Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1796 (RAJ)

Ram v. State of Rajasthan

2018-08-28

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT SANGEET LODHA, J. 1. These appeals are directed against judgment and order dated 23.3.09 passed by Additional Sessions Judge (Fast Track) No.1, Jodhpur, in Session Case No. 89/07, whereby the appellants were convicted and sentenced as under :- Under Section 363 IPC To suffer five years rigorous imprisonment with a fine of Rs. 1,000/-; in default of payment of fine to further undergo three months simple imprisonment. Under Section 366 IPC To suffer seven years rigorous imprisonment with a fine of Rs. 5,000/-; in default of payment of fine to further undergo three months simple imprisonment. Under Section 376(2)(g) IPC Life Imprisonment with a fine of Rs. 10,000/-; in default of payment of fine to further undergo six months simple imprisonment. The sentences were directed to be run concurrently. 2. The prosecution story in nutshell may be summarized thus : On 26.3.07 at 5 PM, the complainant Sohan Lal (P.W.2) submitted a written report (Ex.P/1) to the SHO, Police Station, Basni, Jodhpur stating that on 25.3.07, his daughter and wife were sleeping at home in the night. He had gone to Pipar and was not at home. Around 1 A.M., complainant's daughter, the prosecutrix "S" (the name is concealed by us) came out for using toilet, on opening the door, four boys were standing outside. On seeing them, the prosecutrix got frightened and when she was about to close the door, those boys flicked and caught hold of her while placing a cloth over her mouth and was taken to a room in nearby factory. One of the boys namely Bhanwar committed rape on her, three others namely, Shri Ram, Babu and one another who could not be identified were standing nearby at home. When complainant's wife woke up, switched on light, saw the gate open and the prosecutrix was not found on the bed, on this she rushed to nearby neighbour Mahesh. Both Mahesh and complainant's wife conducted search for prosecutrix, then they saw two boys standing outside. On seeing complainant's wife and Mahesh, both the boys went inside the room, on being chased they bolted the door. The door was opened by them, there were four boys inside the room, who pushed Mahesh and fled away. When they went inside the room, they saw the prosecutrix in unconscious state and carpet and blanket were placed over her. On seeing complainant's wife and Mahesh, both the boys went inside the room, on being chased they bolted the door. The door was opened by them, there were four boys inside the room, who pushed Mahesh and fled away. When they went inside the room, they saw the prosecutrix in unconscious state and carpet and blanket were placed over her. Seeing the prosecutrix, it was revealed that the rape was committed on her. In unconscious state, the prosecutrix was taken to home. After two hours on regaining the consciousness, she narrated the incident. Mahesh and complainant's wife went to the factory owner Shri Khiv Raj and Shri Ramesh and apprised them about the incident. They started rebuking and said that the boys working in the factory are not like that. They said to the complainant's wife that she is telling lie. The complainant's wife while weeping humbly said that the incident has occurred. In the meantime, the persons living nearby assembled there. The owner of the factory abused and thrown stones over them and said do whatever you want. In the next day morning, when the complainant reached home, he went to meet the factory's owner but they had already fled away. On the other side, prosecutrix plunged into a water tank constructed at home. The son of the complainant who was standing nearby informed the complainant about the same, who took out her from the water tank and since she had fell unconscious, was taken to the hospital. 3. On the basis of the written report (Ex.P/1) the police registered the FIR No.99 dated 26.3.07 (Ex.P/2) at 1 AM against the accused Bhanwar Lal and four others for offence under Section 365, 376 IPC and the investigation commenced. 4. Necessary memos were drawn. Medical examination of the prosecutrix was conducted. Age and sex determination report was obtained. Various samples obtained and articles seized, were sent to the Forensic Science Laboratory for examination. MLC report and FSL report were obtained. The statements of witnesses were recorded under Section 161 Cr.P.C. The prosecutrix was examined under Section 164 Cr.P.C. After completion of the investigation, the police filed the charge sheet against the accused Babu Ram @ Dinesh for offences under Sections 363, 366, 376 IPC before the Judicial Magistrate No.4, Jodhpur. The investigation against accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi was kept pending under Section 173 (8) Cr.P.C. 5. The investigation against accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi was kept pending under Section 173 (8) Cr.P.C. 5. The charge was framed against the accused Babu Ram for offence under Section 363, 366 and 376 (2)(G) IPC, who denied the charges and claimed trial. 