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2013 DIGILAW 440 (HP)

COURT ON ITS OWN MOTION v. RAJU

2013-05-17

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. - 1. ON the basis of a news item, suo moto action was taken by this Court and the judgment dated 28.4.2011, passed by learned Additional Sessions Judge, Kinnaur at Rampur, Himachal Pradesh, in Sessions Trial No.32-AR/7 of 2010, titled as State of Himachal Pradesh versus Raju, was called for. After perusal of the same, the present petition was registered as Criminal Revision No.79 of 2011. In terms of the impugned judgment, accused-respondent Raju stands convicted of having committed an offence, punishable under the provisions of Section 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and pay fine of Rs.2,000/-. In default of payment of fine, accused is to further undergo simple imprisonment for a period of three months. 2. BRIEFLY stated, case of the prosecution is that accused Raju was married to Smt. Bimla Devi (PW-1). Through their wedlock four children were born. Prosecutrix (PW-10) was the eldest amongst the children. Accused was employed as a labourer with contractor Shri Jai Prakash (PW-3). They were living in a tented accommodation at the work site in village Narain (Kul). Accused had a separate tent where he lived with his family. On 15.10.2009 at 10 a.m., accused consumed liquor and gave beatings to his wife Smt. Bimla Devi (PW-1). Resultantly, she went to village Mandog, where she spent the night in the house of the contractor. Same day, in the evening, while prosecutrix was sleeping with her younger brother and sister in the tent, the accused came in a drunkard condition at about 10-11 p.m. He slept with the prosecutrix and forcibly opened her Pyjama. When she protested, he gagged her mouth with a blanket and then twice raped her. In the early hours of the morning of 16.10.2009, prosecutrix narrated the incident to Ms Meena (PW-2), who was also living in a tent close-by. Thereafter, she went to village Mandog and narrated the incident to her mother. From there both PW-1 and PW-10 came to Rampur and reported the matter to the police at Police Station Rampur, where FIR No.195, dated 16.10.2009 (Ex.PW-9/A), under the provisions of Section 376 of the Indian Penal Code was registered. Prosecutrix was taken to the hospital for medical examination, which was conducted by Dr. Sangeeta (PW-5) on 16.10.2009 itself. Accused was also examined by Dr. R.K. Bhatia (PW-4) on 17.10.2009. Prosecutrix was taken to the hospital for medical examination, which was conducted by Dr. Sangeeta (PW-5) on 16.10.2009 itself. Accused was also examined by Dr. R.K. Bhatia (PW-4) on 17.10.2009. His MLC is Ex. PW-4/B. SI Brij Lal (PW-9), who was entrusted with the investigation, visited the spot and collected blanket (Ex. P-1), vide Memo (Ex. PW- 3/A). The same was sealed and sent for chemical analysis to the laboratory. Report (Ex. PW-7/A) was collected. Investigating Officer also recorded statements of the relevant witnesses. Since prosecutrix was illiterate and there was no other evidence with regard to her date of birth, her dental age was also got determined from Dr. Sohan Lal (PW-6), who opined her age to be between 13 and 15 years. 3. WITH the completion of investigation, challan was presented in the Court for trial. 4. ACCUSED was charged for having committed an offence under the provisions of Section 376/511 of the Indian Penal Code, to which he did not plead guilty and claimed trial. In order to prove its case, prosecution examined as many as ten witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he pleaded false implication. 5. TRIAL Court, by taking into account testimonies of the prosecution witnesses, medical and forensic evidence produced by the prosecution, came to the conclusion that prosecution was able to prove its case, beyond reasonable doubt, to the effect that the accused was guilty for having committed an offence punishable under the provisions of Section 376/511 of the Indian Penal Code. 6. NOTICE in the present petition was issued. Since respondent-accused was serving the sentence in the jail, Shri Vinjay Thakur, Advocate was appointed as a legal aid counsel to represent him. The question, which needs to be considered, is as to whether petitioner's guilt can be examined in relation to an offence, under the provisions of Section 376 of the Indian Penal Code. The fact of the matter is that accused was charged only for an attempt to commit an offence of rape. The question, which needs to be considered, is as to whether petitioner's guilt can be examined in relation to an offence, under the provisions of Section 376 of the Indian Penal Code. The fact of the matter is that accused was charged only for an attempt to commit an offence of rape. As such, this question cannot be gone into at this stage, more so for the reason that there is a supplementary statement of the prosecutrix, clarifying that her father had tried to commit rape twice and also the fact that the clinical/medical examination record and the record of the forensic science laboratory would not establish the same. 7. THE next question, which arises for consideration, is as to what should be adequate sentence. Trial Court awarded sentence of rigorous imprisonment for a period of three years and a fine of Rs.2,000/-. In the given facts, the sentence is much on the lower side. 8. THE facts in the instant case are grave. A father is held guilty of having attempted to commit rape on his own daughter, who was just aged 14 years. Factum of age of the prosecutrix, from her uncontroverted testimony as also statement of her mother Smt. Bimla Devi (PW-1), Dr. Sangeeta (PW-5), who proved MLCs (Ex. PW-5/C and Ex. PW-5/D) and Dr. Sohan Lal (PW-6), who proved opinion (Ex. PW-6/A), stands established on record. Definitely, the age of the prosecutrix is less than 16 years. Prosecutrix has deposed her age to be 14 years. 9. RELATIONSHIP between the accused and the prosecutrix is not disputed. In view of the fact that the accused stands convicted and sentenced, and there is no challenge by him to the judgment, I need not, in detail, refer to the testimonies of the prosecutrix (PW-10), her mother Smt. Bimla Devi (PW-1) and neighbour Smt. Meena (PW-2), but one thing is for sure that the conviction in relation to the charged offence cannot be said to be illegal, perverse or not borne out from the record. 10. PROSECUTRIX is an illiterate girl. She comes from an economically and socially backward segment of the society. She was dependent upon her parents for sustenance. At the time of occurrence of the incident, the accused was under the influence of liquor. The prosecutrix was under awe and influence of her father. 10. PROSECUTRIX is an illiterate girl. She comes from an economically and socially backward segment of the society. She was dependent upon her parents for sustenance. At the time of occurrence of the incident, the accused was under the influence of liquor. The prosecutrix was under awe and influence of her father. In this backdrop, I am of the considered view that no leniency is to be shown to the accused and the sentence of imprisonment needs to be enhanced and it should be rigorous imprisonment for a period of seven years instead of three years as awarded by the trial Court. Ordered accordingly. As such, the judgment dated 28.4.2011, passed by learned Additional Sessions Judge, Kinnaur at Rampur, Himachal Pradesh, in Sessions Trial No.32- AR/7 of 2010, titled as State of Himachal Pradesh versus Raju, is modified accordingly. Registrar General of this Court is directed to immediately send copies of this judgment to all concerned. 11. THIS Court highly appreciates the assistance rendered by Mr. Vinay Thakur, Advocate, who was appointed as Legal Aid Counsel in the present case. Revision petition stands disposed of, so also the pending application(s), if any.