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2019 DIGILAW 973 (RAJ)

Chhagan Lal v. State of Rajasthan

2019-04-02

SANDEEP MEHTA, VINIT KUMAR MATHUR

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JUDGMENT : SANDEEP MEHTA, J. 1. The instant appeal has been preferred by the accused appellant Chhaganlal, who has been convicted and sentenced as below vide the judgment dated 26.10.2012 passed by the learned Additional Sessions Judge (Fast Track) No. 1, Udaipur. Offence for which convicted Sentence awarded 376 IPC Imprisonment for life alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo one month’s additional simple imprisonment. 363 IPC Rigorous imprisonment of five years alongwith a fine of Rs.1000/- and in default of payment of fine, further to undergo fifteen day’s additional simple imprisonment. 454 IPC Rigorous imprisonment of three years alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo seven day’s additional simple imprisonment. 2. Facts in brief are that a written report (Ex. P/1) was filed by Shri Ganpatlal with the Superintendent of Police, Udaipur on 26.08.2009 alleging inter alia that six months ago, the accused appellant Chhaganlal entered his house at Chirwa taking advantage of his daughter being alone; took off the clothes of the girl and subjected her to sexual assault. When she started shouting and crying, he threatened her that if she told anyone about the incident, she would be killed. In this manner, Chhaganlal continued to establish forcible sexual relations with her over the period of previous six months. Mst. ‘S’ conceived because of the forced sexual relations. On 23.08.2009 Chhaganlal took Mst. ‘S’ to Udaipur in a Jeep and got her aborted in some unknown hospital. In the next morning, he boarded her on to a bus going to Chirwa. When Mst. ‘S’ returned home, she was quite frightened and was feeling difficulty in moving around. She shared these events with her mother, whereafter, the report came to be lodged. On the basis of this report, an FIR No. 180/2009 was registered at the Police Station Sukher for the offences under Sections 452, 376 and 366-A IPC 3. After conclusion of the investigation, a charge-sheet was filed against the accused for the offences under Sections 454, 376 and 363 IPC. The case was committed to the Court of Sessions Judge, Udaipur, from where, the same was transferred for trial to the Court of Additional Sessions Judge (Fast Track) No. 1, Udaipur. The trial court framed charges for the above offences against the accused appellant, who pleaded not guilty and claimed trial. The case was committed to the Court of Sessions Judge, Udaipur, from where, the same was transferred for trial to the Court of Additional Sessions Judge (Fast Track) No. 1, Udaipur. The trial court framed charges for the above offences against the accused appellant, who pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 11 documents in support of its case. The accused appellant, upon being examined under Section 313 Cr.P.C. denied the prosecution allegations, but did not lead any evidence in defence. The trial court upon conclusion of the trial proceeded to convict and sentence the appellant as above. Hence, this appeal. 4. Mr. Nishant Bora, learned counsel representing the appellant, did not dispute the fact that sexual relations were established by the accused appellant with the victim. However, his contention was that the relations were consensual and the victim was above 16 years of age on the date of the incident. As per Mr. Bora, the Eighth Standard mark-sheet and the Birth Certificate issued from the Municipality, on which the prosecution relied for proving that the date of birth of the girl is 02.03.1995, are fabricated documents and even if they are considered to be genuine, the same cannot be considered to be providing strict proof of her age. As per Bora, only the school record pertaining to initial admission of the girl in the school should have been produced on record to prove the age of the girl. He contended that as per the medical evidence, the age of the girl was between 16 to 17 years. As per him, if the tenor of statement of the girl is seen, manifestly, the case is one of consensual sexual relations pure and simple. Thus, as per him, the appellant deserves to be acquitted by giving him the benefit of doubt. 5. In the alternative, he submitted that as the minimum sentence of 7 years is provided for the offence and the imprisonment for life can only be awarded as an exception and the court would have to record special reasons handing down the maximum sentence. In this regard, he placed reliance on the judgment rendered by Hon’ble Supreme Court in the case of Sunil Dutt Sharma Vs. State (Govt. In this regard, he placed reliance on the judgment rendered by Hon’ble Supreme Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 and Division Bench judgment of this court in the case of Sandeep Vs. State of Rajasthan (D.B. Criminal Appeal No. 633/2013 decided on 07.08.2018) and urged as an alternative that the sentence awarded to the appellant may be suitably reduced to a term of 7 years. 6. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Mr. Bora. He contended that the accused appellant has been held guilty of seducing and raping a minor girl, who was aged about 14 years only on the date of the incident. The sexual ravishment/exploitation of girl continued for a period of six months under a threat that she would be killed, if she told anyone about the incident. He, thus, contended that the learned trial court was perfectly justified convicting and sentencing the appellant and no interference is called for in the impugned judgment. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the entire record. It is manifest from the evidence of the prosecution witnesses, more particularly, the victim Sushri ‘S’ (P.W.2) that the appellant seduced the girl and subjected her to sexual relations for a period of about six months. However, the girl kept silent and did not disclose of all these happenings to her parents despite ample opportunity being available. What is significant is that the sexual relations were invariably established between the accused and the victim at her house. Thus, the possibility of victim deliberately hiding the fact of the sexual relations from her parents cannot be ruled out as the relationship was probably consensual. However, consent would only be relevant, if the defence could establish reasonably and by a preponderance of probability that the girl was above 16 years of age. Thus, the possibility of victim deliberately hiding the fact of the sexual relations from her parents cannot be ruled out as the relationship was probably consensual. However, consent would only be relevant, if the defence could establish reasonably and by a preponderance of probability that the girl was above 16 years of age. True it is, that a mark-sheet of Eighth Standard issued by the District Institute for Education and Training (DIET) or the birth certificate issued by the Municipal Board cannot be considered to be a conclusive proof of age, but in absence of any significant cross-examination from the witnesses, this court feels that the finding recorded by the learned trial Judge that the victim was below 16 years of age as on the date of the offence cannot be termed to be illegal or contrary to evidence and thus, is not liable to be disturbed. However, we feel from a tenor of the statement of the victim Mst. ‘S’ (P.W.2) that the theory put forth by the prosecution that the accused was forcing the girl into having sexual relations cannot be accepted and manifestly, the relationship was consensual. This aspect of the matter would be a relevant factor while considering the quantum of sentence. Hon’ble Supreme Court, in the case of Sunil Dutt Sharma (supra), relied upon by the learned counsel for the appellant, considered a case involving the offence under Section 304-B IPC and held as below:- “12. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age old infallible logic that what is good to one situation would hold to be equally good to another like situation. Beside paragraph 163 (underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact. 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. Beside paragraph 163 (underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact. 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. 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 accused-Appellant 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 accused-Appellant. 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. 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. 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 accused-Appellant 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.” 8. The said Supreme Court judgment was followed by the Division Bench of this court in the case of Sandeep Vs. State of Rajasthan (supra). 9. The imprisonment provided for the offence under Section 376 IPC at the relevant point of time was 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. 10. 10. From a plain reading of the principles enunciated in the Supreme Court judgment in the case of Sunil Dutt Sharma (supra) and the statutory provision, i.e. Section 376 IPC (as it then stood), it is clear that imprisonment for a term of 7 years is the minimum sentence provided by the Section, which also postulates that the term may extend to 10 years or life, meaning thereby that awarding the minimum sentence of 7 years is the mandate of law, whereas, the court may, for the special reasons to be recorded, award a greater sentence, which may extend either to 10 years or imprisonment for life. Manifestly, thus, for awarding the maximum sentence of imprisonment for life, the court would have to record special and strong reasons. However, as has been discussed above, the case involves consensual sexual relations between the appellant and the victim. However, the advantage of consent cannot be given to the accused because the victim was a minor. In these circumstances, this court feels that the facts do not warrant that the accused should be sentenced to the maximum permissible term of life imprisonment in the case at hand, rather he deserves to be sentenced to reduced punishment of imprisonment for a term of 10 years. 11. In view of the foregoing discussion, while affirming conviction of the appellant for the offences under Sections 376, 363 and 454 IPC, we feel that the case does not warrant sentence of imprisonment for life for the offence under Section 376 IPC, rather we are of the firm opinion that the sentence of 10 years would suffice and sub-serve the ends of justice. 12. In view of the above discussion, the appeal deserves to be and is hereby allowed in part and while affirming conviction of the appellant as recorded by the trial court for the offences under Section 376, 363 and 454 IPC, so also the sentences awarded to him for the offences under Section 363 and 454 IPC, we hereby reduce the sentence awarded to him for the offence under Section 376 IPC from imprisonment for life to imprisonment of 10 years while maintaining the fine of Rs. 5000/- imposed by the trial court. In case of default of payment of fine, the accused appellant shall suffer further imprisonment of one month. The substantive sentences shall run concurrently. 5000/- imposed by the trial court. In case of default of payment of fine, the accused appellant shall suffer further imprisonment of one month. The substantive sentences shall run concurrently. The appeal is allowed in part in these terms.