-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.719/1980 (Bhanwar Singh & Anr. Vs. The State of Rajasthan) S.B. CRIMINAL APPEAL UNDER SECTION 374 (ii) Cr.P.C. AGAINST THE JUDGMENT DATED 30.10.80 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE, SIROHI IN SESSIONS CASE NO.8/80. DATE OF JUDGMENT : 01st February, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Suresh Kumbhat for the appellants. Mr. S.N.Tiwari, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dated 30.10.80 passed by the learned Additional Sessions Judge, Sirohi in Sessions Case No.8/80, whereby, he convicted accused appellant Shanti Lal along with deceased accused appellant -2- Bhanwar Singh for offence under Sections 342 & 376 IPC and sentenced them to undergo three months' rigorous imprisonment for offence under Section 342 IPC and to pay a fine of Rs.500/- and two years' rigorous imprisonment for offence under Section 376 IPC and to pay a fine of Rs.500/- and in default of payment of fine to further undergo three months' simple imprisonment. Both the sentences were ordered to run concurrently. 2. Facts leading to this appeal are that on 13.8.79, Mst.Trishmma Chako made a report to the Doctor Incharge of Revdar about committing of rape with her by both the accused appellants in the quarter of accused appellant Bhanwar Singh, who was working as compounder in the hospital and the prosecutrix was nurse in the same hospital. The prosecutrix was advised by Doctor Incharge of Revdar to make report to the Chief Medical Officer, who in turn sent the report Ex.P-4 at Police Station, Sirohi. The prosecutrix was medically examined and on the statement of the prosecutrix and medical examination, both the accused were charge sheeted and were tried in the court of learned Additional Sessions Judge, Sirohi. Accused appellants were charged for offence under Sections 342 and 376 IPC, to which they pleaded not guilty. Prosecution examined 16 witnesses. Statements of accused appellants were recorded under Section 313 Cr.P.C. They led no evidence in defence. -3- 3. After hearing the arguments, the learned trial judge convicted both the accused appellants as indicated above, against which, an appeal was filed being S.B.Criminal Appeal No.719/80 in this Court, which was decided on 24.3.98, whereby, the conviction of both the accused appellants was set aside and their bail bonds were discharged. The reasons assigned by the learned Judge of this Court for acquitting the accused appellants were about finding no injury on the person of the prosecutrix and also not raising any shout for help during the course of rape. 4. The State went in appeal against the judgment of acquittal before the Hon'ble Supreme Court, and the Hon'ble Supreme Court vide order dated 2.5.06 passed in Criminal Appeal No.1314/98 set aside the acquittal and remitted this case back to this Court for fresh consideration after issuing notice to respondent No.2 Shanti Lal. 5. I have heard learned counsel for the accused appellants and the learned Public Prosecutor. 6. Learned counsel for the accused appellants submits that principal accused Bhanwar Singh, who was compounder at the relevant time has expired and appeal against him has already -4- been abated, whereas, accused appellant Shanti Lal is a man of 64 years of age and he is suffering from paralysis and was admitted in the hospital at Mysore, about which, a certificate has been filed, issued by the Government Hospital, Mysore on 1.3.2006, which is attached with the notice issued by this Court on 1.3.07, wherein, it is stated that accused appellant Shanti Lal is suffering from paralysis and he is unable to move from the place. 7. Learned counsel for the accused appellants does not want to argue this appeal on merits, with regard to assailing the judgment of the learned trial court, convicting the accused appellants. He has simply submitted that this is an incident of the year 1979, when the provisions of minimum sentence of 7 years and 10 years was not provided for offence under Section 376 IPC and the amendment of minimum sentence took place in the year 1983 and by sending the accused appellant Shanti Lal now to jail in such a condition, when he is suffering from paralysis, will not fulfill the ends of justice, therefore, while maintaining his conviction, he should be released for the period already undergone during trial, which according to the warrant is 56 days. 8. I have gone through the evidence on record. The grounds -5- regarding consent and no injury found on the body of the prosecutrix does not find favour from the statements of the prosecutrix PW-11 and Dr. Vijendra Narain Jhamaria PW-14. There were three injuries on the body of the prosecutrix, which were other than the genital organs. Of-course, there were no injuries on the breast and the prosecutrix took bath after the incident and change the clothes and there were no injuries nearby genesis and on the private parts, but keeping in view the statement of the prosecutrix, it appears to be a case of rape with willful confinement by a person namely Bhanwar Singh, who was immediately superior to the prosecutrix, and now he is no more, along with Shanti Lal. 9. Accused appellant Bhanwar Singh has expired and proceedings against him have already been abated. Considering all the facts and circumstances of the case, I feel inclined with the submission of the learned counsel for the accused appellants that no useful purpose will be served after 30 years, specially in a case, when the minimum punishment providing for offence under Section 376 IPC was introduced in the year 1983 and this incident and judgment of the learned trial court is of earlier date and again sending the accused appellant Shanti Lal in jail when he has already undergone a period of 56 days and specially when he is suffering from paralysis. -6- 10. Consequently, this appeal is partly allowed. While maintaining the conviction of accused appellant Shanti Lal for offence under Sections 342 and 376 IPC, his sentence is reduced to the period already undergone. However, the fine imposed shall be deposited before the learned trial court within a period of two months from today. (DEO NARAYAN THANVI), J. ms rathore