Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1915 (RAJ)

Chanda Lal @ Harchanda v. State of Rajasthan

2014-11-26

KANWALJIT SINGH AHLUWALIA, R.S.CHAUHAN

body2014
Hon'ble AHLUWALIA, J.—Daughter aged 5½-6 years of the complainant (hereinafter to be called as prosecutrix, to protect identity of the victim) was raped by the appellant. 2. The Court of Additional Sessions Judge, Rajgarh Distt. Alwar vide impugned judgment dated 13th September, 2005 held appellant guilty of offence under Section 376(2)(f) of IPC and vide a separate order of even date had sentenced the appellant to undergo life imprisonment and pay a fine of Rs.5000/-, in default of payment thereof, to further undergo one year imprisonment. 3. Criminal proceeding was set into motion on the basis of written report lodged by Babu Lal (PW-1), father of the prosecutrix. Complainant appearing as witness has stated that on 03rd September, 2003, he had gone to Bartati Mela. When he returned in the evening, the whole village had gathered and his daughter who was aged 5/6 years was lying on the floor. Complainant asked her daughter what had happened, at that time, people had already apprehended the appellant. The daughter of the complainant pointed towards the accused and told that he had performed a bad act. She further told that her elder sister had left her lugdi (headgear) in the field. On the asking of elder sister, she had gone to field to fetch the lugdi (headgear), then appellant met her and by offering sweets, took her in the fields where appellant ravished her after putting a towel on the ground. At that time, younger brother of the complainant and the wife of the younger brother of the complainant and other had raised noise, rescued the prosecutrix and brought her back to the village. They had also apprehended accused Chanda Lal at the spot. Since the condition of the daughter of the complainant was precarious, she was brought to Rajgarh Hospital. Thereafter, complainant-father of the prosecutrix had gone to the Police Station where he got recorded his statement Ex.P/1 and appended his signatures thereupon, after the same was read to him and was found to be correct. 4. Prosecutrix appeared in the Court as PW-5. She in categoric term stated that when she had gone into the fields to bring back lugdi (headgear) of her sister, the accused called her and offered sweets and took her to the fields and committed offence of rape. 5. Doctor Aneeta Naruke (P.W.10) had conducted Medico Legal examination of the prosecutrix. 4. Prosecutrix appeared in the Court as PW-5. She in categoric term stated that when she had gone into the fields to bring back lugdi (headgear) of her sister, the accused called her and offered sweets and took her to the fields and committed offence of rape. 5. Doctor Aneeta Naruke (P.W.10) had conducted Medico Legal examination of the prosecutrix. The same has been exhibited as Ex.P/3. As per the observations, noted therein prosecutrix was having small 2-3 mm abrasion over the fourchette cum serous discharge. Prosecutrix was also having on her person an injury over the perineum. Doctor had taken the swab for determination of spermatozoa and semen. The same was sent to Forensic Science Laboratory. As per the State Forensic Laboratory report Ex.C/2, blood group of semen could not be detected. However, vide report Ex.C/1, State Forensic Science Laboratory, Rajasthan had found human semen on the Kachha/Nekar of the proseuctrix and underwear of the accused-appellant. 6. Prosecution also examined relations of the complainant and prosecutrix to lend corroboration to their testimony. Keshar (PW-2) stated that three months ago, after hearing noise, she went to the fields and found that prosecutrix daughter of his Jeth (elder brother of the husband) was lying in the fields. Blood was oozing from her private parts. To similar effect is the statement of Lallu Ram (PW-3) brother of the complainant. Babu Lal (PW-4) another resident of the village had also deposed on the same lines. Teju (PW-6) stated that they had seen accused running away from the spot after committing offence of rape. Smt. Chando (PW-7) mother of the prosecutrix also stated that her elder daughter Sunita had sent prosecutrix to take lugdi (headgear) from the fields. Sunita (PW-9) aged 14 years, elder sister of the prosecutrix, stated that immediately after the occurrence, proseuctrix had disclosed that accused had inserted his male organ into the private part of the prosecutrix from where she used to urinate. Dr. Prabhu Dayal Meena (P.W.13) had Medico Legally examined, the present appellant and opined that there was nothing to suggest that appellant was not capable of performing sexual intercourse. Dr. S.N. Sharma (P.W.19) after conducting ossification test had determined the age of the prosecutrix between 5 to 6 years. 