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Rajasthan High Court · body

2019 DIGILAW 2598 (RAJ)

Jamna Shankar v. State of Rajasthan

2019-09-25

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT 1. Vide this order above mentioned two appeals would be disposed of. 2. Appellants have filed these appeals challenging their conviction and sentence ordered by the trial Court under Section 376(D), 377 and 394 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'). 3. Prosecution case was set in motion on the basis of the report Exhibit-P-1 lodged by complainant Ambrish. On the basis of the report Exhibit-P-1, formal FIR No. 404 dated 2.12.2012 was registered against the appellants under Sections 376, 377, 392, 341, 323/34 IPC at police Station Keshoraipatan District Bundi. 4. As per the FIR, prosecution story, in brief, is that on 12.12.2012, sister-in-law of the complainant had informed him that she had been raped by the appellants. Appellants had also taken away her purse, mobile phone and Rs. 2,000/- in cash. 5. After completion of investigation and necessary formalities, challan was presented against the appellants. Charges were framed against the appellants under Sections 376(2)(g), 377 and 394 IPC. Appellants did not plead guilty to the charges framed against them and claimed trial. 6. In order to prove its case, prosecution examined seventeen witnesses, during trial. Appellants when examined under Section 313 Cr.P.C., after the close of prosecution evidence prayed that they were innocent and had been falsely involved in this case. Appellants did not examine any witness in their defence. 7. Learned counsel for the appellants have submitted that, although, charge had been framed against the appellants under Section 376(2)(g) IPC but the trial Court had erred in ordering their conviction and sentence under Section 376(D) IPC. Section 376(D) IPC was not applicable to the facts of the present case as incident had occurred before the addition of Section 376(D) IPC. Learned counsel have further submitted that the appellants had been falsely involved in this case due to a property dispute with the complainant. Appellants were young boys aged about 25 years, at the time of incident, whereas, the prosecutrix was aged about 60/65 years. The conduct of the prosecutrix was most unnatural as there was no occasion for her to have got down from the bus after two kilometers from the turn for her parental village. There was also no occasion for the prosecutrix to have requested the appellants to drop her to her village after the incident. The conduct of the prosecutrix was most unnatural as there was no occasion for her to have got down from the bus after two kilometers from the turn for her parental village. There was also no occasion for the prosecutrix to have requested the appellants to drop her to her village after the incident. There was no evidence on record to establish the ownership of the motorcycle, which was recovered from the spot as to whether, it belonged to the appellants or not. Place of incident was on a Mega Highway and it was not believable that the appellants would have committed the crime, at the spot, suggested by the prosecution. Medical evidence did not corroborate the version of the prosecutrix. 8. Learned State Counsel has opposed the appeals. 9. Present case relates to rape of the prosecutrix PW-7. Thus, the star witness of the prosecution is PW-7. 10. Prosecutrix while appearing in the witness box has deposed that on 12.12.2012, she was going to her parental house from her matrimonial home as her father was unwell. She got down from the Bus near Ganesh Ji Railway Crossing. She was going on foot towards her village. The moment, she had crossed the railway crossing, two boys, who were under the influence of liquor, were travelling on a motorcycle and they asked her to sit on their motorcycle. She raised alarm. Another motorcycle came from behind and the boys then drove their motorcycle towards the village. Believing that the boys must have gone ahead, she continued walking towards her village and when she had walked for about one mile, she found that those two boys were hiding in the bushes. The said boys caught hold of her and beat her and raped her. The said boys also threatened her that in case, she narrated the incident to anybody, they would kill her. They took away Rs. 2,000/- lying in her purse and also took away her ticket and mobile phone. The said persons after threatening her tried to take her along, on their motorcycle, but the tyre of the motorcycle was punctured. Then, they made her alight from the motorcycle. In the meantime, Trilok Sharma and Ramavtar came on a motorcycle and on seeing them, appellants fled away from the spot. The said persons after threatening her tried to take her along, on their motorcycle, but the tyre of the motorcycle was punctured. Then, they made her alight from the motorcycle. In the meantime, Trilok Sharma and Ramavtar came on a motorcycle and on seeing them, appellants fled away from the spot. Then, Ramavtar and Trilok Sharma took her to her parental home and she narrated the incident to her brother and he lodged the FIR. She stated that she had been raped by appellants present in the Court namely, Hariprasad and Jamnashanker. 