Rajasthan High Court - Jaipur
Chouthmal S/O Shri Babu Lal B/C Bairwa vs State Of Rajasthan Through Pp on 23 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal (Jail) Appeal No. 271/2018
Chouthmal S/o Shri Babu Lal B/c Bairwa, Aged About 20 Years,
R/o Bairwa Mohalla Village Notada, Thana Keshavraipatan,
District Bundi.
----Appellant
Versus
State Of Rajasthan Through PP, Jaipur
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat
For Respondent(s) : Ms. Alka Bhatnagar, Public Prosecutor
for State.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 23/04/2019 (Per Hon'ble BANWARI LAL SHARMA, J.) The appellant accused has preferred this jail appeal assailing the impugned judgment of conviction and order of sentence dated 3.5.2018 passed by learned Special Judge, Protection of Children from Sexual Offences (in short `POCSO') Act Cases, Ajmer (hereinafter referred to as 'the trial court') in Sessions Case No. 110/2017 (77/2015) (FIR No. 205/2015 P.S. Christianganj, Ajmer) (C.I.S. No. 584/2015) whereby the learned trial Court convicted and sentenced the accused appellant as under:
Under Section 376 IPC Life term imprisonment with fine of Rs. 50,000/-, in case of default in payment of fine, to (Downloaded on 28/06/2019 at 01:29:31 AM) (2 of 9) [CRLAD-271/2018] further undergo additional five months rigorous imprisonment.
Under Section 3(a)/4 Life term imprisonment with fine Protection of Children from of Rs. 50,000/-, in case of Sexual Offences (POCSO) default in payment of fine, to Act, 2012 further undergo additional five months rigorous imprisonment.
The sentences were ordered to run concurrently. The brief material facts arising for the appeal are that (PW-1) prosecutrix (name withheld to protect her identity) complainant along with her father Naurathmal (PW-3) submitted a written report (Ex.P-2) before SHO, Police Station Christianganj, Ajmer stating therein that the prosecutrix used to go with her mother for sweeping and mopping in the house of Jai Jindal residing in front of City Hospital, Ajmer. Chouthmal (accused appellant) was also working there as a Cook. On 21.4.2015 at about 2.30 P.M., Jai Jindal along with family had gone to Jaipur and while the prosecutrix went to Jai Jindal's house, Chouthmal was there alone. She had cleaned utensils for 15-20 minutes and while she was returning, Chouthmal caught hold of her from back and by one hand closed her mouth and put her down on the bed in the hall and thereafter forcibly after putting off her leggings and underwear, committed rape with her. She was also slapped and was given kick blows by the accused appellant. She returned home crying and weeping and narrated the incident to her mother. She stated that Chauthmal committed rape when she was alone. (Downloaded on 28/06/2019 at 01:29:31 AM)
(3 of 9) [CRLAD-271/2018] On the aforesaid report, FIR No. 205/2015 (Ex.P-3) under Sections 376 IPC and 4 of Protection of Children from Sexual Offences (POCSO) Act, 2012 was registered and investigation commenced. After investigation, police filed challan against the accused appellant for the offences under Section 376 IPC and Section 4 of POCSO Act. The learned trial Court after hearing the accused framed charges as under:
^^igyk& fd vkius fnukad 21-04-2015 dks fnu esa 2-30 cts ;k mlds vkl&ikl Jh t; ftany ds edku] flVh gkWLihVy ds lkeus] vtesj esa 18 o"kZ ls de vk;q dh vizkIro; ifjokfn;k xhrk ¼ifjofrZr uke½ dks ihNs ls idM dj dejs esa ys tkdj tcju mldh ysxh o vaMjoh;j [kksy dj mldh bPNk ds fo:) o mldh lgefr ds fcuk mlds lkFk tcju cykRlax fd;k vkSj bl izdkj vkius ,slk dk;Z fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 376 ds v/khu n.Muh; vijk/k gS rFkk bl U;k;ky; ds laKku ds vUrxZr gSA nwljk& fd vkius mijksDr fnukad dks mDr le; o LFkku ij 18 o"kZ ls de vk;q dh vizkIro; ifjokfn;k xhrk ¼ifjofrZr uke½ dks ihNs ls idM dj dejs esa ys tkdj tcju mldh ysxh o vaMjoh;j [kksy dj ml ij izos'ku ;kSu geyk djds cykRdkj fd;k vkSj vkius ,slk dk;Z fd;k tks ;kSu vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e dh /kkjk 3¼a,½@4 ds v/khu n.Muh; vijk/k gS rFkk bl U;k;ky; ds laKku ds vUrxZr gSA^^ The charges were denied by the accused appellant and he claimed for trial.
