{1} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. Criminal Appeal No. 1193/2004 Alanoor Versus The State of Rajasthan. DATE OF JUDGMENT: 19.08.2010 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Kapil Gupta, for the accused-appellant. Mr. J.R. Bijarnia, Public Prosecutor, for the State. Appellant Alanoor S/o Suleman has preferred this appeal challenging his conviction and sentence passed by Additional District and Sessions Judge(Fast Track) No. 1, Jhalawar (hereinafter referred to as 'the trial court') in Sessions Case No. 69/2004 vide judgment and order dated 20th October, 2004, whereby he has been convicted and sentenced under Section 450 IPC to 5 years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo one year's rigorous imprisonment and under Section 376 IPC to 10 years' rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of {2} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. fine, to further undergo one year's rigorous imprisonment. 2. At the very outset, learned counsel for the appellant contended that he does not want to press the appeal on merits and prays for reduction of sentence of imprisonment of appellant from 10 years' rigorous imprisonment under Section 376 IPC to a minimum sentence of imprisonment of 7 years. He contended that even as per prosecution case, the age of the prosecutrix was in between 16 to 18 years and she was not below 12 years of age, therefore, Clause (f) of sub-Section (2) of Section 376 IPC is not attracted in the present case wherein minimum sentence of 10 years is provided. Therefore, this is a case of sub-Section (1) of Section 376 IPC wherein minimum sentence of 7 years is prescribed. He, therefore, contended that even no reasons are required to be recorded for reducing the sentence of imprisonment from 10 years to 7 years. 3. Learned Public Prosecutor admitted the position of law in the present case that provisions of sub-Section (1) of Section 376 IPC are attracted in the present case and not Clause (f) of sub-Section (2) of Section 376 IPC. Although, he has opposed the prayer of learned counsel for the appellant to reduce {3} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. the sentence of imprisonment of the appellant, but he contended that it is the discretion of this Court to reduce the sentence of imprisonment of the appellant. 4. I have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment and record of the trial court. 5. Exhibit P-1 is the written report lodged by Chetna Gupta D/o. Girish Mahajan aged about 15 years on 3rd July, 2004 at about 4.05 PM at Police Station Bakani, District Jhalawar, wherein she alleged that at about 3.00 P.M. on that day, she was alone at her house. Her father is a stamp vendor and her mother had gone to purchase the vegetables and she was available at their shop, which is situated in front of their house. The accused-Alanoor came and purchased cigarette and went away. After sometime she had gone to her house which was at the back of their shop. Accused entered in their house and committed forcefully sexual intercourse with her. On the basis of this report, police registered a case under Sections 376 and 456 IPC. Chalked FIR No. 198/2004 was registered. Prosecutrix was medically examined for the purpose of age as well as rape. {4} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. 6. After completion of investigation charge sheet was filed against the appellant in the Court of Additional Chief Judicial Magistrate, Jhalawar, who committed the case for trial to the Court of Sessions Judge, Jhalawar, who transferred the case for trial to the Court of Additional District and Sessions Judge(Fast Track) No. 1, Jhalawar. 7. Learned trial court framed charges against the appellant under Sections 376 and 450 IPC. Accused denied the charges and claimed trial. In support of the case, prosecution examined P.W. 1 to P.W. 13 and also produced documentary evidence Exhibit P- 1 to Exhibit P-13. Thereafter statement of the accused was recorded under Section 313 Cr.P.C. wherein he stated that prosecution evidence is false and he has falsely been implicated in the case. In defence, accused examined D.W.-1 Babu S/o. Hamidulla and also produced documentary evidence Exhibit D-1 and Exhibit D-2. 8. Learned trial court after considering the submissions of the parties and examining the record, convicted and sentenced the accused-appellant as mentioned above. 9. Although learned counsel for the appellant has not argued the appeal on merits and prayed for reduction of sentence of {5} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. imprisonment of appellant from 10 years to a minimum sentence of 7 years, however, I have examined the evidence available on record and find that learned counsel for the appellant has rightly not pressed the appeal on merits in view of the Statements of Prosecutrix, P.W. 1, Chetna Gupta and P.W. 6 Premlata Bai. 10. P.W. 1, Chetna Gupta has specifically stated in her statement before the trial court that accused committed sexual intercourse with her forcefully. 11. P.w. 6, Premlata Bai also stated that she came at the house of Girish, father of the prosecutrix, and saw that Chetna was coming from her house and on her asking, she stated that accused has committed rape with her. 12. In these circumstances, I am satisfied that from the statements of P.W. 1 Chetna Gupta and P.W. 6, Premlata Bai, the charges against the appellant under Sections 376 and 450 IPC are fully proved. 13. So far as evidence regarding age of the prosecutrix is concerned, P.W. 1 Chetna Gupta stated her age to be 15 years during her statement in the trial court. She stated her date of birth as 31st May, 1989 and according to this date of birth, her age on the date of incident comes to 15 years 1 {6} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. month and 3 days. 14. P.w. 2, Dr. Gauri Shankar Chouhan has proved Exhibit P-4, medical report regarding age of prosecutrix wherein her age was described as 16 to 18 years. P.W. 2, Dr. Gauri Shankar Chouhan also proved the X-Ray plates Exhibit P-5 and Exhibit P-6. 