Ashok Kumar vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Appellant viz., Ashok Kumar @ Ruda was tried by the Court of Additional Sessions Judge (Fast Track) No. 1, Jaipur District Jaipur for having committed offence of rape on 11th of March, 2008 at around 04:00 P.M. in the area of Govindpura Basri, Tehsil Shahpura, District Jaipur, upon a child girl aged about five-years (herein after to be called as Victim, to protect her identity), daughter of complainant, Sultan (PW-1).

The trial Court held the appellant to be guilty for offences punishable under Sections 376(2)(f), 354 and 324 of Indian Penal Code.

Having convicted the appellant for the above said offences, the trial Court, vide a separate order of even date, sentenced him as under:-

"For offence under Section 376(2)(F) I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/-. In default of payment of fine to further undergo three months additional rigorous imprisonment.

For offence under Section 324 I.P.C. the appellant was sentenced to undergo three years rigorous imprisonment.

For offence under Section 354 I.P.C. the appellant was sentenced to undergo two years rigorous imprisonment

Both the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, the appellant has preferred instant appeal under Section 374 of Code of Criminal Procedure, 1973 through Superintendent, Central Jail, Jaipur in order to assail his conviction and sentence.

In the present case, the prosecution agency, during trial, had examined, in all seventeen-witnesses and also proved on record twenty-four documents, being Exhibit-P/1 to Exhibit-P/24 respectively.

The statement of accused was recorded under Section 313 of Code of Criminal Procedure, 1973. He denied all the incriminating evidence put to him, pleaded innocence and took a stand that he been falsely implicated.

In defence, accused had not examined any witness.

In the present case, Sultan (PW-1), the father of the child victim, Kiran (PW-6) presented a typed written-report (Exhibit-P/1) before Station House Officer, Police Station, Shahpura, Jaipur Rural.

In the said report (Exhibit-P/1), Sultan (PW-1), the complainant/father of child victim, has stated that on 11th of March, 2008 his daughter aged about five-years was playing outside the house with other children. The complainant/witness further stated that Ashok @ Ruda came from other locality had taken away child victim and committed rape upon her and he also made an attempt to strangulate her. Lastly, this witness stated that the accused was under the influence of liquor.

Mr. Satish Khandal, Advocate, who has been appointed as amicus curiae on behalf of the accused-appellant, who has preferred instant appeal through Jail, at the outset, has submitted that in view of the statement made by child victim in the Court as PW-6 and the fact that the child victim has identified the accused-appellant, it will be upheld task for him to urge for the acquittal of the appellant.

With the able assistance rendered by Mr. Satish Khandal, the learned amicus curie appearing on behalf of the accused-appellant, we have perused the relevant record and the evidence of the witnesses examined by the prosecution.

We find that the evidence of the relatives, aggravating circumstances and more particularly the testimony of child victim PW-6 have been rightly considered by the trial Court to convict the appellant for offences punishable under Sections 376(2)(F) and 324 I.P.C.

We are also of the view that once the appellant was convicted for offence punishable under Section 376(2) I.P.C., there was no need for the trial Court to record conviction of the appellant for offence punishable under Section 354 I.P.C.

Consequently, we set aside the conviction of the appellant for offence punishable under Section 354 I.P.C.

Mr. Satish Khandal, the learned amicus curiae appearing on behalf of the accused-appellant, has relied upon the case of Chanda Lal @ Harchanda Vs. State of Rajasthan, decided on 26.11.2014 (D.B. Criminal Appeal No. 947/2005).

