Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 2266 (RAJ)

Vinod Kumar v. The State Of Rajasthan

2018-12-06

SANDEEP MEHTA, VINIT KUMAR MATHUR

body2018
JUDGMENT Sandeep Mehta, J. - The appellant Vinod Kumar stands convicted and sentenced as below vide Judgment dated 20.06.2011 passed by the learned Special Judge, SC/ST Act, Hanumangarh in Sessions Case No.17/2009:- Offences Sentences Fine Fine Default sentences Under Section 366 IPC 10 Years' Rigorous Imprisonment Rs.1,000/- 3 Months' Simple Imprisonment Under Section 376 IPC Life Imprisonment - -- Under section 3(2) (v) of the SC/ST Act Life Imprisonment Rs.1,000/- 3 Months' Simple Imprisonment All the sentences were ordered to run concurrently. 2. Being aggrieved of the aforesaid judgment, he has preferred the instant appeal under Section 374(2) Cr.P.C., 1973 3. Brief facts are that Ramlal Singh son of Inder Singh by caste Baori lodged a written complaint at the Police Station Sangaria, District Hanumangarh alleging inter alia that he was having four unmarried daughters, of which Mst. 'S' aged 13 years and Mst. 'R' aged 11 years (hereinafter referred to as 'the victims') had gone missing from the house in the night, taking with them a sum of Rs. 300/- and a dress each. He prayed for search of his missing daughters. On this complaint, a Missing Persons Report No.02/2009 was lodged at the Police Station Sangariya and investigation commenced. On 07.01.2009, information was received from the RPF, Udaipur about the missing victims on which, the complainant and his brothers were taken to the GRP Udaipur who had traced out the missing victims. The girls were present at the GRP Outpost, Pratap Nagar. Upon inquiry, they disclosed that they had been lured away by Vinod Kumar who had subjected them to sexual assault. On the basis of this disclosure made by the victims, an FIR No.14/2009 was registered at the Police Station Sangaria for the offences under Sections 363, 366 and 376 of the IPC and section 3(2)(v) of the SC/ST Act and investigation commenced. After investigation, the charge-sheet was filed against the appellant herein for the above offences. 4. The offences were exclusively triable by the Special Court, SC/ST Act Cases and thus, the case was committed to the said court. The Trial Judge framed charges against the appellant for the above offences. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 35 documents in support of its case. 4. The offences were exclusively triable by the Special Court, SC/ST Act Cases and thus, the case was committed to the said court. The Trial Judge framed charges against the appellant for the above offences. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 35 documents in support of its case. The appellant, upon being examined under Section 313 Cr.P.C., 1973 denied the prosecution allegations and claimed that he had gone to Udaipur for the job of furniture making and that the girls had followed him of their own free will and volition. No evidence was led in defence. After considering the submissions advanced on behalf of defence and the prosecution and, after minutely appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 5. Shri Kulwant Singh, learned counsel representing the appellant, did not seriously question the veracity of the evidence of the two victims Mst 'S' and Mst. 'R' (PW-1 and PW-2 respectively) but, contended that it is a case wherein, the girls, who were infatuated with the accused, voluntarily followed him to Udaipur and sexual relations too were established without any force, threat, duress or allurement and as such, the appellant deserves leniency on the aspect of sentences. He further urged that the prosecution failed to lead cogent, convincing and clinching evidence so as to prove that the girls were minors as on the date of incident and thus, the sentence of imprisonment for life awarded to the appellant for the offence under Section 376 IPC deserves to be reduced suitably. He further contended that as, there is no allegation of the prosecution that the appellant, took away or established sexual relations with the girls with the intention that he was committing the act on members of Scheduled Caste, the conviction of the appellant for the offences under section 3(2)(v) of the SC/ST Act and the sentences awarded to him on this count is vitiated. He thus craved acceptance of the appeal to this extent. 6. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Kulwant Singh. He thus craved acceptance of the appeal to this extent. 6. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Shri Kulwant Singh. He contended that the appellant seduced the two minor girls by offering them persistent allurement and once, he had succeeded in seducing the girls of tender, age, he lured them into his trap and subjected them to sexual intercourse. The elder of the two victims namely Mst. 'S' was first sexually ravished and then she was pressurised to bring her younger sister and then the appellant, subjected her to rape as well. Thereafter, the girls were kidnapped from the guardianship of their father and were taken to Udaipur where they were again sexually assaulted. As per the medical opinion, age of both the girls was less than 16 years. Furthermore, the school documents of Mst. 