6. The prosecution got examined the witnesses (P.W.1 to P.W.8). At this stage, the prosecution made an application under Section 319 Cr.P.C. to summon the accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi for trial. The application was allowed vide order dated 16.5.08 and the accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi were summoned by way of arrest warrant. After their arrest, the charges were framed against them for offence under Section 363, 366 & 376 (2)(G) IPC. They denied charges and claimed trial. The witnesses produced on behalf of the prosecution (P.W.1 to P.W.8) were examined. The documentary evidence was exhibited as Ex.P/1 to P/14. The accused appellants were examined under Section 313 Cr.P.C. In defence, three witnesses D.W.1-Jaipal Singh, D.W.2-Shri Ram and D.W.3-Likhama Ram were examined and the documentary evidence was exhibited as Ex.D/1 to D/10. 7. After due consideration of the rival submissions and the evidence on record, the learned trial Judge held the accused appellants guilty for commission of the offences under Section 363, 366 and 376(2)(g) IPC and sentenced as indicated above. Hence, these appeals. 8. Mr. Dhirendra Singh, learned counsel appearing on behalf of the appellant Shri Ram contended that for the incident alleged to have occurred on 25.3.07, FIR was lodged on 26.3.07 at 5 PM. However, the same was sent to the Judicial Magistrate No.4, Jodhpur on 29.3.07 at 11.15 AM. It is submitted that the delay in filing the FIR as also in sending the copy thereof to the Judicial Magistrate concerned remain unexplained and thus, the provisions of Section 167 Cr.P.C. stands violated, which is fatal to the prosecution case. Learned counsel submitted that the deposition of prosecutrix suffers from contradictions, improvement and embellishment, which is not supported by any corroborative evidence and thus, cannot be relied upon. Learned counsel submitted that the deposition of prosecutrix suffers from contradictions, improvement and embellishment, which is not supported by any corroborative evidence and thus, cannot be relied upon. Learned counsel submitted that at the first instance, in the statement recorded on 27.3.07, by the police under Section 161 Cr.P.C. (Ex.D/1), the prosecutrix levelled allegation of committing rape on her only against Bhanwar Lal Bishnoi, however, in her statement recorded under Section 164 Cr.P.C. (Ex.D/2), she levelled allegation of committing rape against the appellant-Shri Ram Bishnoi as well. Learned counsel submitted that even the mother of the prosecutrix P.W.3-Samu Devi in her statement under Section 161 Cr.P.C. has levelled allegation of rape against Bhanwar Lal Bishnoi and not against the appellant. That apart, P.W.4-Mahesh also in his statement recorded under Section 161 Cr.P.C. (Ex.D/5) while giving the details of the incident as revealed by the prosecutrix has stated that Bhanwar Lal Bishnoi committed rape on the prosecutrix and thus, apparently, the appellant-Shri Ram Bishnoi has been falsely implicated in the case, on the basis of deposition of the prosecutrix recorded during the trial of Babu Ram. Learned counsel submitted that as per the investigation made by the police, the appellant Shri Ram Bishnoi was not present at the place of occurrence, which stand fortified by communication dated 24.3.08 (Ex.D/10) sent by the SHO, Police Station, Industrial Area, Basni, Jodhpur. Learned counsel submitted that admittedly the facility of toilet was available inside the prosecutrix's house and therefore, the conduct of the prosecutrix in going out of the house for use of toilet is against the human nature. Learned counsel submitted that site plan (Ex.P/3) was prepared by the police in presence of the prosecutrix wherein the place of accused persons committing rape on the prosecutrix was shown to be the room inside the Bhawani Metal factory and subsequently, on prosecutrix making improvement in her statement recorded by the Judicial Magistrate No.7, Jodhpur, bathroom situated outside the house of Khema Ram Bishnoi was shown as the place of occurrence. Learned counsel submitted that the statements of the witnesses suffer from incongruity and embellishments and therefore, they are wholly unreliable. Lastly, learned counsel submitted that there is absolutely not an iota of evidence on record to establish that the appellant had committed rape on prosecutrix as alleged and therefore, he deserves to be acquitted. Learned counsel submitted that the statements of the witnesses suffer from incongruity and embellishments and therefore, they are wholly unreliable. Lastly, learned counsel submitted that there is absolutely not an iota of evidence on record to establish that the appellant had committed rape on prosecutrix as alleged and therefore, he deserves to be acquitted. Learned counsel submitted that the age of the prosecutrix was more than 16 years, which is apparent from the MLC Report (Ex.P/11) wherein the age of the prosecutrix is disclosed to be around 18 years. Admittedly, she was a married girl. It is not the case of the prosecution that while committing rape the appellant indulged in violence and thus, there were no aggravating circumstances and compelling reasons for awarding maximum sentence and therefore, the sentence awarded deserves to be reduced. In support of the contention, learned counsel has relied upon Bench decisions of this Court in the matters of 'Yogendra Singh @ Bablu Vs. State of Rajasthan, (2015) 2 RajLW 960' and 'Dholya @ Rajendra & Ors. Vs. State of Rajasthan, (2014) 4 RajLW 3031'. 