Rajasthan High Court - Jaipur
Mahaveer @ Bittu vs State Of Rajasthan Through P P on 26 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 218/2018
Mahaveer @ Bittu S/o Baburam, by caste Jat, resident of
Kumhedi, Police Station Kiratpura District Bijnor (Uttar Pradesh)
----Appellant
Versus
State of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Deepak Sharma, Advocate For Respondent(s) : Mr. Javed Choudhary for the State HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment 26/07/2019 Appellant had faced trial in FIR No. 317 dated 25.09.2013 registered at Police Station Patan, District Sikar under Section 363, 366 (A), 376 Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act').
Prosecution story in brief, as per the FIR is that on 25.09.2013 at about 8:30 p.m. daughter (victim) of the complainant- Ajeet Saini aged about three and a half years had gone to get water from railway station. However, victim had been taken away by some unknown person and she had been raped. Victim came home crying and narrated the incident to the complainant. Victim was bleeding from her genitals and her intestines were protruding from her private part. On the basis of the statement of the complainant, formal FIR was registered.
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(2 of 7) [CRLAD-218/2018] After completion of investigation and necessary formalities, challan was presented against the appellant.
Charges were framed against the appellant under Section 363, 366A, 376 and 307 IPC and Section 5/6 of the Act. Appellant did not plead guilty and claimed trial.
In order to prove its case, prosecution examined twenty two witnesses during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case.
Trial Court vide impugned judgment/order dated 09.05.2018 ordered the conviction and sentence of the appellant under Section 363, 366, 307, 376(2)(j) and 376(2)(m) IPC. Hence, the present appeal by the appellant.
Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. There was no identification parade of the appellant to connect him with the crime.
Learned State counsel has opposed the appeal.
In the present case, at the time of incident date of birth of the victim was 07.09.2009. FIR was lodged by the father of the victim that his daughter had been raped by some unknown person. Victim was got medically examined. Ex. P20 is the medico legal examination report of the victim and the same has been proved by PW 21-Dr. Priyanka Sharma. A perusal of Ex. P20 reveals that patient was shifted to operation theatre and general anesthesia was given to her. Vaginal packing which was removed revealed that hymen of the victim was torn.There was a transverse tear in posterior fornix of vagina 5x4 centimeter, communicating with peritoneal cavity. (Downloaded on 01/09/2019 at 09:11:14 PM)
(3 of 7) [CRLAD-218/2018] Ex. P-39 reveals that injury in vagina of the victim was found to be dangerous to life and was declared grievous in nature whereas the other four injuries on the person of the victim were declared simple in nature. Ex. P39 was also proved by PW21- Dr. Priyanka Sharma.
Thus, from Ex. P39 and Ex. P20 it is established that the victim had been raped and had suffered injury in the said process which was dangerous to life.
The next question that requires consideration is as to whether victim had been raped and injured by the appellant.
Complainant while appearing in the witness box as PW-6 deposed that as per the contents of the FIR. Victim was not examined u/s 161/164 Cr.P.C. on account of her tender age.
PW15-Dilip Kumar Saini deposed that on 24.09.2013 he had received information that four years old girl has been raped by some unknown person. On the basis of the report lodged by the complainant, formal FIR was registered. Statements of witnesses were recorded and site plan was prepared. One pair of 'chappal' which were having blood stains were recovered from the spot and were taken in possession vide memo Ex. P13. Blood stains earth was also lifted from the spot and was taken in possession vide memo Ex. P14. Plain earth was lifted from the spot and was taken in possession vide memo of Ex.P15. T-shirt, Pajami and five toffees were recovered from the victim and were taken in possession vide memo Ex. P17. Victim was got medically examined and her report Ex. P20 was received. Appellant was arrested in view of information given by his friend Dharmveer. Memo of arrest of the appellant was Ex. P11. When the appellant was arrested, (Downloaded on 01/09/2019 at 09:11:14 PM) (4 of 7) [CRLAD-218/2018] a packet containing four vigara tablets were recovered from him. Two tablets from the strip had been consumed. The strip of four tablets was taken in possession vide memo Ex. P10, which was attested by the witnesses. From the bag of the appellant one empty manforce tablet strip was recovered and the same was taken in possession vide memo Ex. P2. On the basis of the statement suffered by the appellant under Section 27 of the Evidence Act, clothes of the appellant were recovered. Thereafter, appellant suffered disclosure statement under Section 27 of the Evidence Act that he could disclose the shop from where he had taken the tablets. Appellant further suffered disclosure statement under Section 27 of the Evidence Act that he could get the clothes worn by him recovered from the Brick-Kiln (Haryana). On the basis of said statement one 'pajama' and T-shirt of the appellant were recovered and the same were taken in possession vide memo Ex. P4. On the basis of the same statement, appellant got recovered his underwear and same was taken in possession vide memo Ex. P5. At the instance of the appellant site plan of the place of incident was prepared . Dharmveer was also interrogated. Ex. P39 and Ex. P40 were the medical opinions relating to the victim. Forensic Science Laboratory report was Ex. P-42. Deoxyribonucleic Acid (DNA) test of the appellant was got conducted and report in this regard was Ex. P43.
