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2017 DIGILAW 2075 (RAJ)

Babu Singh Rawat v. State of Rajasthan

2017-09-16

GOPAL KRISHAN VYAS

body2017
JUDGMENT : Gopal Krishan Vyas, J. 1. The instant jail appeal has been filed by the convict, Babu Singh Rawat, against the judgment dated 15th of April, 2009 passed by learned Addl. Sessions Judge (FT) No.2, Pali (for brevity, hereafter referred to as 'Trial Court') in Session Case No.13/2008, whereby the learned trial court convicted the accused appellant for offences under Sections 363, 366 & 376 of IPC and passed following sentence:- 363 of IPC Two years 'Rigorous Imprisonment along with fine of Rs. 1000/-, with default stipulation to further undergo one month's additional simple imprisonment. 366 of IPC Five Years 'simple imprisonment along with fine of Rs. 2000/-, with default stipulation to further undergo two months' simple imprisonment. 376 of IPC Ten Years 'simple imprisonment along with fine of Rs. 3000/-, with default stipulation to further undergo three months' simple imprisonment. 2. Briefly stated, the facts of the case are that upon a written complaint (Ex.P/13) submitted by complainant, Surajmal on 27.01.2008, F.I.R. was registered against the accused appellant for committing offence under Section 363, 366 & 376 of IPC. 3000/-, with default stipulation to further undergo three months' simple imprisonment. 2. Briefly stated, the facts of the case are that upon a written complaint (Ex.P/13) submitted by complainant, Surajmal on 27.01.2008, F.I.R. was registered against the accused appellant for committing offence under Section 363, 366 & 376 of IPC. In the complaint (Ex.P/13) the following allegations were levelled by the complainant, which reads as under:- ^^lsok esa] Jheku Fkkuknkj lkgc efgyk, iqfyl Fkkuk ikyh fo"k; & eqdnek ntZ djkdj dk;ZokbZ djus gsrqA egksn;] vtZ ,d lwjtey iq= n;ky th tkfr pkj.kh;k mez 35 fuoklh ds'ko uxj u;k cl LVs.M ds ihNs egknso efUnj dh xyh fd ekyqe gksos fd esjh ,d yM+dh ^^ih** tks dy fnukad 26-1-2008 dks flykbZ lh[kus ds fy, lhek lqFkkj fuoklh ds'ko uxj ds ?kj 2 cts x;h Fkh ftldks 'kke dks 5 cts esjh iRuh ysus ds fy, x;h FkhA rks lhek us crk;k fd rqEgkjh yM+dh ^^ih** ?kj tkus dk dgdj FkksM+h nsj igys pyh x;h tc eSaus o esjh iRuh eksguh us eksgYys esa b/kj m/kj yksxksa ls iwNrkN fd rks irk pyk fd esjh iq=h ^^ih** dks glhuk ckbZ ds edku esa jgus okyk ckcw flax jkor fuoklh tkstkoj tks esjh iq=h ^^ih** dks 'kknh djus dh uh;r ls Hkxkdj ys x;k gSA ftldks ys tkrs oDr HkSjkjke xqtj VªsDVj MªkbZoj us ekuqijk Hkkdjh jksM+ ij tkrs gq, dy 'kke dks 5 ls 6 cts ds chp ys tkrs gq, ns[kk esjh iq=h fÁa;dk dks tks ukcfyd gSA mlls Hkxkus esa glhuk ckbZ o ckcw flax dk HkkbZ lqjs'k flax dk gkFk gks ldrk gSA budks ckcw flax ds ckjs esa iwjh tkudkjh gSA tks eSa fjiksVZ djrk gwa esjh iq=h ^^ih** dks cjken djus dh dk;Zokgh djkosA** 3. During investigation, statements of prosecutrix "P" were recorded & after medical examination and investigation, charge sheet was filed against the accused appellant in the court of Civil Judge (Jr. Division)-cum-Judicial Magistrate First Class, Pali, from where the case was committed to the court of Sessions Judge, Pali. The learned Sessions Judge transferred the case for trial to the court of Addl. Sessions Judge (FT) No.2, Pali where after framing charge under Sections 363, 366 and 376 IPC, the trial court proceeded to record the evidence of prosecution. 4. In support of prosecution case, statements of 22 prosecution witnesses were recorded and 37 documents were exhibited during trial. The learned Sessions Judge transferred the case for trial to the court of Addl. Sessions Judge (FT) No.2, Pali where after framing charge under Sections 363, 366 and 376 IPC, the trial court proceeded to record the evidence of prosecution. 4. In support of prosecution case, statements of 22 prosecution witnesses were recorded and 37 documents were exhibited during trial. Statements of the accused appellant were recorded under Section 313 Cr.P.C., 1973 in which he pleaded not guilty. 5. In the trial statements of the prosecutrix "P" (PW.9) were recorded in which allegations were levelled by her against accused appellant for committing rape with her. 6. The learned trial court after considering the entire evidence on record finally convicted the accused appellant for alleged offence under Sections 363, 366 & 376 of IPC while giving finding that prosecutor was minor on the date of commission of offence and she was kidnapped by the accused appellant. In this appeal the judgment dated 15.07.2009 is under challenge. 7. Mr. Shambhoo Singh, learned counsel for the appellant vehemently argued that it is not a case of rape, and it is case of consent of prosecutrix, therefore, the trial court has committed grave error while convicting the accused appellant for the alleged crime rape. Further it is submitted that there is no documentary evidence on record to prove the date of birth of prosecutrix. The learned trial court has relied upon the evidence which is not acceptable to determine the age of the prosecutrix, therefore, the finding recorded by the learned trial court is perverse and not sustainable in law. 8. Learned counsel for the appellant further submitted that FIR was registered after a delay of five days and as per statements of Dr. Mridula Vyas (PW.10), no definite opinion was given with regard to offence of rape alleged to be committed by the accused appellant. 