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2018 DIGILAW 1725 (RAJ)

Giriraj Bairwa v. State of Rajasthan

2018-08-14

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT Munishwar Nath Bhandari, J. - This criminal appeal has been preferred against the order dated 05.03.2014, passed by the Court of Special Judge, Women Atrocities & Dowry Cases, Jaipur, convicting and sentencing the appellant for offence under Section 376 IPC. 2. The appellant has been sentenced to life imprisonment and fine of Rs.5,000/-, in default of payment of fine, to further undergo one months simple imprisonment. 3. Learned counsel for the appellant submits that on a FIR registered by Prem Devi (PW-3), with Police Station Pratap Nagar, Jaipur, a case for offence under Section 376 IPC was registered. After investigation, charge sheet was filed. The Court framed the charges for offence under Section 376 IPC as the charge was not accepted by the appellant. The prosecution could prove the charge by producing 8 witnesses apart from documents. 4. Learned counsel for the appellant submits that he is not pressing the appeal so far as the commission of offence under Section 376 IPC is concerned but contest is on the sentence inflicted by the trial Court. 5. It is submitted that it is a case of consent thus appellant should not have been sentenced to life imprisonment. The Medical Report of prosecutrix does not suggest any internal or external injury. The story given to her friend immediately after the incident was of bleeding out of iron rod. 6. If the facts of this case are taken in totality, the appellant should not have been sentenced for more than seven years imprisonment, taking into consideration the unamended provision of Section 376 IPC as it was applicable looking to the date of incident of 08.03.2011. As per the unamended provision, the minimum sentence was of 7 years if the prosecutrix was not at the age less than 12 years. 7. Learned counsel for the appellant has cited the judgment of the Apex Court in the case of Rajendra Datta Zarekar vs. State of Goa, reported in AIR 2008 Supreme Court 572 . Therein, the sentence of 10 years rigorous imprisonment was inflicted along with fine. The judgment in the case of State of Chhattisgarh Vs. Derha reported in (2004) 9 SCC 699 has also referred, where sentence was reduced to 7 years rigorous imprisonment. 8. Learned counsel has further referred the judgment in the case of Mahendra Subhashbhai Vankhede Vs. State of Gujarat & Ors. The judgment in the case of State of Chhattisgarh Vs. Derha reported in (2004) 9 SCC 699 has also referred, where sentence was reduced to 7 years rigorous imprisonment. 8. Learned counsel has further referred the judgment in the case of Mahendra Subhashbhai Vankhede Vs. State of Gujarat & Ors. reported in (2017) 15 SCC 591 to show that the unamended provision would be applicable to the incident prior to the date of amendment i.e 03.02.2013. The prayer is, accordingly, to cover the present case by unamended provision, where the minimum punishment was of 7 years. The reference of the statement of the witnesses and the documents produced by the prosecution have been given to justify the prayer for reduction of sentence from life imprisonment to seven years imprisonment. 9. Learned Public Prosecutor has opposed the appeal. It is submitted that the appellant has committed rape on a minor girl. The prosecutrix was alone as her younger sister had also gone out apart from the mother. Taking advantage of the situation, the appellant committed rape while residing 2-3 homes away from the residence of the prosecutrix. After the commission of rape, he threatened the prosecutrix and, accordingly, she did not disclose the incident immediately thereupon. The girl being at the age of 11-14 years and case of rape have been found proved, the sentence of life imprisonment has rightly been inflicted by the trial Court. In view of the above, the sentence may not be reduced from life imprisonment to seven years rigorous imprisonment. 10. We have considered rival submissions of the parties and perused the record. 11. The facts available on record show that an FIR was lodged by Prem Devi (PW-3) with Police Station Pratap Nagar, Jaipur. It was stated that she was living along with two daughters. She had gone for work and left her daughters at the residence. When she came at 6.00 PM, prosecutrix was weeping and blood was oozing out of her private parts. When the prosecutrix was asked about it, she stated that at 11-12 AM, the accused came and committed rape. He threatened her not to disclose the incident of rape, otherwise, he would kill her. 12. After the investigation, charge-sheet was filed by the police against the appellant for commission of offence under Section 376 IPC. During trial, the prosecution produced 8 witnesses to prove the charges. 