Rajasthan High Court - Jodhpur
Ranga vs State on 3 May, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Jail Appeal No. 648 / 2011
Ranga S/o Jagga Gameti, R/o Tejawas, Police Station Bekariya,
District Udaipur (Rajasthan).
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Kalu Ram Bhati & Mr. D.K. Sharma
For Respondent(s) : Mr. C.S. Ojha, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Judgment 03/05/2017 (PER HON'BLE MOOLCHANDANI, J.) This appeal is directed against the judgment dated 31/05/2011 passed by Additional District and Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.202/2008 convicting and sentencing the accused under Section 376 of IPC for life imprisonment with a fine of Rs.2,000/- and further to undergo one month's simple imprisonment.
2. The recitals of the F.I.R Ex.P1 read as under :-
The complainant Kika son of Kanaji, by caste Garasiya, aged 38 years, resident of Teja Ka Vas, PS Bekariya gave a verbal information that at seven in the evening, he came to his home, where his wife Meethi informed that their seven year (2 of 10) [CRLA-648/2011] old daughter Sita had gone to fetch Chhachh from her Nana Vagji's house in the morning, who came in the evening at around half past six in naked condition, blood was coming out of her private part, on querry, she informed that when she was coming with Chhach Ranga son of Jagga resident of Teja Ka Vas got hold of her forcibly and took her to nearby Ratanjot Khet (field) and raped her there, cloths of baby were lying there, he too asked his prosecutrix daughter Sita, then she confirmed it and after informing the incident to Narsa son of Dhula Garsiya and Jagga Garsiya son of Deeta Garsiya, resident of Teja Ka Vas, he came there for information, Ranga belongs to their village so, Sita recognized him, this F.I.R was lodged as F.I.R. No.68/2008 on 24.10.2009 at 11 p.m., which was investigated and charge-sheet was filed against the accused-appellant, after framing of charge, prosecution produced fourteen witnesses and got exhibited twenty three documents and the case was concluded with the aforesaid finding of conviction.
3. Heard arguments of both the sides, learned counsel for the accused-appellant has contended that prosecution has failed to establish its case despite learned trial Court has passed impugned erratic judgment, statements of prosecutrix have not been recorded and in absence of which, accused- appellant cannot be convicted, the case of the prosecution is based on surmises and there is no evidence against the appellant, so, appeal be allowed and the accused be acquitted.
(3 of 10)
[CRLA-648/2011]
Per contra, learned public prosecutor has
contended that prosecution has adduced reliable evidence,
prosecutrix is a minor baby, who was ravaged by the accused- appellant and positive medical evidence is there, which shows that minor girl was raped and her body was having serious injuries, medical and FSL have also corroborated the incident, all the witnesses of the prosecution have narrated the incident correctly, so there is no flaw in the findings and he has further argued that the accused is a gruesome habitual rapist, he has also outraged chastity of two women earlier, so he should be dealt with stringently, there is no infirmity in the impugned finding, so appeal be dismissed.
4. Perused the record and examined the evidence which divulges as under:-
PW.9 Dr. Rinku Lokesh Sharma, who examined the prosecutrix has said that on the request of medical jurist Manish Kumar Sharma on 25/10/2008, he had examined prosecutrix Sita, prosecutrix was having bruises on vulva and her hymen was torn, forchutte was injured, edema was there on the vulva on right side, blood clot was there, waterly discharge was present from edemalous margin, blood stains were present on both the thighs and there was tear between the thigh and vulva on 2 cm long, he has further said that Ex.P.22 is the report, which bears his signatures "perusal of Ex.P.22 confirms "stated" injuries. He has further said that for opinion of rape, vaginal swab and vaginal smear were taken and the opinion was reserved till the result, he has further said that the prosecutrix was not able (4 of 10) [CRLA-648/2011] to convey, he has also said that accused-appellant was potent since there was nothing suggestive that he was not capable to cohabit.
5. PW.11 Manish Kumar is also a physician, who examined the prosecutrix, he too has said that prosecutrix was having (1) bruises 2 cm below left eye, (2) multiple abrasion of 1 cm X 1 cm, 1 cm X 0.5 cm on left side of the head (3) lacerated wound, 2 cm X 1 cm on left parietal region of scalp, he has also said that the injuries were simple and caused by blunt object and its duration was 1-2 days.
