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2019 DIGILAW 1979 (RAJ)

Kana Ram v. State of Rajasthan

2019-07-16

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - By way of the instant appeal under Section 374(2) Cr.P.C., the accused appellant Kana Ram has approached this Court for assailing the judgment dated 21.7.2014 passed by learned Additional Sessions Judge cum Special Court (Women Atrocities and Dowry Cases), Sriganganagar in Sessions Case No.92/2012 whereby, the accused appellant was convicted and sentenced as under: Offence u/s. Sentences Fine In default 450 I.P.C. 10 Years R.I. Rs.10000/- 1 Year 376 I.P.C. Life Imprisonment Rs.10,000/- 1 Year Both the sentences were ordered to run concurrently. 2. Brief facts of the case are that the complainant Rajeshwari lodged a written report to the SHO, Police Station Sadulshahar on 5.4.2012 at 1.40 AM that on 4.4.2012, she was alone at her home at 11 PM. The Sarpanch of the village Kana Ram, alongwith two other persons, entered her house after scaling the wall. At that time, she was sleeping in the courtyard. All these three persons tied her mouth by a cloth and took her inside the room. Kana Ram threatened her that if she raised a hue and cry, she would be eliminated. Then he pulled down her Salwar and committed foul things with her. On hearing the noise of a motorcycle, the other two persons escaped from the scene. Her brother in law Mamraj alongwith two other persons came inside her house and apprehended the accused Kana Ram on the spot. Immediately after catching hold of the accused, the Police was called on the spot and the complainant informed the Police about the incident through a written application on the basis whereof, an F.I.R. No.73/2012 was registered at the Police Station Sadulshahar on 5.4.2012 and after completing investigation, a chargesheet came to be filed against the accused Kana Ram for the offences under Sections 450 and 376 I.P.C. in the court of learned Judicial Magistrate First Class, Sadulshahar. Since the offences were sessions triable, the case was committed and transferred to the Special Court (Women Atrocities and Dowry Cases), Sriganganagar for trial as per law. The trial court framed charges against the accused Kana Ram for the above offences which he denied and claimed trial. The prosecution examined as many as 14 witnesses and got exhibited 22 documents to prove its case. The trial court framed charges against the accused Kana Ram for the above offences which he denied and claimed trial. The prosecution examined as many as 14 witnesses and got exhibited 22 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated. A witness namely Surendra Kumar was examined in defence. Upon conclusion of trial, the trial court proceeded to convict and sentence the appellant as above by the impugned judgment dated 21.7.2014. Being aggrieved thereby, the instant appeal has been preferred. 3. Learned counsel Shri Sandhu though initially tried to buttress that the conviction of the accused as recorded by the trial court is bad on facts as well as in law but after the statements of the material witnesses had been read out and appreciated in the court, he candidly conceded that there is hardly any scope to question or doubt the findings recorded by the trial court in the impugned judgment whereby, reliance was placed on the evidence of the prosecutrix P.W.2 Smt.R, Mamraj P.W.4 and Hetram P.W.7 while holding the appellant guilty of the offences alleged. 4. Apparently, on appreciating the statements of these witnesses, it is clear that the prosecution has proved beyond all manner of doubt that the accused trespassed into the house of the victim in the night time and subjected her to forcible sexual assault. The alternative submission of Shri Sandhu for assailing the impugned judgment was that the medical evidence does not corroborate the allegation that the prosecutrix was subjected to rape because she was subjected to medical examination just a few hours after the incident and at that time, neither was she found suffering from any injury on her private parts nor her vaginal swab and smear tested positive for the presence of semen when the same were examined by the FSL (FSL report Ex.A17). He thus urged that even if reliance is placed on the evidence of the prosecutrix, the case would not travel beyond Section 376/511 I.P.C. He thus urged that in view of these glaring facts, the sentence of life imprisonment inflicted by the trial court upon the appellant is excessive and out of proportions. He thus urged that even if reliance is placed on the evidence of the prosecutrix, the case would not travel beyond Section 376/511 I.P.C. He thus urged that in view of these glaring facts, the sentence of life imprisonment inflicted by the trial court upon the appellant is excessive and out of proportions. He also contended that in view of the fact that no injuries were noticed on the private parts of the prosecutrix, the possibility of the act having been consensual in nature, cannot be ruled out. With this submission, he prayed that a sentence of 7 years rigorous imprisonment with suitable compensation to the victim would subserve the ends of justice. He thus implored the court to partly allow the appeal and reduce the sentences awarded to the accused suitably. 5. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the appellant was the Sarpanch of the Village Khatsajwar where, the prosecutrix was residing with her husband. On the fateful night, the appellant took advantage of the absence of the victim's husband; forced his way into her house and sexually assaulted her. He submitted that as per the medical reports (Ex.9 & 10), the prosecutrix was found suffering from bruises on her breasts which conclusively corroborates her allegation that she had been sexually ravished. He urged that the semen might not have been detected on the vaginal swab and smear collected by the doctor owing to faulty procedure adopted during sample collection but merely because the swab and smear gave negative tests presence of human semen, the cogent and convincing testimony of the victim cannot be brushed aside. On these submissions, he craved dismissal of the appeal. 6. Shri Soni Advocate representing the complainant adopted the arguments of the learned Public Prosecutor. 7. We have given our thoughtful consideration to the arguments advanced at the Bar and have minutely reappreciated the evidence available on record. 8. On a threadbare reappraisal of the testimony of the prosecutrix P.W.2, Mamraj P.W.4 and Hetram P.W.7 and the Medical Officer Dr.Mahesh Gupta P.W.8, we are convinced that the findings recorded by the trial court in the impugned judgment that the testimony of the prosecutrix is perfectly reliable and fully corroborated, is based on an apposite appreciation of the evidence available on record. The accused himself did not deny the fact that the witnesses Mamraj and Hetram caught hold of him just outside the victim's house. The accused could not offer any justifiable explanation as to the reason of being there in the odd hours of night. Manifestly, the victim's husband had gone out of the village and taking advantage of his absence, the accused trespassed into the house and forced himself on to the hapless woman. The medical reports (Ex.9 & 10) also indicate that bruises were noticed on the breasts of the victim when she was subjected to medical examination. Hence the victim's evidence is duly corroborated by the medical evidence. Thus, we are of the view that the conviction of the accused appellant recorded by the trial court for the offences under Sections 450 and 376 I.P.C. does not warrant for any interference whatsoever as the same is based on an apposite appreciation of evidence available on record. 9. Now coming to the aspect of sentences. The offence under Section 376 I.P.C. at the relevant point of time was punishable as under: "376. Punishment for rape.(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) being a police officer commits rape- (i) within the limits of the police station tow hich he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.- "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.". 10. Explanation 3.- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.". 10. Thus, the minimum sentence awardable for the offence was 7 years rigorous imprisonment whereas, sentence of 10 years or life imprisonment are also the sentences provided for the offence. We are of the opinion that the court would have to record strong reasons for awarding the maximum sentence of life imprisonment. Though the trial court has mentioned in its judgment that the maximum sentence of life was being awarded to the accused because he being the Sarpanch of the village, rather than protecting the citizens of the village, breached their faith and indulged in a heinous act of sexual assault on the victim who was alone in her house as her husband had gone out and thus, the sentence of life imprisonment was called for. However, from the over all facts and circumstances as disclosed from the record, we feel that a sentence of 10 years rigorous imprisonment would subserve the ends of justice. However, in addition to the sentence of 10 years, suitable fine which is quantified at a sum of Rs.1 lac deserves to be imposed on the appellant. 