Rajasthan High Court - Jaipur
Moti Chand And Anr. vs State Of Rajasthan on 14 November, 2000
Equivalent citations: 2001CRILJ1916, 2001(1)WLC524, 2001(1)WLN422
JUDGMENT Sunil Kumar Garg, J.
1.The abovenamed accused appellants have preferred this appeal against the judgment and order dated 4-3-1999 passed by the learned Judge, Special Court, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Jodhpur in Sessions Case No. 54/98 by which he instead of convicting accused appellants under Sections 307, 376(2) (f) and (g), convicted both of them under Sections 366-A, 376 and 323, I.P.C. and sentenced each of them in the following manner : --
Name of accused Convicted Sentence appellants under section awarded 1. Motichand ) 366A IPC hree years' SI and a fine of 2. Ramprasad ) Rs. 5,000/-, in default of payment of fine, to further undergo three months' SI. 376 IPC Five years' SI and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo three months' SI. 323 IPC One month SI. The above sentences were ordered to run concurrently. 2. The facts giving rise to this appeal, in short, are as follows :-
On 14-3-1998 at about 3.00 a.m. in the morning, PW 1 Jetaram lodged a written report Ex. P-15 before PW 17 Motaram, SHO stating inter alia that on 13- 3-1998 at about 10.00 p.m. he went to the house of his son-in-law Chhagna, PW 7 along with his wife PW 2 Smt. Rukma and in his Bada, which is near the Circuit House of Jodhpur, his children were sleeping. It is further stated in the report that Ram Prasad and Moti Chand (present accused appellants) and PremSagar also lived near his bada and they used to do the work of labour during day hours and in the night, they used to stay there. They have been staying there for the last one month and since they were living near his Bada, therefore, they were known to him (PW 1 Jetaram). When PW 1 Jetaram and his son-in-law Chhagna, PW 7 were talking, his daughter PW 10 Bhikhi came there wailing and told that accused appellants Ram Prasad and Moti Chand came in the Bada, where she was sleeping and took her away near the bushes, where accused appellant Ram Prasad committed rape on her and thereafter, accused appellant Moti Chand committed rape on her and they also bite her cheeks and blood came out and, thereafter, both accused appellants ran away. It is further stated in the report that when PW 1 Jetaram saw her daughter, he found that there were injuries on her cheeks, neck and blood was also coming from her vegina and even her clothes were stained with blood.
On this report, police registered the case and started investigation. During investigation, site plan Ex. P/1 was prepared and PW 10 Bhikhi (Prosecutrix) was examined by PW 9 Dr. Smt. H.V. Singh and PW 13 Dr. N.S. Kothari for the purpose of ascertaining whether rape was committed on her or not and both doctors have given their report Ex. P-4 and injury report of PW 10 Bhikhi is Ex. P-7 which was prepared by PW 13 Dr. N.S. Kothari and fard by which age of PW 10 Bhikhi was determined is Ex. P/14 and for that PW 13 Dr. N.S. Kothari has been examined and in Ex. P-14, her age has been assessed above 9 years and below 14 years and ultimately about 12 years at the time of examination i.e. on 16-3-1998. Similarly, accused appellant Moti Chand was also got examined about his potency and his potency report is Ex. P-8 and three injuries were also found on his person and his injury report is Ex. P-9. Another accused appellant Ram Prasad was also got examined about his potency and his potency report is Ex. P-10 and ten injuries were also found on his person and his injury report is Ex. P-11. The underwear of accused appellant Ram Prasad was seized through Ex. P-17 and underwear of accused appellant Moti Chand was seizued through Ex. P-18 by PW 17 Motiram.
After usual investigation, police submitted challan against the accused appellants before the Court of Magistrate and from where the case was committed to the Court of Session and, thereafter, the case was transferred to the Special Court, SC/ST Cases, Jodhpur.
On 1-6-1998, the learned Judge, Special Court, SC/ST Cases, Jodhpur framed charges against the accused appellants under Sections 366-A, 376(2)(f) and 376(2)(g) and 307, I.P.C. The charges were read over and explained to the accused appellants. They denied the charges and claimed trial.