9. Mr. Mahaveer Bishnoi, learned counsel appearing for appellant-Bhanwar Lal Bishnoi submitted that in the first instance in the written report (Ex.P/1) lodged by the father of the prosecutrix P.W.-2 Sohan Lal, the names of the three accused persons including the appellant were disclosed, however, in the statement of the prosecutrix recorded by the police (Ex.D/1), the persons involved in commission of the crime were disclosed to be four, however, names of three accused persons, the appellant herein, were disclosed. Thereafter, in the statement of the prosecutrix recorded by the Magistrate under Section 164 Cr.P.C. (Ex.D/2), the allegations of committing rape were levelled against the appellants Bhanwar Lal Bishnoi & Shri Ram Bishnoi. The presence of appellant Babu Ram was not even disclosed outside the bathroom, rather his presence was shown at the room in the factory premises. Learned counsel submitted that inconsistency and the contradictions in the statement of the prosecutrix at the different stages make her testimony doubtful and cannot be relied upon. Learned counsel submitted that as per the investigation made by the police, the appellant Bhanwar Lal was not present at the place of occurrence, which stand fortified by communication dated 24.3.08 (Ex.D/10) sent by the SHO, Police Station, Industrial Area, Basni, Jodhpur. Learned counsel submitted that as per the investigation made by the police, the appellant Bhanwar Lal was not present at the place of occurrence, which stand fortified by communication dated 24.3.08 (Ex.D/10) sent by the SHO, Police Station, Industrial Area, Basni, Jodhpur. Thus, on the basis of improvement made by the prosecutrix at the later stage, the appellant has been falsely implicated. Learned counsel would submit that the involvement of the appellant in commission of the crime is not proved beyond reasonable doubt and therefore, he deserves to be acquitted. 10. Mr. Rajiv Bishnoi, Amicus Curiae submitted that in the written report (Ex.P/1), which was lodged by the father of the prosecutrix P.W.2-Sohan Lal, after making inquiry about the incident occurred from prosecutrix ( P.W.1), the mother of the prosecutrix P.W.3-Samu and P.W.4-Mahesh, son-in-law of complainant, wherein there is no allegation of appellant committing rape on the prosecutrix. Learned counsel submitted that even in the statement of the prosecutrix recorded by the Magistrate under Section 164 Cr.P.C., the appellant Babu Ram was not shown to be the person present outside the toilet rather his presence was shown at the room in the factory premises situated three plots away from the bathroom outside Khema Ram's house. The prosecutrix in her deposition before the court also not levelled any allegation of appellant Babu Ram committing rape on her. The father of the prosecutrix Sohan Lal has categorically deposed that Babu Ram has not committed rape on prosecutrix. Learned counsel submitted that even on the basis of deposition of P.W.3- Samu no inference of appellant Babu Ram committing rape on prosecutrix could be drawn and thus, there is no evidence against the appellant Babu Ram regarding his involvement in commission of the crime. Learned counsel submitted that the written report (Ex.P/1) was submitted by the complainant on 26.3.07 at 5:00 PM, the appellant Babu Ram was arrested on 27.3.07 at 8:30 PM, he was produced before the Magistrate on 28.3.07, which was forwarded to the Magistrate on 29.3.07, which is the circumstance give rise to suspicion about the offence and fatal to the prosecution case. Learned counsel submitted that the order for recording the statement of the prosecutrix under Section 164 Cr.P.C. was passed by the learned Magistrate on 28.3.07, which was recorded on 2.4.07 and thus, the manner in which the Investigating Officer has proceeded makes the entire prosecution story suspicious. Learned counsel submitted that the order for recording the statement of the prosecutrix under Section 164 Cr.P.C. was passed by the learned Magistrate on 28.3.07, which was recorded on 2.4.07 and thus, the manner in which the Investigating Officer has proceeded makes the entire prosecution story suspicious. Learned counsel submitted that the contradictions, inconsistency and embellishments in the statement of prosecutrix at the different stages indicates that the prosecution has concealed the true story and thus, the appellant deserves to be acquitted giving benefit of doubt. 11. We have considered the rival submissions and scanned the evidence on record thoroughly. 12. Indisputably, the prosecution case rests on testimony of the prosecutrix (P.W.1), her father, the complainant P.W.2-Sohanlal, her mother, P.W.3- Smt. Samu, and her brother-in-law P.W.4- Mahesh. 