11. We are gainfully supported by the view taken by Hon'ble Supreme Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2014) 4 SCC 375 wherein it has been observed by Hon'ble Supreme Court as under: "5. The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof. In this regard the Constitution Bench decision of this Court in Jagmohan Singh v. The State of U.P., (1973) 1 SCC 20 (under the old Code), another Constitution Bench decision in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 , a three Judge Bench decision in Machhi Singh and Ors. v. State of Punjab, (1983) 3 SCC 470 , are watersheds in the search for jurisprudential principles in the matter of sentencing. Omission of any reference to other equally illuminating opinions of this Court rendered in scores of other monumental decisions is not to underplay the importance thereof but solely on account of need for brevity. Two recent pronouncements of this Court in Sangeet and Anr. v. State of Haryana, (2013) 2 SCC 452 and Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 reflect the very laborious and painstaking efforts of this Court to summarize the net result of the judicial exercises undertaken since Jagmohan Singh (supra) and the unresolved issues and grey areas in this regard and the solutions that could be attempted. The aforesaid decisions of this Court though rendered in the context of exercise of the power to award the death sentence, whether the principles laid down, with suitable adaptation and modification, would apply to all 'lesser' situations so long the court is confronted with the vexed problem of unraveling the parameters for exercise of the sentencing power is another question that needs to be dealt with. 14. Applying the above parameters to the facts of the present case it transpires that the death of the wife of the accused-Appellant occurred within two years of marriage. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence Under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased. The proved facts on the basis of which offence Under Section 304B of the Penal Code was held to be established, while acquitting the accusedAppellant of the offence Under Section 302 of the Penal Code, does not disclose any extraordinary, perverse or diabolic act on the part of the accused-Appellant to take an extreme view of the matter. Coupled with the above, at the time of commission of the offence, the accused-Appellant was about 21 years old and as on date he is about 42 years. The accused-Appellant also has a son who was an infant at the time of the occurrence. He has no previous record of crime. On a cumulative application of the principles that would be relevant to adjudge the crime and the criminal test, we are of the view that the present is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused-Appellant. At the same time, from the order of the learned Trial Court, it is clear that some of the injuries on the deceased, though obviously not the fatal injuries, are attributable to the accusedAppellant. In fact, the finding of the learned Trial Court is that the injuries No. 1 (Laceration 1" x 1/2" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 1/2" x 1" scalp deep over the frontal area) on the deceased had been caused by the accused-Appellant with a pestle. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice. Rather we are of the view that a sentence of ten years RI would be appropriate. Consequently, we modify the impugned order dated 4.4.2011 passed by the High Court of Delhi and impose the punishment of ten years RI on the accusedAppellant for the commission of the offence Under Section 304B of the Penal Code. The sentence of fine is maintained. The accused-Appellant who is presently in custody shall serve out the remaining part of the sentence in terms of the present order." 12. We are also gainfully supported by another judgment rendered by Hon'ble Supreme Court in the case of Hem Chand Vs. State of Haryana, (1994) 6 SCC 727 wherein it has been observed as under: "Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above Section 304B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case." 13. Accordingly, the appeal is partly allowed. The impugned judgment dated 21.7.2014 passed by learned Additional Sessions Judge cum Special court of Women Atrocities and Dowry Cases, Sriganganagar is affirmed to the extent, the appellant was convicted for the offences alleged. However, the sentence of life imprisonment imposed by the trial court on the appellant for the offence under Section 376 I.P.C. is reduced to 10 years rigorous imprisonment with a fine of Rs.1 lac in default of payment of fine, the appellant shall further undergo two years rigorous imprisonment. However, the sentences awarded to the appellant for the offence under Section 450 I.P.C. are maintained. Both the substantive sentences shall run concurrently. However, the sentences awarded to the appellant for the offence under Section 450 I.P.C. are maintained. Both the substantive sentences shall run concurrently. The fine upon being realized shall be paid to the prosecutrix by way of compensation under Section 357 Cr.P.C. In addition, we direct the District Legal Service Authority, Churu to undertake the requisite procedure for awarding compensation to the victim as per the provisions of the Victim Compensation Scheme.