Rajasthan High Court - Jodhpur
Arun vs State on 10 October, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 1066 / 2016
Arun Sahani S/o Shri Ramvilas, by caste Mallah, R/o Sukhi, P.S.
Khajoli, District Madhvan (Bihar).
(Presently lodged in Central Jail, Bikaner).
----Appellant
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.PS Chauhan.
For Respondent(s) : Mr.LR Upadhyay, PP.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment 10/10/2017 The instant jail appeal has been preferred by the appellant Arun Sahani who was tried by the learned Additional Sessions Judge (Fast Track), Anoopgarh in Sessions Case No.22/2008 and by judgment dated 18.4.2009 and was convicted and sentenced as below:-
Conviction Sentence
S.376 IPC 10 years' RI & fine of Rs.500/- in default
to further undergo 1 year's SI.
S.366 IPC 10 years' RI & fine of Rs.500/- in default
to further undergo 1 year's SI.
S.341 IPC 1 month's SI.
All the sentences were directed to run concurrently. The accused is an indigent person and thus this appeal (2 of 5) [CRLA-1066/2016] against his conviction received through the jail after significant delay of 2648 days. Considering the fact that the appeal was preferred by the indigent convict from jail, the delay was condoned and the appeal has been admitted. Shri P.S. Chouhan advocate was appointed as Amicus curiae under the free legal aid scheme to represent the accused in this appeal.
Amicus curiae Shri P.S. Chouhan moved an application for suspension of sentence on behalf of the appellant but urged that as the appellant has remained in jail for more than 9 years, the appeal itself may be finally heard. Accordingly, arguments of amicus curiae as well as learned Public Prosecutor were heard for final disposal of the appeal itself.
Facts in brief are that the complainant Chotu Ram husband of the prosecutrix Smt.S lodged a report at P.S. Rajiyasar on 28.4.2008 alleging inter alia that he was working at his field and his wife was on her way towards the field, bringing food for him. The accused appellant way laid the lady, forcibly dragged her behind the sand dunes where he subjected her to forcible sexual intercourse. On the basis of this report, an FIR No.80/2008 Ex.P/2 came to be registered at P.S. Rajiyasar for the offences under Sections 341, 366 and 376 IPC and investigation commenced. After completing investigation, the appellant herein was charge- sheeted for the above offences. The trial Court framed charges against the appellant. He pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses in support of its case. The accused, upon being questioned under Section 313 (3 of 5) [CRLA-1066/2016] Cr.P.C. denied the prosecution allegations and claimed that he had been falsely implicated because of a money dispute with the prosecutrix. The trial Court proceeded to discard the defence theory ; accepted the testimony of the prosecution witnesses and convicted and sentenced the appellant as above. Hence, this appeal.
Shri P.S. Chouhan, learned amicus curiae vehemently urged that the entire case as set up by the prosecutrix Smt.S PW1 in her statement is false and fabricated. The allegation of her having been subjected to rape was not corroborated by medical evidence. Testimony of the so-called eye witnesses is unworthy of credence. Their presence at the scene of occurrence is perse unbelievable. He thus vehemently urged that the appellant's conviction as recorded by the trial Court should be quashed and set aside and he deserves to be acquitted of the charges. In the alternative, he pleaded that the appellant has remained in custody for a period well in excess of 8 years. The prosecutrix was more than 50 years of age on the date of occurrence and as such, he urged that reducing the sentences awarded to the appellant by the trial Court to the period already undergone by him would serve the ends of justice.
Per contra, learned P.P. vehemently opposed the submissions advanced by the appellant's counsel. He contended that the FIR was lodged within hours of the incident. The story as set up in the FIR and statements of the prosecution witnesses is absolutely natural and credible. The prosecutrix had no occasion or motive to (4 of 5) [CRLA-1066/2016] falsely implicate the appellant for the ghastly crime of rape. He thus urged that neither does the impugned judgment warrant interference nor has the appellant's counsel been able to point out any circumstance which entitles the appellant to leniency on the aspect of sentence. He thus submitted that the appeal should be dismissed in entirety.
I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as the original record.
Ex-facie I am satisfied that the prosecutrix had no occasion or motive to falsely implicate the appellant for the grave offence of rape. By launching the prosecution, she faced a risk of putting her own reputation in the society at stake. The plea put forth by the appellant in defence that some amount towards labour charges was due to be paid to him by the prosecutrix and that he was falsely implicated because of the said money dispute is perse farfetched and unbelievable. Neither the amount, nor time nor the purpose for which the appellant worked with the prosecutrix has been specified, either in the suggestions given to the prosecution witnesses or in the statement of the accused recorded under Section 313 Cr.P.C. Thus, I am not inclined to interfere in the conviction of the appellant recorded by the trial Court for the offences under Sections 376, 366 and 341 IPC as the impugned judgment ex-facie does not suffer from any shortcoming either factual or legal so as to interfere therein on the aspect of the appellant's conviction.
(5 of 5) [CRLA-1066/2016] Now coming to the aspect of the sentences awarded by the trial Court. The appellant reportedly does not have any criminal antecedents. The age of the prosecutrix was about 53 years at the time of the offence. No injuries were suffered by her during her alleged ravishment by the appellant. Thus evidently, the appellant did not indulge in any vicious physical violence with the prosecutrix. The incident purely appears to be perpetrated because of youthful lust. In this background, I am of the opinion that the ends of justice would be served by reducing the sentences awarded to the appellant for the offences under Sections 376 and 366 IPC from 10 years R.I. as awarded by the trial Court to the period already undergone by him (which is more than 9 years as per the custody certificate).
The appeal thus succeeds in part. While affirming conviction of the appellant as recorded by the trial Court for the offences under Sections 376, 366 and 341 IPC by the judgment dated 18.4.2009, the sentence of 10 years RI each awarded to him by the trial Court for the offences under Sections 376 and 366 IPC is reduced to the period already undergone by him on both counts. The sentence of fine is maintained. In default of payment of fine, the appellant shall undergo one month's additional SI.
Record be returned forthwith.
(SANDEEP MEHTA)J. S.Phophaliya/-