To substantiate the charges, prosecution examined eight witnesses namely; PW-1 prosecutrix (name withheld), PW-2 Lali Devi, PW-3 Naurathmal, PW-4 Dr. K.K. Meena, PW-5 Dr. Suchitra, PW-6 Lilamani Gupta, PW-7 Dr. Bhagwan Sahai and PW-8 Nem Singh and proved 21 documents and 5 articles. Thereafter accused was examined under Section 313 Cr.P.C. wherein he denied the incriminating evidence adduced by the prosecution and claimed that he has been falsely implicated in the case, he denied the incident. Though initially accused appellant intended to adduce defence evidence but later on, he failed to adduce any evidence in (Downloaded on 28/06/2019 at 01:29:31 AM) (4 of 9) [CRLAD-271/2018] defence. Learned trial Court after hearing the parties, on the basis of material available on record, convicted and sentenced the appellant as aforesaid, hence this appeal has been preferred through Jail.
After filing the appeal, learned counsel Mr. Govind Prasad Rawat caused his appearance on behalf of appellant.
We have heard the learned counsel for the appellant Mr. G.P. Rawat as well as learned Public Prosecutor and perused the impugned judgment and record available.
Mr. Rawat, learned counsel for the appellant submits that appellant has been falsely implicated in this matter. The prosecutrix was wrongly considered as minor by the trial court while her age is more than 18 years of age at the time of alleged offence. He further contended that from the statement made by the prosecutrix, it is clear that it was well within her knowledge that Jai Jindal along with his family was not there in his house and the accused appellant was alone and there was no work for the prosecutrix, still in absence of Jai Jindal, she went to his house which shows that she is a consenting party. It is urged that no injury was found on the body of prosecutrix. It is contended that ignoring above material submissions, the learned trial Court convicted and sentenced the accused appellant, therefore, the impugned judgment is liable to be set aside by accepting the appeal. Alternatively, it is contended that at the time of alleged incident, age of accused appellant was 20 years and he has no previous criminal record. He is not a habitual offender, therefore, the sentence awarded by the trial court is quite harsh and disproportionate to the guilt, therefore, sentence awarded upon the appellant may be reduced appropriately.
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(5 of 9) [CRLAD-271/2018] On the other hand, learned Public Prosecutor Ms. Alka Bhatnagar supported the impugned judgment and submitted that the prosecution has proved the age of the prosecutrix below 18 years by leading cogent evidence and from the deposition of prosecutrix, it is proved that she was subjected to rape forcibly by the accused appellant, hence the appeal deserves to be dismissed.
Before considering the arguments advanced by both the parties, it would be necessary to go through the statements of prosecution witnesses.
The prosecutirx PW-1 (name withheld), is the star witness of the prosecution. She in her statement stated that she failed in Matriculation examination. She had studied at Senior Secondary Savitri School, Ajmer. Her date of birth is 8 th July, 1998. On 21.4.2015 she went to Jai Jindal's house for cleaning utensils.
While she was returning after work, Chouthmal forcibly caught hold of her from back and after putting off her clothes, committed rape with her. After returning from the house of Jai Jindal, she narrated the incident to her mother. She proved her statements recorded under Section 164 Cr.P.C (Ex.P-1), Written Report (Ex.P-
2), FIR (Ex.P-3), site plan (Ex.P-4), seizure memo of underwear (Ex.P-5), bed-sheet (Ex.P-6) and medical report (Ex.P-7).
PW-2 Lali Devi, mother of the prosecutrix in her statements stated that age of the prosecutrix as 16 years. She deposed that on the day of incident, the prosecutrix went for job and while returning from Jai Jindal's house, she told her that Chouthmal had teased her and after medical examination, she came to know that prosecutrix was subjected to rape. She also stated that she along with prosecutrix went to Police Station for lodging the FIR. She (Downloaded on 28/06/2019 at 01:29:31 AM) (6 of 9) [CRLAD-271/2018] proved Report (Ex.P-2), FIR (Ex.P-3), seizure memo of underwear (Ex.P-5), and medical report (Ex.P-7).
PW-3 Naurathmal, father of prosecutrix has corroborated the statements given by PW-2 Lali Devi.
PW-4 Dr. K.K. Meena has referred the prosecutrix for medical examination to Gynecologist vide memo Ex.P-7.
PW-5 Dr. Suchitra, Gynecologist examined the prosecutrix vide medico legal report Ex.P-7. She in her statements stated that there was 0.5 cm wound with bleeding on posterior fourchette. She opined that it was a case of forcible penetration by blunt object. In cross-examination, she stated that bleeding was not of menses.
PW-6 Leelamani Gupta, in-charge, Savitri Government Girls Secondary School, Ajmer issued certificate regarding date of birth of prosecutrix. According to her, date of birth of the prosecutrix was 8th July, 1998. She proved her certificate Ex.P-8 and register Ex.P-9.
