Rajasthan High Court - Jaipur
Vijay Kumar Son Of Om Prakash Goswamy vs The State Of Rajasthan on 29 July, 2019
Author: Goverdhan Bardhar
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 16/2019
Vijay Kumar Son of Om Prakash Goswamy,
Resident Of Koripura Math, Masalpur
Police Station Masalpur District Karoli,
Raj (At Present In Central Jail Kota)
----Accused Appellant
Versus
The State Of Rajasthan, Through its
Public Prosecutor.
----Respondent For : Mr. Atul Kumar Jain Appellant(s) For : Mr. Javed Chaudhary Respondent(s) learned P.P. HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 29/07/2019 Goverdhan Bardhar, J Challenge in the instant criminal appeal has been made by the appellant to the judgment of conviction and sentence dated 21.12.2018 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and Protection of Child Rights Commission Act, 2005 [for short 'the learned trial Court'] in Sessions Case No. 149/2018 (CIS No.147/2018), State of Rajasthan Vs. Vijay Kumar, whereby the learned trial Court has convicted and sentenced the appellant as under:-
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(2 of 12) [CRLAD-16/2019] U/s.363 IPC:
Seven years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
U/s.366 IPC:
Ten years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
U/s.376(2)(n) IPC:
Life imprisonment and fine of Rs.5,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
U/s.3(2)(V) SC/ST Act:
Life imprisonment and fine of Rs.5,000/-, in default of payment of fine to further undergo six months rigorous imprisonment.
All the sentences were ordered to run concurrently.
Facts of the case in nutshell are that on 14.1.2014 complainant Mohan Lal (PW-2) submitted a written report (Ex.P6) at Police Station Hindoli, District Bundi to the effect that on 12.1.2014 he submitted a report with regard to missing of his daughter 'X'. During search conducted by him and other family members, they came to know that one Vijay S/o Om Prakash, resident of Masalpur, District Karauli had kidnapped her. His daughter was a minor, aged about 16-17 years. His missing daughter was wearing silver waistband (Kanakti), silver anklet, gold earings and 'Mangalsutra' on her body.(Downloaded on 01/09/2019 at 09:21:45 PM)
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On the basis of aforesaid written
report (Ex.P6), FIR No.30/2014 was registered for the offence under section 363 and 366 IPC.
The police after investigation submitted charge-
sheet against the accused-appellant for the offences under Sections 363, 366A, 376 IPC and Section 3/4 of POCSO Act, 2012 and Section 3(2) (V) of the SC/ST Act, 1989 in the Court of learned Sessions Judge, Bundi.
Learned trial court framed charges against the appellant for the aforesaid offences. The appellant denied the charges and claimed trial. The prosecution in support of its case recorded statements of ten witnesses and 17-A documents were got exhibited. Thereafter, the accused/appellant was examined under Section 313 Cr.P.C. In defence the accused appellant did not produce any evidence. The appellant aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence passed by learned trial court dated 21.12.2018 has preferred this criminal appeal.
Learned counsel for the accused appellant has argued that the learned trial court while passing the impugned judgment of conviction and sentence has failed to appreciate that in the present case though the age of the prosecutrix was shown about 16-17 years, but she was a married lady aged approx 20 years. Victim did not receive any injury on her person. As per the prosecution case, the entire case is based on kidnapping of a minor girl. Documents submitted regarding age were neither proved nor signed by the father of the girl. There are (Downloaded on 01/09/2019 at 09:21:45 PM) (4 of 12) [CRLAD-16/2019] major contradictions in the statements recorded under Section 161 and 164 Cr.P.C. Prosecutrix admitted in her cross-examination that she had studied upto class IInd. FSL report does not support the prosecution story.
Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned judgment of conviction and sentence passed by the learned trial court.
