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2021 DIGILAW 1593 (RAJ)

Prakash v. State of Rajasthan

2021-08-27

RAMESHWAR VYAS, SANDEEP MEHTA

body2021
JUDGMENT Mehta, J. - The appellant herein has been convicted and sentenced as below vide Judgment dated 28.10.2013 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Bharatpur in Sessions Case No.17/2013 (1/13): Offences Sentences Fine Fine Default sentences Section 363 IPC 3 Years' R.I. Rs. 1,000/- 1 Month's Additional Imprisonment Section 376 IPC Life Imprisonment Rs.5,000/- 3 Months' Additional Imprisonment. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. The prosecution case is based on an allegation that the appellant, who is distantly related to the alleged victim Mst. 'R' (PW-9), subjected her to sexual assault on 26.10.2012. As is usual in the cases of rape, the prosecution case is based primarily on the testimony of the victim Mst. 'R'. The prosecution portrayed in the FIR and in the sworn testimony of the girl that her age was about 15 years. The FIR of the alleged incident dated 26.10.2012 was registered on 02.11.2012. The material prosecution witnesses viz. Savitri (PW-3) and Parashuram (PW-8) admitted that the victim was a student of 10th Standard. However, the prosecution did not place on record the school record of the girl for proving her age. The trial court, after appreciating the evidence available on record, held that the age of the victim was about 17? years on the basis of the medical examination report. The Medical Jurist (PW-11) Dr. Usha Gupta stated in her deposition that no marks of violence were noticed on the person of the victim when she was medically examined. On examination of the genital area of the victim, it was noticed that the hymen was old torn and no marks of violence were visible thereupon. 4. Learned counsel Shri Sharma representing the appellant, frankly conceded that he would not be challenging conviction of the accused as recorded by the trial court. However, his plea was that the trial court committed a grave error in holding that the girl was below 18 years of age on the date of the incident. He thus submitted that the trial court was not justified in awarding life imprisonment to the accused. He submitted that the accused appellant was arrested on 03.11.2012 and since then, he is in custody. Thus, he has suffered actual imprisonment of 8 years and 10 months. He thus submitted that the trial court was not justified in awarding life imprisonment to the accused. He submitted that the accused appellant was arrested on 03.11.2012 and since then, he is in custody. Thus, he has suffered actual imprisonment of 8 years and 10 months. He thus urges that the sentence of life imprisonment awarded to the appellant by the trial court deserves to be reduced to the period already undergone by him. In support of his contention, Shri Sharma relied upon the Supreme Court Judgment in the case of Thongam Tarun Singh vs. The State of Manipur reported in 2019(2) WLC (SC) Cri. 177. 5. Learned Public Prosecutor, on the other hand, opposed the submissions advanced by the appellant's counsel. She pointed out that the appellant was more than 40 years of age and he subjected the child, which was related to him, to forcefully sexual intercourse and thus, as per learned Public Prosecutor, the accused does not deserve any leniency on the aspect of sentence. 6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment as well as the record. 7. Though it is true that the written report (Ex.P/6) was registered after a delay of 7 days but considering the sensitive nature of allegations and the fact that the parties are related to each other, the delay is well explained and cannot be considered prejudicing the prosecution case. Upon a perusal of the statements of Savitri (PW-3) and Parashuram (PW-8), the first informant complainant, it becomes clear that the victim was studying in the 10th Standard at the time of the incident. However, the prosecution made no effort whatsoever to bring on record the school record for proving that the victim was a minor on the date of the incident. The trial court held that the age of the girl was 17? years on the basis of medical evidence. The victim was examined as PW-9. She alleged in her statement that she was operating a computer in the house of the accused who gave her some leaves to eat saying that it was a Prasad of Bhole Baba. He then made immoral advances towards her. She tried to move away on which, the accused caught hold of her and forced her down on the bed. He opened her as well as his clothes. He then made immoral advances towards her. She tried to move away on which, the accused caught hold of her and forced her down on the bed. He opened her as well as his clothes. She tried to shout but the accused overpowered her and inserted his penis into her private parts. About 10 minutes later, the accused went away. She then went to the house of other relative who live nearby and told them of her plight. In the cross-examination, the girl admitted that she would often visit the house of the accused appellant. The time of the incident was alleged to be in the afternoon. The room where the accused committed the alleged act had number of windows which were open. Nothing significant was elicited in the cross-examination of the girl so as to doubt her allegations. The evidence of the Medical Jurist does not conclusively establish that the victim had been subjected to sexual assault associated with violence. The doctor reserved the opinion for receiving the FSL report which was unfortunately not proved by the prosecution. The accused took a defence of false implication on account of property dispute. However, this defence is neither convincing nor tenable. 8. Upon an appreciation of the evidence available on record, we are of the opinion that there is no reason for us to doubt the allegation of the victim that she was subjected to sexual assault by the accused appellant. However, the claim of the prosecution that the victim was minor on the date of the incident, is not substantiated because the school record of the girl where she was admittedly studying at the time of the incident, was not proved. 9. Thus, we are of the view that the trial court committed an error in holding that the victim was less than 18 years of age on the date of the incident. The offence took place on 24.10.2012, when the unamended Section 376 IPC was prevailing which stipulates that in cases of rape, other than those provided by way of exceptions, the accused, upon being convicted would be liable to punishment/imprisonment of either description for a term which shall not be less than 7 years but it may be for life or a term or may extend to 10 years. Thus, at the time when the offence was committed, the minimum sentence provided for rape was 7 years. 10. Thus, at the time when the offence was committed, the minimum sentence provided for rape was 7 years. 10. Hon'ble the Supreme Court considered a similar prayer which was made by the appellant's counsel in the case of Thongam Tarun Singh (supra) and reduced the sentences of the accused therein to a period of 8 years. 11. In view of the discussion made herein above, we hereby order that while affirming the conviction of the appellant as recorded vide Judgment dated 28.10.2013 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Bharatpur in Sessions Case No. 17/2013 (1/13), the substantive sentence awarded to him deserves to be reduced to a period of 10 years with fine to the tune of Rs.20,000/-. In default of payment of fine, he shall further undergo 3 months' Simple Imprisonment. 12. The appeal is partly allowed in these terms. 13. The District Legal Service Authority, Bharatpur shall initiate proceedings for award of compensation to the victim under the Victim's Compensation Scheme. 14. Record be returned to the trial court.