-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Deep Chand Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.863/2004 against the judgment dt.11.8.2004 passed by the Addl.Sessions Judge, Bhadra, in Sessions Case No.27/2003. Date of Judgment: April 17, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.K.R.Bhati, for the appellant. Mr.Vishnu Kachhwaha, P.P. BY THE COURT : 1. This appeal is directed against the judgment of the learned Additional Sessions Judge, Bhadra, District Hanumangarh, whereby the accused appellant Deep Chand was convicted under sections 450 & 376 IPC and was sentenced u/s.450 IPC with five years' R.I. and a fine of Rs.2000/-, in default to further undergo one month's S.I. and for the offence u/s.376 IPC, with seven years' R.I. and a fine of Rs.5000/-, in default, to further undergo two months' S.I. Both the substantive sentences were ordered to -2- run concurrently. 2. The prosecution story in brief is that on 16.7.2003 at 12.30 PM, complainant Richhpal lodged F.I.R. Ex.P.1 that he is resident of Village Bhanai and his elder brother Omprakash is working in the Air Force at Bikaner. The wife of Omprakash has died and his children are living with him and his mother. On 14th July, 2003, he had gone to his in-laws at Telanwali and when he came today in the morning, his niece Santosh who is 13 years old, told him that when she was sleeping alone day before yesterday, accused Deep Chand suddenly came and fallen on her, threatened to kill if she raised her voice and committed rape. Upon this report, police registered a case and commenced investigation. The prosecutrix was medically examined and her statement u/s.164 CrPC was also recorded. After usual investigation, the accused was challaned under ss.450 and 376 IPC before the ACJM, who committed the case to the Court of Sessions for trial. The accused was charged accordingly to which he pleaded not guilty. The prosecution examined nine witnesses. The statement of accused u/s.313 CrPC was recorded. He produced two witnesses in his defence. After elaborately discussing the evidence on record and the law, the learned trial Judge convicted the accused as above. -3- 3. Learned counsel for the appellant has not argued the case on merits but he simply states that the age of the prosecutrix was below 16 years on the date of crime and now, she has been married and is living with her husband. Therefore, keeping in view the peculiar facts & circumstances of the case, the sentence imposed by the trial Court should be reduced to the period already undergone, which is said to be about 5 years, as he is in custody since 20.7.2003. In support of his contention, he has placed reliance on the following cases: “1.Ram Kumar vs. State of Haryana (2006) 4 SCC 347; 2.Devalla Raghavulu vs. State of Andhra Pradesh 2005 Cri.L.J. 1041; 3.Kapura vs. State of Rajasthan 1988 Cr.L.R.(Raj.) 241.” 4. Arun vs. State of Maharashtra 2005 Cri.L.J.1044.” 4. On the other hand, learned Public Prosecutor has supported the judgment of the trial Court and the sentence awarded. 5. So far as the age of the prosecutrix is concerned, in the F.I.R. Ex.P.1, her age has been written to be 13 years and in her school certificate Ex.P.5, her age was shown to be 1.12.1992 i.e. -4- 11 years as a student of Class III. In her statement recorded u/s.161 CrPC, she has shown her age to be 13 years and in medical examination, her age was shown to be between 15 and 16 years vide Ex.P.8. When the doctor was cross examined, no question was asked to him as to how she is above 16 years of age, except a question as to what was the criteria for determination of age to which he replied in his examination as P.W.3 that there is no measurement of age except x-ray and examination of other parts of the body. Keeping in view the medical report Ex.P.8, statement of Dr.Subhash Rajput, PW 3 and the school certificate Ex.P.5, it appears that on the date of commission of crime, the prosecutrix was below 16 years of age. When she was below 16 years of age while rape was committed by the accused, who was the resident of same village, he deserves no leniency in the quantum of punishment, which is minimum 7 years prescribed under Sec.376 IPC. His plea of alibi to be in the hospital of Dr.Ramesh Kumar Sharma at Hissar, is also devoid of force, as held by the learned trial Judge. 6. The law cited by the learned counsel for the appellant for reducing the sentence, is not helpful to him because in Ram Kumar's case (supra), the Hon'ble Supreme Court reduced the sentence because of peculiar facts & circumstances of the case, as in that case, the prosecutrix was abducted by the accused for -5- about 20 days, when she was recovered and she was leading a married life. The girl was also not minor. In Devalla Raghavulu's case (supra), the victim was a dumb, mentally retarded and minor girl. Her evidence was recorded by way of gestures with the help of qualified professional in the field and the accused was a Coolie and whole family was dependent upon him and sentence was reduced from ten years to five years because incident occurred seven years back. In Kapura's case, the sentence was reduced from 7 years to 4 years because the girl was major and the rape was committed when she refused to marry the accused. In Arun's case (supra), the sentence was reduced to 5 years from 7 years because the incident was 17 years old & he was on bail for 13 years. The facts of the present case as discussed above are altogether different. The accused appellant committed rape with the minor girl and no leniency need be shown in such matters. The learned trial Judge has rightly appreciated the evidence and arrived at a finding of guilt and awarded the minimum sentence provided under the law. 7. Consequently, the appeal is dismissed. As the accused appellant is in jail, he will serve out the remaining part of the sentence. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS