Rajasthan High Court - Jodhpur
Inder vs State on 25 April, 2022
Bench: Pushpendra Singh Bhati
(1 of 5) [CRLA-128/1990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 128/1990
Inder
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Vikas Bijarnia (Pro Bono)
For Respondent(s) : Mr. M.S. Bhati, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
25/04/2022
1. In wake of instant surge in COVID-19 cases and spread of its
highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in Court, for the safety of
all concerned.
2. This criminal appeal under Section 374 Cr.P.C. has been
preferred claiming the following reliefs:
"It is, therefore, most respectfully prayed that the appeal of
the appellant may kindly be allowed and the judgment dated
21.3.90 passed by the learned Sessions Judge, Churu may
kindly be quashed and the appellant may kindly be acquitted
from the charges levelled against him."
3. The matter pertains to an incident which occurred in the year
1986 and the present appeal has been pending since the year
1990.
4. Mr. Vikas Bijarnia, appearing as Pro Bono, on behalf of the
appellant, submits that this Criminal Appeal has been preferred
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against the impugned judgment dated 21.03.1990, passed by the
learned District and Sessions Judge, Churu in Sessions Case
No.58/96 whereby the appellant was convicted for the offences
under Section 376 IPC and sentenced to undergo three years R.I.
and a fine of Rs. 5000/-, default of payment of which he was
ordered to further undergo six months R.I.
4.1. Learned counsel further submits that as regards the alleged
injury sustained by the prosecutrix, the same has not been proved
against the present appellant, as Dr. Anil Chawla PW-4, in his
statement made a clear deposition, in the form of medical opinion,
that as per injury report (Ex.P-12), there is every possibility that
such injury could be sustained from the firewood, and the same is
further fortified from the fact that on the day of the alleged
incident, the prosecutrix was carrying firewood on her head; such
medical opinion given by the expert is creating doubt.
4.2 Learned counsel further submits that apart from the above,
the prosecution has even failed to establish any connection
between the injury alleged to have been sustained by the
prosecutrix with the alleged incident, so as to attribute any role to
the present appellant; this is more so when Dr.P.K. Rathore, who
had medically examined the prosecutrix, particularly her genitals,
was not produced by the prosecution for rendering his evidence;
the same also casts a serious doubt upon the prosecution case.
4.3 Learned counsel also submits that the prosecution has also
failed to derive strength from any other evidence, so as to held
the appellant liable for the alleged offence, which also, amongst
others, is clearly detrimental to the case of the prosecution.
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4.4 Learned counsel further submits that from the above as well
as on a perusal of the record, it a clear case of consensual
relationship, but the same, later on, had been given a colour of
the commission of the offence under Section 376 IPC.
4.5 Learned counsel also submits that at the time of the alleged
incident, the appellant was 20 years of age and the prosecutrix
was 19 years of age.
4.6 Learned counsel thereafter submits that though there was a
minimum punishment provided under Section 376 IPC (as it then
stood) but there was a proviso thereto, which provided that the
court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term less
than seven years. Section 376 IPC, as it then stood, reads as
under:
"376. Punishment for rape.- (1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall
not be less than seven years but which may be for life or for a
term which may extend to ten years and shall also be liable to
fine unless the woman raped is his own wife and is not under
twelve years of age, in which case, he shall be punished with
imprisonment of either description for a term which may extend
to two years or with fine or with both.
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years."
4.7 Learned counsel thus, while emphasizing upon the
aforementioned proviso, submits that looking into the overall facts
and circumstances of the case, coupled with the record, it is a fit
case for invocation of the aforementioned proviso by the learned
trial court, on the question of quantum of sentence. Learned
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counsel further submits that the appellant has already undergone
custody of eight months.
4.8 Learned counsel for the appellant further submits that the
sentence so awarded to the appellant was however suspended by
this Hon'ble Court, vide order dated 28.09.2018 passed in S.B.
Criminal 2nd (Suspension of Sentence) Application No.1028/2018.
4.9. Learned counsel for the appellant, however, makes a limited
submission that without making any interference on
merits/conviction, the sentence awarded to the present appellant
may be substituted with the period of sentence already undergone
by him.
5. Learned Public Prosecutor however, vehemently opposes the
aforesaid submissions.
6. This Court is conscious of the judgments rendered in,
Alister Anthony Pareira Vs. State of Maharashtra (2012) 2
SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC
678 wherein the Hon'ble Apex Court observed as under:-
Alister Anthony Pareira (Supra)
"There is no straitjacket formula for sentencing an accused
on proof of crime. The courts have evolved certain
principles: twin objective of the sentencing policy is
deterrence and correction. What sentence would meet the
ends of justice depends on the facts and circumstances of
each case and the court must keep in mind the gravity of
the crime, motive for the crime, nature of the offence and all
other attendant circumstances."
Haripada Das (Supra)
"...considering the fact that the respondent had already
undergone detention for some period and the case is
pending for a pretty long time for which he had suffered
both financial hardship and mental agony and also
considering the fact that he had been released on bail as far
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back as on 17-1-1986, we feel that the ends of justice will
be met in the facts of the case if the sentence is reduced to
the period already undergone..."
7. In light of the limited prayer made on behalf of the appellant,
and keeping in mind the aforementioned precedent laws, the
present appeal is partly allowed. Accordingly, while maintaining
the appellant's conviction under Section 376 IPC, as above, the
sentence awarded to him is reduced to the period already
undergone by him. The appellant is on bail. He need not
surrender. His bail bonds stand discharged accordingly.
8. All pending applications stand disposed of. Record of the
learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
20-Zeeshan
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