11. PW-8 Trilok Sharma and PW-9 Ramavtar, have corroborated the statement of the prosecutrix to the effect that she was standing on the road and two persons were also present there alongwith their motorcycle. The tyre of the motorcycle was punctured. They dropped the prosecutrix to her parental home. The said witnesses deposed that the prosecutrix had not narrated the incident to them and they had come to know about the incident later, on account of talk in the village. 12. PW-11 Laxmi Meena deposed that on 13.12.2012, she had medically examined the prosecutrix and had found that there were nail scratches on her cheeks. There were bite marks on her breasts. There was swelling in her vagina and when swab was taken from the vagina of the prosecutrix, it was bleeding. There were scratches on her both thighs. There were black scratches and nail scratches on her back. From the examination of the prosecutrix, it could be said that she had been raped. She proved the report Exhibit-P-11, in this regard. 13. PW-10 Dr. Vinod Pankaj and PW-16 Dr. Naresh Jatoliya have proved the medical examination reports of the appellants, ExhibitP-18 and Exhibit-P-19. As per the said reports, appellants were fit to perform sexual intercourse. 14. Recovery of the purse and mobile phone belonging to the prosecutrix was effected from the appellants, during investigation of the case. 15. Thus, in the present case, statement of the prosecutrix is duly corroborated by medical evidence. Prosecutrix had suffered injuries on her cheeks, private part, thighs and back. There was swelling in the vagina of the prosecutrix. The incident had occurred on 12.12.2012 at about 7.30 p.m. and the report was lodged with the police immediately on the same day at about 9.00 p.m. Thus, the offence was promptly reported to the police. Prosecutrix had suffered injuries on her cheeks, private part, thighs and back. There was swelling in the vagina of the prosecutrix. The incident had occurred on 12.12.2012 at about 7.30 p.m. and the report was lodged with the police immediately on the same day at about 9.00 p.m. Thus, the offence was promptly reported to the police. Prosecutrix was medically examined on the next day at 2.00 p.m. Although, no semen was detected on the clothes of the prosecutrix but the said fact in itself is not fatal to the prosecution case. The statement of the prosecutrix being natural inspires confidence. The prsoecutrix was cross-examined at length by the defence counsel but her testimony with regard to the offence committed by the appellants could not be shaken. 16. The argument raised by learned counsel for the appellants that they had been falsely involved in this case due to a property dispute with the complainant is not substantiated on record. Moreover, no such plea was taken by the appellants in his statement recorded under Section 313 Cr.P.C. Hence, the said argument is liable to be rejected. 17. In the facts and circumstances of the present case, there is no force in the arguments raised by learned counsel for the appellants. Since, prosecution had been successful in proving its case. Appellants were liable to be convicted qua offence punishable under Sections 376(2)(g) and 394 IPC. 18. However, no offence punishable under Section 376 IPC can be said to have been committed by the appellants. Hence, the appellants are liable to be acquitted of the charge framed against them under Section 377 IPC. 19. So far as offence under Section 376(D) is concerned, the same became effective with effect from 03.02.2013, whereas, the offence in the present case had occurred on 12.12.2012. Due to this reason, charge had been rightly framed against the appellants under Section 376(2)(g) IPC. The trial Court fell in error in ordering the conviction of the appellants under Section 376 (D) IPC. 20. Accordingly, the conviction of the appellants under Section 376(D) IPC is altered to conviction under Section 376(2)(g) IPC and appellants are sentenced to undergo imprisonment for life and shall pay fine of Rs. 10,000/- each and in default of payment of fine, appellants shall further undergo rigorous imprisonment for three months. The sentence awarded to the appellants under Section 376(D) IPC consequently stands set aside. 10,000/- each and in default of payment of fine, appellants shall further undergo rigorous imprisonment for three months. The sentence awarded to the appellants under Section 376(D) IPC consequently stands set aside. Conviction and sentence of the appellants under Sections 394 IPC is maintained. Appellants are convicted qua charge framed against them under Section 377 IPC. 21. Appeals stand disposed of accordingly.