During trial, the prosecution examined as many as 17 witnesses and got exhibited several documents. Thereafter, statements of the accused appellants under Section 313, Cr.P.C. were recorded. No evidence In defence was produced. However, three documents were got exhibited in defence by the accused appellants.
After conclusion of trial, the learned Judge, Special Court, SC/ST Cases, Jodhpur through judgment and order dated 4-3-1999 did not find the case proved against the accused appellants for the offence under Sections 307 and 376(2)(f) and 376(2)(g), but found the case proved beyond reasonable doubt against both the accused appellants for the offence under Sections 366-A, 376 and 323, I.P.C. and sentenced for the said offences in the manner as stated above holding inter alia :--
1. That the age of the prosecutrix PW 10 Bhikhi has been determined by the learned trial Judge as 15 years 9 months.
2. That there was no necessity of holding identification parade of the accused appellants as PW 10 Bhikhi and PW 1 Jetaram knew accused appellants as they were Neighbourers.
3. That the learned trial Judge has placed reliance on the testimony of PW 10 Bhikhi as her evidence was corroborated by medical evidence.
4. That both accused appellants committed rape on PW 10 Bhikhi.
5. That no case of gang rap was made out, Aggrieved from the said judgment and order dated 4-3-1999 passed by the learned Judge, Special Court, SC/ST Cases, Jodhpur, the present appeal has been filed by the accused appellants.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellants :-
1. That age of the prosecutrix PW 10 Bhikhi should be judged above 16 years and it is a case of consent. Hence, no case of rape against both accused appellants is made out.
2. That no case for the offence under Section 366A, IPC is made out against the accused appellants, as the prosecutrix PW 10 Bhikhi was not kidnapped with the intention that she will be seduced or forced to illicit intercourse by another person.
Hence, it was prayed that this appeal be allowed and both accused appellants be acquitted of the charges framed against them.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned trial Judge.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
Point No. 16. First it would be seen whether the findings of the learned trial Judge determining the age of the prosecutrix PW 10 Bhikhi as 15 years 9 months are correct or not and for that evidence both oral as well as medical has to be looked into.
Medical Evidence
7. The medical evidence with regard to age of PW 10 Bhikhi is found in the report of medical examination Ex. P-4 conducted by PW 9 Dr. Smt. H.V. Singh and PW 13 Dr. N.S. Kothari and in the report of radiological examination Ex. P-14 and for that PW 13 Dr. N.S. Kothari has been produced by the prosecution.
8. Before considering the medical evidence in the present case, what is legal position with respect to determination of age as per medical jurisprudence has to be seen.
9. For determining accurate age of an individual, especially in early years, the following examination of the body is must :-
1. Teeth
2. Height
3. Weight
4. Ossification of bones
5. Minor signs.
10. On this point, the decision of the Hon'ble Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, AIR 1982 SC 1297 : (1982 Cri LJ 1777) may be referred to where it has been held that margin of error in age ascertained by the radiological examination is of two years on either side.
Secondary sex characters :
11. The growth of hair appears first on the pubes and then in the axillae (armpits). The first sign of beginning puberty is found with the appearance of hair along labia. In the case of girls, it commences with the appearance of soft and pale coloured downy hair on the pubes at the age of about 13 years and a few spares dark hairs appear at about 14 years. The growth becomes thicker in the course of a year or two when hair commences to grow in the axillae. The development of breasts in girls commences from thirteen to fourteen years, but it is liable to be affected by loose habits and social environments.
12. Keeping the above principles in mind, the factors of age of PW 10 Bhikhi has to be seen.
13. In the present case, the medical examination report of PW 10 Bhikhi is Ex. P-4 for which PW 9 Dr. Smt. H.V. Singh and PW 14 Dr. N.S. Kothari have been produced by the prosecution. In Ex. P-4, it has been mentioned as follows :-
1. Height 142.0 cms.
2. Weight 25.0 kg.
3. Teeth 28 nos.
4. Breast Small
5. Axillae hair)
6. Pubic hair) - Not developed.
The report Ex, P-4 has been proved by both doctors PW 9 Dr. Smt. H.V. Singh and PW 14 Dr. N.S. Kothari.