13. He threatened her not to disclose the incident of rape, otherwise, he would kill her. 12. After the investigation, charge-sheet was filed by the police against the appellant for commission of offence under Section 376 IPC. During trial, the prosecution produced 8 witnesses to prove the charges. 13. PW-1 Yashoda, a constable, stated that she had prepared the site plan of the place of incident and produced as EX.P-1. Other witness produced by prosecution was PW-2 Mahaveer Singh, ASI. He had also supported prosecution case. 14. PW-3-Prem Devi had given the complete story. She stated about the incident caused by the accused. The medical examination of prosecutrix vide Ex.P-6 was also exhibited, where her age was found between 11-14 years. In the crossexamination, she had admitted that the accused was residing nearby. It is also admitted that many persons were residing nearby. 15. PW-4-Sukh Lal, father of the prosecutrix had admitted that on the day of occurrence, he had gone to his brother's in-laws at Tonk. 16. PW-5-Dr. Anuradha was posted as Medical Officer in Women Hospital. She medically examined the prosecutrix and prepared the Medical Report Ex.P-6. She had stated about her condition to be serious. 17. PW-6-Vinay Kumar, Medical Jurist made a statement about the age of the prosecutrix. It was assessed between 11 to 14 years. 18. The prosecutrix PW-4A supported the prosecution case. It was stated that accused Giriraj came to her room at 11.00 AM, after her mother had left the house. He raped her and asked not to disclose the incident, otherwise he would kill her. He left the room at around 4.00 PM in the evening. A friend came to her residence, when she was washing her clothes. On asking question by the friend about the blood coming out from private part, she disclosed it to be out of a iron rod. The ladies from the neighbouring homes also gathered and therein she disclosed that blood is oozing out due to rape and not the iron rod. The blood did not stop till her mother arrived at 6.00 PM. 19. Learned trial Court found charges as proved for offence under Section 376 IPC based on the evidence led by the prosecution. Learned counsel for the appellant has not questioned the finding for commissioning of offence under Section 376 IPC. The blood did not stop till her mother arrived at 6.00 PM. 19. Learned trial Court found charges as proved for offence under Section 376 IPC based on the evidence led by the prosecution. Learned counsel for the appellant has not questioned the finding for commissioning of offence under Section 376 IPC. The only prayer is to reduce the sentence from life imprisonment to seven years imprisonment. 20. According to the finding recorded by the trial Court, the age of the prosecutrix was 14 years at the time of incident. The appellant was residing in the neighbouring house and committed offence at around 11-12 AM. He remained there till 4.00 PM as per the statement of prosecutrix. The Medical Report does not suggest any internal or external injury. The provision, as was existing on the date of incident, was providing minimum seven years of sentence and in case it falls under sub-Section (2)(f) of Section 376 IPC then not less than 10 years. 21. Learned Public Prosecutor has raised dispute about the age of prosecutrix. It is said to be less than 12 years. According to the appellant, it was 14 years. If we apply the provisions of Section 376 IPC, then existing for the offence with a girl at the age of less than 12 years, the minimum punishment was of 10 years with fine. The circumstances of the case suggest reduction of the punishment from life imprisonment to ten years rigorous imprisonment with fine of Rs.20,000/-. 22. The amount of fine is to be given to the victim. The substitution in the punishment has been made after considering the facts of this case and with support of the judgment of the Supreme Court in the case of Rajendra Datta Zarekar (supra), where the offence was committed with a child at the age of 6 years. 23. Accordingly, the appeal is allowed in part. While maintaining the conviction for offence under Section 376 IPC, the sentence is reduced to 10 years rigorous imprisonment, however, fine is enhanced to Rs.20,000/-. The fine of Rs.20,000/- would be deposited with the trial Court. It would then be given to the victim. In case of default in deposition of the amount of fine, to further undergo six months rigorous imprisonment.