1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SOBHA LAL VERSUS STATE OF RAJASTHAN S.B.CRI. APPEAL NO.842/2002 AGAINST THE JUDGMENT DATED13.9.2002 IN SESSIONS CASE NO.70/2001 PASSED BY SHRI KAILASH CHANDRA SHARMA R.H.J.S. SPECIAL JUDGE(SC/ST(PREVENTION OF ATROCITIES ACT)CASES, BHILWARA ..... Date of Judgment:- MAY09,2007 PRESENT HON'BLE MR.JUSTICE CHATRA RAM JAT Mr.P.S.Chundawat,Amicus curaiel for the appellant. Mr.J.P.S. Choudhary, Public Prosecutor. BY THE COURT - This appeal is directed against the judgment and order dated 13.9.2002 passed by the learned Special Judge SC/ST( Prevention of Atrocities) cases Court, Bhilwara, in Sessions case No.70/2001 whereby he convicted the accused appellant for offence under Sections452,376,323 IPC which are as under :- For offence u/s 452 IPC 2 years RI with fine of Rs.500/- For offence under Section 376 IPC 10 years RI with fine of Rs.500/- For offence under Section 323 IPC 6 months Simple imprisonment. 2 In default of payment of fine,for each offence 3 months rigorous imprisonment and it was also ordered that all the sentences will run concurrently. 2. Prosecution case is as under : On 15.5.2001 complainant Shambu Lal lodged a written report at P.S. Mandalgarh that he and his wife Kanchan were working in famine at Chand ji ke Khedi and taken house on rent in which they were living. On the date of incident it was holiday of Sunday so he went to work on mine and Kanchan Devi was alone in house. Sobha Lal resident of village - Gram Chand ji ki Khedi entered in house and forcibly committed rape. After committing rape, Sobha Lal gave threatening to Kanchan Devi that if she told about this then he willkill her. When complainant Sambhu Lal came home after working from mine,his wife narrated whole story and thereafter they presented themselves before the Deputy Superintendent of Police, Mandalgarh and on his order, Police Station Bijolia registered Report No.94/2001 and investigation was started. After completion of of usual investigation and preparing site plan, statement of witnesses,medical examination of Kanchan devi,thereafter accused Sobha Lal was arrested by the police. Incharge of the Police station Bijolia file chargesheet against Sobha Lal under Section 452, 323, 376 IPC and section 3(i)(xii), 3(v) SC/ST (Prevention of Atrocities) Act on 18.8.2001 before the Civil Judge 3 (JD) and Judicial Magistrate,Mandalgarh, who committed the same to the Court of Sessions for trial and from there, this case was transferred to the Court of Special Judge, SC /ST (Prevention of Atrocities) Act- cases Court, Bhilwara, for trial of the case and registered as Sessions Case No.70/2001. After hearing the accused appellant on charge, learned Judge framed charge for offences under sections 452,376,323 IPC and Section 3(i) (xii) (2) (v) SC/ST Act which were read over to accused person. He denied the same and claimed trial. During trial, prosecution examined P.W.1 to P.W.10 i.e in all ten witnesses and produced documents exhibited. Thereafter statement of accused under Section 313 Cr.P.C. was recorded in which accused appellant claimed innocence. No defence evidence was produced by the accused. After considering the evidence of the parties documentary as well as oral, the learned Special Judge, SC/ST (Prevention of Atrocities)Act- cases, Court, Bhilwara, convicted and sentenced the accused appellant as stated here-in-before, so this appeal. Learned Amicus curaie stated that though prosecutrix is 20 years major married lady and case may be of consent but on merit he is not contesting and looking to the evidence of prosecution the conviction held by the trial Court may be confirmed. 4 Learned counsel further urged that the appellant is a yong man of 23 years as per the statement under section 313 Cr.P.C. dated 28.8.2002 and,thus, at present he is 28 years young man and he is in custody from 29.5.2001 i.e. approximately for 6 years. Learned counsel also urged that though for offence under Section 376 IPC minimum sentence is 7 years but this case is not under Section 376(2) IPC and,thus, the sentence may be reduced looking to the facts and circumstances of the case and the young age of the appellant. Though, learned counsel for the appellant has not challenged the conviction but on perusal of the prosecution evidence, the prosecutrix P.W. 3 