Leelaram vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—On 05th of August, 2005 at about 03:00 P.M. daughter of the complainant - Dharampal Yadav (PW-1) was allegedly kidnapped and raped by the present appellant. The name of the daughter of the complainant is withheld to protect her identity and herein after shall be referred as the ''Victim''.

The appellant was tried by the Court of of Additional Sessions Judge, Behrod, Alwar. The said Court, vide its impugned judgment dated 29.05.2006, held the appellant guilty of offences punishable under Sections 363, 366-A and 376Fof 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 363 I.P.C. the appellant was sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo three months additional simple imprisonment.

"For offence under Section 366-A I.P.C. the appellant was sentenced to undergo five rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo three months additional simple imprisonment.

For offence under Section 376-F I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further undergo one year additional simple imprisonment.

All the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, the appellant has instituted the present appeal under Section 374 of the Code of Criminal Procedure, 1973, praying inter alia that his conviction and sentence be set aside and he be acquitted of the charges levelled against him.

In the present case, the prosecution agency, during trial, had examined, in all twenty-one 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, but had relied upon statements Exhibit-D/1 to Exhibit-D/8 recorded by the Police under Section 161 Cr.P.C.

In the present case, on 06th of August, 2005 at 02:50 P.M. the complainant - Dharampal Yadav (PW-1) presented a written-report (Exhibit-P/1) before Station House Officer, Bansur, District Alwar.

In the said report, the complainant/father stated that on 05.08.2005 at about 03:00 P.M. his daughter (victim) aged about three-years was sleeping on a cot, along with three/four other children in the house of Rudaram. They were also working there. Number of persons from adjoining Village was visiting and they were busy in making arrangements of their meals and water. Leelaram S/o. Dhokalram, by caste Ahir, resident of Dhani-Maniyawali-tan-bhoopseda lifted victim from the cot and after kidnapping her took her into jungle of Mundali and performed bad act with her. While searching for their daughter, they reached in the forest of Mundali and accused - Leelaram on seeing them run away from the spot. They could not apprehend accused due to night. They searched for her till now, but they could not find any clue and, therefore, complainant/father come to lodge report. It was, therefore, prayed that legal action be taken against accused and the victim be medico-legally examined.

Dr. Dayaram Yadav (PW-15) on 06.08.2005, being a Member of the Medical Board, along with Dr. Meena Khatri and Dr. Raj Yadav, examined victim, aged three-years and noted following injuries in the Injury Report (Exhibit-P/4):-

Abrasion scratch 1 x 1 c.m. superficial right cheek near right eye.

Abrasion brownish colour 2 x 2 c.m. superficial left side cheek near left eye.

Scratch 3 x 0.5 c.m. above down ward right iliac region

Scratch 1 x 0.5 c.m. two parietal horizontal region left sub mandible region.

Scratch 3 No. 4 x 0.5 c.m. horizontal/left thigh posterior lower 1/3 with knee posterior

Scratch 4 x 0.5. c.m. superficial horizontal left knee laterally posterior.

Scrathc 3 x 0.5 c.m. superficial vertical left leg posterior upper 1/3

Scratch 3 No. 2 x 0.5 c.m. superficial horizontal right knee posterior

Scratch 3 No. 2.5 x 0.5 c.m. superficial right thigh anterior middle superficial right thigh mid anterior

Scratch 2 No. 2 x 0.5 c.m. superficial horizontal right leg anterior

Scratch 1.5 x 0.5 c.m. vertical left thigh mid anterior

Sting mark two 0.5 x 0.5 c.m. left foot

Sting mark two 0.5 x 0.5 c.m. right foot

Scratch 2 No. 2 x 0.5 c.m. right side chest laterally mid"

The Medical Board opined that findings are suggestive of forceful sexual intercourse and the time between sexual intercourse and medico-legally examination was twelve to twenty-four hours.

Dharampal Yadav (PW-1), in his deposition before the Court, deposed that accused had lifted his daughter and took her towards forest and when they reached in forest on seeing them, accused ran away from the spot.

Krishna (PW-2) stated that mother of Rudaram had died. Leelaram had come to attend her last function. She had left her daughter (victim) under acacia tree. About 02:00/02:30 P.M. accused lifted her daughter and went towards jungle.

Rudaram Yadav (PW-3), Mohar Singh (PW-4) and Sunita (PW-6) informed that accused had given a sugarcane to the victim and took her towards jungle. They brought victim from the jungle at 09:00 A.M. She had suffered injury.

In cross-examination, Sunita (PW-6) stated that they kept victim at the house in the night and in the morning they took her to the Doctor.

Pt. Sriram Joshi, the learned counsel appearing for the accused-appellant, has very fairly submitted that in view of number of witnesses examined by the prosecution, who had seen accused running away from the jungle, he will not address the arguments on merit, but shall pray to this Court that sentence awarded upon the appellant be adequately reduced.

To fortify this submission, Mr. Joshi, the learned counsel appearing for the accused-appellant, has relied upon a judgment rendered by us in D.B. Criminal Appeal No. 947/2005 (Chanda Lal @ Harchanda Vs. State of Rajasthan), decided on 26.11.2014, wherein one of us (Kanwaljit Singh Ahluwalia J.), while taking note of the contention of the Counsel in that case had observed 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.

In the case of Chanda Lal @ Harchanda (supra), the age of victim was five-&-half years. In the present case, there are number of injuries on the person of victim.

Thus, taking totality of circumstances, which have emerged in the prosecution case, we are of the opinion that due to injury on the person of victim, in the present case, sentence awarded upon appellant can be reduced from life imprisonment to twelve-years imprisonment.

However, we maintain sentence of fine and default clause, qua appellant for offence under Sections 363 and 366 I.P.C.

We also uphold conviction of appellant for offence under Sections 363 and 366-A I.P.C., along with sentence awarded on this count.

However, we order that sentence awarded under Section 376(F) I.P.C. shall run concurrently with the sentence awarded by the trial Court under Sections 363 and 366-A I.P.C. The appellant shall also be entitled to benefit of Section 428 Cr.P.C.

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. The compensation shall be paid to the victim within a period of three-months from the date of receipt of certified copy of this order.

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.

Let a copy of this order be also sent to the Member Secretary, Rajasthan Legal Services Authority, Jaipur.