6. Ex.P.22 has been conducted on 25/10/2008, Dr. Manish has further said that Ex.P.23 report also contains his signatures, on the basis of radio-logical examination age of the prosecutrix was found seven to nine years, FSL report pertains to serological examination dated 03.08.2009 reveals that human semen has been detected in exhibit No.2 from pocket E, 5 from F, 7 from 1 and 8 from 2 and these exhibits are pant, blood stained ghaghri, blood smeared loogra, vaginal swab and vaginal smear, likewise report dated 26/11/2009 discloses that human blood has been found positive on blood smeared soil, shirt, baniyan, Ghaghri, Loogra and A group human blood has been found on Ghaghari and Pant, blood, blood both these documents are admissible under the provision of Section 293 of CrPC and has been well explained under the provisions of Section 313 of Cr.P.C to the accused-appellant.
7. PW.10 Chuna Ram and PW.12 Anadaram are recovery witnesses, who have properly explained recoveries of (5 of 10) [CRLA-648/2011] chappal of the prosecutrix, purse of accused-appellant and clothings of prosecutrix recovered vide Ex.P.12.
8. PW.10 Chuna has confirmed his signatures on Ex.P.3, P.4, P.5, P.6, P.12 and P.13. PW.12 Anadaram has also confirmed his signatures on Ex.P.3, P.4, P.5, P.6, P.12, P.13 and has also said that policemen had collected blood and soil from the place of occurrence, chappal and purse were also seized, Lehenga and Ghaghara of prosecutrix stains with blood was also seized by the police and had packed in white cloth bag and his signatures were taken.
9. Link evidence pertaining to deposit of all the samples has well been explained by PW.6 Leeladhar Malivya, IO and Malkhana Incharge PW.8 Bhagwan and further deposited by PW.7 Manohar Lal, thus, link evidence has also remained unbroken.
10. PW.2 Kika is father of the child prosecutrix, who has said that the incident belongs three to four months back, Sita his daughter, had gone to fetch "Chhachh" from his maternal grand father, Ranga took her daughter near Kala Chuneriya in the field and raped her, he got its F.I.R lodged with police station, which is Ex.P.1 and Chalk F.I.R is Ex.P.2, which bears his signatures, he has further confirmed Ex.P.3 spot map and Ex.P.4 recoveries of footwear (Chappal) of prosecutrix and purse of accused Ranga vide Ex.P.5 and blood samples vide Ex.P.6, which contains his signatures, he has further said that when prosecutrix came back to the home, she was naked and was not wearing any cloth, in his cross-examination, he has said that it takes five (6 of 10) [CRLA-648/2011] minutes to arrive from his home to Kalachuna and has also said that when his daughter left from the house for her nana's house, he was there at his home.
11. It is important to observe that the complainant, as well as, the accused belongs to tribal community, where a system of "Jhagara", which denote settlement of crime, on certain fiscal considerations and in this respect, he has said that their family had demanded money from the family of Ranga, who did not pay, so, the matter was proceeded, which does not reflect anything akin to lodging of fake complaint allegedly to extort money, since such a practice is usual in the tribes and utterance to this effect has got relevance in this context only.
12. PW.3 Smt.Methi has said that Sita aging seven years is her daughter, who had gone to fetch Chhachh from the abode of her father Vagaji, she returned home crying, on interrogation, she informed that Ranga ravaged her in Kalachuna, Lehanga, Odhani, wearing of her daughter were taken away by Ranga and she came striped, blood was coming out of her urinary passage, she informed this to her husband, when he returned.
13. She has further said that accused Ranga is present in the Court, about whom her daughter complained, while cross-examined, she has said that Sita is innocent (Bholi), she is not intelligent, she returned, weepingly and she went thana with her husband for lodging F.I.R, this witness has also said that a settlement amount was demanded from Ranga, which he did not pay, she has further said that "Ranga Ne Hamari Beti Ke Saath "Baathey" aa gaya tha, she has further explained on Court query (7 of 10) [CRLA-648/2011] that baathey aana, amounts to ravaging the chastity.
14. PW.1 Prosecutrix Sita was produced for testimony, but was not found capable to narrate and there is a noting to this effect that on putting queries and interrogatories, prosecutrix was not found able to reply and remained looking around with slight smile so, her testimony could not be recorded, she attended the Court on 17.04.2009, which is about six months later to the incident.
15. PW.6 I.O. Leeladhar Malviya has confirmed all the exhibits relating to the investigation and has admitted his signatures on Ex.P.1, P.2, P.3, P.4, P.5 and P.6 and has also said that the recoveries were made on the instance of the accused by him and has further confirmed Ex.P.9 arrest memo and Ex.P.10 recovery of the wearing cloth of the accused, Ex.P.11, P.12, P.13, P.14, P.15, P.16, P.17 and P.18 have also been confirmed by him and he has said that after complete investigation, he had submitted charge-sheet against accused person, in his cross- examination, he has said that he had remained posted in Udaipur tribal area for six years, so is conversant with the vernacular language of Udaipur.
