Dismissed

State of Rajasthan through Pp v. Amit Kumar Joshi S/O Kailashchand Joshi B/C Brahmin

Rajasthan HC19 Jul 2019CRLAS/359/2019

Case brief

AI extract

What is this about?

The High Court disposed of two connected appeals. The court upheld the conviction of the appellant for heinous crimes including rape of a minor and unlawful confinement, rejecting submissions for sentence reduction and acquittal on attempted murder charges.

What did the court decide?

Impugned judgment dated 22.05.2015 upheld; both appeals dismissed; sentencing affirmed.

State of Rajasthan through Pp Vs Amit Kumar Joshi S/O… — Narcotics (NDPS) | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

D.B. Criminal Appeal No. 620/2015

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Amit Kumar Joshi son of Kailash Chand Joshi, by-caste Brahmin, resident of Indra Market, Gangapur City, District Sawai Madhopur (Rajasthan).

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(Presently confined in Central Jail Sevar, Bharatpur)

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----Appellant

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Versus

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State of Rajasthan Through PP

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----Respondent

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Connected With

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D.B. Criminal Appeal (Sb) No. 359/2019

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State of Rajasthan Through PP

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----Appellant

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Versus

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Amit Kumar Joshi Son of Kailash Chand Joshi, by-caste Brahmin, resident of Indra Market, Gangapur City, District Sawai Madhopur (Rajasthan).

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----Respondent For Appellant(s) : Mr. Rajneesh Gupta For Respondent(s) : Mr. Javed Choudhary-P.P.

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HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment

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19/07/2019

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Vide this order above mentioned, two appeals would be disposed of.

¶20

On 06.02.2011 at about 11:30 p.m., missing report Ex. P5 was lodged by the complainant-Rajesh Kumar Jaimini with regard to his minor daughter. It was stated by the complainant in the

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(2 of 8)

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[CRLA-620/2015]

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report that he had gone to attend the marriage of the child of his relative Surendra Kumar Jaimini. When after the marriage ceremony he was to return home at about 8:30 p.m., he found that his daughter (victim) was missing from Rukhmani Palace Marriage Home.

¶24

Thereafter, complainant moved complaint Ex. P1 on 07.02.2011 at about 1:30 a.m., wherein he stated that on 06.02.2011 at about 8 a.m. he had left to attend the marriage of the child of his relative Surendra Kumar Jaimini along with his wife and minor daughter. They had stayed in the house of his brother at Gangapur City, and thereafter, they had all gone to Rukhmani Palace. At about 9:30 p.m., he could not locate his daughter. They looked for his daughter in Rukhmani Palace but she could not be located there. He lodged missing report of his daughter. Thereafter, somebody heard noise from the go-down constructed in the Palace Campus. When they reached the spot and opened the door, they found that his daughter was lying there in an injured condition. He took his daughter immediately to the hospital. Accused Amit Kumar had raped his daughter as he had taken his daughter along-with him on the pretext of giving her a toffee.

¶25

On the basis of the statement Ex. P1, formal FIR No. 78 dated 07.02.2011 was registered at Police Station Gangapur City, District Sawaimadhopur under Section 366 A and 376 IPC.

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After completion of investigation and necessary formalities, challan was presented against accused Amit Kumar.

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Charges were framed against the accused under Section 363, 376 (2)(f) and 307 IPC.

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(3 of 8)

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[CRLA-620/2015]

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During trial prosecution examined 24 witnesses in support of its case.

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Appellant when examined under Section 313 Code of Criminal Procedure,1973, pleaded that police has apprehended many boys. Out of them many were left out as they had given money to the police. Since he had not given any money to the police, he had been falsely involved in this case.

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Appellant did not examine any witness in his defence.

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Trial court vide impugned judgment/order dated 22.05.2015 ordered the conviction and sentence of the accused under Section 363 and 376(2)(f) IPC. Hence accused-Amit Kumar has filed the appeal seeking his acquittal, whereas, the State has filed the appeal seeking conviction of the accused under Section 307 IPC also.

¶34

Learned counsel for the accused-Amit Kumar has submitted that the prosecution had failed to establish its case. There was no material on record to connect accused Amit Kumar with the alleged crime. Victim had failed to immediately identify the accused before the police. Later accused was falsely involved in this case by putting up a concocted story. Assuming that accused was liable for conviction then, the sentence awarded to the accused was liable to be reduced. In support of his arguments, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in Dinesh Alias Buddha Vs. State of Rajasthan, (2006) 3 Supreme Court Cases 771, wherein it was held as under:-

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“16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the

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(4 of 8)

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[CRLA-620/2015]

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sentence provided in Section 376(2)(f) IPC does not per se become life sentence. Though learned counsel for the State submitted that even in a case covered under Section 376(2) (f) IPC, imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the trial court nor the High Court has indicated any such factor. Only by applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years with a fine of Rs.2000 in default to further suffer simple imprisonment for one year. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded is without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks. “

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Learned counsel has next placed reliance on the decision of the Hon’ble Supreme Court in case of State of Karnataka Vs. Raju, (2007) 11 Supreme Court Cases 490, wherein, it has been held as under:-

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“10. Considering the legal position and in the absence of any reason which could have been treated as "special and adequate reason" reduction of sentence as done by the High Court is clearly unsustainable. The trial court should have imposed sentence of 10 years in terms of Section

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(5 of 8)

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[CRLA-620/2015]

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376 (2)(f) IPC. But State has not questioned the sentence as imposed, the sentence as imposed by the trial court is restored. The High Court's order reducing the sentence is set aside.”