13. P.W.1- Prosecutrix deposed that on 25.3.07 around 10.00 PM, she had gone to bed in her room along with her grand-mother and younger brother. Around 1.00 PM, when she came out to use the Bathroom which is located outside the house, four persons namely Bhanwar Lal Bishnoi, Shri Ram, Babu Bheel and one other whose name is not known to her, were standing there. Bathroom's light was on. Bhanwar Lal Bishnoi lifted her in his lap, Shri Ram placed a kerchief on her mouth, then Bhanwar Lal and Shri Ram took away her to Bathroom in Khema Ram Bishnoi's house which is after three plots from their residence. Bhanwar Lal Bishnoi committed rape on her. At that time, Shri Ram was also present who pressed her mouth, then Bhanwar Lal pressed her mouth and Shri Ram committed rape on her. They threatened her that if the factum of their committing rape on her is revealed to anybody, they will kill her brother. The accused Bhanwar Lal and Shri Ram, present in the Court, were identified by her. As per her deposition, after committing rape on her, Bhanwar Lal and Shri Ram took her away to Bhawani Art Factory, where Babu Ram was present. Babu Ram and Bhanwar Lal pressed her mouth with a kerchief, she fell unconscious due to suffocation. When she woke up in the morning, she was in the room at her home, his brother-in-law P.W.4-Mahesh, elder sister Manju, mother P.W.3-Samu and grandmother were present there. After regaining the consciousness, she apprised her mother about entire incident. She had regained consciousness around 5-6 AM. When she woke up in the morning, she was in the room at her home, his brother-in-law P.W.4-Mahesh, elder sister Manju, mother P.W.3-Samu and grandmother were present there. After regaining the consciousness, she apprised her mother about entire incident. She had regained consciousness around 5-6 AM. Then, around 8.30 AM, her father returned home, he went to Bhawani Art Factory and started quarreling with the boys, other members of her family also went to the factory. Under the fear of bad name, she attempted to commit suicide and jumped into a water tank, her father took her out from the water tank and she was taken to Purva Hospital. Thereafter, around 5-6 'O clock in the evening, she was taken by the police personnel for checkup to Government hospital. At the time, the rape was committed on her, she suffered two injuries on the back which were shown to the doctor. The police had come to their residence on 27th, the site plan (Ex.P-5) was prepared which bears her signature. Her statement (Ex.D-2) was recorded before the Magistrate. She had shown bathroom in Khema Ram's house to the police inasmuch as the rape was committed on her there. She had handed over her apparels i.e. Pant, undergarments, shirt and baniyan to the police, which were seized by the police. The police had taken sample of her saliva vide Ex.P-7. Babu Ram Bheel is known to her because he was working in the factory nearby and used to talk with her younger brother. Their factory was let out to Bhanwar Lal and Shri Ram and therefore, they were known to her. At the time, the rape was committed, as her mouth was pressed by the accused persons, she could not cry. In cross-examination, she deposed that the incident had occurred with her on 26.3.07, on that day, she had apprised about the incident to her mother and not the father. She had apprised her father about the incident two days prior to recording of her statement before the Magistrate (Ex.D-2). She denied the suggestion of the defense that Bhanwar Lal was not present on 25th and 26th of March, 2007 at the place of occurrence. She deposed that inside their house, there is no latrine, only bathroom is there. 14. She had apprised her father about the incident two days prior to recording of her statement before the Magistrate (Ex.D-2). She denied the suggestion of the defense that Bhanwar Lal was not present on 25th and 26th of March, 2007 at the place of occurrence. She deposed that inside their house, there is no latrine, only bathroom is there. 14. It is true that in her statement under Section 161 Cr.P.C. (Ex.D-1), the prosecutrix has not levelled allegation regarding accused Shri Ram Bishnoi committing rape on her, but then, in her statement under Section 164 Cr.P.C. (Ex.D-2), she has categorically deposed that Bhanwar Lal and Shri Ram Bishnoi took away her to the bathroom in Khema Ram Bishnoi's house and they committed rape on her one after another. It is pertinent to note that in her statement under Section 164 Cr.P.C. (Ex.D-2), she has shown presence of only Bhanwar Lal Bishnoi and Shri Ram Bishnoi and not of Babu Ram and anybody else, outside the toilet, whereas in her deposition before the Court, though she has shown the presence of accused Bhanwar Lal Bishnoi, Shri Ram, Babu Ram and one other outside the toilet, but the allegation of lifting her from the toilet and taking her to bathroom in Khema Ram's house, is levelled against accused Bhanwar Lal and Shri Ram Bishnoi and not against Babu Ram. The presence of accused Babu Ram is thereafter shown in the room at factory premises to whom she was handed over by Bhanwar Lal and Shri Ram. There is no allegation of the prosecutrix in her deposition that Babu Ram committed rape on her. Rather, according to her, at the room in the factory premises, Babu Ram and Bhanwar Lal pressed her mouth and due to suffocation she fell unconscious and when she woke up in the morning she was in her own room at her residence. 