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2018 DIGILAW 2140 (RAJ)

Rajendra Singh v. State of Rajasthan

2018-10-25

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Appellants have preferred separate appeals aggrieved by judgment and order dated 13.5.1985 passed by Sessions Judge, Jaipur District, Jaipur whereby learned Sessions Judge has convicted the appellants for offence under Section 376 IPC and has imposed a sentence of ten years rigorous imprisonment and fine of Rs.100/- each on the appellants, on non-payment of fine appellants are required to further undergo one month rigorous imprisonment. 2. In brief the factual matrix of the case are that in the intervening night of 24th-25th January, 1984 at 3.00 a.m. prosecutrix left her house to go to her husband's village. On the way she was stopped by village Chowkidar and two Constables, at that time a shopkeeper Gopal Chhipi, who was running a tailoring shop, was also present. Police constables, who are the present appellants, were asked to drop back the prosecutrix at her home as the bus in which she wanted to go to her husband's village was scheduled to leave at 9.00 a.m. After about half an hour prosecutrix returned and complained to the Chowkidar that the police constables have misbehaved with her and have stolen her rings. Complaint Ex.P1 was lodged by Kishorilal Sharma, President of Youth Congress, Kotputli and the FIR bears the thumb impression of Chowkidar-Gagan Singh, prosecutrix and tailor-Gopal Chhipi. 3. Police after due investigation submitted charge-sheet under Section 376 & 379 IPC. Charges were read over and explained to the appellants, who denied the charges and sought trial, whereupon as many as ten witnesses were examined on behalf of the prosecution and 16 documents were exhibited. Appellants were examined under Section 313 Cr.P.C., 1973 They denied the allegations and stated that before coming to duty they had sexual relations with their wives. In defence, statement of Hari Singh- DW1 was recorded and documents Ex.D1 to D4 were exhibited. 4. The Court below after hearing the final arguments has acquitted the appellants for offence under Section 379 IPC but has convicted them under Section 376 IPC and has sentenced them as hereinabove referred. 5. As both the appeals arise out of a common judgment and sentence passed by the Court below, the same are being decided by this common judgment. 6. It is contended by counsel for the appellants that there are several lapses on the part of the prosecution. Chowkidar-Gagan Singh was not produced as a witness. 5. As both the appeals arise out of a common judgment and sentence passed by the Court below, the same are being decided by this common judgment. 6. It is contended by counsel for the appellants that there are several lapses on the part of the prosecution. Chowkidar-Gagan Singh was not produced as a witness. As per the prosecution story prosecutrix received an information from Brahmani that her husband is sick, but Brahmani was not produced as a witness. It is also contended that the injuries sustained by the prosecutrix are not corroborated with her statement and as per the statement of PW6-Dr.A.K.Gupta the injuries may be self inflicted. 7. It is also contended that the conduct of prosecutrix in leaving her house in late hours of night i.e. 3.00 a.m. without informing her parents is also not trustworthy. In this regard my attention has been drawn towards statement of PW7-Pramod Kumar Agarwal, who is brother of prosecutrix and who has stated that prior to the date of incident prosecutrix never went alone at night and that she never left the house even in the day time. 8. With regard to detection of semen on the underwear of the appellants, it is contended that the appellants have taken a defence that they had sexual relations with their wives before coming on duty and that might be the reason for detection of semen. 9. It is also contended that initially in the complaint no allegation with regard to rape was made, the FIR was registered under Section 379 and 376/511 IPC. Thereafter, improvement was made in the statement by the witnesses and charge-sheet has been filed under Section 376 IPC. 10. It is contended that the Court below has not found the case to be completely true and has acquitted the appellants for offence under Section 379 IPC. 11. Learned Public Prosecutor has vehemently opposed the appeals. His contention is that prosecutrix is an illiterate lady, her thumb impression on the FIR goes to show that she is an illiterate lady. It is contended that prosecutrix immediately after the incident went to the village Chowkidar and reported about the incident. 11. Learned Public Prosecutor has vehemently opposed the appeals. His contention is that prosecutrix is an illiterate lady, her thumb impression on the FIR goes to show that she is an illiterate lady. It is contended that prosecutrix immediately after the incident went to the village Chowkidar and reported about the incident. It is also contended that incident took place at 3.00 a.m. and FIR was lodged at 6.15 a.m., there is no delay in lodging of FIR and there is no reason why an illiterate village lady would falsely implicate the present appellants. 12. It is also contended that the prosecutrix identified the police constables at the police station and has also named the appellants as the constables with whom Chowkidar had sent the prosecutrix to her home. It is also contended that prosecutrix identified the appellants in Court as well. 13. It is also contended that prosecutrix has sustained injuries on her person as is evident from statement of Dr.A.K.Gupta-PW6. There was oval bruise, pink in colour, on medial of left cheek. Bruise pink in colour just below to injury number one. Bruise pink in colour on middle of right jaw, on lower border. Small abrasion pink in colour on lower middle quadrant of left breast. Small abrasion pink in clour on upper medial quadrant of right breast. Prosecutrix was examined at 10.30 a.m. in the morning and as per the medical report the injuries were caused within 12 hours. It is argued that statement of prosecutrix is substantiated by her medical report. 