16. Adverting upon afore discussed material and evidence, we find that the prosecutrix was found sustaining injuries on her private part, there was edema (swelling), bruises and abrasion on her private part, her forchutte was found injured and hymen torn, her clothings, which were recovered from Kalachuna on the instance of accused, have been found tainted with human blood and her "vaginal swab" and her "vaginal smear" have also been found tainted with "semen", both her mother and father have narrated a positive (8 of 10) [CRLA-648/2011] evidence pertaining to the incident, it has also been highlighted that the accused has earlier remained indulged in such kind of incidents of raping innocent women because of being a habitual rapist and two such F.I.Rs Ex.P.17 and Ex.P.18 have been produced conveying such kind of incidents as uttered by PW.6 Leeladhar Malviya, IO of the incident, who has said that cases of outrage were earlier lodged against accused Ranga and its F.I.R is Ex.P.17, which is certified by him, likewise Ex.P.18 is F.I.R against accused Ranga pertaining to outraging the modesty of a woman. Ex.P.17 is also a F.I.R. No.32/2004 of PS Bekriya, which is lodged by complainant Smt. Antrri on 22.05.2004 against accused Ranga son of Jagga Gameti, alleging therein that he found her nine years daughter raped by Ranga, likewise Ex.P.18 is also an F.I.R No.1/2004 dated 13.01.2004 of PS Bekriya lodged by Smt. Champa against accused Ranga son of Jagga Gameti under Section 456 and 354 of IPC alleging that she was abortively attempted for rape. Cloths of victim and that of accused have also been found with semen, corroborating rape.
17. It has emerged in the evidence that prosecution was not found competent to testify, her parents have also said that she was not intelligent and bit retarded (Bholi), it has also observed by the trial Court that while she was put interrogatories, she remained silent and just looked hither and thither with smile, we can very well perceive predicament and psychological position of such a tender child witness, but recoveries, medical evidence and conclusion of serological examinations and testimony of both the doctors as explained earlier, goes to confirm that the trial Court has not committed any error in arriving at the findings impugned, we cannot loose sight of "amorous" history of the accused that he has earlier remained involved in similar kind of un-pious activities though there are certain infirmities and feeble (9 of 10) [CRLA-648/2011] factual aspect emanated in the testimony but in totality of the facts, the same are ignorable, which rather appears to be natural.
18. The Hon'ble Apex Court in catena of judgments including Rajesh Pandey vs. State of U.P., 2009 5 SCC 132, has held that minor discrepancies are not noticeable and recording of conviction cannot be faulted with, on minor discrepancies.
In Mahendra Kumar vs. State of M.P. 2013 Cri LJ 746 (Utr.), it has been held that where it is established from the evidence on record that the victim was minor girl aged about 11 years at the time of the incident and the medical evidence shows that she was subjected to forcible sexual intercourse and the FIR was lodged promptly, mere fact that the father of the victim had some dispute with the accused it cannot be said that the accused has falsely been implicated and therefore the conviction of the accused cannot be held liable to be interfered with.
Entirety of the evaluation as deliberated goes to show that the prosecution has proved its case beyond reasonable doubt and trial Court has rightly considered the entire evidence and in Niranjan Dharma Jadhav vs. State of Maharashtra, 2012 (3) MH LJ (Cri) 466, it has been held that where testimony of expert, examining victim, a deaf and dumb lady was trustworthy, reliable and supports testimonies of Pws that appellant committed overt act therefore conviction and sentence of appellant by trial Court warrants no interference in appeal.
19. In view of afore-discussed background, we are not inclined to meddle with the finding of learned trial Court and do not find any merit in the appeal, as such, the (10 of 10) [CRLA-648/2011] appeal fails.
20. Prosecutrix is a tender child belonging to tribal and weaker section of the society having feeble fiscal background, so while parting with, we feel that prosecutrix is to be compensated under the provisions of 357A of CrPC, though there is no such recommendation by the trial Court, but looking to the facts and circumstances and testimony of the case under hand, we direct legal services authority, Udaipur to award adequate compensation to the prosecutrix in order to rehabilitate and to alleviate her sufferings.
The appeal stands disposed of in aforesaid terms. Record of the trial Court be sent back, forthwith for the requisite. Copy of this judgment may also be forwarded to District Legal Services Authority, Udaipur for compliance. G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. T.kush/Sanjay