15. P.W.2-Sohan Lal, the complainant, deposed that on 25.3.07 in the afternoon he had gone from Jodhpur to Pipar, his mother, wife, prosecutrix and three other children, son in law Mahesh and elder daughter Manju were at home. 15. P.W.2-Sohan Lal, the complainant, deposed that on 25.3.07 in the afternoon he had gone from Jodhpur to Pipar, his mother, wife, prosecutrix and three other children, son in law Mahesh and elder daughter Manju were at home. On 26.3.07, he received a telephonic call of his son in law Mahesh, thereupon he reached Jodhpur at 8.00 AM and had a talk with his wife and son in law Mahesh, who apprised him that the prosecutrix was kidnapped by four persons in the night around 1.00 AM when she had gone to use the toilet and committed rape on her. When he went to Bhawani Art Factory and inquired about it, the owner of the factory and 2-4 labourers started abusing him. After 10-15 minutes, his younger son Kanhaiya came and informed that prosecutrix has jumped in the tank, he rushed to his house and took out prosecutrix from the tank, she fell unconscious and was taken to Purva hospital, where she was treated by the doctor. On regaining consciousness, she apprised him about the incident a little bit and started weeping. In cross-examination, he deposed that the incident of eve teasing had occurred with the prosecutrix in the month of January, 2007 and February, 2007 and he had lodged complaint at the Police Station Basni. Explaining the delay in lodging the FIR, he deposed that the delay had occurred as prosecutrix was admitted to the hospital. In his statement recorded in the first instance as P.W.1 during the trial of Babu Ram alone, he categorically deposed that his daughter had disclosed the names of Shri Ram and Bhanwar Lal as the persons who committed the rape. Accused Babu Ram's was not named as per the person who committed the rape. 16. P.W.3-Samu, deposed that around 2.00 AM in the night, she was woken up and told by her mother in law that the prosecutrix had gone to the toilet but has not returned. She searched the prosecutrix, but she was not there. She awakened her son in law Mahesh and went in search of her daughter. Outside Rameshji's factory, two persons were standing who seeing them went inside the factory. They banged the gate of the factory, however, it was not opened, then, she and Mahesh pushed the gate and opened it. She searched the prosecutrix, but she was not there. She awakened her son in law Mahesh and went in search of her daughter. Outside Rameshji's factory, two persons were standing who seeing them went inside the factory. They banged the gate of the factory, however, it was not opened, then, she and Mahesh pushed the gate and opened it. One person was standing there and three were sleeping, on being inquired, about the prosecutrix, he told that she is not there. When she removed the bed lying on the floor, she saw the prosecutrix naked in injured position. Accused Babu Bheel was also there in naked position, who pushed them and fled away. The prosecutrix was unconscious, she was taken home, she regained consciousness in the morning and apprised about the incident occurred. According to the said witness, the prosecutrix revealed that two persons committed rape on her, Shri Ram Bishnoi and one other. She deposed that she did not remember the other person named by the prosecutrix whether he was Babu or somebody else. 17. P.W.4-Mahesh, deposed that in the room inside the factory, 3-4 persons were sleeping and one was standing. When, they inquired about the prosecutrix, he said that nobody has come there. They said to on the light, but they declined. He deposed that in the dark, he had seen the prosecutrix lying naked and Babu Ram lying on her with his pant half down, when they removed the blanket, Babu Ram pushed P.W.3- Smt. Samu and fled away. The prosecutrix was brought home. In the morning at 8.00 AM, his father in law (P.W.2-Sohanlal) returned from Pipar and inquired about the incident from P.W.-3 Samu and thereafter went to Bhawani Factory. After half an hour, the prosecutrix jumped into water tank, she was taken out from the tank by P.W.2-Sohan Lal, she had fallen unconscious. In cross-examination, he deposed that on their entering the room after pushing the door, everybody sleeping there had awakened. In the room in Bhawani Factory, the persons present were sleeping covered in the bed-sheet. He removed the bed-sheet and saw the face of Babu Ram. 18. As per the Age & Sex Examination Report (Ex.P/8), the hymen of the prosecutrix was showing old tears. There were two injuries on the back of the prosecutrix. In the room in Bhawani Factory, the persons present were sleeping covered in the bed-sheet. He removed the bed-sheet and saw the face of Babu Ram. 18. As per the Age & Sex Examination Report (Ex.P/8), the hymen of the prosecutrix was showing old tears. There were two injuries on the back of the