15. From the evidence available on record, it is clear that prosecutrix was above 12 years of age but she was below 18 years of age. In these circumstances, the provisions of Clause (f) of sub-Section (2) of Section 376 IPC are not attracted. Learned trial court has not awarded the sentence under sub-Section (2) of Section 376 IPC but it has simply mentioned Section 376 IPC. Although, for reducing the sentence of imprisonment from 10 years to 7 years, i.e. minimum sentence of imprisonment prescribed under sub-Section (1) of Section 376 IPC, it is not necessary to record the reasons, but in the present case I find that Prosecutrix was between 15 to 18 years of age and accused was also residing in the same locality and the prosecutrix and the accused both were neighbours. 16. As per statement of P.w. 4, Dr. Radhey Shyam Mehar, who examined the prosecutrix medically, specifically stated in {7} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. his examination-in-chief itself that no injury was found on the private parts of the prosecutrix. In his cross-examination, he admitted that if there is forceful sexual intercourse with any girl then it is necessary that there must be some injuries on her private parts. In absence of any injury on the person of prosecutrix, this case can be treated as a case of consent but in view of age of prosecutrix, the consent of prosecutrix becomes irrelevant, therefore, benefit in this regard cannot be given to the accused-appellant. However, it can certainly be treated as a justified or cogent reason for reducing the sentence of imprisonment of the accused-appellant. 17. In Prem Chand Vs. State of Haryana, AIR 1989 SC 937, in the peculiar facts and circumstances of that case, the Hon'ble Supreme Court reduced the sentence of imprisonment of ten years awarded under Section 376 (2) IPC, to a period of sentence of imprisonment of five years. The State of Haryana filed review petition before Hon'ble the Supreme Court in the above case and the same was dismissed. The decision of the Hon'ble Supreme Court in that review petition is reported in (1990) 1 SCC 249 (State of Haryana v. Prem Chand & Others). {8} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. 18. In Ram Kumar Vs. State of Haryana– (2006) 4 SCC 347, their Lordships of the Hon'ble Apex Court reduced the sentence of seven years under Section 376, IPC, to a period of three years imprisonment. Para No.3 of the judgment reads as under:- “3. The appellant, aggrieved by the order passed by the High Court has filed the above appeal by way of appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned counsel for the appellant drew our attention to the statement of the girl Bimla (PW-5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient evidence was tendered by the prosecution to prove the guilt of the accused. However, at the time of hearing it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under Sections 366 and 376 of the Penal Code is on the highside. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly.” 19. In the case of State of Chhattisgarh Vs. Lekhram (2006) 5 SCC 736 the Hon'ble Apex Court reduced the minimum sentence under {9} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. Section 376, IPC, of seven years to a sentence of one-and-half-year imprisonment, already undergone by accused therein. Para 16 of the judgment reads as under:- “16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws' place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the respondent again may not arise. She lived for some time with the respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The respondent preferred an appeal before the High Court in the year 1987. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one-and-a half years. In the peculiar facts and circumstances of this case and having regard to the facts that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison.” 20. Although the Hon'ble Apex Court has reduced the sentence under Section 376 IPC to {10} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. a period of 5 years in the case of Prem Chand (supra); to a period of 3 years under Section 376 IPC in the case of Ram Kumar(supra) and to a period of one and a half year in the case of State of Chhattisgarh(supra), but in the present case, the submission of learned counsel for the appellant is only to reduce the sentence of imprisonment of the appellant of 10 years awarded by the trial court to a minimum sentence of imprisonment of 7 years only. 21. After considering all the facts and circumstances of the case and for the reasons mentioned hereinabove, I am of the view that ends of justice will meet in case the sentence of imprisonment of 10 years awarded by the trial court under Section 376 IPC is reduced to a period of 7 years rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment. So far as finding of trial court with regard to offence under Section 450 IPC is concerned, I have examined the same in the light of evidence available on record and I do not find any illegality or perversity in the same. 22. Consequently, the appeal is partly allowed. The conviction and sentence of the {11} S.B. Criminal Appeal No. 1193/2004 Alanoor Vs State. appellant under Section 450 IPC is maintained and the conviction of the appellant under Section 376 IPC is also maintained but his sentence of imprisonment under Section 376 IPC is reduced from 10 years rigorous imprisonment to a period of 7 years rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to further undergo one month's rigorous imprisonment. The impugned judgment and order of the trial court is modified to the above extent. 23. The record of the trial court be sent back immediately. (NARENDRA KUMAR JAIN),J. Manoj Item No.121.