14. The report of radiological examination of PW 10 Bhikhi is Ex. P-14 and for that PW 13 Dr. N.S. Kothari has been produced by the prosecution. From Ex. P-14, it appears that X-ray Elbow and Wrist and X-ray Pelvis of PW 10 Bhikhi were taken for determining her radiological age and it has been opined that her age was above 9 and below 14 years. Thereafter, PW 13 Dr. N.S. Kothari opined on clinical and radiological examination that her age was about 12 years. PW 13 Dr. N.S. Kothari has proved the report Ex. P-14.
15. Thus, from the medical point of view, the age of PW 10 Bhikhi has been assessed by PW 13 Dr. N.S. Kothari as about 12years, though the learned trial Judge has determined her age 15 years 9 months. In my opinion, the age of PW 10 Bhikhi, which has been determined as 15 years 9 months by the learned trial Judge cannot be accepted for the following reasons :-
1. That from the statements of PW 9 Dr. Smt. H.V. Singh and PW 13 Dr. N.S. Kothari and from perusing Ex. P-4, it appears that breasts of PW 10 Bhikhi were small, in other words, not developed and axillae hair and pubic hair were also not developed and in case of girls, they commence with the appearance of soft and pale coloured downy hair at the age of 13 years and development of breasts commences from 13 to 14 years.
Thus, looking to the fact that breasts of PW 10 Bhikhi were not well developed and axillae and pubic hairs were also not developed and were at the very initial stage, the age of PW 10 Bhikhi should be between 12 to 13 years and not more than that and thus, the age of the prosecutrix PW 10 Bhikhi is determined above 12 years, but below 14 years. Therefore, from all point of view, the age of PW 10 Bhikhi should have been between 12 to 13 years.
2. Besides, from the statements of PW 1 Jetaram and PW 2 Smt. Rukma, who are father and mother of prosecutrix PW 10 Bhikhi respectively, it appears that they have stated the age of PW 10 Bhikhi as ten years and the same is written in the report Ex. P-15. Thus, looking to this aspect also, the age of the prosecutrix PW 10 Bhikhi, which has been determined above, appears to be just and reasonable, keeping in mind the principles of medical jurisprudence.
16. Thus, the findings of the learned trial Judge determining the age of prosecutrix PW 10 Bhikhi as 15 years 9 months are liable to be altered and accordingly, they are altered and her age is determined as 12 to 13 years.
17. On merits, it may be stated here that determination of age of the prosecutrix PW 10 Bhikhi as 12 to 13 instead of 15 years 9 months would not make any difference when the conviction in rape case would be covered by Section 376(1), IPC as held by the learned trial Judge. However, since the determination of age by the learned trial Judge is not found correct, this point has been discussed, especially when there is an argument that it is a case, of consent.
18. In Clause VI of Section 875, IPC, it has been stated that consent shall have no meaning if the girl raped is under 16 years. Therefore, from this point of view also, accused appellants would have no benefit and furthermore, from the evidence which would be discussed later on, it is not a case of consent irrespective of the age, but it is a case of forcible seizure on the part of the accused appellants while committing rape on PW 10 Bhikhi.
19. To determine the factor whether rape has been committed by accused appellants on PW 10 Bhikhi or not, apart from the oral evidence, medical evidence, which is found in the present case, is also to be discussed.
20. The injury report of PW 10 Bhikhi is Ex. P-7, which was prepared by PW 13 Dr. N.S. Kothari.
PW 13 Dr. N.S. Kothari has stated that on 14-3-1998 while examining PW 10 Bhikhi, he found the following injuries :-