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Learned State Counsel has submitted that the victim has duly supported the prosecution case during trial. Victim was a minor girl aged about 9 years. Victim has duly explained in her cross-examination that she could not identify accused immediately as it was difficult for her to open her eyes. Victim has suffered 23 injuries and was bleeding at the time when she was recovered by her family members. The other witnesses examined by the prosecution also establish the guilt of the accused. Learned State counsel has further submitted that the accused was liable to be convicted qua offence punishable under Section 307 IPC also.

¶45

In the present case, victim is aged about nine years. As per the prosecution story, accused Amit kumar has raped the victim while he was under the influence of liquor.

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Complainant while appearing in the witness-box as PW-4 has deposed as per the contents of FIR.

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PW-6 Sunita (mother of the victim) has corroborated the statement of the complainant.

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The star witness of the prosecution is PW-5(victim). Victim while appearing in the witness-box has deposed that on 06.02.2011, she had gone with her parents to Rukhmani Palace, to attend a wedding. At about 9:30 p.m., she had gone to drink water. One boy was sitting there and he offered her a toffee. She told that boy that in case he was having a toffee, he could give it to her but she would not go anywhere with him. However, the said boy forcibly picked her up and after buying a toffee for her, he took her to a lonely place. She got scared and started screaming

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(6 of 8)

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[CRLA-620/2015]

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but the boy kept his hand on her mouth. The said boy slapped her and touched her private parts and raped her. She had started bleeding. The boy then ran away from the spot. She started praying to God. In the meantime, the door opened and two persons came inside the room and took her to the hospital. She was got medically examined. She had suffered injuries on her back, feet, hands, private parts, face and her eyes had turned red. She was bleeding from her private parts. The accused present in the Court was the same person who had raped her. The said witness in her cross examination denied the suggestion that her lawyer had explained to her that she had been forcibly taken by the accused, because in reality, she had been forcibly taken by the accused. Police had made inquiry from her about the Marriage Palace but at that time she could not identify the accused because her health condition was very bad. She could barely open her eyes. Later she had identified the accused because she remembered his face.

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PW-2 Dr. S.N. Sharma, deposed that on 07.02.2011 at about 3:00 a.m., he had medically examined the victim. He proved the report Ex. P3. A perusal of medical examination report Ex. P3 reveals that there were twenty three injuries on the person of the victim. The victim had suffered teeth bite marks on her face. She had also suffered abrasions and bruises all over. It was observed by the doctor that there was swelling on her face and her both eyes were congested. Injured was bleeding from her vagina. Hymen was torn. In the opinion of the medical board there had been forceful insertion of her some hard objects (may be penis) in her vagina.

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(7 of 8)

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[CRLA-620/2015]

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Thus, the statement of the victim is duly corroborated by the medical evidence. Victim is aged about nine years. She has deposed in a most natural way. She has duly identified the accused in the court. In her cross-examination she has explained that she could not immediately identify the accused due to her health condition and she could barely open her eyes. The said part of the statement of the victim, stands duly corroborated by medical evidence. Victim had suffered injuries on her face. The doctor who had examined the victim found that face of victim was swollen and her eyes were congested.

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The victim, thus, must have suffered such a great trauma on account of heinous act committed by the accused. Hence, the explanation given by the victim that she could not immediately identify the accused after the incident appears to be genuine and acceptable.

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PW-7- Madan Mohan Meena has deposed that on the day of incident he was present in Rukhmani Palace and had taken meals with the accused in the place on same day.

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PW-9 Banti @ Sunil Kumar Sain is the person from whose shop accused had bought toffee for the victim. However, the said witnesses did not support the prosecution case during trial.

¶59

Although, the prosecution has examined other witnesses also who had attended the wedding, but mainly the prosecution story rests on the testimony of PW-5 with regard to involvement of the accused in the crime.

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We are of the considered opinion that the learned trial Court has rightly ordered the conviction of the accused under Section 376 (2)(f) IPC by placing reliance on the statement of the victim, as the said statement being natural, inspires confidence. Victim

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(8 of 8) [CRLA-620/2015]

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was not known to the accused and had no reason to falsely involve him in this case and shield the real culprit.

¶63

The victim had suffered simple injuries as it is evident from Ex. P-3 her medico-legal examination report. Hence, the trial Court had rightly ordered the acquittal of the accused qua of charge framed against him with regard to commission of offence under Section 307 IPC.

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Accused has been sentenced to undergo imprisonment for life under Section 376 (2)(f) IPC and fine of Rs. 50,000/- and under Section 363 IPC he was sentenced to undergo simple imprisonment for seven years and fine of Rs. 5,000/-.

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There is no force in the argument raised by learned counsel for the accused that the sentence of the accused be reduced.

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Victim in the present case is aged about nine years and she has suffered twenty three injuries on her person and was left by the accused in a bleeding condition. As per the medical examination report Ex. P4 of the accused Amit Kumar, he was smelling of liquor. Thus, there are no mitigating circumstances available on record to reduce the sentence of the accused. To show mercy to the accused in such a heinous crime committed by him would be a travesty of justice and the plea for leniency is wholly misplaced.

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Hence, no ground for interference is made out. Consequently, both the appeals are dismissed.

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Impugned judgment/order dated 22.05.2015 passed by the trial Court are upheld.

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(GOVERDHAN BARDHAR),J

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Ashu/14-15

State of Rajasthan through Pp v. Amit Kumar Joshi S/O Kailashchand Joshi B/C Brahmin

Case brief

What is this about?

What did the court decide?

State of Rajasthan through Pp v. Amit Kumar Joshi S/O Kailashchand Joshi B/C Brahmin

Case brief

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What did the court decide?

What the court decided

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