Nathu and Another vs The State of Rajasthan

B.R. Arora, J.—These two appeals arise out of the judgment dated April 10, 1990 passed by the Sessions Judge, Pali, in Sessions Case No. 20 of 1987, by which the appellants were convicted u/s 376, I.P.C. and were awarded the sentence of imprisonment for seven years'' rigorous imprisonment and a fine of Rs. 100/- each, and in default of payment of fine to further undergo one month''s rigorous imprisonment.

Appeal No. 253 of 1990 is represented appeal preferred by the appellants through their counsel while S.B. Criminal Jail Appeal No. 184 of 1990 was preferred by the appellants through the jail. As both these appeals arise out of the same judgment, I, therefore, propose to decide both these appeals by this common judgment.

The incident which led to the prosecution of the present accused-appellants took-place on March 1, 1987 on the barran land situated in the hillocks of Bhanwariya Patan at about 2.30 p.m. According to the prosecution, the accused-appellants committed rape upon PW 5 Mst. Sukhi in the area of hillocks of Bhanwariya Patan when she had gone there to graze her cattle. According to the prosecution, on account of the rape committed by the accused- appellants on PW 5 Sukhi, there was a profuse bleeding and she became unconscious and remained unconscious, for a period of about two hours. In the evening, she returned to her house and narrated the incident to her mother PW 3 Bhanwari. As the father of PW 5 Sukhi was not in the village, they waited for the arrival of PW 2 Girdhari, who did not turn-up on March 1 and 2, 1987. When he did not return to the house on March 3, 1987, also, Mst. Sukhi and Mst. Bhanwari thereafter went to Beawar, where PW 2 Girdhari-the father of PW 5 Sukhi-was working. After hearing the incident from Mst. Sukhi and Mst. Bhanwari PW 2 Girdhari lodge a First Information Report on March 3, 1987, at Police Station, Sendra. The police, after necessary investigation, presented the challan in the Court of the Munsif and Judicial Magistrate, Bar, who committed the accused to stand their trial u/s 376, I.P.C. to the Court of the Sessions Judge, Pali. In support of its case, the prosecution examined twelve witnesses. The accused did not produce any evidence in their defence. The learned Sessions Judge after trial, convicted the appellants u/s 376, I.P.C. and sentenced them, as mentioned above. It is against this judgment, convicting and sentencing the appellants that the present appeals have been filed.

I have heard the learned Counsel for the appellants and the learned Public Prosecutor and also, perused the judgment passed by the learned trial Court and the record of the case.

The nature of the evidence produced by the prosecution consists of the evidence of the prosecutrix PW 5 Sukhi, which is sought to be corroborated by the evidence of Girdhari PW 2, Bhanwari PW 3, PW 9 Dr. Vijay Raj, PW 11 Dr. Sushama Vyas and PW 12 Bhanwar Singh, S.H.O. PW 1 Datar Singh, PW 4 Suwa Lal. PW 6 Ramdeen and PW 8 Shanker Lal are the MOTBIR witnesses and out of them only PW 8 Shanker Lal has supported the prosecution story and the rest of the witnesses have not supported the prosecution case and, therefore they were declared hostile. PW 10 Ummaid Singh is the Police Constable, in whose presence the accused persons were arrested. The main witness in the case is PW 5 Mst. Sukhi, who has stated that on the fateful day, she had gone to graze her cattle and in the KANKAN where Shyama and Nathu met her, at that time, she was going with her cows. Nathu came from behind and caught-hold her with neck and when she tried to raise an alarm, he kept his hand on her mouth and threw her on the ground and committed rape with her. Thereafter accused Shyam committed rape with her. She returned to village in the evening and narrated the whole incident to her mother. As her father was not in the house on that day, she, therefore, went to Beawar alongwith her mother and narrated the incident to her father. She has, also, stated that when the accused were trying to commit rape with her, she tried to raise alarm but as the accused had put his hand on her mouth, therefore, she could not raise an alarm. This evidence of the prosecutrix PW 5 Mst. Sukhi is supported by the evidence of PW 2 Girdhari, PW 3 Mst. Bhanwari, PW 9 Dr. Vijay Raj and PW 11 Dr. Sushama Vyas. PW 2 Girdhari is the father of the prosecutrix, to whom the incident was narrated by PW 3 Mst. Bhanwari at Beawar and who lodged the First Information Report at the Police Station, Sendra. PW 3 Mst. Bhanwari is the mother of the prosecutrix, to whom PW 5 Mst. Sukhi narrated the whole incident as soon as the returned from the KANKAN to her house. PW 9 is Dr. Vijay Raj, who examined both the accused-appellants and found them fit for committing sexual intercourse. He, also, found injuries on the person of accused Nathu, which, according to Dr. Vijay Raj, can be caused during scuffle at the time of intercourse. PW 11 Dr. Sushama Vyas examined the prosecutrix Mst. Sukhi and according to her, the hymen of Mst. Sukhi was ruptured. Forecheets and posterior commissa were torn, posterior parineal were also torn and post- vaginal wall and post parietal bleeding was present. The smell of semen was, also, coming. There was, also, blood and semen marks present of the ''LEHNGA'' of Mst. Sukhi. According to the Forensic Science Laboratory report, ''GHAGRA'' was found stained with human blood and semen. Mst. Sukhi was also having some injuries on her person. From the statement of all these witnesses, as well as from the attending circumstances, mentioned above, there is no doubt that the rape was committed with Mst. Sukhi (PW 5) and according to Mst. Sukhi, the accused-appellants were the persons who committed rape with her. The defence came with the story that Vijay Singh and Ratna were the two persons who had committed sexual interourse with Mst. Sukhi and who have not been named in the First Information Report but the accused-appellants have been falsely implicated in the case. It is not expected that a witness (victim) will leave the actual culprits and falsely implicate some innocent persons, particularly when they are closely related to her. Accused Nathu is cousin of Girdhari (father of the prosecutrix) and accused Shyama is his nephew. A careful reading of all the evidence produced by the prosecution clearly shows that the accused-appellants were the persons who committed rape with PW 5 Mst. Sukhi.

Now comes the question as to what sentence should be awarded to the accused-appellants. It has been contended on behalf of the appellants that the incident relates to the year 1987 and about four years have passed. The accused are behind the bars. They are repenting for their act and they are the close relatives of the complainant party. Shyama is only 17 years of age while appellant Nathu is about 25 years of age and it would be, therefore, proper that the sentence passed by the learned Sessions Judge may be reduced to that already undergone by them. The learned Public Prosecutor, on the other hand, has stated that at the relevant time PW 5 Mst. Sukhi, with whom the rape was committed, was only ten years of age and such close relatives have committed such hineous offence with an innocent girl of about 10 years of age, therefore, the sentence may not be reduced. I have considered the rival submissions made by the learned Counsel for the parties.

It is, no doubt, true that the accused are the close relatives of Mst. Sukhi. Accused-appellant Nathu is the cousin and appellant Shyama is the nephew of PW 2 Girdhari- the father of the prosecutrix. The accused persons have committed such heineous crime with their niece, who is only ten years of age, hence they do not require any leniency. When the appellants can go to this extent to have a sexual intercourse with their such a close relative then atleast the minimum sentence, passed by the learned Court should be awarded to them.

In the result, I do not find any merit in these appeals and both the appeals, filed by the appellants, are hereby dismissed.