1. Abrasion 0.2 cm. x 0.2 cm. on the lip at its middle outer surface.
2. Abrasion 1.0 x 0.1 cm. left side neck below remous of mandible.
3. Abrasion 1.0 x 0.1 cm. left side neck at the angle of mandible.
4. Abrasion 1.0 cm. x 0.1 cm. upper one third left side neck antro laterally.
5. Abrasion 2.0 cm. x 0.2 cm. middle 1/3rd left side neck anteriorly.
6. Bruise with abrasions 2.0cm.x 1.0cm. middle 1/3rd left side neck antro laterally fronto lateral to injury No. 5.
7. Bruise 3.0 cm. x 1.0 cm. lower 1/3rd left side neck laterally.
8. Abrasion 0.5 X 0.2 cm. below chin Rt. side.
9. Abrasion 1.0 x 0.5 cm. upper 1/3rd neck anterior.
10. Abrasion 1.0 x 0.5 cm. middle 1/3rd Rt. side neck antro medially.
11. Bruise with multiple abrasions 3.0 cm. x 1.0 cm. middle 1/3rd Rt. side neck.
12. Abrasion (two) each 1.0 x 0.1 cm. upper 1/3rd Rt. side neck laterally.
13. Abrasion (two) each 0.5 x 0.1 cm. upper 1/3rd Rt. side neck.
14. Bruise 3.0 x 2.5 cm. Rt. cheek. He has proved injury report Ex. P-7.
21. Thus, from Ex. P-7, it appears that PW 10 Bhikhi sustained 14 injuries as mentioned above.
22. Before proceeding further, injuries of accused appellants should also be mentioned here.
23. PW 13 Dr. N.S. Kothari examined accused appellant Moti Chand and found the following three injuries :-
1. Abrasion 3.0 cm. x 0.5 cm. on the chin.
2. Abrasion 0.5 cm. x 0.5 cm. Rt. side neck laterally middle 1/3rd.
3. Abrasion 3.0 x 0.2 cm. lower 1/3rd Rt. side neck antro laterally.
He has proved injury report Ex. P-9.
24. Similarly, PW 13 Dr. N.S. Kothari also examined accused appellant Ram Prasad and found the following ten injuries on his body :-
1. Abrasion 1.0 x 0.5 cm. on the left forehead.
2. Abrasion 1.0 x 0.5 cm. Lt. side nose.
3. Abrasion 3.0 cm. x 2.0 cm. Rt. side face maxillary region.
4. Abrasion 1.0 x 1 cm. Rt. side nose.
5. Abrasion 1.0 x 1 cm. on the chin.
6. Abrasion 1.0 x 0.1 cm. on the chin.
7. Abrasion 1.0 x 0.5 cm. on the Lt. mandibula region.
8. Abrasion 2.0 x 0.2 cm. angle of mandible Rt. side.
9. Abrasion 1.0 x 0.5 cm. on the Lt. ear pinna.
10. Abrasion 0.5 x 0.5 cm. on the left side face.
He has proved the injury report Ex. P-11.
25. Before the arguments and facts of the present case are examined, the following words of Dr. Hale, Chief Justice of Australia about rape should be reproduced here :-
Rape is an accusation easily to be made and hard to be proved and harder to be defended by the party concerned, though never so innocent. Whether corroboration is essential in rape cases before convicting an accused person?
28. The problem0 was considered by Hon'ble Supreme Court earlier In the year 1951 in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547) and taking into considerations both Sections 133 and 114(b) of Indian Evidence Act, answered the question in the following manner at page 550 of Cri LJ :-
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in injury cases must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or by them. There is no rule or practice that there must, In every case, be corrobora-tion before a conviction can be allowed to stand.
Further, when corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence even though it is legally admissible for the purpose on hand, its weight may be nil. It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would be regarded as cor-roboration. Its nature and extent must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear :-
(1) It is not necessary that there should be independent confirmation of every material circumstance in the case, apart from the testimony of the complainant or the accomplice should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it provable that the story of the accomplice (or complainant) is true and that is reasonably safe to act upon it.
(2) The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connected or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.
(3) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
(4) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.
27. If prosecutrix is found habitual to intercourse, her statement in order to base conviction of accused persons, must be corroborated in some material particulars from independent source as held by Hon'ble Supreme Court in Ram Murti v. State of Haryana, AIR 1970 SC 1020 : (1970 Cri LJ 991).
28. In Gurucharan Singh v. State of Haryana, AIR 1972 SC 2661 : (1973 Cri LJ 179), the Hon'ble Supreme Court has stated at page 183 of Cri LJ :-
As a rule of prudence, however, Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated. The Hon'ble Supreme Court has further stated in the above case that-
The matter is not res integra and this Court has, on more occasions than one, considered and enunciated legal position.
29. The Hon'ble Supreme Court in R.K. Agrawal v. State of Orissa, AIR 1976 SC 1774 : (1976 Cri LJ 1376) held :-
In a case where the victim is a child of six years, the medical examination of accused's genitals where presence of spermatozoa was considered as one of the circumstances (sic) sufficient corroborative piece of evidence.
