Durga Lal vs State of Rajasthan

R.S. Chauhan, J.—The appellant, Durga Lal @ Akshay @ Arjun, has challenged the judgment dated 21.4.2006 passed by the Additional Sessions Judge (Fast Track) No. 3, Bundi whereby the learned Judge has convicted and sentenced him as under:--

"U/s. 363 IPC: Seven years rigorous imprisonment and imposed a fine of Rs. 1000/-, and to further undergo one year of simple imprisonment in default thereof.

U/s. 376 IPC: Life imprisonment and imposed a fine of Rs. 2000/-, and to further undergo two years of simple imprisonment in default thereof.

(Both the sentences were to run concurrently)"

Briefly, the facts of the case are that on 12.12.2005 around 8:50 PM, Sayara Bano (P.W.2) submitted a written report (Ex. P.1) at the Police Station Taleda, Bundi. The said report when translated into English reads as under:--

To,

The SHO, Police Station Taleda, Bundi.

Sub.: For registration of case.

Sir,

It is submitted that today my daughter (name has been withheld in order to protect her identity) aged seven years was playing outside the house. Akshay Gurjar, resident of Altasa, came there and he enticed my daughter away and took her towards the railway lines. There he ravished her. Suddenly we heard the shouts of my daughter. Consequently, I, along with Samad Bhai, Hafeez Bhai Bakariwale ran towards the railway line and saw that Akshay Gurjar was holding my daughter. As soon as we reached there, Akshay @ Durga Lal Gurjar left the girl and ran away. When we saw my daughter, there was blood on her underwear. My daughter told me that the boy had put her down and he lay upon her. He has done a bad act with me, due to which I am in pain. We have brought the child with us. We are submitting the report.

Sd/-"

On the basis of this written report (Ex. P.1), a formal FIR (Ex. P.7), FIR No. 460/05, was chalked out for offences under Sections 363, 376 IPC. During the course of investigation, not only the appellant, but also Ramesh Chand, Uchhav Lal and Suraj Mal were arrested for offence under Section 212 IPC. After completion of the investigation, the police filed a charge-sheet against the present appellant for offences under Sections 363 and 376 IPC, and they filed a charge-sheet against Ramesh Chand, Uchhav Lal and Suraj Mal for offence under Section 212 IPC. In order to support its case, the prosecution examined seven witnesses, and submitted thirty-eight documents. In turn, the defense examined two witnesses, and submitted three documents. After going through the evidence, by judgment dated 21.4.2006 the learned Judge convicted and sentenced the appellant, as aforementioned. But the learned Judge acquitted the other three accused persons, namely Uchhavlal, Ramesh Chand and Surajmal, for offence under Section 211 IPC. Hence, this appeal before this court.

P.W.1, the victim (the name has been withheld in order to protect her identity), is the star witness of the present case. Since she was a child witness, before recording her testimony, she was asked a number of questions by the learned Judge in order to ensure her maturity, and her understanding of the questions.

In her examination-in-chief, she states that "on 12th, I was at Taleda. My maternal grand-mother (Nani) lives there. Thus, I had come to her place. I was playing with my brother outside the house. It was about 7:00 PM. At that time, Akshay called me and told me that he will give me toffees to eat, and would give me some money. He showed me some toffees. I knew Akshay from before. The witness looked at the accused Akshay in the court and identified him as the person who had given her toffees. Akshay took me towards the jungle, towards the railway line. He made me lie down and he came upon me, and started jumping. He inserted something in my vagina and I started to bleed. I do not remember what he had inserted, but he had inserted something, due to which I started bleeding. He had removed my underwear and opened my pant. He had also removed his underwear and opened his pant. I was bleeding when he was jumping upon me. I vomited. I also passed stool. I screamed because I was in pain. Then my mother, my maternal uncle and Shaheen, my sister-in-law, came there. Lots of boys had also come there. They had asked me as to what had happened. I told them everything. Akshay ran away when he saw my mother and others coming. Whatever had happened with me, I had told my mother. Akshay had given me toffee and has put some money in my coat. I was taken to Kota hospital. Bade Papa has taken the money which was given to me by Akshay. I was treated at Kota hospital. He had inserted his penis inside me. Penis is the thing used by boys for urination. He had inserted that inside me".