PW-18 Manohar Lal Agarwal deposed that he was running a chemist shop near railway station. On 24.09.2013 at about 4/5 p.m. one person had purchased Viagara tablets from him and said person belonged to Uttar Pradesh. He identified appellant present in the Court as the said person who had purchased the tablets.
PW1-Indra Devi deposed that she was working in a brick- kiln near Kotputli. Appellant was also working in the same brick-kiln. Appellant used to visit their house. Whenever appellant visited her (Downloaded on 01/09/2019 at 09:11:14 PM) (5 of 7) [CRLAD-218/2018] house, sometimes he used to talk to her. Since appellant had failed to repay the loan taken from her he had left two mobile phones with her. She kept one mobile phone with herself and one mobile phone was given by her to her sister-Sandhya. Thereafter, the said witness did not support the prosecution case and was declared hostile. The said witness stated in her cross-examination by the learned Public Prosecutor that she had met Mahaveer on a day after the incident. Near the railway station, a day before, a child had been raped.
PW3-Dharmveer deposed that he was working at the brick- kiln of Nafe Singh for the last 6/7 years. He knew the appellant who was working with him. When appellant used to go to his village, he used to carry a black bag and used to return after 2-4 days. On 24.09.2013 at about 11-12 'O'clock appellant had gone with black colour bag and had taken Rs. 5000/- from Satpal Munim. Appellant was wearing black colour pant and a sky colour T-shirt on that day. Appellant used to keep his clothes in the bathroom. When the police met him he came to know that 3/4 year old girl had been raped. I.D. of the appellant was taken out from his bag. Recoveries were effected in his presence and memos in this regard Ex. P3, Ex. P10 and Ex. P11 were prepared. The said memos signed by him. Appellant was arrested and thereafter police took them to the brick-kiln and clothes of the appellant were recovered vide memo Ex. P4 and Ex. P5.
PW7- Satpal deposed that on 24.09.2013 appellant who was working in their brick-kiln had taken Rs. 5000/- from him and had told him that he was going home and would return after 3-4 days. When appellant had left, he was wearing a black colour pant and sky colour T- shirt and was carrying a black colour bag.
PW-8 Anita Devi (mother of the victim) has corroborated the statement of the complainant.
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(6 of 7) [CRLAD-218/2018] PW9 Surendra Saini has also corroborated the statement of the complainant.
PW10-Shivlal (grandfather of the victim) has also corroborated the statement of the complainant.
PW13-Vinod has also corroborated the statement of the complainant. He is the brother of the complainant.
PW16-Sandhya Devi has deposed that appellant had given two mobile phones to her sister-Indra and her sister Indra had given one mobile phone to her.
PW17- Gauri Shankar deposed that he was working with the appellant at a brick-kiln for about 3-4 years ago. Appellant had left his bag at his shop but he had not returned thereafter. After one or two days appellant was brought to his shop by the police and the bag was taken in possession vide memo Ex. P2.
Ex. P42 is the report of the State Forensic Science Laboratory, Rajasthan. A perusal of the same reveals that human semen was detected on the underwear of the appellant.
Ex. P43 is the report of the State Forensic Science Laboratory with regard to DNA examination. A perusal of the same reveals that male DNA profile obtained from 'pajami' of the victim matched with the blood sample of the appellant. It was concluded that DNA test performed on the exhibits provided was significant to conclude that the source of Ex No.8 (blood sample of Mahaveer) could not be excluded as the possible contributor of male DNA obtained from Ex. P1 (Pajami of victim). The 'pajami' of victim was taken in possession vide memo ex. P17 which has been duly proved by the prosecution witnesses.
Thus, in the present case, although, the appellant was not named in the FIR as he was not known to the victim or the complainant. (Downloaded on 01/09/2019 at 09:11:14 PM)
(7 of 7) [CRLAD-218/2018] Thereafter, during investigation it transpired that appellant had raped the victim aged about three and a half years and as a result, victim had suffered vaginal injury which has been declared dangerous to life. Male DNA from the 'pajami' of the victim was examined with the blood sample of the appellant and as per the report of the Forensic Science Laboratory Ex. P 43, the male DNA profile obtained from the Pajami of the victim matched with the DNA profile of blood sample of the appellant. Thus, in the present case, although, nobody had seen the appellant committing the crime nor he could be got identified from the victim, being of tender age, but his guilt is established from report of Forensic Science Laboratory Ex. P43.
Hence, from the circumstances brought on record by the prosecution, the guilt of the appellant with regard to the commission of crime in-question stands duly established.
Hence, trial Court has rightly ordered the conviction and sentence of the appellant under Section 363, 366, 307, 376(2)(j) and 376(2)(m) IPC. No ground for interference is made out .
Dismissed.
(GOVERDHAN BARDHAR),J (SABINA),J
Ashu/30
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