30. On this aspect, Rafiqu v. State of U.P., AIR 1981 SC 559 : (1980 Cri LJ 1344) can also been seen.
31. On nature and extent of corroboration necessary for such offence the Hon'ble Supreme Court in Sheikh Zakir v. State of Bihar, AIR 1983 SC 911:(1983 Cri LJ 1285) has stated in the following manner Para 9 of Cri LJ :-
Even though a victim of rape cannot be treated as an accomplice, the evidence of the victim in a rape case is to be treated almost like the evidence of an accomplice requiring corroboration. Hence there must be an indication in the course of the judgment that the Judge had this rule in his mind when he prepared the judgment and if in a given case the Judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Whether corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both.
32. The Hon'ble Supreme Court in State of Maharashtra v. Chandra Prakash Kewal Chand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889) where the accused in rape case was a Police Officer, has stated at page 894 of Cri LJ The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
On corroboration further stated-
To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as the case of an accomplice to a crime.
33. The law laid down in the above-noted cases has been further approved by the Hon'ble Supreme Court in the following cases :-
(1) Karnel Singh v. State of M.P., AIR 1995 SC 2472 : 1995 Cri LJ 4173.
(2) State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : 1996 Cri LJ 1728.
34. The net result of above cases decided by Hon'ble Supreme Court from time to time can be summarised in the following manner :-
(1) That corroboration of the testimony of prosecutrix in rape case is not required as a rule of law. (2) That corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law. (3) That the rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment. (4) That if the evidence of the prosecutrix does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon. (5) That the corroboration of the prosecutrix evidence may be dispensed with where the circumstances of a case make it safe to do so. But the reasons for dispensing with the hecessity of such corroboration should be forthcoming in the judgment. (6) That corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time. (7) That the view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct. Whether corroboration is unnecessary is a question of fact in every case.
35. Keeping in mind the above basic principles of law, the facts of the present case are being examined.
36. In the present case, the prosecutrix PW-10 Bhikhi has clearly stated that both accused-appellants committed rape on her one by one. She has further stated that both accused-appellants have bite her cheeks and she has also stated that there was injury on her private part and blood was also coming out of it and, thereafter, she told the whole story to her parents, namely, PW-1 Jetaram and PW-2 Smt. Rukma and both PW-1 Jetaram and PW-2 Smt. Rukma corroborated the statement of PW-10 Bhikhi in all material particulars. PW-10 Bhikhi was cross-examined at length but nothing has come out which affects her testimony. Not only this, the statement of PW-10 Bhikhi is further corroborated by medical evidence.
37. From the medical examination report Ex. P-4 of prosecutrix PW-10 Bhikhi, it appears that:-
1. There is fresh injury over genitals with oozing of blood. Admits one finger with difficulty shows fresh tears at midline with perineal tear up to anal opening with laceration of anal splinter. There is separation of labia minora and majora with red and swollens. There is tear (vaginal mucussa 1.0 cm. lower longitudinal with slough present.
No fresh bleeding at present. Duration within about 24 hrs.
2. There is suspected blood stains over peticot preserved and sealed.
3. The vaginal swab and smear is preserved and sealed for chemical analysis for semen. The swab tinged with blood.
38. PW-9 Dr. Smt. H.V. Singh and PW-13 Dr. N.S. Kothari have proved the report Ex. P-4. This report clearly tallies with the statement given by PW-10 Bhikhi and thus, in this case there is a clear-cut evidence, both medical as well as oral, that rape has been committed on prosecutrix PW-10 Bhikhi and as per statement of PW-10 Bhikhi, which is corroborated by PW-1 Jetaram and PW-2 Smt. Rukma and furthermore by son-in-law of PW-1 Jetaram i.e. Chhagna. PW-7, who was also present when PW-10 Bhikhi narrated the whole story, the accused-appellants committed rape on her.
39. Thus, it can be said that the learned trial Judge was justified in convicting both accused-appellants for the offence under Section 376, IPC as prosecution has proved its case beyond reasonable doubt against both accused-appellants by cogent and reliable evidence and, therefore, the findings of the learned trial Judge in this respect are liable to be confirmed.
