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2019 DIGILAW 1874 (RAJ)

Kesa Bhai @ Rahim Bhai v. State of Rajasthan

2019-07-02

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide the impugned judgment dated 27.08.2016 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sirohi in Special Sessions Case No.39/2012 (CIS No.12/2012):- Section 363 IPC Seven years' RI and a fine of Rs.2,000/-. In default of payment of fine to further undergo two month's rigorous imprisonment. Section 376 IPC Ten years' RI and a fine of Rs.2,000/-. In default of payment of fine to further undergo two month's rigorous imprisonment. Section 3 (2)(v) of SC/ST Act Life Imprisonment and a fine of Rs.2,000/-. In default of payment of fine to further undergo two month's rigorous imprisonment. (All the sentences were ordered to run concurrently) 2. The brief facts of the case are that Asha Bhai, the complainant lodged a First Information Report at the Police Station GRP Abu Road on 12.06.2011 alleging inter alia that he had five sons and a daughter. His two sons namely Indu Bhai and Bachchu Bhai had been convicted for the offence under Section 302 IPC and were serving life imprisonment at Sabarmati Jail, Ahmedabad. While his sons were in jail, they came in touch with certain other prisoners. In the winters, a person named Kesaji came to his house, had food and gave an allurement that he could get his sons released. Kesaji stayed there for a night and went back on the next day. He returned to his house on 19.04.2011 and told that Indu Bhai would be released on parole and that for this purpose, Indu's wife and Indu's son were taken to Sabarmati Jail. Indu was got released on parole and thereafter they came back to Village Beri. Kesaji stayed at Indu's house in the night and then went back. On 06.05.2011, one Mansukh Bhai called and told the complainant that he should come to Ahmedabad with Kesaji and Indu's daughter Mst. 'M' because her signatures were required to get Indu Bhai released. On this, the complainant accompanied Mst. 'M' and Kesaji and started for Ahmedabad. They reached Abu Road Railway Station. Kesaji brought tea from somewhere. All the three consumed the tea brought by him; and he told that the train would be coming at 4 O' clock. The complainant went to sleep. He woke up at 2 O' clock and found that Mst. 'M' and Kesaji and started for Ahmedabad. They reached Abu Road Railway Station. Kesaji brought tea from somewhere. All the three consumed the tea brought by him; and he told that the train would be coming at 4 O' clock. The complainant went to sleep. He woke up at 2 O' clock and found that Mst. 'M' and Kesaji were nowhere to be seen. He made a search for the girl and Kesaji but could not find them. He approached the police officials of PS Posina, Gujarat and apprised them of these facts. The statement of the complainant (marked as Ex.P/31 during trial) to this effect was recorded by the police officials of Police Station Posina on 12.06.2011. They were received at the GRP Station Abu Road on 16.10.2011 whereupon an FIR No.63/2011 (Ex.P/51) was registered and the investigation commenced. After investigation, a charge sheet came to be filed against the accused Kesa Bhai @ Rahim Bhai in the court of Addl. Chief Metropolitan Magistrate, Railways, Jodhpur Metropolitan for the offences under Sections 363, 366, 376, 120B IPC and Section 3(1)(xii) of SC/ST (Prevention of Atrocities) Act and against the accused Mansukh Bhai for the offences under Sections 366A, 109 and 120B IPC. The case was committed and transferred to the court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sirohi for trial. 3. By order dated 14.01.2013, the trial court discharged the accused Mansukh Bhai and the accused-appellant herein from the offences under Sections 366A, 109 and 120B IPC. The accused Kesa Bhai @ Rahim Bhai was charged for the offences under Sections 363 and 376, IPC and under Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act. The prosecution examined as many as 28 witnesses and exhibited 61 documents to prove its case. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and upon appreciating the evidence available on record, the trial court proceeded to convict the accused appellant as above. Hence, this appeal. 4. Learned Counsel Shri Shah representing the appellant canvassed that the impugned judgment whereby the appellant has been convicted and sentenced, is bad in the eyes of law. Hence, this appeal. 4. Learned Counsel Shri Shah representing the appellant canvassed that the impugned judgment whereby the appellant has been convicted and sentenced, is bad in the eyes of law. He urged that there is no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention that he would be committing offence on a member of the Scheduled Caste community. He thus, urged that the conviction of the accused for the offence under Section 3(2)(v) of the SC/ST Act is prima facie illegal. Regarding the charge under Section 376 IPC, the contention of Shri Shah was that the prosecutrix was a major girl on the date of incident. She stayed with the accused for a period of more than one month without raising any protest whatsoever and thus, the case at hand is of consensual sexual relations plain and simple. He thus, urged that the conviction of the accused as recorded by the trial court for the offences under Sections 363 and 376 IPC cannot be sustained. In the alternative, the contention of Shri Shah was that the sentence of 10 years awarded to the accused for the offence under Section 376 IPC is excessive and deserves to be reduced suitably. 5. Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions advanced by Shri Shah. He urged that the victim Mst.'M' has given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father Shri Indu Bhai released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. 6. Learned Public Prosecutor also drew the Court's attention to the deposition of Medical Officer PW.10 Dr. Kusumlata Agarwal who categorically stated that the possibility of penetration by a hard non-rough object in the vagina of the victim could not be ruled out. There, the accused repeatedly subjected her to sexual intercourse. 6. Learned Public Prosecutor also drew the Court's attention to the deposition of Medical Officer PW.10 Dr. Kusumlata Agarwal who categorically stated that the possibility of penetration by a hard non-rough object in the vagina of the victim could not be ruled out. He further urged that as per the age determination report (Ex.P/14), the age of girl was between 13 to 15 years and as per the learned Public Prosecutor, since the accused subjected a minor girl of below 16 years to rape, after kidnapping her from lawful guardianship, he does not deserve any clemency on the aspect of sentence as well and prayed to affirm the impugned judgment and dismiss the appeal. 7. We have given our thoughtful consideration to the arguments advanced at bar and have gone through the material available on record. Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires. Thus, relying on the Supreme Court Judgment in the case of Masumsha Hasanasha Musalman Vs. State of Maharashtra , (2000) AIR SC 1876, we are of the firm opinion that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, we set aside the impugned judgment to that extent. 8. Now coming to the remaining charges under Sections 363 and 376 IPC for which the trial court convicted and sentenced the accused-appellant as above. Mr. Shah, learned counsel representing the appellant had buttressed that the case is of consensual relations between two major persons. We have thoroughly appreciated the statement of the girl who was examined at the trial as PW.12 and find that she has given clinching and cogent testimony proving the fact that the accused subjected her to rape after kidnapping her from the lawful guardianship of her grandfather. The fact that the victim had been subjected to sexual assault is duly corroborated by the testimony of Medical Officer Dr. Kusumlata Agarwal (PW.10). The fact that the victim had been subjected to sexual assault is duly corroborated by the testimony of Medical Officer Dr. Kusumlata Agarwal (PW.10). The contention of learned Counsel Shri Shah that the prosecution could not prove the fact that the victim was below 16 years of age is absolutely untenable. After having gone through the evidence of victim herself and the evidence of the medical officer Dr. Kusumlata (PW.10) and after examining the report of the radiological tests carried out on the victim, we are in consonance with the opinion of the Medical Officer Dr. Kusumlata Agarwal that the victim Mst. 'M' was between 13 to 15 years of age when she was medically examined. Thus, we have no hesitation in affirming the finding of the trial court that the accused subjected the girl below 16 years to rape and the said finding recorded in the impugned judgment is well established by the evidence available on record. 9. In this background, the theory of consent putforth by Shri Shah to assail the impugned judgment looses all significance. Hence, we are of the firm opinion that the finding recorded by the trial court in convicting the appellant for the offence under Section 366 & 376 IPC was perfectly justified and the impugned judgment does not warrant any interference on this count as well. Regarding the sentence of ten years awarded to the appellant for the offence under Section 376 IPC, we are of the view that since the accused lured away and kidnapped the minor girl on the pretext that he would be getting her father released from prison and thereafter took her away and kept her with himself and subjected her to repeated sexual assault, the sentence of ten years awarded by the trial court to the accused-appellant for the offence under Section 376 IPC cannot be termed as excessive. Thus, we are not inclined to treat the accused with clemency on the aspect of sentences awarded by the trial court for the offences, mentioned above. 10. In wake of the discussion made hereinabove, the appeal deserves to be accepted in part. The conviction of the appellant as recorded by the trial court for the offence under Sections 3(2)(v) of SC/ST (Prevention of Atrocities) Act is hereby set aside. 10. In wake of the discussion made hereinabove, the appeal deserves to be accepted in part. The conviction of the appellant as recorded by the trial court for the offence under Sections 3(2)(v) of SC/ST (Prevention of Atrocities) Act is hereby set aside. The impugned judgment dated 27.08.2016 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sirohi in Sessions Case No.39/2012 (CIS No.12/2012) is modified to that extent. However, the conviction of the accused-appellant and sentences awarded to him by the trial court for the offences under Sections 363 & 376 IPC are maintained. The appeal is partly allowed in these terms. Record be returned to the trial court forthwith.