PW-7 Dr. Bhagwan Sahai, medically examined the accused appellant and prepared report Ex.P-10. He found abrasion on face in middle of eye-brow and another abrasion of 3 cm. in reddish colour on forehead. Both the injuries were simple in nature and were caused by some blunt weapon. The duration was opined 1-2 days. He also stated that accused was potent.
PW-8 Nem Singh, SHO, Police Station deposed regarding various facets of the investigation.
From perusal of aforesaid statements of prosecution witnesses more particularly, the statements of prosecutrix PW-1, it is clear that accused appellant committed rape with her in the house of Jai Jindal, where she was cleaning the utensils and at the (Downloaded on 28/06/2019 at 01:29:31 AM) (7 of 9) [CRLAD-271/2018] time of incident, Jai Jindal along with his family had gone to Jaipur and accused was there alone. Soon after the incident, the prosecutrix disclosed version pertaining to the incident to her mother PW-2 Lali Devi and PW-3 Naurathmal, her father and thereafter went to Police Station along with her parents and submitted report upon which case FIR Ex.P-3 was registered and prosecutrix was medically examined by PW-5 Dr. Suchitra. Medical evidence prove that there was forcible penetration by blunt object and due to which wound of 0.5 cm was there on posterior fourchette of the prosecutrix. PW-5 Dr. Suchitra and prosecutrix were cross-examined by the defence counsel but during cross- examination also their testimony remained uncontroverted and there is nothing on record to disbelieve their testimony.
Now the question remains regarding age of the prosecutrix. In this regard, PW-2 Lali Devi mother of the prosecutrix in her statements stated that she was of 16 years. PW-3 Naurathmal, father of prosecutrix deposed that the age of prosecutrix was 17 years. The prosecutrix PW-1 herself stated her date of birth according to School Certificate as 8.7.1998 and PW-6 Leelamani Gupta, incharge Savitri Government Girls proved School register Ex.P-9 wherein the name of the prosecutrix was entered at Serial No. 28523 in the school register. He divulged date of birth of prosecutrix as 8th July, 1998. Nothing is there to controvert the age of the prosecutrix.
The incident took place on 21.4.2015, therefore, at the time of incident, age of prosecutrix was about 16 years 9 months which is less than 18 years, and therefore, she was minor. Prosecutrix in her statement stated that in categorical terms accused appellant (Downloaded on 28/06/2019 at 01:29:31 AM) (8 of 9) [CRLAD-271/2018] forcibly committed rape with her, even otherwise considering age of the prosecutrix alleged consent is of no consequence.
Taking into account all the materials available, in our opinion, the learned trial Court has committed no error in convicting the accused appellant under Sections 376 IPC and 3(a)/4 of the POCSO Act and the judgment impugned to the extent of conviction does not require any interference.
However, so far as order of sentence is concerned, learned counsel for the appellant contented that there were no aggravating circumstances for the trial court to award the maximum sentence i.e. life imprisonment.
In the matter of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 while dealing with case of Section 304-B IPC Hon'ble Supreme Court had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence.
In the matter of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat AIR 2012 SC 979 while considering the agony of protracted trial, the Hon'ble Apex Court had awarded minimum sentence of ten years.
Hence taking ratio of law laid down in Sunil Dutt Sharma (supra) which in turn was relied upon in case of Sangeet & Anr. Vs. State of Haryana (2013) 2 SCC 452 and taking aggravating circumstances i.e. age of the prosecutrix and mitigating circumstances that the appellant is the sole bread earner of the family and in the corridors of the Court for last five years and the age of the accused is only 20 years and prosecutrix is also about 17 years of age, we follow the aforesaid pronouncements of Hon'ble Supreme Court. Hence, while maintaining the conviction (Downloaded on 28/06/2019 at 01:29:31 AM) (9 of 9) [CRLAD-271/2018] of the appellant, we hereby reduce maximum sentence of life imprisonment awarded by the trial court to 10 years Rigorous Imprisonment.
In the result, the conviction of the appellant under Section 376 of the IPC read with Section 3(a)/4 of POCSO Act, 2012 is maintained. However, in view of reduction of sentence qua principal offence punishable under the provisions of Indian Penal Code, we feel no necessity to award separate sentence upon the appellant for offence under section 3(a)/4 of POCSO Act. Therefore, it is clarified that appellant shall undergo ten years sentence as maximum sentence.
With the above modification and reduction in the sentence from life imprisonment to ten years Rigorous Imprisonment and maintaining the fine and default clause, the present appeal stands disposed of.
(BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J BRIJ MOHAN GANDHI /77/18 (Downloaded on 28/06/2019 at 01:29:31 AM) Powered by TCPDF (www.tcpdf.org)