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SURESH KUMAR versus STATE

High Court of Rajasthan

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SURESH KUMAR v STATE - CRLA Case No. 572 of 2002 [2007] RD-RJ 1538 (28 March 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

JUDGMENT

SURESH KUMAR VERSUS STATE OF RAJASTHAN

S.B.CRI.JAIL APPEAL NO.572/2002

AGAINST THE JUDGMENT DATED 29.6.2002 IN SESSIONS CASE NO.7/2002

PASSED BY SHRI JAGDISH SINGH

R.H.J.S.ADDITIONAL SESSIONS

JUDGE NATHDAWARA .....

Date of Judgment:- March 28,2007

PRESENT

HON'BLE MR.JUSTICE CHATRA RAM JAT

Mr.Firoz Khan,Amicus Curaie for the appellant.

Mr.J.P.S. Choudhary, Public Prosecutor.

BY THE COURT -

This appeal is directed against the judgment and order dated 29.6.2002 passed by the learned Additional

Sessions Judge Nathadawara , in Sessions case No.7/2002 whereby he convicted the accused appellant for offence under

Section 376 IPC for 10 years rigorous imprisonment and fine of

Rs.1000/- and in default of payment of fine to six years rigorous imprisonment. 2. Prosecution case is as under :

On 30.1.2002 at about 9.30 P. M. a complaint was filed by Kumari Kalpana daughter of Shri Suresh Kumar Mathur before the Police station Railmegra stating that her mother was expired before 6 years in burnt case. When her mother was alive, her father Suresh Kumar was keeping sexual relations with her (Kalpna) and when this thing came to the knowledge of her mother,she protested and quarrel with her husband then he beaten so due this reason her mother did not speak anything about this. After death of her mother, Suresh Kumar was beating with her belt and committed rape forcibly. She has shown marks of belt beating on her back but due fear of his father they have not taken her to police station. To take benefit of this, he regularly committed rape and because of that she conceived then his father take her to Aravali Hospital and then fifth time he took her to Merry Stops Hospital and where abortions have been done for which she was not ready and there there was no person to take her for hospital,therefore, in

January 2002 he took her Jaipur for which he first took her to

Bhilwara and then from Bhilwara to Jaipur through Roadways bus where both were stayed for 10th. January. 2002. Thereafter she was kept at her elder uncles house in Prithvi Nagar, Naya

Keda,Jaipur and his father said for her illicit relations with neighborers. Her elder aunty advised that do not complaint father in future. Thereafter on 18th January 2002 she against came to Railmegra and he continued to do sexual intercourse on her.When his father go out side the house then he put lock on both side of the room and not permitted to go out side and not permitted to meet any one.

Today when he was in intoxication, he said bring sword, take stick and kill Shankar Mali, Kalu Mali and Mangilal

Khatik. He was in full intoxication, without fear she came to police station and narrated story to head sahib.

On the above written report of Kalpna Mathur, police registered F.I.R. No.29/2002 Police Station Railmegra on 30.1.2002 at 9.30 P.M and offence under Sectin 376 IPC was registered as such.

After completion of investigation, police filed challan against the accused appellant before the Judicial Magistrate, First

Class, Railmegra, for offence under Section376- 368 IPC, who on 10.4.2002 committed the case to the Court of Sessions Judge,

Rajsamand who transferred the Case to the Court of Additional

Sessions Judge Nathadawara , for trial of the case.

After hearing the accused appellant on charge, learned Judge framed charge for offence under section 376 IPC which were read over to accused person. He denied the same and claimed trial.

During trial, prosecution examined P.W.1 to P.W.22 i.e in all twenty two witnesses and produced documents exhibited.

Thereafter statement of accused Suresh Mathur under Section 313 Cr.P.C. was recorded in which accused appellant claimed innocence that he has not committed rape with his daughter

Kalpna but his dauther Kalpna has illicit relations with neighbours Shankar, Manilal Khatik and Mangilal Gancha and due that reason she became pregnant, therefore, abortions were done and neighbours Mangilal, Shankar and Kalu Lal are responsible for the deed. He also stated that due to bad character of Kalpna, her wife Madhu committed sucide by burning herself. He has been falsely implicated in this case. He has not committed any rape on his daughter Kalpna Mathur. No defence evidence was produced by the accused.

After considering the evidence of the parties documentary as well as oral, the learned Additional Sessions

Judge,Nathadawara, convicted and sentenced the accused appellant as stated here-in-before, so this appeal.

