Rajasthan High Court - Jodhpur
Ms.Manju vs State on 28 February, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Appeal No. 340 / 2010
Ms. Manju D/o Mehram, By caste Jat, Aged about 19 years,
Resident of Dobrikala, Police Station Gachhipura, District Nagaur.
----Appellant
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Appellant : Mr. Vinod Sharma
For Respondent : Mr. L.R. Upadhayay - PP
For Complainant : Mr. Akhilesh Rajpurohit
Mr. Deepak Chandak
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 28/02/2017 This criminal appeal under Section 374(2) Cr.P.C. has been preferred by the appellant against the judgment dated 08.06.2010 passed by the Additional Sessions Judge (Fast Tract), Parbatsar, District Nagaur (hereinafter referred to as 'the trial court') in Sessions Case No.37/2009(38/2009), whereby it has convicted the appellant for the offence punishable under Section 376/120-B IPC and sentenced her for a period for 10 years' rigorous imprisonment and a fine of Rs.1000/- in default to further undergo 3 months' simple imprisonment.
Brief facts of the case are that the complainant PW-10 - Smt. Manju Devi W/o Pabu Ji filed written complaint at Police Station Gachhipura, District Nagaur on 24.05.2009 while alleging that she (2 of 8) [CRLA-340/2010] is a NREGA worker and her husband resides at Maharashtra to earn livelihood. She further states that she is mother of a 10 years old girl "R" and 15 months old child. On 16.05.2009, she went for NREGA work at about 06:00 AM and around 12:00 O' clock her daughter "R" with minor child was coming towards the NREGA site then she was called by the appellant-Smt. Manju near the shop of Ramniwas Choyal, who asked her to drink some water. It was alleged that when her daughter "R" went into the shop, then the appellant snatched the minor child from her and tied her tippet (nqiV~Vk) around her mouth and she was taken to back side of shop, where co-accused Kuna Ram was present, who committed rape upon "R". It was also alleged that she was threatened by Kuna Ram not to inform anybody about the incident. After that incident, her daughter "R" with minor child went to her house and at about 04:00 PM when the complainant reached her house, her daughter "R" informed her about the incident. It was further alleged in the complaint that in the night Kuna Ram and some other persons came to their house and threatened them not to complain anybody about the incident. The complainant further alleged that thereafter on the next day, she informed about the incident to her neighbour Bhanwari Devi W/o Ram Singh and thereafter the villagers came to know about the incident and they asked her to report the matter to the police.
On the basis of the complaint filed by the complainant, the FIR No.42/2009 was registered at Police Station Gachhipura, District Nagaur for the offence punishable under Section (3 of 8) [CRLA-340/2010] 376/120-B IPC against the appellant and co-accused Kuna Ram.
After completion of the investigation, the police filed charge- sheet against the appellant and co-accused Kuna Ram for the offences punishable under Sections 376(2)(g) and 120-B IPC. The matter was committed to the trial court and the trial court framed charges against the appellant for the offence punishable under Section 376/120-B IPC.
The prosecution had examined as many as 12 witnesses and the statements of appellant and co-accused Kuna Ram had been recorded under Section 313 Cr.P.C. In defence, the appellant got examined herself as DW-2 and also got examined two other witnesses as DW-1 and DW-3.
The trial court, after hearing counsel for the parties and after analyzing the evidence produced on behalf of the prosecution and defence, has convicted the accused appellant for the offence punishable under Section 376/120-B IPC and sentenced her for a period for 10 years' rigorous imprisonment and a fine of Rs.1000/- in default of payment of fine further to undergo 3 months' simple imprisonment vide judgment dated 08.06.2010.
Being aggrieved with the judgment dated 08.06.2010, the appellant has preferred this criminal appeal.
Learned counsel for the appellant has argued that there is no iota of evidence available on record to suggest that the appellant hatched criminal conspiracy with the co-accused Kuna Ram for commission of offence of rape. It is contended that the prosecution has failed to prove that soon before the incident or at (4 of 8) [CRLA-340/2010] the time of incident there was meeting of minds of the appellant and the co-accused Kuna Ram to do some illegal act. It is submitted that for proving the offence of criminal conspiracy, it is necessary that the prosecution must prove that there was prior meeting of minds of two or more than two persons for doing or connecting to do an illegal act. In the present case, the prosecution has failed to prove that the appellant in any way connected with the co-accused Kuna Ram and hatched conspiracy for commission of rape upon minor girl "R". It is further contended that the appellant in her defence has produced the evidence to the effect that on the date of incident i.e. 16.05.2009 she was at NREGA work from 08:00 AM to 03:00 PM. It is contended that the appellant has produced Exhibit-D/4, copy of muster-roll of the NREGA work, which clearly shows that on 16.05.2009, the appellant was at NREGA work, however, the trial court without there being any reason has disbelieved the said piece of defence evidence and illegally convicted the accused appellant for the offence punishable under Section 376/120-B IPC.
