JETHA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant is aggrieved by the judgment dated 28.8.2004, passed by the Addl. Sessions Judge (Fast Track) No. 1, Bikaner, whereby the learned Judge has convicted the appellant for offences under Sections 363, 376 and 342 IPC. For offence under Section 363 IPC, he has sentenced him to four years of rigorous imprisonment, and imposed a fine of Rs. 1000/-, and has further directed him to undergo a rigorous imprisonment of one month in default thereof; for offence under Section 342 IPC, he has sentenced the appellant for six months of rigorous imprisonment; for offence under Section 376 IPC, he has sentenced the appellant to ten years of rigorous imprisonment, and has imposed a fine of Rs. 2,000/- and has further directed him to undergo two months of rigorous imprisonment in default thereof. The brief facts of the case are that on 26.9.2003, around 5:00 PM, Roopa Ram (PW. 6) had lodged a report at Police Station Nokha, wherein he had claimed that he had sent his niece alongwith his brother Chanda Ram for buying medicines at Nokha Mandi. After his brother Chanda Ram had bought the medicines, the left the niece with the appellant, who was a taxi driver, and asked him to drop his niece at his village. However, around 1 O' clock in the afternoon, his niece came back home covered with blood and she was crying. His niece told her mother and aunt that her uncle had left her with the appellant. But once the taxi reached Nokha, the appellant let go of the other passengers, but told the child that he will take her to her residence. However, instead of taking her to her home, he took her to his house. There, under threat, he disrobed her and ravished her. When the child cried for help, he closed her mouth. After ravishing her, he forced her to put on the clothes and let her go. On the basis of this report, a formal FIR was chalked out for the aforementioned offences.

(2.) In order to buttress his case, the prosecution examined seventeen witnesses and submitted twenty seven documents. After going through the oral and documentary evidence, vide judgment dated 28.8.2004, the learned Judge convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court.

(3.) Mr. B.R. Choudhary, the learned counsel for the appellant has frankly conceded that he does not wish to argue the case on merit and has confined his arguments merely to the age of the prosecutrix. According to him, the medical evidence, in the form of medical report (Ex. P/6), clearly reveals that the prosecutrix was about 12 years of age. Moreover, according to Dr. M.C. Baberwal (PW 5) and Dr. Tapasya Chaturvedi (PW 17), the prosecutrix would be anywhere from 12 years to 13 years old. According to the learned counsel, therefore, a grave possibility does exists that the prosecutrix was more than 12 years of age. Hence, the learned trial Court was not justified in imposing a sentence of 10 years as required under Section 376(2)(f) IPC. Furthermore, since the appellant has already undergone eight years of sentence, which is more than the minimum sentence of seven years, as laid down by Section 376 IPC, the learned counsel has pleaded that the sentence of the appellant should be reduced to as undergone.