In her cross-examination, she stated that "the place where my maternal grand-mother''s house is situated there are about ten to twenty houses. At the suggestion of the learned counsel for the accused, the witness claimed that there were about 100 to 200 houses." She further states that "I was playing with my brother whose name is Golu. The police had come to the hospital. They had recorded my statement. I told the police that I was playing with my brother. But this is not written in Exhibit-D1 and Exhibit-D2. No one was playing with me. In Exhibit-D1, my police statement, it is incorrectly recorded that I was playing with children. For, I was playing only with my brother. The brother with whom I was playing is younger to me. In Exhibit-D2, the fact that I was playing with children is incorrectly mentioned. For, I was playing with my brother. In Exhibits-D1 and D2, the part marked as A to B where it reads that I was playing with children is incorrectly recorded. I was playing just with my brother. It is wrong to say that Akshay, the accused, used to visit our house often. I have come to Taleda on four occasions. On the first occasion, Akshay did not come to our house. I did not see him then. The railway lines are very far from the house of my maternal grand-mother. Akshay sat on my chest. Akshay lay upon me and started jumping. I was wearing underwear and a pant. In Ex. D. 2, which is statement recorded by a Magistrate, it is incorrectly written that I was wearing a pajama. I was wearing a pant. In police statement (Ex. D.1), it is also written incorrectly that I was wearing pajama. The place where I was made to lie down, the blood had also fallen there. My stool and my vomit were also there. Of the persons who had come with my mother when I cried, one was Raju, the other was Loban. I do not remember the names of rest of them. About hundred persons had come to the place of incident. When they had put on my underwear, then lots of people had come. It is wrong to suggest that people had come when Akshay had taken me from my house. Instead, they had come near the railway line. When hundred persons had come near the place of incident, Akshay was there near me. Whenever I come to my grandmother''s house, I usually stay for three to four days. Even earlier on three occasions, I used to stay for three to four days. Earlier I never met Akshay. The accused Akshay had put Rs. 10/- in my pocket. He did not give me anything more. Those rupees were taken by my Bade Papa from me. When Akshay took me from my house, my mother was inside the house. She had gone to the bathroom. After coming from the bathroom, my mother had gone looking for me. She had come close to the railway station looking for me. It is wrong to say that before Akshay took me with him, there was a fight between my mother and Akshay. It is wrong to say that I started bleeding due to an injury on my foot. It is wrong to say that Akshay was trying to kick my mother, but instead I was kicked. And I started bleeding. I did not suffer any injury on my back. I bled only from my vagina, and not from any other place. When people brought me from the place of incident, I put my pants on. It is wrong to say that he had put some toffees in my pocket. It is also wrong to say that I and my mother had gone for strolling towards the railway station. It is wrong to suggest that my underwear and pant were soiled because of my latrine. My father drives a tempo. The day the incident occurred, my father was not in Taleda. He did not come to Taleda".

Sayara Bano (P.W.2), the mother of the victim, also substantiates the testimony of the victim (P.W.1).

Dr. Gurdayal Singh Vishnar (P.W.7) examined the victim (P.W.1) for rape. He has proven the medical report (Ex. P.6). At the time of examination, he informed that "the for chit membrane and the hymen were recently broken and there was bleeding. The labia majora was intact. The victim was conscious. It is on the basis of the examination that he had given his opinion that rape cannot be ruled out. He has taken the vaginal swab, slides, sputum, and had given the same to the police. On 26.12.2005, he had examined the victim for the purpose of determining her age. The report with regard to her age is Exhibit-P.37. In order to seek the report of the Dentist, a ticket was sent which is Exhibit-P.39. She was examined by Dentist, Dr. Anil Mishra." According to Exhibit-P.38, the age of the victim was determined to be between eight to ten years.

In his cross-examination, Dr. Gurudayal Singh Vishnar (P.W.7) has stated that "it is wrong to say that in case a person wearing shoes hits a child on her vagina, it is likely to rupture the hymen." The testimonies of the victim (P.W.1), of the mother Sayara Bano (P.W.2) and of Dr. Gurdayal Singh (P.W.7) are sufficient to prove the commission of rape by the appellant.

Considering the overwhelming evidence produced by the prosecution, Mr. Anshuman Saxena, the learned counsel for the appellant, has chosen not to argue on the merits of the case. The learned counsel has restricted his arguments only to the quantum of punishment that ought to be imposed upon the appellant.