Kanchandevi specifically mentioned that how she was raped by the appellant and fact of rape is corroborated by P.W. 1 Shambu Lal husband of the prosecutirx, P.W.7 Shaknar and P.W. 8Kamla. Admittedly, there is no medical corroboration but in case of reliable evidence it is not necessary for such corroboration provided the evidence of the prosecutrix is reliable and cogent one. It is well settled that in a case of rape statement of prosecutrix is very important. Since in such cases normally direct evidence is not available and the court is required to draw its conclusion from the attending circumstances. The prosecutrix of sex offence cannot 5 e put at par with accomplice. She is in fact a victim of the crime.The evidence of the prosecutrix must received same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the out come of the charge levelled by her. The onus to prove that the accused committed sexual intercourse with prosecutrix without her consent and against her will as laid down in Section 375 IPC is on the prosecution. Thus, sole evidence of prosecutrix may be the basis of conviction and after giving due consideration to the facts and circumstances of the case, the evidence of the prosecution is reliable for the charges against accused and conviction deserves to be confirmed. As to the punishment , in this case minimum sentence is for 7 years so looking to the facts and circumstances of the case, that may be reduced. For providing punishment there cannot be any foolproof formula it depend on many factors like the nature of the crime, the manner in which it was planned and committed, motive of crime and other attending circumstances are the relevant facts for providing punishment. 6 After giving the due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and the mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha V. State of Callifornia : 402 US 183: 28 L.D. 2D 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. Punishing the policy rests on the facts and circumstances of the case, and the court should exercise its discretion judiciously and judicially. When anything is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion and according to law. Discretion is to discern between right and wrong; and, therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. Having closely analysed the material available on record, I find that the evidence of prosecutrix could not be shattered in cross- 7 examination. She has categorically deposed that appellant committed sexual intercourse with her against her will. The delay in filing F.I.R is not fatal in the facts and circumstances of the case. The prosecution, in my opinion, is able to establish the charges under Sections 452,376 and 323 IPC and no interference is needed in the judgment and order of the trial Court and it should be upheld and confirmed. For the reasons stated hereinabove, I partly allow the appeal of the appellant while maintaining the convictions under Section 452,376 and 323 IPC and I reduce the sentence of accused appellant under Section 376 IPC from 10 years rigorous imprisonment to 7 years rigorous imprisonment. Sentence of fine is maintained. For offences under Section 452 and 323 IPC sentences of imprisonment and fines are maintained and affirmed. All the substantive sentences shall run concurrently. The impugned judgment of the learned trial court stands modified as indicated. (CHATRA RAM JAT),J. CKThanvi 8 SOBHA LAL VERSUS STATE OF RAJASTHAN S.B.CRI. APPEAL NO.842/2002 MAY09,2007 HON'BLE MR.JUSTICE CHATRA RAM JAT Mr.P.S.Chundawat,Amicus curaiel for the appellant. Mr.J.P.S. Choudhary, Public Prosecutor. Judgment dictated in open court. Operative portion of the Judgment reads as under :- “For the reasons stated hereinabove, I partly allow the appeal of the appellant while maintaining the convictions under Section 452,376 and 323 IPC and I reduce the sentence of accused appellant under Section 376 IPC from 10 years rigorous imprisonment to 7 years rigorous imprisonment. Sentence of fine is maintained. For offences under Section 452 and 323 IPC sentences of imprisonment and fines are maintained and affirmed. All the substantive sentences shall run concurrently. The impugned judgment of the learned trial court stands modified as indicated.” (See separate Judgment) (CHATRA RAM JAT),J. CKThanvi