9. 8. Learned counsel for the appellant further submitted that FIR was registered after a delay of five days and as per statements of Dr. Mridula Vyas (PW.10), no definite opinion was given with regard to offence of rape alleged to be committed by the accused appellant. 9. Lastly it is argued that even if this Court comes to the conclusion that offence has been committed by the accused appellant, then also, the sentenced awarded to the accused appellant for the alleged offences is excessive because as per statements of doctor, who has determined the age of prosecutrix, categorically stated that after medical examination the age of the prosecutrix was in between 16-18 years, therefore it is prayed that if this Court comes to the conclusion that offence is committed, then sentence can be reduced in view of judgment rendered by this Court in of Gyarsilal v. State of Rajasthan (D.B. Cri. Appeal No.165/2006, decided on 20.01.2015 at Jaipur Bench of this Court). In the aforesaid judgment the Division Bench of this Court reduced the sentence of life imprisonment to ten years? rigorous imprisonment while following the judgment of Hon’ble Apex Court in the case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 . 10. Per contra, learned Public Prosecutor Mr. S.K. Vyas, vehemently opposed these submissions and argued that it is not an offence against an individual but it is offence against the society, therefore, the view taken by the trial court does not require any interference because specific allegation is levelled by the prosecutrix against the accused appellant for commission of rape, therefore, no lenient view is required in this case. Learned Public Prosecutor further submitted that the sentence awarded to the appellant is appropriate looking to the age of the prosecutrix, therefore, the present appeal may kindly be dismissed. 11. After hearing the learned counsel for the parties, I have perused the statements of the prosecutrix (PW.9), Dr. Mridula Vyas (PW.10) and Dr. Paras Khichi (PW.11). In my opinion, there is evidence for committing inter-course with the prosecutrix but at the same time I cannot loose sight of the fact that PW.10, Dr. Mridula Vyas, specifically stated in her statement that ^^esjh jk; esa cykRdkj ds ckjs esa fuf'pr jk; ugha nh tk ldrh Fkh] fQj Hkh nks Lokc vkSj Les;j ijh{k.k gsrq ysdj Hksts x;sA** 12. Similarly, Dr. Mridula Vyas, specifically stated in her statement that ^^esjh jk; esa cykRdkj ds ckjs esa fuf'pr jk; ugha nh tk ldrh Fkh] fQj Hkh nks Lokc vkSj Les;j ijh{k.k gsrq ysdj Hksts x;sA** 12. Similarly, Dr. Paras Khichi (PW.11) specifically stated that after examination by Medical Board and radiological examination, the age of the prosecutrix was in between 16-18 years. It is also very material to mention here that the witness PW.10, Dr. Mridula Vyas nowhere stated that any injury was found upon the private part of the prosecutrix, so also, said that no definite opinion can be given about rape. 13. In view of above, I am of the opinion that finding arrived at by the learned trial court to as to hold the appellant guilty for committing offence under Sections 363, 366 and 376 of IPC is wrong and require any interference, however, the prayer of the accused appellant for reducing the sentence require consideration because as per statements of Dr. Paras Khichi (PW.11), the age of the prosecutrix was in between 16-18 years, so also, there is no opinion of the doctor for commission of forcible inter-course with the prosecutrix. As per record, the accused appellant was arrested on 31.01.2008 and remain in custody up till 09.08.2012 up till his sentence was suspended by this Court vide order dated 30.07.2012, therefore, sentence can be reduced to already undergone. 14. Upon consideration of entire evidence of prosecution and age of the prosecutrix at the time of commission of offence, I find that the prosecutrix is entitled for compensation as per Rajasthan Victim Compensation Scheme, 2011. Accordingly, the District Legal Service Authority, Pali, is directed to determine compensation as per Scheme of 2011 within a period of two months from today and pay compensation to the victim/prosecutrix. 15. Consequently, the instant criminal jail appeal is partly allowed. The finding of conviction recorded by the learned Addl. Sessions Judge (FT) No.2, Pali vide judgment dated 15.04.2009 in Session Case No. 13/2008, against the accused appellant is hereby maintained, however, the sentence of ten years awarded to the accused appellant is hereby reduced to the period already undergone by him but order of fine is hereby maintained. The amount of fine shall be deposited by the accused within one month, failing which he shall be served the sentence as ordered by the trial court. The amount of fine shall be deposited by the accused within one month, failing which he shall be served the sentence as ordered by the trial court. The appellant is already on bail, his bail bonds are hereby discharged.