40. It may be stated here that both accused-appellants have sustained injuries and they have not been explained by the prosecution, but in the present case, it would not affect the prosecution case, which stands proved by medical as well as oral evidence. There is possibility and rather certain possibility that after the incident, both accused-appellants would have been beaten by PW-1 Jetaram and other people and that is why, they have received some injuries. Therefore, in these circumstances, if the prosecution has not explained the injuries, it would not affect the case and rather it cannot be said that prosecution has suppressed the genesis and origin of the occurrence since these injuries might have been received by ac-cused-appellants after commission of rape.
41. Thus, it is held:-
1. That the plea that it is a case of consent is wholly untenable and the same is rejected.
2. That the age of PW-10 Bhikhi at the time of commission of rape was 12 to 13 years and not 15 years 9 months as held by the learned trial Judge.
3. That the findings of the learned trial Judge that both accused-appellants committed rape on PW-10 Bhikhi are liable to be confirmed. Point No. 2
42. The learned trial Judge has also convicted both accused-appellants under Section 366-A, IPC. In my opinion, the conviction of the accused-appellants under Section 366-A, IPC should be altered to 366, IPC for the following reasons.
43. Section 366, IPC is an aggravated form of the offence under Section 363. For proving the offence under 366, IPC, it must be proved by the prosecution that the girl may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. But, for proving the offence under Section 366-A, IPC, the prosecution has to prove that the girl was kidnapped with the intention that she will be forced or seduced to illicit intercourse with another person.
44. In the present case, PW-10 Bhikhi has been kidnapped by the accused-appellants for the purpose of having illicit intercourse by the accused-appellants themselves and not others. Hence, the ingredients of Section 366, IPC are very much found in the facts of the present case and not of the offence under Section 366-A, IPC.
45. Thus, the findings of the learned trial Judge convicting accused-appellants under Section 366-A are liable to be altered and instead of 366-A, IPC, both accused-appellants are liable to be convicted under Section 366, IPC.
The second point stands answered accordingly.
On point of sentence
46. The opening words of Section 376(1), IPC say that whoever commits rape shall be punished with imprisonment which shall not be less than seven years, but which may be for life or for a term which may extend to ten years provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. This is the mandate of the law. 47. It may be stated here that minimum sentence under Section 376(1), IPC was prescribed in the year 1983, after amendment.
48. The Hon'ble Supreme Court in State of .Andhra Pradesh v. Polamala Raju @ Rajarao, 2000 AIR SCW 3009 : (2000 Cri LJ 4014) has propounded that imposition of sentence lesser than statutory minimum should be in exceptional cases.
49. In the present case, the learned trial Judge has awarded imprisonment of five years for the offence under Section 376(1), IPC. In my opinion. this sentence is not as per the mandate of the law. In the present case, a minor girl was subjected to rape by both the accused-appellants one by one and looking to all the facts and circumstances of the case especially that PW-10 Bhikhi was of 12 to 13 years of age at the time of commission of rape on her and she received injuries on her person as well as on her private parts, it was not a case at all where sentence lower than the prescribed under the law should have been awarded. However, since there is no counter-appeal filed by the State of Rajas than, therefore, at this stage, this Court does not want to interfere with the order of sentence. But, it is for future caution, it is advised that in awarding sentence, judicial discretion should be exercised by Judicial Officers keeping in mind the well accepted judicial lines and not it should have been dealt with in routine and mechanical prescription acting on hunch. The learned trial Judge should have collected the material necessary to show that in the present case lesser sentence than prescribed by law was necessary, but no such reasons have been assigned by him to award lesser sentence than prescribed by law. Therefore, awarding of sentence of five years by the learned trial Judge in the present case has to be depre-cated. In this respect, it may be stated here that law is made to protect the innocent by punishing guilty.
50. Hence, for, the reasons mentioned above, this Court now does not want to interfere with the order of sentence passed by the learned trial Judge.
In the result, the appeal filed by both the accused-appellants is dismissed and the judgment and order dated 4-3-1999 passed by the learned Judge, Special Court, SC/ST Cases, Jodhpur are confirmed with slight modification to the extent that conviction of the accused-appellants under Section 366-A. IPC stands altered to Section 366, IPC.