Victim who was examined as PW1 has deposed that she has studied upto 8th standard and she studied in Government Girls School, Hindauli. Vijay met her at Kunkra Doongari. He came from Bijoliya and took her to a lonely place behind Gudha Bandh and committed forcefully intercourse with her. Again after some days Vijay came to Hindauli and took her to Bundi on a motorcycle and from Bundi he took her to Kota and from Kota in train he took her to Masalpur and in a hotel Vijay committed forcefully intercourse with her. From Masalpur, Vijay took her to his village where he also committed forcefully intercourse with her. In cross-examination prosecutrix deposed that she was not living willingly with the accused. Vijay forcibly committed intercourse with her for ten minutes. He gave threat to her that he could kill her if she would tell anybody about the offence committed by him. Prosecutrix 'X' further deposed that her in-laws house was in Neem-ka-kheda. The name of her husband was Suresh. She did not go to her in-laws house. She deposed that the police in the charge-sheet has mentioned her date of birth as 13.08.1994. (Downloaded on 01/09/2019 at 09:21:45 PM)
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PW2- Mohan Lal, father of victim,
reiterated the averments made in the written
report (Ex.P6). He deposed that at the time of alleged incident the age of his daughter was approx. 14 years. After recovery of his daughter she narrated the whole story with regard to commission of rape by the appellant upon her.
PW3-Kishori Lal deposed that on 15.01.2014 he was posted as Circle Officer, Hindauli. After investigation he submitted charge-sheet in the matter.
PW4-Ramlal deposed that on 14.01.2014 he was posted as Sub Inspector, Hindauli. At the first instant, the investigation was conducted by him but afterwards the matter was investigated by PW3-Kishori Lal, Circle Officer, Hindauli.
PW5-Ramraj is witness of FSL receipt Ex.P11.
PW6- Dr. D.D. Meena deposed that on 15.01.2014 he was posted as Medical Jurist in Government Dispensary, Bundi. On that day he medically examined the victim with regard to commission of rape upon her. He deposed that no injury was found on the person of the victim. He admitted that in Ex.P3 before the name of victim, the word 'Smt.' has been prefixed and the word 'Smt.' is used only for married women. In the vagina of victim one finger was easily entering. The clothes of victim were not found torn and there was no injury on the breast, private parts, thigh and hips of the victim.
This witness admitted that as per medical
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evidence, while determining the age, there may be variance of two years.
PW8-Sanjay Kumar deposed that victim is his sister. He is witness of Ex.P1. This witness admitted that his sister (victim) was married and the name of her husband was Suresh.
PW9- Dr. Manju Arora deposed that on 15.01.2014 she was posted as Medical Officer in General Hospital, Bundi. On that day she medically examined the victim with regard to commission of rape upon her. This witness deposed that on the body of victim no visible internal or external injury was found. There was no injury on breast and genital thigh of the victim. Hymen was old torn and ragged. This witness opined that the victim was found habitual of sexual intercourse and regarding rape, opinion was kept reserved till receipt of FSL Lab Report.
FSL report is Ex.P13. The result of examination is as under:-
"Human Semen was detected in exhibit No.1 (from packet marked A) & 2 (from B). Semen could not be detected in exhibit 3 (from NIL). Exhibit No.3 (from NIL) has been consumed during the examination. Exhibit No.1 (from A), 2 (from B), 4 & 5 (from NIL) and packets marked A,B & C have been forwarded to Seorology Division for the necessary examination."
PW10- Madhukanta Rawat deposed that she issued certificate of victim with regard to her age on the basis of scholar register which is (Downloaded on 01/09/2019 at 09:21:45 PM) (7 of 12) [CRLAD-16/2019] Ex.P15. She admitted that as per certificate (Ex.P15) and student admission regiter (Ex.P16) issued by her the date of birth of victim is 06.07.1997.
After hearing the learned counsel for the parties, we have perused the entire evidence on record. The prosecutrix in her statement alleged that the accused appellant forcefully committed sexual intercourse without her consent and as per the certificate (Ex.P15) issued under the signature of the Principal, Government Girls Upper Primary School, Hindauli, District Bundi, the student admission register (Ex.P16) and the School admission form (Ex.P17A), the age of the prosecutrix was below 18 years at the time of incident.