7. Dr. Prabhu Dayal Meena (P.W.13) had Medico Legally examined, the present appellant and opined that there was nothing to suggest that appellant was not capable of performing sexual intercourse. Dr. S.N. Sharma (P.W.19) after conducting ossification test had determined the age of the prosecutrix between 5 to 6 years. 7. Prosecution closed its evidence, thereafter, the statement of the accused-appellant under Sec. 313 Cr.P.C. was recorded and all incriminating evidence was put to him and he denied the same. In defence, accused had examined two witnesses. Rampal, DW-1 and Jhuta Ram, DW-2. Both had stepped into the witness box to vouchsafe the character of the appellant. They further stated that the appellant was apprehended by the police. 8. We need not notice deposition of the witnesses who had participated in the investigation as counsel for the appellant had addressed no argument touching their statements recorded by trial Court. 9. We have heard Shri N.A. Naqvi, Senior Counsel who is duly assisted by Shri Nawab Ali and Shri Rahil Kalam, and Shri N.S. Dhakad, learned Public Prosecutor. 10. Shri N.A. Naqvi, Senior Counsel has pointed out various discrepan-cies, contradictions and improvements in the testimony of the witnesses. 11. An observation made by us that the contradictions, improvements and discrepancies spelt out by the learned counsel will not affect the broad features of the case and credibility of the witnesses, Shri N.A. Naqvi, Senior Counsel has very fairly stated that he is conscious that the medical evidence and the fact that appellant was apprehended at the spot make it difficult for him to undertake arduous uphill journey which will not lead him anywhere. 12. Having perused the record and hearing counsel for the parties, we are also satisfied that prosecution has proved charge of rape against the appellant. 13. Shri N.A. Naqvi, Senior Counsel has also very fairly stated that taking the entire perspective of the case, he will only urge and pray before this Court that there were no aggravating circumstances available with the trial Court to award maximum sentence i.e. life imprisonment. The learned counsel has stated that to award the maximum sentence, there must be compelling reasons for the trial Court and such reasons are to be stated in the order whereby sentence is awarded. The learned Counsel has stated that recently Hon'ble Apex Court in case of Sunil Dutt Sharma vs. State (Govt. The learned counsel has stated that to award the maximum sentence, there must be compelling reasons for the trial Court and such reasons are to be stated in the order whereby sentence is awarded. The learned Counsel has stated that recently Hon'ble Apex Court in case of Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi) reported as (2014) 4 SCC 375 while dealing with case of Section 304-B IPC had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence. The learned counsel for the appellant has also placed reliance upon Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat (AIR 2012 Supreme Court 979) to contend that Hon'ble Apex Court considering the agony of protracted trial has awarded minimum sentence of ten years. The learned counsel states that in the present case, incident had taken place 11 years ago i.e. in the year 2003 and since then, appellant is in the corridors of the Court. It is contended before us that since, appellant was not released on bail during the trial and his sentence was also not suspended during appeal, thus he continue to languish behind the bars since 04th September, 2003, when his formal arrest was effected. 14. The learned Public Prosecutor except age of the prosecutrix could not divulge any other reason to persuade us to maintain the sentence awarded by the trial Court. 15. Hence, taking ratio of law laid in Sunil Dutt Sharma (supra) which in turn had relied upon Sangeet and Another vs. State of Haryana (2013) Volume 2 SCC 452 and taking aggravated circumstances i.e. age of the prosecutrix and the mitigating circumstance that the appellant is sole bread earner of the family, he is in the corridors of the Court from last 11 years, we follow the mandate of law laid in case of Bavo @ Manubhai Ambalal Thakore (supra) and while maintaining the conviction of the appellant, reduce the sentence of life imprisonment awarded upon the appellant by the trial Court to ten years rigorous imprisonment. However, we enhance the fine awarded by the trial Court from Rs.5,000/- to Rs.10,000/- while maintaining the default clause prescribed by the trial Court. 16. With the above modification and reduction in the sentence i.e. from life imprisonment to ten years, the present appeal stands disposed of by enhancing fine from Rs. However, we enhance the fine awarded by the trial Court from Rs.5,000/- to Rs.10,000/- while maintaining the default clause prescribed by the trial Court. 16. With the above modification and reduction in the sentence i.e. from life imprisonment to ten years, the present appeal stands disposed of by enhancing fine from Rs. Five thousand to rupees Ten thousand, while maintaining default clause.