Rajasthan High Court - Jaipur
State Of Rajasthan vs Vikram Singh on 27 September, 2016
Author: Sabina
Bench: Sabina
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
JUDGMENT
SB CR. APPEAL NO. 535/2010.
State of Rajasthan
VS.
Vikram Singh S/o Kalyan Singh, b/c Rajput, Age 26 Years, R/o Plot
No. 151, Ganesh Vatika, Niwaru Road, P.S. Kardhani, Jaipur.
DATE OF JUDGMENT : September 27, 2016
HON'BLE MRS. JUSTICE SABINA
Mr. V.S. Godara for the State-appellant.
Mr. K.R. Sharma for the respondent.
BY THE COURT:
1. Respondents had faced trial in FIR No. 79/2009, Police Station Kardhani, Jaipur City (South), Jaipur for offence under Section 363 and 376 Indian Penal Code, 1860. Trial Court vide order dated 13.04.2010 ordered the acquittal of respondent. Hence, the present appeal by the State.
2. Prosecution story in brief is that complainant reported to the police that on 12.3.2009 his wife and children were at home. Respondent took the prosecutrix with him on the enticement that he would give a Chocolate to her. Complainant and his wife looked for the prosecutrix but she could not be found. At about 10.30 p.m., respondent left the prosecutrix at the door of their room. Complainant and his wife asked the respondent as to where he had taken the prosecutrix, but he fled away. They noticed that their daughter had fallen near the gate and she was bleeding from her private part. Hands and feet of the prosecutrix 2 were also bloodstained. Respondent had raped the prosecutrix. Prosecutrix was got medically examined.
3. After completion of investigation and necessary formalities, challan was presented against the respondent.
4. During trial prosecution examined 9 witnesses. Appellant when examined under Section 313 Code of Criminal Procedure 1973, after the close of the prosecution evidence, prayed that he was innocent. In fact he had seen the wife of the complainant in a compromising position with Raju Halwai and due to this reason he had been falsely involved in this case. Respondent examined 5 witnesses in his defence.
5. Learned State Counsel has submitted that the prosecution had been successful in proving its case. Prosecutrix was a 4/6 year old girl and she had specifically stated that she had been raped by the respondent. Medical evidence of the prosecutrix corroborated her ocular version. Further the medical examination of the respondent also corroborated the prosecution story. In support of his argument learned State Counsel has placed reliance on the decision of the Division Bench of this court in the case of Dharamchand son of Sh. Sayya Ram Vs. State of Rajasthan, DB Cr. Appeal No. 1856 of 2007 decided on 8.5.2015, wherein it was held as under :-
"In these circumstances, it was for the appellant to explain as to how he had received injury on the male organ. The ordinary rule of appreciation of evidence in cases of sexual abuse of child victim cannot be applied, as child abused, when no 3 witnesses are available at place to which others have no access or in concealed environment, away from the eye of anybody, by ensuring utmost secrecy.
A child being dependent in a fiduciary relationship seek shelter among elder and is often sexually abused by close relative, family friend and a neighbour.
It is a well settled fact that prevention of child from sexual abuse is difficult and it is equally difficult to determine accused. Sexual abuse cases of child are often not reported. It is also common established fact that the child in sexual activity cannot fully comprehend the same and is often exploited.
To us, the injury on the penis of the appellant found on 04.09.2006 is a clincher as such an injury is bound to occur, if forceful sexual intercourse is committed with child aged five-&-half years. Opinion (Exhibit-P/20) by Dr. Rakesh Kumar (PW-18) leaves no scope for the appellant to evade punishment. The Courts are expected to be extra sensitive in the cases of sexual abuse of the child."
6. Learned counsel for the respondent, on the other hand, has opposed the appeal and has submitted that there were material discrepancies in the statements of the prosecution witnesses. So far as the prosecutrix is concerned she had stated in her cross- examination that she had deposed as per the version disclosed to her by her father.
7. Complainant while appearing in the witness box as P.W.1 deposed as per the contents of the FIR.
8. Prosecutrix while appearing in the witness box as P.W.2 deposed that respondent had come and had slapped her. Respondent had told her mother that he would give toffee to the prosecutrix. After giving her toffee, respondent threw her in the 4 drain and fell on her. Respondent took off her pant and underwear. There was blood on her hands and feet. There was also bleeding from inside her. Then respondent left her at her residence. She narrated the occurrence to her mother and she was taken to the hospital.
9. P.W.3 Kailash deposed that he was running a sweet shop. Wife of the complainant was working with him. About 7-8 months earlier complainant had telephoned him and had told him that his daughter had been raped and was bleeding from her private part.