prosecutrix. The medical jurist opined that no opinion can be given regarding recent sexual intercourse, however, the vagina swab and smear were preserved for evidence of semen. As per FSL Report (Ex.P/13) on the underwear of prosecutrix as also of accused Babu Ram, human semen was detected, however, vaginal swab and smear were sent for Serological Examination but the report of the Serological Examination was not exhibited in evidence. As per the deposition of the prosecutrix and her father, the date of birth of the prosecutrix is 7.5.93, which is supported by the school certificate (Ex.P/4) and thus, as on the date of commission of the offence, the prosecutrix was about 14 years of age. The mother of the prosecutrix P.W.3-Samu disclosed her age as 15 years. However, as per the MLC Report (Ex.P/11), the age of the prosecutrix is opined to be 17 to 19 years. 19. A perusal of the statement of the prosecutrix before the Court reveals that her deposition regarding accused Shri Ram Bishnoi and Bhanwar Lal lifting her from the toilet outside her house, taking her to the bathroom in Khema Ram's house and committing rape on her one after another is consistent and there is no such contradictions so as to make her testimony untrustworthy and unreliable. It is true that in the first instance, when written report (Ex.P-1) was submitted by the complainant, the allegation of rape was levelled only against accused Shri Ram Bishnoi, but it has come on record, that the prosecutrix had not immediately revealed the entire incident to the complainant. It is noticed that in her statement recorded under Section 164 Cr.P.C. (Ex.D-2), also the prosecutrix has categorically stated that accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi were the persons who committed rape on her. It is noticed that in her statement recorded under Section 164 Cr.P.C. (Ex.D-2), also the prosecutrix has categorically stated that accused Bhanwar Lal Bishnoi and Shri Ram Bishnoi were the persons who committed rape on her. In the statement recorded under Section 164 Cr.P.C. (Ex.D-2) as also in the deposition before the Court, the prosecutrix has categorically deposed that after committing rape on her accused Bhanwar Lal and Shri Ram handed over her to accused Babu Ram at the room in the factory premises and said to do what they had already done. She has categorically deposed that at the room in the factory premises Babu Ram and Bhanwar Lal pressed her mouth with kerchief and she fell unconscious due to suffocation. According to her, when she regain consciousness in the morning, she was in the room at her home. Thus, obviously, she had no knowledge as to what Babu Ram had done with her at the room in the factory premises. But then, as per P.W.3-Samu Devi and P.W.4-Mahesh, they had seen prosecutrix lying naked on the bed in the room and Babu Ram was lying on her with his pant half down, when they removed the blanket, Babu Ram pushed P.W.3-Samu Devi and fled away. They have categorically deposed that when the prosecutrix was taken to home, she was unconscious and regained the consciousness only in the morning next day. It is pertinent to note that Babu Ram's presence was there out side the toilet of prosecutrix's house and thereafter, he was there at the room in the factory, when prosecutrix was taken there by the accused Bhanwar Lal and Shri Ram Bishnoi. Thus, on the facts and in the circumstances of the case, on the basis of the deposition of the witnesses discussed hereinabove, it is apparent that the accused persons acted in concert, lifted the victim from the toilet outside her house and committed rape on her. Thus, on the facts and in the circumstances of the case, on the basis of the deposition of the witnesses discussed hereinabove, it is apparent that the accused persons acted in concert, lifted the victim from the toilet outside her house and committed rape on her. For the sake of argument, even if it is assumed that on the basis of deposition of the witnesses the factum of Babu Ram actually committing rape on the prosecutrix is not proved, by virtue of Explanation I to clause (g) of Section 376(2) IPC, all of them can be held guilty of committing rape on prosecutrix and it is not necessary for the prosecution to adduce clinching proof of completed act of rape by each one of the accused on the victim or each one of the victims where there are more than one. (Vide Pramod Mahto Vs. State of Bihar, (1989) AIR SC 1475) 20. Coming to the communication dated 24.3.08 (Ex.D/10) sent by SHO, Police Station Basni to Additional Public Prosecutor, Additional Session Judge (Fast Track) No.1, Jodhpur, suffice is to say that under the provisions of Section 319 Cr.P.C., where in the course of trial of an offence, it appears from evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. It is pertinent to note that the charge-sheet was filed by the prosecution against the accused Babu Ram while keeping the investigation against Bhanwar Lal and Shri Ram Bishnoi pending under Section 173(8) Cr.P.C. It is really surprising that there is ample evidence available against the accused persons in the first instance when the charge-sheet was filed