Rajasthan High Court - Jodhpur
Shankar vs State on 13 September, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 574/2014
Shankar S/o Jagannath, aged about 37 years, R/o Rasulpura,
Police Station Nimbahera, Distt. Chittorgarh.
(Presently lodged at Central Jail, Udaipur.).
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. D.K. Godara.
For Respondent(s) : Mr. R.R. Chhaparwal, PP.
Mr. Ravindra Singh.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
JUDGMENT
13/09/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The appellant herein has been convicted and sentenced as below vide judgment dated 03.10.2013 passed by the learned Additional Sessions Judge, Nimbahera, District Chittorgarh in Sessions Case No.35/2012:
Offences Sentences Fine Fine Default
sentences
Section 323 IPC 1 Year's R.I.
Section 354 IPC 2 Years' R.I. Rs.5000/- 6 Years'
Additional
Imprisonment
Section 376 IPC Life 1,00,000/- 2 Years'
Imprisonment Additional
Imprisonment
All the substantive sentences were ordered to run concurrently. (Downloaded on 16/09/2022 at 08:21:03 PM)
(2 of 10) [CRLA-574/2014] 2. Being aggrieved of his conviction and sentences, the
appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
3. Brief facts relevant and essential for disposal of the appeal are noted herein below:-
As per the allegations set out in the written report (Ex.P/4) lodged by PW-5 Shri Jagannath (father of the appellant) at Police Station Nibahera, the appellant herein was embroiled in a matrimonial strife with his wife Smt. Bhairi Bai who had lodged a case of demand of dowry against the appellant and was living at her father's house. Shankar used to live alone and would cook his own food. His minor daughter Mst. 'S' aged 14 years and minor sons Master 'R' and Master 'P', aged 6-7 years, would sometime stay with the complainant and also used to occasionally visit the house of the appellant. On 27.04.2012, Mst. 'S had gone to the house of Shankar but she did not return on which, the complainant went there and saw 'S' lying unconscious inside the room. Numerous marks of violence were visible all over the body of 'S' including the eyes, cheeks, hand, back and chest. The complainant and his wife Smt. Bagdi Bai picked up Ms. 'S' and took her to the Government Hospital, Nimbahera. It was alleged that Shanker had assaulted Mst. 'S' and had also outraged her modesty. 'S' had not regained senses till the time of lodging of the report.
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(3 of 10) [CRLA-574/2014] On the basis of this written report, FIR No.275/2012 (Ex.P/13) came to be registered at the Police Station, Nimbahera for the offences punishable under Sections 323 and 354 IPC and investigation was commenced. The child victim was medically examined by Dr. Dayal Wadwani (PW-10) who issued the Medico Legal Report (Ex.P/11) taking note of the following injuries on her person:
S. No. Particulars
1. Contusion 2x1 cms. on upper region of right eye.
2. Contusion 2x1 cms. on upper region of left eye.
3. Contusion 3x1 cms. on upper part of right arm.
4. Contusion 2x1 cms. on upper part of left arm.
5. Abrasion (At three places) 1/2 x 1/2 cms. on right hand.
6. Abrasion (At four places) 1/2 x 1/4 cms on left arm.
7. Abrasion (teeth mark) 3x2 cms. near the right nipple
8. Contusion 4x3 cms. on right thigh
9. Contusion 3x2 cms. on left knee.
The doctor stated that the victim was unconscious at the time of medical examination and the consent of her mother was taken to conduct the medical examination. Dr. Nitin Mali (PW-11) examined the victim for marks of sexual assault and took note of the fact that her hymen was freshly torn and contused. The doctor gave the report (Ex.P/12) with a categoric opinion that the victim had been subjected to sexual assault.
The victim Mst. 'S' regained senses and her statements were recorded under Sections 161 Cr.P.C. as well as 164 Cr.P.C. wherein, she categorically stated that her father called her to his house on the pretext of preparing food. She cooked food for him. Thereafter, her father switched on the T.V. Her two younger brothers were sent out of the house under the guise of bringing (Downloaded on 16/09/2022 at 08:21:03 PM) (4 of 10) [CRLA-574/2014] biscuits. Thereafter, her father shut the door, forcefully disrobed her, removed his own clothes and then subjected her to sexual assault. She was brutally beaten. When she shouted, her father increased the volume of the T.V. She was beaten by a stick. Her father also bit her chest. Later on, she overheard her father talking to a woman named Shanti that the girl should be thrown into the well. Her brothers came back after some time. Her grandfather also came and then she was taken to the hospital. On the basis of this version of the girl, offence punishable under Section 376 IPC was added to the case. Documents were collected from the school wherein, date of birth of the victim was recorded as 16.08.1999. Thus, the victim was about 13 years of age on the date of the incident. The accused was arrested and his underwear was seized for the purpose of forensic examination. The forensic samples viz. clothes of the victim, vaginal smear and slide were collected for serologinal examination.