In the case of Chanda Lal @ Harchanda (supra), one of us (Kanwaljit Singh Ahluwalia J.), while noticing the contention of the Counsel appearing for Chanda Lal @ Harchanda (supra), this Court has held as under:-

"Shri N.A. Naqvi, Senior Counsel has also very fairly stated that taking the entire perspective of the case, he will only urge and pray before this Court that there were no aggravating circumstances available with the trial Court to award maximum sentence i.e. life imprisonment. The learned counsel has stated that to award the maximum sentence, there must be compelling reasons for the trial Court and such reasons are to be stated in the order whereby sentence is awarded. The learned Counsel has stated that recently Hon''ble Apex Court in 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 while dealing with case of Section 304-B IPC had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence. The learned counsel for the appellant has also placed reliance upon 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 to contend that Hon''ble Apex Court considering the agony of protracted trial has awarded minimum sentence of ten years. The learned counsel states that in the present case, incident had taken place 11 years ago i.e. in the year 2003 and since then, appellant is in the corridors of the Court. It is contended before us that since, appellant was not released on bail during the trial and his sentence was also not suspended during appeal, thus he continue to languish behind the bars since 04th September, 2003, when his formal arrest was effected.

The learned Public Prosecutor except age of the prosecutrix could not divulge any other reason to persuade us to maintain the sentence awarded by the trial Court.

Hence, taking ratio of law laid in Sunil Dutt Sharma (supra) which in turn had relied upon Sangeet and Another Vs. State of Haryana, AIR 2013 SC 447 : (2013) CriLJ 425 : (2013) 1 Crimes 25 : (2013) 1 RCR(Criminal) 114 : (2012) 11 SCALE 140 : (2013) 2 SCC 452 and taking aggravated circumstances i.e. age of the prosecutrix and the mitigating circumstance that the appellant is sole bread earner of the family, he is in the corridors of the Court from last 11 years, we follow the mandate of law laid in case of Bavo @ Manubhai Ambalal Thakore (supra) and while maintaining the conviction of the appellant, reduce the sentence of life imprisonment awarded upon the appellant by the trial Court to ten years rigorous imprisonment. However, we enhance the fine awarded by the trial Court from Rs. 5,000/- to Rs. 10,000/- while maintaining the default clause prescribed by the trial Court."

For the reasons stated in the judgment rendered in the case of Chanda Lal @ Harchanda (supra) and the judgment of the Hon''ble Apex Court relied therein, we find no reason to deviate from the view formulated by us in the case of Chanda Lal @ Harchanda (supra), qua sentence.

The trial Court except to notice the age of the child victim as five-years, has also taken into account the injuries suffered by the child victim to award life imprisonment.

However, the trial Court has not considered mitigating circumstances, as per law laid down by the Hon''ble Apex Court in 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 . To us, it was incumbent for the trial Judge to consider the mitigating circumstances also.

The appellant, as per learned amicus curiae was aged twenty-five years on the date of occurrence and has not committed any offence earlier to the present incident or thereafter. Furthermore, it is submitted that the appellant is a sole bread earner of the family.

Thus, taking into account the above judgment relied and the fact that the appellant is in the corridors of the Court from last seven-years, we find that indeed a case is made out for reduction of sentence.

Consequently, taking into account the age of the child victim, nature of injuries suffered by her as aggravating circumstances along with the mitigating circumstances spelt out by the learned amicus curiae appearing on behalf of the accused-appellant and noted by us herein above, we are of the view that the ends of justice will be fully met, in case the sentence of life imprisonment awarded by the trial Court is reduced to twelve-years rigorous imprisonment for offence under Section 376(2)(F) I.P.C.

The sentence awarded upon the appellant for offence under Section 324 I.P.C. shall run concurrently with the sentence reduced by us under Section 376(2)(f) I.P.C. As ordered by the trial Court the benefit of Section 428 Cr.P.C. shall accrue to the appellant.

We direct the Member Secretary, Rajasthan State Legal Services Authority to ensure disbursement of the compensation to the child victim under Section 357(A) Cr.P.C. in consonance with the Victim Compensation Scheme prepared by the State Government. He shall also ensure that the identity of the victim is kept concealed and the compensation is paid with all required sensitivity to guard the reputation of the child victim.

With the above modification and reduction in the sentence i.e. from life imprisonment to twelve-years and the direction for payment of compensation to the victim, the present appeal stands disposed of.