against accused Babu Ram yet the Investigating Officer only on the basis of the statement made by some of the persons regarding the presence of the said accused somewhere else did not file charge-sheet against the accused Bhanwar Lal and Shri Ram notwithstanding the fact that the prosecutrix in her statement under Section 164 Cr.P.C., had categorically deposed that the accused Bhanwar Lal and Shri Ram Bishnoi had committed rape on her. In any case, on the basis of the evidence on the record, learned trial Judge has committed no error in proceeding against the co-accused Bhanwar Lal and Shri Ram and conducting their trial together with the accused Babu Ram. 21. In view of the discussion above, in our considered opinion, the learned trial Judge after due appreciation of the evidence rightly held accused appellants guilty of the charges framed against them. 22. Now the only question survives for consideration of this Court is whether for charge for offence under Section 376(2)(g) being proved against the accused appellants the sentence of life imprisonment awarded by the trial Judge is just and proper or the same deserves to be altered being excessive. 23. In 'Sunil Dutt Sharma Vs. State (Government of NCT of Delhi), (2014) 4 SCC 375 ', the Hon'ble Supreme Court while dealing with a matter regarding conviction for offence under Section 304 B IPC, wherein the accused was sentenced to suffer maximum punishment of life imprisonment relying upon the principles of sentencing evolved by the court over the years in context of death penalty, observed: "12. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain Judge-centric? The issue though predominantly dealt with in the context of cases involving the death penalty has tremendous significance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundreds of offences are enumerated in the Penal Code, punishment for which could extend from a single day to 10 years or even for life, a situation made possible by the use of the seemingly same expressions in different provisions of the Penal Code as noticed in the opening part of this order. 13. As noticed, the "net value" of the huge number of in-depth exercises performed since Jagmohan Singh has been effectively and systematically culled out in Sangeet and Shanker Kisanrao Khade. The identified principles could provide a sound objective basis for sentencing thereby minimising individualised and Judge-centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in State of Punjab v. Prem Sagar. The identified principles could provide a sound objective basis for sentencing thereby minimising individualised and Judge-centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in State of Punjab v. Prem Sagar. The difference is not in the identity of the principles: it lies in the realm of application thereof to individual situations. While in India application of the principles is left to the Judge hearing the case, in certain foreign jurisdictions such principles are formulated under the authority of the statute and are applied on principles of categorisation of offences which approach, however, has been found by the Constitution Bench in Bachan Singh to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach. 14. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years though largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age-old infallible logic that what is good to one situation would hold to be equally good to another like situation. Besides, para 163(italicised portion) of Bachan Singh, reproduced earlier (see at SCC p.385-f, above), bears testimony to the above fact." 24. In 'Ram Naresh & Ors. vs. the State of Chhatisgarh, (2012) 4 SCC 257 ', the Hon'ble Supreme Court while considering the elaborate principles of sentencing laid down in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 and 'Machhi Singh & Ors. vs. State of Punjab, (1983) 3 SCC 470 ', while dealing with the question of death sentence, observed that the cumulative effect of both aggravating and mitigating circumstances need to be taken into account while awarding the sentence. The court observed : "76. The law enunciated by this Court in its recent Judgments, as already noticed adds and elaborates the principles that were stated in Bachan Singh and thereafter, in Machhi Singh. The court observed : "76. The law enunciated by this Court in its recent Judgments, as already noticed adds and elaborates the principles that were stated in Bachan Singh and thereafter, in Machhi Singh. The aforesaid Judgments, primarily dissect these principles into two different compartments-one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated Under Section 354(3) Code of Criminal Procedure." The court while enumerating certain aggravating and mitigating circumstances and determining the questions relatable to sentencing policy further observed: "79. The court then would a draw a balance sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of "just deserts" that serves as the foundation of every criminal sentence that is justifiable. In other words, the "doctrine of proportionality" has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the Accused deserves keeping in view the impact on the society at large. 