According to Mr. Saxena, in order to award the maximum sentence there must be compelling reasons for the trial court to do so. Moreover, the trial court must give cogent reasons for inflicting the maximum sentence. In order to buttress this contention, the learned counsel has relied on the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2013) 10 AD 541 : (2013) 3 DMC 497 : (2013) 4 JCC 2718 : (2013) 13 JT 320 : (2013) 4 RCR(Criminal) 694 : (2013) 12 SCALE 473 : (2014) 4 SCC 375 : (2014) 2 SCJ 578 and on the case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat, AIR 2012 SC 979 : (2012) CriLJ 1573 : (2012) 1 Crimes 230 : (2012) 2 JCC 974 : (2012) 2 JT 29 : (2012) 1 RCR(Criminal) 820 : (2012) 2 SCALE 321 : (2012) 2 SCC 684 : (2012) AIRSCW 1276 : (2012) 1 Supreme 740 . Relying on the latter case, the learned counsel has further argued that considering the fact that the appellant has suffered protracted trial, and has undergone a sentence of more than nine years, the sentence ought to be reduced from life imprisonment to ten years.

On the other hand, Mr. Aladeen Khan, the learned Public Prosecutor, has emphasized the age of the prosecutrix. But could not forcefully argue against the reduction of sentence.

Heard the learned counsel for the parties, perused the record and examined the impugned judgment.

In the case of Sunil Dutt Sharma (supra), the Hon''ble Supreme Court has opined that although the principles of sentencing evolved by the Supreme Court dealt generally with the cases of death penalty, however, the said principles will also govern offences which prescribe lesser sentences. Therefore, the courts should not only look at the circumstances of particular crime, but should also consider the circumstances evolved around the criminal. Repeatedly, the Hon''ble Supreme Court has held that maximum sentence prescribed by law should be imposed only in the rarest of rare cases. Therefore, in case a higher punishment is given from the minimum one, aggravating circumstances must be spelt out by the court before the maximum sentence can be inflicted.

In Bavo @ Manubhai Ambalal Thakore (supra), the Hon''ble Supreme Court dealt with a case where the prosecutrix was only seven years old, and in a case of offence under Section 376(2)(f) IPC, where the appellant was also sentenced to life imprisonment. In the said case the Apex Court opined that "considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years".

Recently, in the case of Chanda Lal @ Harchanda v. State of Rajasthan, D.B. Criminal Appeal No. 947/2005, decided on 26.11.2014, this court has also reduced the sentence from life imprisonment to ten years under circumstances similar to the present case. In the said case, age of the prosecutrix was between five to six years. However, considering the fact that there was no aggravating circumstances for imposing the maximum punishment, this court had reduced the sentence from life imprisonment to ten years.

In the present case, the prosecutrix is a small girl. But there are no other aggravating circumstances beyond the age of the prosecutrix. The appellant happens to be a young man, aged about 26 years, when the occurrence had occurred; he has faced a long criminal trial; he has served a sentence of more than nine years. Therefore, the case does not have any aggravating circumstances which would warrant imposition of the maximum sentence provided by law for offence under Section 376 IPC.

Therefore, keeping in mind the principles laid down by the Hon''ble Supreme Court in the case of Sunil Dutt Sharma (supra), and in the case of Bavo @ Manubhai Ambalal Thakore (supra) and followed by this court in the case of Chanda Lal @ Harchanda (supra), this court confirms the conviction of the appellant, Durga Lal @ Akshay @ Arjun, for offences under Sections 363 and 376 IPC and confirms the sentence for offence under Section 363 IPC, but reduces the sentence for offence under Section 376 IPC from life imprisonment to ten years of rigorous imprisonment. However, we enhance the fine from Rs. 2000/- to Rs. 5000/- while maintaining the default clause prescribed by the trial court. The amount of fine shall be paid to the prosecutrix by way of compensation.

With the above modification and reduction of sentence for offence under Section 376 IPC, i.e. from life imprisonment to ten years, the present appeal is disposed of by enhancing the amount of fine from Rs. 2000/- to Rs. 5000/- (five thousand) which shall be paid to the prosecutrix by way of compensation, while maintaining default clause prescribed by the trial court.