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2017 DIGILAW 1541 (RAJ)

Jogendra Singh v. State Of Rajasthan

2017-07-11

SANDEEP MEHTA

body2017
JUDGMENT Sandeep Mehta, J. - The instant appeal has been preferred by the accused appellant Jogendra Singh in order to challenge the judgment dated 17.1.2015 passed by the learned Additional Sessions Judge, Bhadra, District Hanumangarh in Sessions Case No. 23/2012 whereby, the appellant was convicted and sentenced as below :- Conviction Sentence S.363 IPC 5 years' RI & fine of Rs. 2000/- in default to further undergo six months' SI. S.366A IPC 5 years' RI & fine of Rs. 2000/- in default to further undergo six months' SI. S.376/511 IPC 5 years' RI & fine of Rs. 2000/- in default to further undergo six months' SI. All the sentences have been directed to run concurrently. 2. Shri S.D. Goswami, learned counsel representing the appellant urges that the prosecution case is doubtful because FIR was lodged after nearly 17 days of the incident. As per the story set out in the statement of the prosecutrix PW1 Mst.R, the appellant approached her on 23.3.2012 and expressed his infatuation to her and told that he was desirous of marrying her. Then the accused tried to subject her to sexual intercourse. He stripped himself and also pulled down the salwar of the prosecutrix and tried to indulge in sexual intercourse. She refused on which the accused took her away in a car to Kalawali. There also, the accused tried to establish sexual relations with her but could not succeed. Then she was taken at Pili Mandori to the house of Rajpal. There also, the accused tried to establish sexual relations but failed. Finally when she stated that she would raise hue and cry, the accused left her at the village bus stand on 26.3.2012. Learned counsel contends that the story as set out in the statement of the prosecutrix is totally false and fabricated. The prosecutrix admittedly returned back on 26.3.2012 but the FIR was lodged as late as on 8.4.2012. As per her own story, the prosecutrix was at the mercy of the appellant after he allegedly kidnapped her. If at all the accused desired, he could easily have subjected the prosecutrix to sexual intercourse. He thus contends that ex-facie the offence under Section 376/511 IPC is not made out against the appellant. As per her own story, the prosecutrix was at the mercy of the appellant after he allegedly kidnapped her. If at all the accused desired, he could easily have subjected the prosecutrix to sexual intercourse. He thus contends that ex-facie the offence under Section 376/511 IPC is not made out against the appellant. For the offences under Sections 363 and 366A IPC, he prayed for a lenient view and urged that the substance sentences awarded to the appellant may be reduced to the period already undergone by him which is around 2 1 /2 years. 3. Per contra, learned Public Prosecutor vehemently opposes the submissions advanced on behalf of the appellant''s counsel. However, he too does not dispute the fact that the FIR was lodged after a significant delay i.e. on 8.4.2012 even though the prosecutrix returned back on 26.3.2012. 4. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as the original record. 5. Ex-facie the story of the prosecutrix that the accused tried to subject her to forcible intercourse but could not succeed is unbelievable. If her evidence is believed as such, apparently, she was at the mercy of the accused for a period of three days and nothing could have prevented him from establishing sexual relations if he so desired. Only two conclusions are possible from these circumstances, (a) the accused did not try to establish sexual relations with her or (2) that sexual relations were established but the prosecutrix concealed this fact while deposing. Under either of these circumstances, this Court feels that the finding of guilt recorded by the trial Court against the appellant for the offence of attempt to commit rape punishable under Section 376/511 IPC cannot be sustained. However, the finding of guilt of the appellant for the offences under Sections 363 and 366A IPC cannot be called into question because the prosecutrix was aged less than 18 years at the time of incident and the accused took her away from the guardianship of her father with the intention of marrying her. Thus, the conviction of the appellant for the offences under Sections 363 and 366A IPC is justified and does not warrant interference. Thus, the conviction of the appellant for the offences under Sections 363 and 366A IPC is justified and does not warrant interference. Evidently, the tenor of the prosecution case and the overall circumstances indicate of consensual relationship but as the girl was below 18 years on the date of occurrence, the accused appellant was technically guilty for the offences under Sections 363 and 366A IPC. He has remained in custody for a period in excess of 2/ years. Thus, this Court is inclined to reduce the substance sentence awarded to the appellant to the period already undergone by him. 6. Resultantly, the instant appeal is allowed in part. The impugned judgment dated 17.1.2015 is set aside to the extent the appellant Jogendra Singh was convicted for the offence under Section 376/511 IPC and the appellant is acquitted of the said charge. However, his conviction for the offences under Section 363 and 366A IPC is sustained. The substantive sentences awarded to the appellant for these offences are reduced to the period of imprisonment already undergone by him. However, the sentence of fine is maintained. He shall be released from jail upon fine being deposited. 7. Record be returned forthwith.