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2016 DIGILAW 614 (RAJ)

Krishan Lal v. State of Rajasthan

2016-05-03

PANKAJ BHANDARI

body2016
ORDER : Pankaj Bhandari, J. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 03.05.2012 passed by Additional Sessions Judge, Raisinghnagar, Sri Ganganagar in Sessions Case No.15/2011, vide which the appellant has been convicted under Sections 450, 323 and 376 I.P.C. 2. The factual matrix of the case are that on 14.03.2011, an FIR was lodged at Police Station, Raisinghnagar alleging therein that the present appellant was found lying upon Sunita, who has been stated in the FIR, to be a special child aged 13 years. The police registered a case under Section 376/511 IPC, but after investigation, filed charge-sheet under Sections 376, 450 and 323 IPC. The court framed charges under the aforesaid Sections against the appellant, who denied the charges, whereupon the prosecution examined PW-1 Shanti, PW-2 Raj Kumar, PW-3 Jagnarayan, PW-4 Tej Kumar Sharma , PW-5 Satpal, PW-6 Iqbal Singh, PW-7 Gurdas Singh, PW-8 Patram, PW-9 Budhram and PW-10 Narendra Kumar. The statement of the accused-appellant was recorded under Section 313 Cr.P.C., and thereafter, DW-1 Sukhram was examined on behalf of the appellant as defence witness. The court after hearing the parties, vide the impugned order convicted the accused-appellant under Sections 323, 450 and 376 IPC, and passed the sentence of eight years and fine of Rs. 10,000/- and on non-payment of fine, further imprisonment of three months for offence under Section 376 IPC; sentence of five years and fine of Rs. 2000/- and on non-payment of fine, further imprisonment of one month for offence under Section 450 IPC; and sentence of three months and fine of Rs. 200/- and on non-payment of fine, further imprisonment of fifteen days for offence under Section 323 IPC. Aggrieved by which, the present appeal has been preferred. 3. The main argument on behalf of the accused-appellant is that the FIR was lodged on the next date of the incident, in which it was mentioned that the accused-appellant tried to commit rape upon the prosecutrix. His contention is that the case falls within the purview of Section 376/511 IPC, and that, the accused is in custody from 15.03.2011. Therefore, leniency should be adopted in the matter. 4. His contention is that the case falls within the purview of Section 376/511 IPC, and that, the accused is in custody from 15.03.2011. Therefore, leniency should be adopted in the matter. 4. The learned Public Prosecutor, on the other hand, has drawn my attention to the medical report and the statement of PW-4 Dr.Tej Kumar Sharma and has argued that the case falls within the purview of Section 376 IPC, even though the same was not mentioned in the F.I.R. 5. The appellant has also prayed that if the Court comes to the conclusion that the offence under Section 376 is made out, the sentence of imprisonment be reduced to seven years. Since the accused-appellant is already in custody from 15.03.2011. 6. I have considered the arguments put forth before me and have also perused the statements of the witnesses as well as the documents available on record. 7. It is not disputed that the prosecutrix is a young girl of 13 years and is mentally challenged, who is unable to speak and narrate as to what has happened with her. The contention of the appellant that the FIR discloses the offence under Section 376/511 IPC, as it is mentioned that attempt to commit rape was done by the appellant, does not appear to be correct, because in the FIR also it is mentioned that when the complainant were searching for their daughter, they found her in Satpal's house and when they went into the room, they found Krishan Lal lying on the prosecutrix. It is further relevant to note that in the medical report, the doctor has mentioned that the hymen was congested, inflamed and ruptured. PW-4 Dr. Tej Kumar Sharma, in his statement also, has mentioned that the vagina was congested, there was blood in the opening of the vagina, hymen was congested and inflamed and torn. PW-1 Shanti, in her statement before the court, has stated that the accused's clothes were open and he was committing rape with her daughter. Similar is the statement of brother of the prosecutrix, Rajkumar PW-2. PW-3 Jagnarayan has also stated that the clothes of Sunita were open, Sunita is a mentally challenged girl and Krishan Lal was lying over Sunita. Thus, there is ample evidence, including the medical evidence to the effect that the accused committed rape upon the prosecutrix. 8. Similar is the statement of brother of the prosecutrix, Rajkumar PW-2. PW-3 Jagnarayan has also stated that the clothes of Sunita were open, Sunita is a mentally challenged girl and Krishan Lal was lying over Sunita. Thus, there is ample evidence, including the medical evidence to the effect that the accused committed rape upon the prosecutrix. 8. Consequently, the argument of the appellant that the case falls within the purview of Section 376/511 IPC does not have any force. 9. The learned court below has properly dealt with the entire case in coming to the conclusion about guilt of the accused and in sentencing the accused for the offences, he has been charged with. The order of conviction therefore, deserves to be upheld. 10. The contention of the appellant that the accused is in confinement from 15.03.2011 and was aged 22 years at the time of occurrence, and therefore, some leniency should be adopted, does not find any favour as on a consideration of the entire case and also the fact that the accused committed offence of rape with the mentally challenged girl aged 13 years, I do not find it a fit case to adopt a lenient view, as such offender do not deserve any leniency. 11. Consequently, I do not find any force in the present appeal. 12. The order of conviction as well as sentence awarded by the learned court below is upheld and the present appeal is dismissed.