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2020 DIGILAW 244 (RAJ)

Kashmir Shah v. State of Rajasthan

2020-01-24

SANDEEP MEHTA

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JUDGMENT : SANDEEP MEHTA, J. 1. The instant appeal has been preferred by the appellant Kashmir Shah under Section 374(2) of the Cr.P.C. being aggrieved by the judgment dated 1.8.1994 passed by learned Additional Sessions Judge, Nohar, District Hanumangarh in Sessions Case No. 50/93 whereby, the appellant was convicted for the offence under Section 376/511 I.P.C. and was sentenced to 18 months' simple imprisonment and a fine of Rs. 3000/- and in default of payment of fine, the appellant was sentenced to further undergo 6 months' simple imprisonment. 2. The prosecution case is based mainly on the evidence of P.W. 1 Mst. 'S'. She constantly alleged that in the F.I.R. (Ex. P1) and in her sworn testimony as well that on 21.11.1993 at about 3 O'clock, she was working in her field at Kalalon Ki Dhani, when the accused came there. He forced her down on the ground. She made a struggle to escape. The accused used force and tore her jumper from the chest area and also opened her salwar and fell down on her with the intention of subjecting her to rape. On hearing her fervent cries, P.W. 2 Lune Khan and P.W. 3 Jawar Khan rushed to the spot. On seeing them, the accused appellant got up and ran away. The F.I.R. of the incident was lodged on the next day of the incident i.e. on 22.11.1993. The accused was charge-sheeted by the Police after investigation. Upon conclusion of trial, the accused appellant was convicted and sentenced as above and hence, this appeal. 3. Shri V.N. Kalla, learned counsel representing the accused appellant vehemently and fervently contended that the entire prosecution case is false and fabricated. The evidence of the prosecutrix (P.W. 1) is not corroborated in material particulars and thus, the accused appellant should be acquitted of the charge by giving him the benefit of doubt. In support of this contention, Shri Kalla relied upon the judgment rendered by Hon'ble Supreme Court in the case of Narender Kumar Vs. State (NCT of Delhi) reported in AIR 2012 SCW 3391 . His alternative submission was that the incident took place almost 26 years ago and thus, the sentence awarded to the accused deserves to reduced to the period already undergone by him which is quite a substantial period. 4. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. His alternative submission was that the incident took place almost 26 years ago and thus, the sentence awarded to the accused deserves to reduced to the period already undergone by him which is quite a substantial period. 4. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the evidence of the prosecutrix (P.W. 1) is in itself convincing and worthy of credence. She had no reason at all to falsely implicate the accused appellant in this case while putting her own reputation at stake. The accused would have succeeded in ravishing her, had the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan not reached at the place of incident on hearing her fervent cries. He thus urged that not only the statement of the prosecutrix is convincing but in addition thereto, the same gets significant corroboration from the evidence of the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan and hence, no interference is called for in the impugned judgment. 5. Shri Kulwant Singh learned counsel representing the complainant also urged on the same lines as has been urged by learned Public Prosecutor and urged that the appeal deserves to be dismissed. 6. I have given my thoughtful consideration to the submissions advanced at the bar and have carefully perused the record and have re-appreciated the complete evidence led at the trial. 7. Suffice it to say that in his statement recorded under Section 313 Cr.P.C., the accused appellant very vaguely stated that he had been falsely implicated in the case because of enmity but manifestly, no material whatsoever was brought on record to substantiate this aspersion. On a careful perusal of the testimony of the prosecutrix (P.W. 1), I am duly satisfied that she has given cogent and clinching evidence establishing the fact that the accused tried to rape her in the manner alleged by her. It is only because the prosecutrix put up a struggle and raised an alarm whereupon, the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan arrived on the spot, which prevented the accused from succeeding in his evil design. The statement of the prosecutrix is fully corroborated in material particulars by the evidence of the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan. 8. The statement of the prosecutrix is fully corroborated in material particulars by the evidence of the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan. 8. So far as the contention of the defence counsel that the evidence of the prosecutrix is not corroborated and thus, should be discarded on the ratio of the Hon'ble Supreme Court decision in the case of Narender Kumar (supra), suffice it to say that the corroboration to the evidence of a victim of rape-attack is only required if her statement is not otherwise reliable as has been held by Hon'ble Supreme Court in the judgment relied upon by the defence counsel, wherein it was observed as below: "16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. 17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence." 9. 17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence." 9. Since, after a thorough appreciation of the evidence of the prosecutrix (P.W. 1), I am of the view that her statement does not suffer from any infirmity or inconsistency whatsoever and as corroboration to her testimony is duly available in the form of the evidence of the witnesses P.W. 2 Lune Khan and P.W. 3 Jawar Khan, the judgment in the case of Narender Kumar (supra) is of no help whatsoever to the accused. 10. In wake of the above discussion, I am of the firm opinion that the prosecution has duly proved its case as against the accused appellant by leading cogent and clinching evidence and therefore, conviction of the accused as recorded by the trial court for the charge under Section 376/511 I.P.C. does not warrant any interference. 11. Now, coming to the aspect of sentence. The contention of Shri Kalla that the sentence awarded to the accused should be reduced to the period already undergone by him, is not considered tenable because from a perusal of the record, it is clear that the accused appellant had hardly undergone any significant period of imprisonment because he was arrested on 26.11.1993 and was released on bail on 3.12.1993. Thus, incarceration of merely 6 days undergone by the accused, cannot be considered to be sufficient by any stretch of imagination. 12. In view of the fact that the incident took place way-back in the year 1993 and as the appellant was a young boy of 25 years on the date of the incident, reducing the sentence awarded to him by the trial court from 18 months' simple imprisonment to 9 months' simple imprisonment while enhancing the fine to Rs. 20,000/- from Rs. 3000/- in default to undergo 3 months' simple imprisonment, would subserve the interest of justice. 13. Accordingly, the appeal is allowed in part. 20,000/- from Rs. 3000/- in default to undergo 3 months' simple imprisonment, would subserve the interest of justice. 13. Accordingly, the appeal is allowed in part. While affirming the conviction of the accused appellant as recorded by the trial court for the charge under Section 376/511 I.P.C. vide judgment dated 1.8.1994, the sentence awarded by the trial court to the appellant is reduced to 9 months simple imprisonment with a fine of Rs. 20,000/- and in default of payment of fine, the appellant shall further undergo 3 months additional simple imprisonment. The accused appellant is on bail. His bail bonds are cancelled. He shall be taken back to custody to serve out the remaining sentence. The fine upon being deposited, shall be paid to the prosecutrix by way of compensation under Section 357 Cr.P.C. 14. Record be sent back to the trial court forthwith.