Learned counsel for the appellant has further argued that the appellant was about 19 years of age on the day of incident and she remained in custody for about 1 year and 2 months. It is also contended that she has already deposited the amount of fine pursuant to the directions given by this Court while suspending the sentence. Looking to all the facts and circumstances, the sentence awarded by the trial court to the appellant be reduced to the sentence already undergone by her.
(5 of 8) [CRLA-340/2010] Per contra, learned Public Prosecutor as well as learned counsel for the complainant have vehemently argued that the prosecution has proved beyond reasonable doubt the involvement of the appellant in commission of crime and the trial court has not committed any illegality in convicting the accused appellant for the offence punishable under Section 376/120-B IPC. It is further submitted that in the present case, the appellant has hatched a conspiracy with co-accused Kuna Ram and in furtherance of the same Kuna Ram has committed rape upon minor girl "R" and looking to all these facts and circumstances of the case, the sentence awarded to the appellant by the trial court is not liable to be reduced.
Heard learned counsel for the parties and carefully scrutinized the record.
Though, there was delay in lodging the FIR in respect of commission of crime, however, the delay cannot be said to be fatal in the facts and circumstance of the present case. Admittedly, the husband of the complainant and the father of the minor girl "R" was residing in Maharashtra and just after the incident the co- accused Kuna Ram had threatened the complainant and her minor daughter "R" not to report the incident. However, the neighbours and the relatives of the complainant gave courage to her to lodge an FIR and on persuasion of them the complainant lodged the FIR on 24.05.2009 in relation to the incident took place on 16.05.2009.
In the rural areas, it is common that whenever any incident (6 of 8) [CRLA-340/2010] even of a heinous nature takes place in a village, an illiterate lady in the absence of her husband or responsible male member of a family, often becomes shy in reporting the matter to the police. As per the complainant, she informed about the incident to her neighbours, who in turn had informed her husband and thereafter gradually people came to know about the incident and when they gave courage to the complainant, she ultimately lodged the FIR regarding the incident after a delay of around 7 days.
So far as the question of entering into the criminal conspiracy of the appellant with the co-accused Kuna Ram is concerned, this Court is of the opinion that the minor girl "R" PW-9 had immediately informed her mother about the incident while stating that when she was passing through the shop of Ramniwas Choyal, the appellant, who happened to be the resident of same village, called her and asked her to drink some water and when she entered into the shop, the appellant took her to the back side of the shop, where co-accused Kuna Ram was present and he committed rape upon her. She has stated the same facts in her police statements recorded under Section 161 Cr.P.C. and later on, in her statements recorded under Section 164 Cr.P.C. Before the trial court also the minor girl "R" specifically stated that the appellant-Smt. Manju called her in the shop and thereafter forcibly took her to the back side of the shop, where the co-accused Kuna Ram was there, who committed rape upon her.
Though the appellant, in her statements recorded under Section 313 Cr.P.C. and thereafter in her defence statements, has (7 of 8) [CRLA-340/2010] come out with a case that on the date of incident i.e. 16.05.2009, she was at NREGA work from 08:00 AM to 03:00 PM and also produced the muster-roll dated 16.05.2009 as Exhibit-D/4 to show her presence at the NREGA work but the said defence of the appellant got negated with the statement of another defence witness DW-3 Chaina Ram, who was the mate on the NREGA work. DW-3 Chaina Ram in his statement has stated that though on 16.05.2009 at 08:00 PM, the appellant did report at the site of NREGA but immediately thereafter she left from the site while saying that she is going to her house and, thereafter for whole day she did not report at the work.
In view of the above discussions, I am of the view that the prosecution has proved the case against the appellant beyond reasonable doubt and the trial court has not committed any illegality in convicting the accused appellant for the offence punishable under Section 376/120-B IPC.
Now the question comes whether the sentence awarded by the trial court to the accused appellant can be reduced or not.
It is noticed that at the time of the incident the accused appellant was around 19 years of age and there is no evidence available on record to suggest that there is any previous enmity of the appellant with the complainant or her family. The accused appellant was arrested on 24.08.2009 and she was only released on bail pursuant to the order dated 01.11.2010 passed by this Court, while suspending the sentence of the appellant awarded by the trial court, in this criminal appeal.
(8 of 8) [CRLA-340/2010] Looking to the overall facts and circumstances of the case particularly the fact that the appellant is a lady and committed the offence in her younger age, when she was around 19 years old and was remained in custody for more than one year, this Court is of the view that the ends of justice would be met if the sentence of imprisonment of appellant awarded by the trial court for the offence punishable under Section 376/120-B IPC is reduced to the period of imprisonment already undergone by her.
Consequently, this appeal filed by appellant is allowed in part. The conviction of appellant - Smt. Manju recorded by the trial court for the offence punishable under Section 376/120-B IPC is maintained, however, her sentence is reduced to the period of imprisonment already undergone by her.
(VIJAY BISHNOI)J. Abhishek Kumar