to be taken so far as the sentence is concerned. The offence under section 363 IPC is punishable for a term which may extend to seven years, therefore, imposition of ten years rigorous imprisonment for this offence was not warranted in law. It seems to be just and expedient to sentence the appellant under section 363 IPC to under go rigorous imprisonment of three year and to pay a fine of Rs. One thousand and in default of payment of fine, to under go additional rigorous imprisonment of two months. 11. More so, it seems to be just and expedient to reduce the sentence from ten years rigorous imprisonment to seven years rigorous imprisonment for each of the offences under sections 366 and 376 IPC. 12. The appeal is, therefore, partly allowed. The conviction of the appellant Rajjan under sections 363, 366 and 376 IPC is confirmed. The appellant Rajjan is accordingly sentenced under section 363 IPC to under go rigorous imprisonment of three years and to pay a fine of Rs. one thousand and in default of payment of fine to go additional rigorous imprisonment of two months. The sentence passed against the appellant under each of sections 366 and 376 IPC is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment but the sentence fine of Rs. Two thousand and in default of payment of fine additional imprisonment of two months under each of two sections is confirmed. All the sentences shall run concurrently. The period already spent in custody either as a under trial or a convict shall be given due adjustment according to section 428 of Code of Criminal Procedure while calculating the period of sentence passed against the appellant. 13. Let a copy of this judgment along with the lower court record be transmitted forthwith to the learned trial court for immediate compliance.