Taking note of the documentary evidence regarding the age of the prosecutrix as per the certificate (Ex.P15) issued under the signature of the Principal, Government Girls Upper Primary School, Hindauli, District Bundi, the student admission register (Ex.P16) and the School admission form (Ex.P17A), it is clear that the date of birth of the prosecutrix is 06.07.1997 and the alleged occurrence took place on 11.01.2014. The prosecutrix was about 17 years of age and as per medical examination report on age and sexual offences (Ex.P10), the age of the accused was 19 years.
In our opinion, the finding of the learned trial court with regard to offence under Section 3(2)(V) of the Act of 1989 is not sustainable because there is no evidence on record that offence was committed by the accused (Downloaded on 01/09/2019 at 09:21:45 PM) (8 of 12) [CRLAD-16/2019] appellant against the victim for the reason that she is member of Scheduled Caste, therefore, in this case, Section 3(2)(V) of the Act of 1989 will not apply. In case of Dinesh @ Buddha (supra), the Hon'ble Supreme Court while considering identical issue gave following findings, which reads as under:-
"13.The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons"
sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. (Downloaded on 01/09/2019 at 09:21:45 PM)
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14. At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows:
"3(2)(v): Punishments for offences of atrocities (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, xxx xxx xx
(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.
xxx xxx xxx"
15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. (Downloaded on 01/09/2019 at 09:21:45 PM)
(10 of 12) [CRLAD-16/2019] Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.
16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f) IPC does not per se become life sentence. Though learned counsel for the State submitted that even in a case covered under Section 376(2)(f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded is without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks.
In the statement of prosecutrix "X" (PW1) and PW2- Mohanlal, father of victim (complainant) and PW8-Sanjay Kumar, brother of victim, it is nowhere alleged by them that rape was committed by the accused appellant for the (Downloaded on 01/09/2019 at 09:21:45 PM) (11 of 12) [CRLAD-16/2019] reason that the prosecutrix belongs to SC community. Upon perusal of other evidence also it cannot be said that prosecution has led any evidence to prove the fact that offence of rape was committed by the accused appellant that since she is member of SC community. To consider the prayer, we have perused Section 3(2)(V) of the Act of 1989, which reads as under:
"3(2)(v): Punishments for offences of atrocities (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
xxx xxx xxx
(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
xxx xxx xxx"
The learned counsel for the accused appellant submitted that as per the medical report, the age of the prosecutrix was in between 16-17 years and the age of the accused appellant was 19 years and the prosecutrix went along-with him to various places. Therefore, it is not a case in which the maximum sentence i.e. Life Imprisonment may be imposed against the accused appellant. Therefore, he prayed that the sentence of Life Imprisonment may be reduced and also to quash the finding under Section 3(2)(V) of the Act of 1989 on the ground that there is (Downloaded on 01/09/2019 at 09:21:45 PM) (12 of 12) [CRLAD-16/2019] no evidence on record to establish the fact that rape was committed with the victim with the intention that she belongs to Scheduled caste.
On the basis of the evidence on record, the findings of conviction of the accused appellant for the offences under sections 363, 366, 376(2)(n) IPC, warrant no interference by this Court. The finding of conviction for the offence under section 3(2)(V) of the SC/ST Act, 1989 is set aside.
Consequently, this criminal appeal is partly allowed. The sentence of life imprisonment for the offences under section 3(2) (V) of the Act of 1989 as imposed by the learned trial court vide judgment dated 21.12.2018 in Sessions Case No.149/2018 (CIS No.147/2018) against the accused appellant is hereby quashed and set aside and the sentence of life imprisonment imposed under section 376(2)(n) IPC is hereby reduced to 10 years rigorous imprisonment with fine of RS.5,000/- and in default of payment of fine to further undergo six months rigorous imprisonment while maintaining the conviction and sentence for the offences under sections 363 and 366 IPC.
(GOVERDHAN BARDHAR)J. (SABINA)J. NARENDRA KR SHARMA /384 (Downloaded on 01/09/2019 at 09:21:45 PM) Powered by TCPDF (www.tcpdf.org)