80. Every punishment imposed is bound to have its effect not only on the Accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death." 25. In 'Bavo alias Manubhai Ambalal Thakore Vs. 80. Every punishment imposed is bound to have its effect not only on the Accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death." 25. In 'Bavo alias Manubhai Ambalal Thakore Vs. State of Gujarat, (2012) AIR SC 979', where the accused was held guilty for offence under Section 376(2)(f) IPC for committing rape on 7 years old girl and was awarded life imprisonment by the trial Judge and confirmed by the High Court, the Supreme Court observed: "11. Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years." 26. In Shimbhu & Ors. vs. State of Haryana, (2014) AIR SC 739, the Supreme Court while dealing with the issue with regard to imposition of sentence for the offence of gang rape, observed: "11. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of gang rape, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The proviso to Section 376(2) Indian Penal Code, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case, where gang rape is committed is not less than 10 years though in exceptional cases, the Court by giving "special and adequate reasons", can also award the sentence of less than 10 years. 12. It is a fundamental rule of construction that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly, in such penal provisions. 12. It is a fundamental rule of construction that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly, in such penal provisions. Whether there exist any "special and adequate reason" would depend upon a variety of factors and the peculiar facts and circumstances of each case. This Court, in various judgments, has reached the consensus that no hard and fast rule can be laid down in that behalf for universal application." 27. In Dholya @ Rajendra & Ors. vs. State of Rajasthan through Public Prosecutor, (2014) 4 RajLW 3031, where the trial court in making the choice of sentence of life imprisonment did not make any discussion whatsoever why it has chosen maximum sentence and further that why the minimum sentence of 10 years would not be sufficient, a Bench of this court while taking into consideration the facts and circumstances of the case, imposed sentence of 10 years imprisonment instead of life imprisonment. 28. Similarly, in "Yogendra Singh @ Bablu vs. State of Rajasthan, (2015) 2 RajLW 960", relying upon decision of the Hon'ble Supreme Court in Bavo's case , a Bench of this court taking into consideration the aggravated circumstances as also the mitigating circumstances, reduced the sentence awarded from life imprisonment to 10 years rigorous imprisonment. 29. In the instant case, undoubtedly, the appellants have been found guilty of committing rape on a girl, who was though already married, was only 14 years of age. But then, there is no other violence involved in commission of the offence. It is not the case of the prosecution that appellants are habitual offenders. Thus, while following the mandate in Bavo's case and while taking into consideration the facts and circumstances of the presence, we consider it appropriate to modify the order of sentence and reduce the sentence of life imprisonment awarded by the learned trial Judge to rigorous imprisonment for 10 years. Further, we consider it appropriate to enhance the fine imposed by the learned trial Judge from Rs. 10,000/- to Rs. 50,000/-, while maintaining the default clause prescribed by the learned trial Judge. 30. Accordingly, the appeals are partly allowed. The conviction of the appellants Shri Ram, Bhanwar Lal and Baburam for offences under Sections 363, 366 and 376(2)(g) IPC is upheld. 10,000/- to Rs. 50,000/-, while maintaining the default clause prescribed by the learned trial Judge. 30. Accordingly, the appeals are partly allowed. The conviction of the appellants Shri Ram, Bhanwar Lal and Baburam for offences under Sections 363, 366 and 376(2)(g) IPC is upheld. The sentences imposed by the learned trial Judge for conviction of the appellants for offences under Sections 363 and 366 IPC are also maintained. However, the sentence imposed by the learned trial Judge for conviction of the appellants for offence under Section 376 (2)(g) IPC is reduced from life imprisonment to ten years rigorous imprisonment. The sentence of fine of Rs. 10,000/- each on this count is enhanced to Rs. 50,000/- each, while maintaining the default clause. 31. The appellants Shri Ram and Baburam are behind the bars. They shall be released forthwith, if they have already served the sentence imposed else, they will serve out the remaining sentence. The trial Judge shall issue standing warrant for arrest of appellant Bhanwar Lal, who is absconding. On being taken in custody, he will serve out the remaining sentence. The appellants Shri Ram and Baburam, on being released from imprisonment pursuant to this order, shall furnish a personal bond in sum of Rs. 50,000/- each to the satisfaction of the learned trial Judge in terms of provisions of Section 437A Cr.P.C.