14. It is also contended that the contention of the counsel for the appellants that appellants never left her home at day or night and a false story has been made up cannot be believed as prosecutrix being an illiterate lady left the home at night thinking on her own that the day was about to break and that she would go to her husband's house who was sick. It is also contended that there was ample evidence before the Court below and conviction and sentence imposed cannot be said to be bad in law. 15. It was argued in the alternative by the counsel for the appellants that the matter is of year 1984, appellants have remained in custody for about 21 months and Court for this special reason can reduce the sentence under proviso to Section 376 IPC. 15. It was argued in the alternative by the counsel for the appellants that the matter is of year 1984, appellants have remained in custody for about 21 months and Court for this special reason can reduce the sentence under proviso to Section 376 IPC. In this regard counsel for the appellants has placed reliance on Ravindra v. State of M.P.(AIR 2015 SC, 1369). State of M.P. (AIR 2015 SC, 1369). 16. With regard to proviso to Section 376 IPC, it is contended by learned Public Prosecutor that rape has been committed by constables with a village girl, hence, police personnels do not deserve any leniency merely because a period of 34 years has lapsed. 17. I have considered the contentions and have perused the record and judgment of the Court below. 18. Prosecutrix PW9 is a village girl, who in her statement has stated that she left her house and when she reached the house of Banwari she saw the Chowkidar alongwith two police constables and a tailor. Chowkidar told her that she cannot go at night and she should come in the morning and sent the two constrables to leave her back. She has further deposed that the police constables initially took her towards her house and then took her to a remote place and then gagged her mouth and committed rape with her. She returned back to the place where Chowkidar was sitting and reported the incident to him. She has stated that she alongwith Chowkidar went to the police station and lodged an FIR. She has also identified the appellants in the police station and has identified the appellants in the Court as well. It is apparent from the statement that her clothes were stained with semen. She has also stated that she received injuries as a result of rape being committed by the police constables. 19. PW2-Gopal Chhipi is another witness, who was present at the time when the prosecutrix was going to her husband's village and he has stated that Chowkidar asked the prosecutrix as to where she was going, she replied that her husband is sick at Paota and it is for this reason that she is going to her husband's village. 19. PW2-Gopal Chhipi is another witness, who was present at the time when the prosecutrix was going to her husband's village and he has stated that Chowkidar asked the prosecutrix as to where she was going, she replied that her husband is sick at Paota and it is for this reason that she is going to her husband's village. This witness has also stated that Chowkidar asked the police constables to leave the prosecutrix at her house and after about half an hour prosecutrix returned crying and informed the Chowkidar that the constables had committed rape with her. President of the Shop Union was called and the report was lodged. 20. PW1-Kishorilal Sharma is the President of the Shop Union, who has stated that at around 4.15 a.m. PW2-Gopal Chhipi came to his house and informed him that police constables have committed a wrong act with a village woman. He immediately went to the spot and after obtaining information of the incident from prosecutrix he went to the police station to lodge FIR. The statement of prosecutrix finds support from the statement of PW1 and PW2. 21. The incident took place between 3.00 to 3.45 a.m. and PW2 informed the President of the Shop Union at 4.15 a.m. and FIR was lodged at 6.15 a.m. There are no chances of falsely implicating any person and merely because doctor has stated that the injuries might be self inflicted, the same cannot give any benefit to the appellants. The fact that clothes of the prosecutrix were stained with semen and she had received injuries on her cheek and both breasts clearly points out to the guilt of the appellants. 22. Prosecutrix has in detail narrated the incident which had taken place with her and defence has not been able to shatter her in the cross-examination. She has also stated that when she was being raped, she tried to protect herself and she sustained the injuries while she was protecting herself from the appellants. In view of the clear statement of the prosecutrix, which finds support from the statement of shop owner and complainant prosecution has proved the offence against the appellants beyond reasonable doubt and the Court below has not committed any error in convicting the appellants. 23. In view of the clear statement of the prosecutrix, which finds support from the statement of shop owner and complainant prosecution has proved the offence against the appellants beyond reasonable doubt and the Court below has not committed any error in convicting the appellants. 23. As far as proviso to Section 376 IPC is concerned, the proviso authorises the Court to impose a sentence of imprisonment for a term of less than ten years, if adequate and special reasons are existing. In Ravindra v. State of M.P. (supra) Hon'ble Apex Court awarded lesser sentence as the victim and the accused had entered into a compromise and prosecutrix did not want to proceed with the case as both had married and had settled in life. 24. No adequate and special ground is made out for imposing of sentence for a term of less than ten years as this is a case where two constables being public servants have committed gang rape on a village girl. 25. The appeals being devoid of any merit are accordingly dismissed. Judgement and sentence passed by the Court below is affirmed. 26. The appellants are on bail, their bail bonds are cancelled. A copy of this judgment be sent to the trial Court for doing needful. 27. A copy of this judgment be placed in the connected file. 28. Record of the Court below be sent forthwith.