10. P.W.5 Dr. Nupur deposed that on 13.3.2009 she had medically examined the prosecutrix and proved the report Ex.P.6. A perusal of the report Ex.P.6 reveals that there was blood stained discharge from the genitals of the prosecutrix. Hymen was torn and tear was present at 6.00 'O' Clock position in posterior vaginal wall upto the skin of the anal canal. There was bleeding from vagina. Vagina admitted one finger.
11. P.W.7 Sunil Kumar Yadav deposed that he knew the complainant. On 12.3.2009 he had gone to collect rent at the house of the complainant. At about 8.00 p.m., Vikram Singh had come there and at about 9.00 O' Clock he had taken away the prosecutrix with him. Thereafter they started searching for the prosecutrix. At about 10.30 p.m., Vikram Singh brought the prosecutrix and left her at the gate of her house and fled away. Prosecutrix was bleeding from her private part. Hands and feet of the prosecutrix were also bloodstained. Condition of the 5 prosecutrix was serious. Matter w as reported to the police.
12. P.W.8 Dr. Vijay Kumar Sharma deposed that on 13.3.2009 he had medico legally examined the respondent and proved the report Ex.P.22. The said witness deposed that there was an abrasion over right elbow of the respondent and an injury on his right arm. He further deposed that there was an abrasion 1.5x1.0 cm on middle 1/3rd and upper 1/3rd of glans penis. In his cross- examination he deposed that the injury on the penis could not be due to fall.
13. D.W. 1 Surendra Singh Shekhawat deposed that he knew the respondent and had been falsely involved by the complainant in this case as the respondent had seen the wife of the complainant in a compromising position with Raju Halwai. Due to this reason the complainant party wanted to take a revenge from the respondent. The house was also got vacated due to this reason.
14. D.W. 2 Rajendra Singh corroborated the statement of D.W.1.
15. D.W.3 Karan deposed that on 12.3.209 Vikram was present at his residence and the respondent had been falsely involved in this case.
16. D.W. 4 Ramchandra deposed that respondent was residing on rent in the same house where the complainant was residing with his family. There used to be dispute between them and due to this reason Vikram had been falsely involved in this case. 6
17. D.W. 5 Shanker Lal corroborated the statement of D.W.1.
18. In the present case, prosecutrix was aged about 4 years (as per Ex. P.6) at the time of occurrence. The statement of the prosecutrix is most natural and inspires confidence. She has categorically deposed that she was taken away by the respondent on the allurement that he would give her a toffee. Thereafter she was thrown in a drain and he fell on her and she started bleeding. A girl who was merely 4 years old could not have given much details of the act committed by the respondent. Moreover, the prosecutrix was medically examined on the next day i.e. 13.3.2009 and the ocular version of the prosecutrix stands duly corroborated by medical evidence. Prosecutrix was bleeding from vagina and hymen was torn and there was a tear from vaginal wall upto the skin of anal canal. Respondent was also medically examined on 13.3.2009 and injuries were found on his person. As per Ex.P.22, there were injuries on the right arm of the respondent and there was also an abrasion on his glans penis. Thus, the statement of the prosecutrix is also corroborated by the medical examination report of the respondent.
19. In fact, in the present case the prosecution had been successful in proving its case. The statement of the prosecutrix was duly corroborated by medical evidence. The complainant had also found his daughter bleeding from her private part and had reported the matter to the police. Prosecutrix was got medically 7 examined. The trial court fell in error while ordering acquittal of the respondent of the charges framed against him although the case of the prosecution was duly established. The witnesses examined by the respondent fail to rebut the statement of the prosecutrix coupled with the medical evidence on record. Although the prosecutrix has stated in her cross-examination that whatever she had stated had been told to her by her father, but the said part of her cross-examination is not fatal to the prosecution case. Prosecutrix was a young girl at the time of recording her statement and may not have understood the question put to her by defence counsel correctly. Rather in her cross-examination also the prosecutrix had stated that her pant had been taken off by the respondent and she knew the respondent earlier as he used to come to their house. After going through the statements of the prosecutrix as well as the medical evidence of the prosecutrix and the respondent, it is duly established on record that the respondent was guilty of the charges framed against him. The trial court had erred in ordering the acquittal of the respondent of the charges framed against him.
20. Accordingly, the appeal is allowed. Judgment of the trial court dated 13.4.2010 is set aside. Appellant is held guilty of offence punishable under Section 363 and 376 IPC and is convicted thereunder. Respondent is sentenced to undergo rigorous imprisonment for 7 years for offence under Section 363 8 IPC and shall pay a fine of Rs. 5,000/-. In default of payment of fine appellant shall undergo further imprisonment for three months. For offence under Section 376 IPC, appellant is sentenced to undergo rigorous imprisonment for 10 years and shall be liable to pay fine of Rs. 5,000/-. In default of payment of fine, appellant shall further undergo rigorous imprisonment for three months. Both the sentences shall run concurrently.
(SABINA) J.
mrg.