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2019 DIGILAW 1811 (RAJ)

Prem Singh @ Vikram Singh v. State of Rajasthan

2019-06-25

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide judgment dated 13.06.2013 passed by the learned District and Sessions Judge, Balotra in Sessions Case No.27/2012: Offences Under Section Sentences Fine Fine Default sentences 363 IPC 7 Years Rigorous Imprisonment Rs.5,000/ 1 Years S.I. 376 IPC 10 Years Rigorous Imprisonment Rs.10,000/ 2 Years S.I. 2. Being aggrieved of his conviction and sentence, the accused appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. The prosecution case is founded on the allegation that the appellant herein kidnapped Sushri 'A', aged 14 years, daughter of Hari Singh from Balotra on 27.05.2012, took her away to Jodhpur and Pune and subjected her to sexual assault. Shri Hari Singh (PW-2) lodged a report in this regard at the Police Station Balotra on 07.06.2012 whereupon, FIR No.286/2012 was registered against the appellant for the offences under Sections 363 and 376 IPC. After investigation, charge-sheet was filed against him for the above offences. 4. The case was committed to the Court of Sessions Judge, Balotra where, charge was framed against the appellant as above who pleaded not guilty and claimed trial. 5. The prosecution examined as many as 15 witnesses and exhibited 21 documents in support of its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegation and claimed to have been falsely implicated. After hearing the arguments advanced by the prosecution and the defence, the learned Trial Judge proceeded to hold that the age of the victim was between 14 to 16 years on the date of the incident. The evidence of the victim was held to be reliable. The medical evidence as deposed by Dr. Sunita Sarthaliya (PW-9) indicated that victim's hymen had been ruptured. Accordingly, the learned Trial Judge, proceeded to convict and sentence the appellant as above by the impugned judgment. Hence this appeal. 6. Shri Rajiv Bishnoi, learned counsel representing the appellant, vehemently and fervently tried to dispute the findings of the learned Trial Judge regarding the minority of the victim and regarding the allegation that she was subjected to forcible sexual assault. He referred to the statement of the victim Sushri 'A' (PW4) and urged that in her cross-examination, the victim categorically stated that the appellant took her away from a temple which was thronged by hundreds of people. He referred to the statement of the victim Sushri 'A' (PW4) and urged that in her cross-examination, the victim categorically stated that the appellant took her away from a temple which was thronged by hundreds of people. She was taken to Jodhpur and Pune in a bus where also, many people were present but, she did not make any effort whatsoever to raise a protest that the appellant had kidnapped her or that she had been subjected to sexual assault. As per him, either the case is totally false or that the relationship between the appellant and the victim was consensual in nature. He thus urges that the impugned judgment is liable to be set aside and the appellant deserves to be acquitted. In the alternative, he submitted that since, the victim remained with the accused for a significantly long period without raising any protest, the sentence awarded to the appellant should be reduced from 10 years R.I. to 7 years R.I. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He submitted that the victim was a minor girl, aged about 14 years, on the date of the incident. The Trial Judge appreciated the evidence available on record in a just and apropos manner and came to the only possible and logical conclusion that the appellant kidnapped the victim from the lawful guardianship of her father and then, took her away to various places viz. Jodhpur and Pune and that in the intervening period, she was subjected to sexual assault. He urged that as the victim was minor on the date of offence, the theory of consent put-forth by the appellant's counsel is totally irrelevant. He further urged that there is no reason to discard the evidence of minor victim who has categorically stated in her testimony that the appellant kidnapped her after administering some intoxicant to her and then, took her away to Jodhpur and Pune where, she was subjected to sexual assault. He urges that during cross-examination, nothing was elicited which can shake the credibility of the victim's testimony and hence, as per him, the impugned judgment does not warrant any interference either on the aspect of conviction or on the aspect of sentences. 8. I have given my thoughtful consideration to the submissions advanced at bar and have minutely perused the impugned judgment as well as the record. 8. I have given my thoughtful consideration to the submissions advanced at bar and have minutely perused the impugned judgment as well as the record. 9. The appellant's counsel did not very seriously question the conviction of the appellant and rather restricted his arguments on the aspect of sentences. Despite that, I have minutely examined the evidence of PW-2 Hari Singh (the father of the victim), PW-3 Smt. Chuki Kanwar (the mother of the victim) and PW-4 Sushri 'A' (the victim herself). All three stated that the age of the victim was about 14 years on the date of the incident. The victim categorically stated that the appellant enticed her by calling her repeatedly on mobile phone. When she had gone to a temple, the appellant gave her some sweets containing intoxicant due to which, she became sedated. She was taken by the appellant to Jodhpur and Pune. The appellant subjected her to sexual assault. In cross-examination, the only suggestion which was given to the victim was regarding her not having raised a protest against the offending acts of the accused. However, not a single question was put to the victim regarding her age. The medical evidence as deposed by PW-8 Dr. Madan Lal is clear to the effect that the age of Sushri 'A' was between 14 to 16 years. Dr. Sunita (PW-8), in her evidence, stated that the victim's hymen was torn. Thus, the allegation of the victim that she was a minor and had been subjected to sexual assault is duly corroborated by the medical evidence. There is ample material on the record of the case in form of the sworn testimony of the victim, her parents as well as the medical officers which is sufficient to satisfy the Court that the victim was less than 16 years of age on the date of the incident. Thus, the theory of consent is of no significance/consequence whatsoever. 10. In this view of the matter, I am of the firm opinion that the trial court was absolutely justified in convicting the appellant for the offences alleged. The impugned judgment dated 13.06.2013 passed by the learned District and Sessions Judge, Balotra exfacie does not suffer from any illegality, infirmity or shortcoming whatsoever. 10. In this view of the matter, I am of the firm opinion that the trial court was absolutely justified in convicting the appellant for the offences alleged. The impugned judgment dated 13.06.2013 passed by the learned District and Sessions Judge, Balotra exfacie does not suffer from any illegality, infirmity or shortcoming whatsoever. On the aspect of sentence, I have considered the submissions advanced by Shri Rajiv Bishnoi and find that since, the appellant kidnapped a minor girl aged about 14 years from the lawful guardianship of her father, kept her confined for about 12 days and subjected her to sexual assault during this period, the sentence of 10 years awarded by the trial court to the appellant cannot be termed to be excessive or unreasonable by any stretch of imagination. Thus, I find no merit in the argument of Shri Rajiv Bishnoi that the sentence awarded to the appellant be reduced. 11. In backdrop of the above discussion, I find no merit in the appeal which is hereby dismissed. Record be returned to the trial Court forthwith.