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2019 DIGILAW 7 (RAJ)

Sunny @ Dinesh Kachimali v. State of Rajasthan

2019-01-02

BANWARI LAL SHARMA, MUNISHWAR NATH BHANDARI

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JUDGMENT : MUNISHWAR NATH BHANDARI, J. By this appeal, a challenge is made to the order dated 10th March, 2016, passed by the Additional Sessions Judge, Women Atrocities Cases No. 1, Jaipur Metropolitan, Jaipur in Session Case No. 98/12, convicting and sentencing the accused-appellant as under: Accused-Appellant-Sanni @ Dinesh: For offence under Section 376 IPC - Life imprisonment with fine of Rs. 2,00,000/-, in case of default to pay fine, to undergo six months additional rigorous imprisonment. For offence under Section 363 IPC - Seven years’ rigorous imprisonment with fine of Rs. 25,000/-, in case of default to pay fine, to undergo three months additional rigorous imprisonment. For offence under Section 366 IPC - Ten years’ rigorous imprisonment with fine of Rs. 25,000/-, in case of default to pay fine, to undergo three months additional rigorous imprisonment. For offence under Section 325 IPC - Seven years’ rigorous imprisonment with fine of Rs. 25,000/-, in case of default to pay fine, to undergo three months additional rigorous imprisonment. For offence under Section 323 IPC - One year's rigorous imprisonment with fine of Rs. 1,000/-, in case of default to pay fine, to undergo one month additional rigorous imprisonment. Brief facts of the case: 2. An FIR No. 108/12 was registered by the Police Station Manak Chowk, Jaipur on a written report of complainant-Kishore. It is stated that on 21st April, 2012, a girl at the age of seven years was raped by accused-Sanni @ Dinesh S/o Kishore @ Lagur. The accused took away her from the residence and caused lot of injuries. She was found unconscious in the garbage near City Palace. 3. After registration of the FIR, the investigation was caused by the police. They found a case against the accused-appellant and, accordingly, a charge sheet was filed for offences under Sections 363, 366A, 376, 323 and 325 IPC. The case was committed to the Court of Sessions where the charges were framed against the accused-appellant for offences under Sections 363, 366, 376, 323, 325 IPC. The accused denied the charges thus trial commenced. 4. The prosecution produced sixteen witnesses and twenty five documents to support its case. The statement of the accused was recorded under Section 313 Cr.P.C. He produced two witnesses in defence. The trial court, after marshalling the evidence, convicted the accused-appellant for offence under Sections 363, 366, 376, 323 and 325 IPC. The accused denied the charges thus trial commenced. 4. The prosecution produced sixteen witnesses and twenty five documents to support its case. The statement of the accused was recorded under Section 313 Cr.P.C. He produced two witnesses in defence. The trial court, after marshalling the evidence, convicted the accused-appellant for offence under Sections 363, 366, 376, 323 and 325 IPC. Arguments of the accused-appellant: 5. Learned counsel submits that he is not pressing the appeal against conviction of the appellant for different offences. A prayer is to cause interference in the sentence. It is not only for the reason that appellant was at the age of 20 years at the time of commission of offence but he is having very poor financial condition. He was residing on the pavement and other wise, the prosecutrix's family was known to him. 6. A reference of medical report of the prosecutrix has also been given. She has been shown to be virgin though injury on the posterior was found. No other injury on the private part was found. In view of the above, the accused, in fact, tried to penetrate in the vagina and, as a result of which, the blood came out of it. Taking into consideration the aforesaid, a prayer is to reduce the sentence for offence under Section 376 IPC from life imprisonment to ten years rigorous imprisonment while maintaining sentence of other offences. A prayer is even to reduce the fine of Rs. 2 lac for offence under Section 376 IPC. The aforesaid amount cannot be paid by the accused looking to his poor economical condition. As per evidence led by the prosecution, the accused was residing on the pavement and was doing ferry work. A prayer is even to reduce the fine for other offences as it has been given excessively by the trial court. Arguments of the side opposite: 7. Learned Public Prosecutor has opposed the appeal even for reduction of sentence while maintaining conviction. She submits that appellant has been convicted not only for offence under Section 376 IPC but even for offences under Sections 363, 366, 323 and 325 IPC. Looking to the commission of offence, no interference in the sentence be made. 8. It is, however, admitted that appellant was at the age of 20 years at the time of commission of offence and he is having poor economical condition. Looking to the commission of offence, no interference in the sentence be made. 8. It is, however, admitted that appellant was at the age of 20 years at the time of commission of offence and he is having poor economical condition. He was residing on the pavement and doing ferry work. It is submitted that merely for that reason, no justification for reduction of sentence exists. A prayer is made not only to maintain the conviction of the appellant as appeal has not been pressed against it but even to maintain the sentence. Finding of the Court: 9. We have considered rival submissions made by learned counsel for the parties and perused the record of the case. 10. Learned counsel has not pressed the appeal against conviction of the appellant for offences under Sections 363, 366, 376, 323 and 325 IPC. The only prayer is to interfere in the sentence of life imprisonment given for offence under Section 376 IPC and also fine imposed for different offences which includes even for offence under Section 376 IPC. The prayer aforesaid has been made after showing mitigating circumstances of the case. It is not only that appellant was at the age of 20 years at the time of commission of offence but was having poor economical background. He was residing on the pavement and doing ferry work. 11. The statement of prosecutrix (PW2) shows that accused was known to the family as he was visiting her parents, in such circumstances, she identified the accused even in the court. It is stated that he took away her in the night and while she was shouting, the mother did not get up. The aforesaid story of the prosecution is not probable. We, otherwise, find it to be a case of exceptional nature so as to cause interference in the sentence for offence under Section 376 IPC. 12. The exceptional circumstances are not only the age but condition of the accused apart from other facts relevant to the case i.e. medical report of the prosecutrix where she has been shown to be virgin. One injury on the private part has been shown and it is on the upper side. 13. 12. The exceptional circumstances are not only the age but condition of the accused apart from other facts relevant to the case i.e. medical report of the prosecutrix where she has been shown to be virgin. One injury on the private part has been shown and it is on the upper side. 13. Taking into consideration it to be a case of exceptional nature for interference in the sentence, we reduce sentence of life imprisonment to ten years rigorous imprisonment for offence under Section 376 IPC with fine of Rs. 5,000/-, in case of default to pay fine, to further undergo two months simple imprisonment. In the same manner, while maintaining sentence for other offences, the fine is reduced and substituted by Rs. 2,000/- for each offence, in case of default to pay fine, to further undergo one month simple imprisonment for each default. All the sentences would run concurrently. With the aforesaid, appeal is partly allowed.