Dismissed

Devji and Anr. v. State of Raj.

Rajasthan HC16 Aug 2017CRLA/533/2010

Case brief

AI extract

What is this about?

The High Court at Jodhpur dismissed the criminal appeal against conviction for gang-rape under Section 376(2)(G) IPC. The court upheld the trial court's view that prosecution evidence and the defense settlement document established guilt. Regarding the robbery charge, the court held that acquittal on that count did not warrant benefit of doubt for the rape charge.

What did the court decide?

The criminal appeal was dismissed, maintaining the convictions and sentences of 10 years rigorous imprisonment and a fine for both appellants.

Devji and Anr. Vs State of Raj. — Criminal Trial and Appeal | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 533 / 2010

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Devji S/o Shri Veera aged 30 years, by caste Jogi, resident of Dholi Sadar Majra P.S. Kalinjara, District Banswara.

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Kishan S/o Shri Dalji, aged 25 years, by caste Jogi, resident of Borkhedi, P.S. Kushalgarh, District Banswara.

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(At present lodged in Central Jail, Udaipur).

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----Appellant

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Versus

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The State Of Rajasthan.

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----Respondent

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For Appellant(s) : Mr. J.V.S. Deora.

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For Respondent(s) : Mr. Rajesh Bhati, PP.

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Judgment

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16/08/2017

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By way of this appeal, the appellants herein have approached this Court for challenging the judgment dated 11.10.2010 passed by the learned Additional Sessions Judge (Fast Track), Banswara in Sessions Case No.60/2009 whereby, they were convicted for the offence under Section 376(2)(G) IPC and were sentenced to 10 years’ R.I. and a fine of Rs.1,000/- in default of payment of fine to further undergo 1 month’s R.I.

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Briefly stated, facts essential and relevant for disposal of the instant appeal are noted hereinbelow:

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The victim Sushri ‘S’ aged about 15 years, lodged a written report with the SHO, Police Station Kalinjara on 03.05.2009 alleging inter alia that she had gone to attend the wedding of a girl named Huki. They were singing and celebrating till 3 o ‘clock’

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(2 of 5)

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[CRLA-533/2010]

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in the night. She felt the urge to attend the call of nature and went out to ease herself at a little distance from the place where the celebration was going on. When she was about to rise, Devji, who belonged to her own village and his brother-in-law Kishan came there suddenly, gagged her mouth and took her to a nearby isolated place. Devji was carrying a knife with him which he used for threatening the victim so as to fulfill their motive. She was forced down on the ground and first Devji subjected her to rape and thereafter, Kishan also sexually assaulted her. She pleaded with them to spare her, but the accused did not pay any heed to the request. After subjecting her to rape, the accused threatened her with the knife and looted her Sankli and Kandora. She was threatened that if she uter any word of the incident to anybody, she would be killed. She returned to the house of Huki with great difficulty and told her grandfather Gatu of the incident. Thereafter, she was brought to the police station where she lodged the report. On the basis of this complaint, an FIR was registered for the offences under Sections 376(2)(G) and 392 IPC against the appellants herein and investigation commenced. After investigation, charge-sheet was filed against the accused. The case was committed to the court of Sessions Judge, Banswara from where the same was transferred for trial to the Court of Additional Sessions Judge (Fast Track), Banswara. The trial court framed charges against the accused persons for the offences under Sections 376(2)(G) and 392 IPC. The accused denied the charges and claimed trial. The prosecution examined as many as 13 witnesses in support of its case. Upon being questioned under

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(3 of 5)

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[CRLA-533/2010]

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Section 313 Cr.P.C., the accused denied the prosecution

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allegations and stated that they had been falsely implicated for oblique motive. Two witnesses were examined in defence. Upon conclusion of trial, the learned Trial Judge, while accepting the prosecution evidence, rejected the defence theory regarding innocence of the accused and proceeded to convict and sentence the appellants as above. Hence this appeal.

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Shri JVS Deora, learned counsel representing the appellants did not seriously challenge the conviction of the appellant Devji, however, he urged that the victim Sushri ‘S’, upon being examined, admitted that she did not know the accused Kishan from before. Thus, he contended that the appellant Kishan deserves to be acquitted of the charge. He further submitted that the trial court acquitted the accused persons from the charge under Section 392 IPC and as such apparently, the prosecution case has been disbelieved in part and consequently, the accused are entitled to benefit of doubt even for the offence under Section 376(2)(G) IPC. He further contended that the complainant party, accepted a settlement offered by the accused persons and the settlement document was exhibited on behalf of the defence as Ex.D/2. Pursuant to the said settlement, father of the girl Shri Lalu accepted a sum of Rs.33,000/- for the ornaments allegedly snatched from the victim. He urged that in the document Ex.D/2, there is no reference of the accused having subjected the victim to rape and thus, it is a fit case wherein the accused persons should be acquitted by giving them benefit of doubt. In the alternative, he craved for a lenient consideration on the aspect of sentences

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(4 of 5)

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[CRLA-533/2010]

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awarded to the appellants.

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Per contra, learned Public Prosecutor vehemently opposed the submissions of the appellants’ counsel and urged that the prosecutrix has given unimpeachable evidence pointing to the guilt of the accused for the henious offence of gang-rape. The accused were given lenient consideration by the trial court while acquitting them from the charge under Section 392 IPC and as such, as per the learned Public Prosecutor, no interference is called for in the trial court’s judgment.

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I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

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The victim Sushri ‘S’, categorically stated in her evidence that both the accused appellants caught hold of her while she had gone in the fields for attending the call of nature. Nothing significant could be elicited despite lengthy cross-examination from the victim which could create any doubt on her testimony and come to the aid of the accused persons in their quest of exoneration from the grave charge of gang-rape. The minor contradictions pointed out by the accused regarding identity of the accused Kishan looses significance when considered in light of the defence document (Ex.D/2), wherein it is clearly mentioned that two accused Kishan and Devji had caught hold of the girl and took away her ornaments. Thus, participation of both the accused at the time of incident is virtually admitted even in the defence evidence. The FIR was lodged with utmost promptitude and contains the requisite details for bringing home the guilt of the

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(5 of 5)

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[CRLA-533/2010]

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accused. The prosecutrix withstood grueling cross-examination made on behalf of the accused and stuck to her allegations regarding the accused having subjected her to gang-rape. The medical officer (PW-13) Dr. S.K. Bhatnagar clearly stated that when the victim was examined by Dr. Shalini, numerous abrasions were noted on her back and a laceration was observed on her vaginal region. The doctor gave opinion that the victim had been subjected to sexual assault.

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In view of the impeachable prosecution evidence and the virtual admission of guilt as manifested from the defence document (Ex./D/2), I am of the firm opinion that the trial court committed no error whatsoever, either factual or legal, in holding the appellants guilty of the grave charge of gang-rape with the minor prosecutrix. Thus, there is no reason or justification to interfere in the conviction of the appellants as recorded by the trial court vide impugned judgment dated 11.10.2010. The prayer of Shri Deora that lenient consideration be made on the aspect of sentences awarded to the accused appellants cannot be accepted because the offence under Section 376(2)(G) provides for minimum sentence of 10 years. There is no such significant special feature in the case which could persuade the court to reduce the sentence awarded to the appellants to less than the minimum sentence prescribed by law.

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Consequently, the appeal is hereby dismissed as being devoid of merit.

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(SANDEEP MEHTA)J.

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tikam daiya/

Devji and Anr. v. State of Raj.

Case brief

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Devji and Anr. v. State of Raj.

Case brief

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