'S' also corroborate the fact regarding Mst. 'S' who was the elder sister was just near about 14 years of age as on the date of incident (date of birth 15.12.1996). Thus, as per the learned Public Prosecutor, the theory of voluntary sexual relations is irrelevant in the case at hand because the girls being minor were not competent to give consent for sexual relations. However, the learned Public Prosecutor, too was not in a position to dispute the fact that in the entire gamut of the prosecution evidence, there is no such allegation that the accused lured away or established sexual relations with the two victims on the ground or with the intention that he was doing so as they hailed from Schedule Caste. 7. We have given our thoughtful consideration to the arguments advanced at bar and have gone through the impugned Judgment and have minutely re-appreciated the evidence available on record. 8. A careful perusal of the statements of the two victims PW-1 Mst. 'S' and PW-2 Mst. 'R' clearly reveals that neither of the too victims was given any suggestion to the effect that they had falsely implicated the accused. The suggestions which were given to them in cross-examination are only indicative of defence of consensual relations. The victim Mst 'S' made a clear allegation to the effect that Vinod Kumar systematically seduced her by firstly flashing smiles at her and then wrote her love letters. The suggestions which were given to them in cross-examination are only indicative of defence of consensual relations. The victim Mst 'S' made a clear allegation to the effect that Vinod Kumar systematically seduced her by firstly flashing smiles at her and then wrote her love letters. After the victim had fallen into the trap laid by Vinod Kumar, he called her to the field of Jagar Khati where, she was subjected to forcible sexual assault. Thereafter, Vinod Kumar gave her allurement that she should bring her sister along with her and he would take them both to visit Bangalore. On this, the minor child, who was obviously, not in a position to comprehend the consequences of her action, took her younger sister Mst. 'R' to Vinod Kumar and he ravished her as well. Mst. 'R' (PW-2) also corroborated these allegations in her evidence. The medical evidence in form of the statement of Dr. Naresh Kumar Garg (PW-12), clearly establishes that both the girls had been subjected to sexual intercourse. The absence of marks of violence on their bodies becomes inconsequential in view of the fact that the girls never alleged that they had offered any resistance because they had been seduced to such an extent by the appellant that they were in no position to resist his sexual overturns and thus, the charges under Section 366 and 376 of the IPC have been firmly proved by the prosecution by cogent clinching and reliable evidence pointing to the guilt of the accused beyond all manner of doubt. The sentence of 10 years for the offence under Section 366 IPC and the sentence of Life Imprisonment awarded for the offence under Section 376 IPC cannot be termed to be excessive by any stretch of imagination considering the fact that the accused appellant indulged in the heinous act of seducing, kidnapping and sexually assaulting two minor victims after offering them allurement. In our opinion, the case is such a grave nature that any sentence less than Life Imprisonment cannot even be conceived. Thus, the conviction of the appellant as recorded by the trial court for the offences under Sections 366 and Section 376 IPC is upheld and the sentences awarded to him on these counts are also affirmed. 9. Now coming to the offence under section 3(2)(v) of the SC/ST Act. Thus, the conviction of the appellant as recorded by the trial court for the offences under Sections 366 and Section 376 IPC is upheld and the sentences awarded to him on these counts are also affirmed. 9. Now coming to the offence under section 3(2)(v) of the SC/ST Act. Manifestly, in entirety of the prosecution evidence, there is no such allegation that the appellant, kidnapped or sexually assaulted the two girls on the ground that he was indulging in the offending act on a member of Scheduled Caste. In absence of any such allegation and in view of the unamended provision of law as it then existed and, keeping in view the ratio of the Supreme Court decision in the case of Asharfi v. State of Uttar Pradesh being Criminal Appeal No.1182/2015, reported in AIR 2017 SC 5819 , the conviction of the appellant for the offence under section 3(2)(v) of the SC/ST Act cannot be sustained. 10. Thus, the appeal deserves to be accepted in part. While affirming the conviction and sentences awarded to the appellant for the offences under Sections 366 and 376 IPC vide the Judgment dated 20.06.2011 passed by the learned Special Judge, SC/ST Act, Hanumangarh in Sessions Case No.17/2009, his conviction and the sentence of life awarded to him for the offence under section 3(2)(v) of the SC/ST Act is set aside. The accused appellant is in jail. He shall serve out the sentences awarded to him for the offences under Sections 366 and 376 IPC. 11. The appeal is partly allowed in these terms.