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2014 DIGILAW 2060 (RAJ)

Madan Lal v. State of Rajasthan

2014-12-09

GOPAL KRISHAN VYAS

body2014
Hon'ble VYAS, J.—The instant appeal has been filed by the appellants Madan Lal S/o Shivnarayan and Pushkar @ Puskhar Lal S/o Mangi Lal resident of District Chittorgarh lodged in Central Jail, Chittorgarh against the judgment passed by the Special Judge SC/ST (Prevention of Atrocities), Pratapgarh, District Chittorgarh Sessions Case NO.59/2006 whereby the learned trial court convicted the accused appellants for the offence under Section 376(2)(g) IPC and awarded sentence of 10 years SI with fine of Rs.100/- each and in default of payment of fine to further undergo 15 days SI, so also, for the offence under Section 363 IPC and awarded sentence of 3 years SI with fine of Rs.100/-and in default of payment of fine to further undergo 15 days SI. Likewise the accused appellants were further convicted for offence under Section 368 IPC and punishment of one year SI was awarded with the order that these sentences will run concurrently. 2. As per the brief facts of the case one Sawai Lal Meena lodged an FIR no.120/2006 on 10.9.2006 at Police Station Dungala against the accused appellants in which it is alleged that his daughter Ashwini Meena aged about 14 years was coming to his house from Government Senior Middle School, Dungla at about 8’ O Clock on 23.8.2006, at that time, accused appellant Madan Lal and Puskar who were standing on road and they forcibly took her in the forest and committed rape, so also, kept her in illegal detention for 14 days in the agricultural field of Jawar and other different places and her daughter was threatened by both the accused that if she will refuse to allow them to perform inter-course then not only she will be murdered but his entire family will also be murdered if she disclose the fact of rape to anybody else. 3. The accused appellants left her daughter near the well on 7.9.2006 in the night at 8’O Clock but due to fear she did not point out the names of appellants to poor father. 4. The allegation of the prosecution is that on 7.9.2006 when complainant went on well to watch Rojadi where the prosecutrix Ashwini Meena was sitting in unsound state of mind and whole incident was reported by her. 5. 4. The allegation of the prosecution is that on 7.9.2006 when complainant went on well to watch Rojadi where the prosecutrix Ashwini Meena was sitting in unsound state of mind and whole incident was reported by her. 5. Upon aforesaid complaint the accused appellants were arrested and after investigation, the police filed charge-sheet against the accused appellants for offence under Section 363, 376(2)(g), 344 and 346 IPC, thereafter, the learned trial court framed charges for offence under Section 363, 368, 376(2)(g) read with Section 3(1)(xii) and 3(2)(v) of SC/ST Prevention of Atrocities Act against the accused appellants and proceeded for trial. From prosecution side statements of 15 prosecution witnesses were recorded including the statement of PW-9 complainant Sawai lal Meena (father of the prosecutrix) and PW-10 Ashwini Meena (victim). 6. The learned trial court after recording evidence of prosecution recorded the statement of accused appellants under Section 313 Cr.P.C. in which they denied the allegation of committing rape forcibly and produced 3 witnesses DW-1 Onkar Gayari, DW-2 Shambhu Lal and DW-3 Riyaz Shah in defence. The learned trial court after hearing final argument convicted the accused appellant for aforesaid offence. 7. The learned counsel for the appellants vehemently argued that FIR was filed after long delay; therefore, on this ground alone, the prosecution case deserves to be disbelieved because the prosecutrix Ashwini Meena was is not minor on the date of medical examination conducted by the Medical Board on 11.9.2006. Further, it is argued that PW-13 Rajesh Bhardwaj, Dy. Superintendent of Police, Nimbara deposed in his statement that prosecutrix come out herself from Dungala village to place from where she was abducted and in between that there are so many houses on both the sides and there is hospital. Therefore, it was not easy or possible to take the prosecutrix forcibly for committing rape by the accused appellants. The learned counsel for the appellants lastly argued that it is a case in which prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment impugned may be quashed. 8. Therefore, it was not easy or possible to take the prosecutrix forcibly for committing rape by the accused appellants. The learned counsel for the appellants lastly argued that it is a case in which prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment impugned may be quashed. 8. Per contra, the learned Public Prosecutor vehemently submits that it is a case in which a minor girl belonging to SC/ST category was forcibly abducted and rape was committed on her and due to that incident she became unsound mind, therefore, it cannot be said that any error has been committed by the learned trial court in convicting the accused appellants for the serious charges leveled against them for committing offence of rape. 9. After hearing learned counsel for the parties first of all it is required to be observed that accused appellants were arrested in the month of Sept., 2006 and total period of conviction is 10 years SI with fine, therefore, they served sentence of more than 8 years. I perused the statements of prosecutrix PW-10 Ashwini Meena, so also, the statement of PW-14 Dr. Kartar Singh. In the statement of prosecutorix PW-10 Ashwini Meena who was minor and belonging to SC/ST caste it is categorically stated by her that she was forcibly abducted and rape was committed with her by the accused appellant. The fact of rape is also proved from the medical evidence, therefore, it cannot be said that no offence under Section 376(2)(g) is not proved by the prosecution in the trial. The learned trial court minutely assessed the statements of prosecutrix and consider the case in right perspective and give clear cut finding that it is a case of committing offence under Section 376(2)(g) of IPC and other offence. By leading evidence of record of Government Upper Primary School, Rawala where prosecutrix Ashwini Meena acquired qualification from I to VIII classes it is proved by the prosecution that date of birth of the prosecutrix was 18.4.1992 and incident took place in the year 2006. Meaning thereby, as per certificate Ex.P/35 and original admission register of school Ex.P/46 the prosecution has proved its case beyond reasonable doubt that prosecutrix was minor on the date of incident and she belongs to SC/ST category and subjected to rape. Meaning thereby, as per certificate Ex.P/35 and original admission register of school Ex.P/46 the prosecution has proved its case beyond reasonable doubt that prosecutrix was minor on the date of incident and she belongs to SC/ST category and subjected to rape. The Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Dharma Pal (2004) 9 SCC 681 gave following verdict about the seriousness of offence of even attempt to commit rape, which reads as under:- “According to us, the offence of an attempt of commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e., character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 is hedged with a condition about the nature of offence and the character of the offender. Section 6 of the Act makers the provisions applicable in cases where offenders are under 21 years of age, as restrictions on imprisonment of offenders have been indicated in the said provision. In a case involving similar facts, this Court in State of Haryana vs. Prem Chand (1997) 7 SCC 756 upheld the judgment of the High Court which extended the benefit of provisions under Section 4 of the Act. Considering the peculiar circumstances of the case and taking into account the fact that on the date of occurrence the accused was less than 21 years old, we feel this is a case where no interference is called for with the judgment of the High Court, though some of the conclusions arrived at by the High Court do not have any approval.” 10. In view of above discussion, even in the case of attempt of commit rape the Hon'ble Supreme Court take serious view, in the present case where the rape was committed upon the prosecutrix aged about 14 years at the relevant point of time, therefore, no error has been committed by the learned trial court in convicting the accused appellants for the offence committed by them punishable under Section 376(2)(g) of IPC and other offences. 11. 11. In view of the above, the appeal filed by both the accused appellants is hereby dismissed.