Mr. Firoz Khan, learned Amicus Curaie for the appellant states that as to finding for the conviction of appellant under Section 376 IPC, he is not challenging the finding of conviction looking to the evidence of the prosecution and the finding of the learned learned trial Court may be upheld.

Learned counsel for the appellant vehemently urged that unfortunately the prosecutrix and the appellant are daughter and father and the wife of the appellant has died and he has only two issues,namely, the prosecutrix and son

Hani P.W.19 aged 14 years and there is no one to look after his minor son Hani.

As per statement under Section 313 Cr.P.C. dated 25.6.02 the appellant's age is 48 years so now he is 53 years old and is in custody since his arrest. The prosecutrix's date of birth being 23.8.1981 and incident relates to 30.1.2002 so prosecutrix's age comes at that time 20 years. As per X- ray report Ex.P-32 prosecutrix's age is 18-19 years and she was examined as P.W.1 on 20.5.2000 and she narrated her age 20 years. In her statement under Section 164 Cr.P.C. dated 1.2.2002 age is 21 years. Thus, admittedly the case is not covered under Section 376(2)(f) IPC as prosecutrix is above 12 years of age and thus, the minimum sentence of 10 years is not applicable in this case and looking to such pitiable family relations for the minor son and the old age of the appellant,sentence awarded should be reduced to the minimum level sentence.

Learned Public Prosecutor states that providing sentence is discretion of the Court but minimum sentence is 7 years and this is not a case where under the proviso to

Section376(1) IPC, court may impose a sentence of imprisonment for a term of less than 7 years as there are no adequate and special reasons in this case looking to the delicate relations between appellant and the daughter prosecutrix.

Taking into consideration the contentions raised by both the sides and the evidence produced by prosecution, this being a case of offence for rape. The statement of prosecutrix is very important. And conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.

Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

In this case prosecutrix P.W.1 Kalpna Mathur stated that the appellant is her father, committed rape and because of rape she became pregnant five times and the same terminated which is also corroborated by evidence of doctor

P.W.10 Dr. Maya Joshi, P.W.14 Preeti Bhatngar, P.W.20 Dr.

(Smt.)Gyan Agarwal.

The statement of prosecutrix that she was raped by the appellant has been corroborated by the real brother of prosecutrix P.W.9 Hani, P.W.2 Rajkumari and P.W.4 Meena. In this respect prosecutrix being major daughter of the appellant, it is a matter of surprise that why the daughter should depose falsely so as to expose her honour and dignity and also expose the whole family to the society risking the outcasting or ostracization and condemnation by the family circle as well as by the society. No girl of self- respect and dignity who is conscious of her chastity having expectations of married life and livelihood would accuse falsely against any other person of rape, much less against her father, sacrificing thereby her chastity and also expose the entire family to shame and at the risk of condemnation and ostracization by the society.

Having closely analysed the material on record and going through the submissions that conviction for offence of rape under Section 376 IPC is not challenged and on perusal of the evidence of P.W.1 Kalpna Mathur prosecutrix well corroborated by the testimony of P.W.9 Hari, P.W.2 Rajkumari and P.W.4 Meena, therefore, I am of the view that her testimony inspires confidence and trial Court has rightly convicted the accused appellant under Section 376 IPC.

As to the consideration for the quantum of punishment by the trial Court on conviction, trial Court convicted and sentenced the appellant for 10 years rigorous imprisonment with a fine of Rs.1,000/- and in default, to further under go for six months additional simple imprisonment. Here is a case where crime committed by the appellant not only delicts the law but it has a deleterious effect on the civilized society. In this respect I may quote observations of Justice Pandian in case of Madan Gopal

Kakkad v. Naval Dubey(1992 AIR) SCW 1480 wherein it has been observed ," Judges who bears the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand".

So while maintaining the conviction recorded by the trial Court, I alter the sentence and reduced the sentence from 10 years to 7 years rigorous imprisonment with the fine of of Rs.1000/- and in default of payment of fine to further under go for six months simple imprisonment.

In the result, the appeal is partly allowed and while maintaining the conviction of accused appellant Suresh

Kumar Mathur under Section 376 IPC, his sentence is reduced from 10 years to 7 years. The rest of impugned judgment of conviction and order of sentence, including the order of fine passed by the learned trial court, is maintained.

Accordingly, the appeal stands partly allowed in the above terms & extent as indicated above.

(CHATRA RAM JAT),J.

CKThanvi


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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