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2015 DIGILAW 1224 (RAJ)

Manoj v. State of Rajasthan

2015-07-02

KANWALJIT SINGH AHLUWALIA

body2015
JUDGMENT : Kanwaljit Singh Ahluwalia, J. The present appellant Manoj S/o Hotam Singh, was tried by the court of Addl. District & Sessions Judge (FT) No.2, Dholpur, in the case arising out of First Information Report No.62/2007 registered at Police Station-Kalari, Distt. Dholpur. 2. The trial court vide impugned judgment dated 5.6.2008, held the appellant guilty of offence under Sections 363, 366 and 376 IPC and sentenced the appellant as under:. U/s. 363 IPC: Sentenced to undergo seven years RI and to pay a fine of Rs. 2000/-; and in default of payment of fine to further undergo three months' additional imprisonment. U/s. 366 IPC: Sentenced to undergo seven years RI and to pay a fine of Rs. 2000/-; and in default of payment of fine to further undergo three months' additional imprisonment. U/s. 376 IPC: Sentenced to undergo ten years RI and to pay a fine of Rs. 5000/-; and in default of payment of fine to further undergo six months' additional imprisonment. 3. The first charge stated that the appellant on 27.3.2007 at about 7.30 PM induced and enticed away the prosecutrix Ms. S (name withheld to protect her identity and, hereinafter to be called as the 'prosecutrix') from lawful custody of her guardian, thus he committed offence under Sec.363 IPC. The second charge stated that since the prosecutrix was taken away from the lawful custody of the parents, after inducement in order to commit sexual intercourse, the appellant committed offence under Sec.366 IPC; and lastly the third charge stated that the appellant committed sexual intercourse without the consent of the prosecutrix, therefore, he is liable to be charged for offence under Sec.376 IPC. 4. Aggrieved against the conviction and sentence, the appellant has preferred the present appeal. 5. Briefly stated facts of the case are that on 11.4.2007, Munna Khan (PW-1) submitted a written report alleging therein that on 27.3.2007 at about 7.30 PM, his daughter (Prosecutrix) had gone out of the house to ease herself and thereafter had not returned. Parents carried out extensive search, to find the prosecutrix but failed to recover her. Next day, eldest daughter of the complainant Shammi reached from village Sarkana and had gone to the house of appellant and she was informed by the sister of the appellant that appellant is also missing from the house. 6. Parents carried out extensive search, to find the prosecutrix but failed to recover her. Next day, eldest daughter of the complainant Shammi reached from village Sarkana and had gone to the house of appellant and she was informed by the sister of the appellant that appellant is also missing from the house. 6. During the course of the trial, the prosecutrix appeared in the court as PW-7 and deposed that the appellant along with other three persons had abducted her and committed rape. She further admitted that she remained with the appellant for one and half months. She had accompanied the appellant to Agra bus stand and other places. 7. Mr. Mohan Lal Goyal, the learned counsel appearing for the accused-appellant, to controvert the testimony of the prosecutrix, has relied upon the photographs Ex.D-4, D-5, D-7, and D-8 to contend that the prosecutrix had performed marriage with the appellant and she herself had eloped with the appellant. 8. I have heard learned counsel for the appellant, and perused the record. The question in this appeal before the court is the age of the prosecutrix. The learned trial court had determined the age of the prosecutrix to be less than sixteen years of age. The learned counsel for the appellant has submitted that the age of prosecutrix was 19 years, but learned counsel failed to show any document or any evidence to fortify his submission. Having failed to assail the finding returned by the trial court that the prosecutrix was less than 16 years' of age, learned counsel for the appellant has submitted that even finding of trial court is accepted then also the age of prosecutrix is more than 12 years but little less than 16 years of age. Learned counsel for the appellant has further submitted that minimum sentence prescribed for offence under Sec.376 IPC is seven years and no extraordinary ground was available with the trial court to award higher sentence of ten years. Learned counsel for the appellant submitted that no aggravating circumstances have been spell out by the trial court to award the sentence more than the minimum prescribed. It is further submitted that the case pertains to March 2007, the appellant has suffered pain and agony of protracted trial for more than eight years. It is further contended that the appellant has already undergone sentence of about seven years & three months. It is further submitted that the case pertains to March 2007, the appellant has suffered pain and agony of protracted trial for more than eight years. It is further contended that the appellant has already undergone sentence of about seven years & three months. It is further urged that the appellant on the date of occurrence, was young boy aged about 20-22 years and is a young man, who could not comprehend the consequence of his act. It is also submitted that the appellant before registration of this case and thereafter has not committed any other offence. 9. I find merit in the submissions advanced by the learned counsel for the appellant regarding reduction of the sentence. Taking into account the age of the appellant on the date of occurrence, and the fact that the prosecutrix had traveled with the appellant to various public places in the public transport, even though, she was little less than 16 years of age, this court is of the view that the sentence of ten years awarded by the trial court under Sec.376 IPC being excessive can be reduced to seven years. 10. Consequently, sentence of ten years awarded upon the appellant under Sec.376 IPC is reduced to seven years while maintaining the sentence of the appellant on other two counts along with sentence of fine and default clause. As ordered by the trial court the sentence reduced shall run concurrently along with the sentence awarded on two counts. With the above modification in the sentence, the present appeal is disposed of.