After concluding investigation, a charge-sheet came to be filed against the accused appellant for the offences punishable under Sections 354, 323 and 375 IPC. The case was committed to court of the Additional Sessions Judge, Nimbahera where charges were framed against the accused for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses and exhibited 16 documents to prove its case. The FSL report was proved as Ex.C/1. The accused, upon being questioned under Section 313 Cr.P.C., claimed to have been falsely implicated but he did not lead any evidence in defence.
After hearing the arguments advanced by learned Public Prosecutor and the defence counsel and, upon appreciating the evidence available on record, learned trial court proceeded to (Downloaded on 16/09/2022 at 08:21:03 PM) (5 of 10) [CRLA-574/2014] convict and sentence the appellant as above, vide judgment dated 03.10.2013 which is assailed in this appeal.
4. Shri D.K. Godara, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The appellant and his wife were embroiled in a long standing marital disputes and owing to this strife, the victim Mst. 'S' was tutored to give false evidence and the appellant was falsely framed for the incident. As a matter of fact, the girl was missing from her grandfather's house from three days prior to the incident and in all probability, she might have been ravished by some unknown man. The appellant was roped into the case because of the marital dispute. He submitted that the evidence of victim Mst. 'S' (PW-4) is contradicted by the evidence of Jagannath (PW-5), Smt. Bagdi Devi (PW-6) and Master 'P' (PW-12). On these grounds, learned counsel Shri Godara, implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused appellant from the charges.
5. Per contra, learned Public Prosecutor and learned counsel representing the complainant, vehemently and fervently opposed the submissions advanced by the appellant's counsel. They submitted that the evidence of the child victim Mst. 'S' is wholesome and convincing. She had no reason whatsoever to falsely implicate the appellant her father for the gruesome crime. The girl made emphatic allegation of rape associated with violence against her own father, the appellant herein, in her sworn testimony. The statement of the girl is duly corroborated by the (Downloaded on 16/09/2022 at 08:21:03 PM) (6 of 10) [CRLA-574/2014] evidence of her mother Smt. Bhairi Bai (PW-3), her grandfather Shri Jagannath, the first informant (PW-5), her grandmother Smt. Bagdi Devi (PW-6) and her brother Master 'P' (PW-12). The evidence of the victim is also corroborated by the testimony of the medical experts Dr. Dayal Wadhwani (PW-10) and Dr. Nitin Mali (PW-11). They further pointed out that when the articles collected by the I.O. during investigation were forwarded to the FSL for forensic examination, the underwear of the accused tested positive for presence of human semen which further corroborates the allegation of rape levelled by the prosecution. They thus submitted that the learned trial court committed no error whatsoever in convicting and sentencing the appellant as above by the impugned Judgment and, implored the Court to dismiss the appeal.
6. We have given our thoughtful consideration to the submissions advanced at bar and, have carefully re-appreciated the evidence available on record.
7. At the outset, we may note here that the present one is a reprehensible case of a father subjecting his own minor daughter to rape. Not only the child but even the parents of the accused gave evidence against him at the trial. The written report (Ex.P/4) was lodged by Shri Jagannath father of the accused on 01.05.2012 wherein, it was clearly alleged that the child had gone to her father's house about three days prior to the incident. She did not return on which, the informant got worried and went there on 30.04.2012 where, he saw the child lying unconscious in the room in a badly injured condition. Making an assessment from the (Downloaded on 16/09/2022 at 08:21:03 PM) (7 of 10) [CRLA-574/2014] injuries noticeable on the body of the victim, the first informant levelled allegation of outraging modesty and assault in the FIR. However, when the girl was medically examined and the doctors PW-10 Dayal Wadhwani and PW-11 Dr. Nitin Mali thoroughly checked the child victim, it became clear that she had been subjected to brutal sexual assault associated with physical violence. The girl regained senses on 01.05.2012 and her statement was recorded on 03.05.2012. Upon being examined by the investigating officer, the victim made a categoric allegation of rape associated with violence against the appellant herein being her own father. Though the bed-head ticket was not exhibited but it is available on the file and a perusal thereof reveals that the child had to remain admitted at the Government Hospital, Nimbahera till 09.05.2012.
As is evident, the prime witness for proving the crime would none else but the child victim herself who was examined as PW-4. We have thoroughly gone through her sworn testimony and find that she has affirmatively stated that her father and mother were embroiled in a matrimonial strife. Her mother left her father and went to live at her maternal uncle's house. Her father would often call her to prepare food. During the fateful period, she had gone to her father's house for preparing food. She cooked the food which the accused consumed. Thereafter, her father sent her two brothers out to bring biscuits. Then, he forced her to open her clothes. She was tied up by the rubber nose and was disrobed. The accused brutally beat her up and subjected her to rape. He also bit her on the chest. She was given blows of a wooden pestle used to grind spices. Then, the accused made her to take bath with warm water and salt and gave her other clothes to wear. She (Downloaded on 16/09/2022 at 08:21:03 PM) (8 of 10) [CRLA-574/2014] overheard her father talking to a woman named Shanti and was insinuating that the girl would be thrown into the well. Thereafter, the accused went away in a tempo. She lost consciousness. Her grandparents came and took her to the hospital where, she regained full senses four days after the incident. Her statement (Ex.P/3) was recorded by the Magistrate wherein, she disclosed the complete sequence of events. On a perusal of the cross- examination conducted from the witness (victim), it becomes clear that the suggestions which were given to the girl were to the extent that the accused did not fully penetrate her private parts with his private part; that she did not raise a hue and cry; that she fell down from the stairs and received injuries and that her father did not subject her to rape. She emphatically denied these flimsy suggestions. A suggestion was also given that on the date of the incident, her father saw her indulging in wrong activities with an unknown man and that is why, she was given a beating by her father to chastise her. She denied this suggestion as well. She also refuted the suggestion that she had been tutored to give the statement against her father because of the pre-existing maternal strife. We find the statement of the girl to be truthful and beyond the pale of doubt. The evidence of the child victim is thoroughly corroborated by the evidence of the first informant Shri Jagannath (PW-5), her grandfather Smt. Bagdi Devi (PW-6) and most importantly her own brother Master 'P' (PW-12), who stated that he saw his father beating his sister who became unconscious. Shri Jagannath and Smt. Bagdi are parents of the accused and they unhesitatingly, gave evidence implicanting their own son for this ghastly sinful incident. If at all, there was an iota of truth in the defence theory that the accused became enraged on seeing his (Downloaded on 16/09/2022 at 08:21:03 PM) (9 of 10) [CRLA-574/2014] daughter engaged in sexual activity with an unknown man and that is why, he thrashed her so as to chastise her, then in natural course of events, the accused would be expected to report the matter to the police. However, he made no such effort whatsoever. Rather, he abandoned his unconscious daughter and escaped from the spot. Apparently thus, there is no merit whatsoever in the contention advanced by the defence counsel that the accused saw some unknown man indulging in sexual activities with the victim and that is why, she was thrashed by way of chastisement. The allegation levelled by the victim regarding her having been subjected to brutal rape and molestation in form of teeth bite on her chest area associated with beating by wooden pestle, is duly corroborated by the evidence of the medical jurists, referred to supra. The date of birth of the victim was proved by Smt. Ramsweta (PW-14) who exhibited the scholar register (Ex.P/14) wherein, date of birth of the child is recorded as 16.08.1999.
Thus, there is ample evidence available on record to satisfy the Court that the appellant herein, committed brutal sinful sexual assault upon his own minor daughter. She was given forceful blows of a wooden pestle and was also bitten on her breast. The evidence available on record is wholesome and convincing and does not suffer from any contradiction or infirmity whatsoever so as to doubt the same. The trial court committed no error whatsoever in appreciating the evidence and recording the adverse findings of guilt against the appellant by the impugned Judgment dated 03.10.2013 which does not suffer from any infirmity whatsoever warranting interference therein. (Downloaded on 16/09/2022 at 08:21:03 PM)
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8. As a consequence, the appeal fails and is rejected as being devoid of merit.
9. However, we noticed that while deciding the case by the impugned Judgment dated 03.10.2013, the trial court did not issue any direction for awarding compensation to the victim under the Victim's Compensation Scheme. Consequently, it is hereby directed that the trial court shall forthwith forward the case of the victim for grant of compensation under the Victim's Compensation Scheme to the District Legal Services Authority, Chittorgarh where, maximum permissible compensation shall be awarded to the victim as per the schedule of the Victim's Compensation Scheme which exists as on date.
10. Record be returned to the trial Court.
(FARJAND ALI),J (SANDEEP MEHTA),J
33-Tikam Daiya/-
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