NAHEED ARA MOONIS.J. - (1.) THE instant appeal has been filed before this Court from Jail under section 374 Criminal Procedure Code by the appellant against the judgment and order dated 7.7.2004 passed by the Additional Sessions Judge/Fast Track Court No.3 Jhansi.
(2.) THE factual matrix of the case is that the victim Suman aged about five years who was subjected to sexual assault by the accused Rajesh alias Raju.The learned Additional Sessions Judge (Fast Track) Court no.3 Jhansi in Sessions trial No. 182 of 2003 tried the appellant for an offence punishable under section 376 IPC and the appellant was convicted and sentenced under section 376(f) IPC for life imprisonment with a fine of Rs. 2000/-.In default of payment of fine, the appellant was directed to undergo three months imprisonment vide order dated 7.7.2009. The prosecution case as divulged during trial is that the accused appellant Rajesh @ Raju was working in the Shanti Granite as a labourer where the complainant was also working. On 26.5.2002 the complainant went at the site of the Shanti Granite leaving his wife and daughter aged about five years in the house. As per version of the complainant at about 2.30 p.m. the wife of the complainant went outside to attend a call of nature,the appellant took away the minor daughter of the complainant at the house of his in-laws where she was raped by him. On the hue and cry of the victim,neighbourers rushed and the appellant was seen running away from the place of occurrence. The appellant was chased but he could not be caught.Thereafter the complainant and his wife went at the police station after getting the report written by one Gulab Singh.The complainant had also taken his minor girl at the police station.The first information report was lodged on 26.5.2002 at 6.10 p.m. which was registered as Case Crime No. 211/2002 under section 376 IPC Police Station Baragaon District Jhansi.After registration of the case,the police came into action, the investigation was started and the same was entered in the case diary.The victim Km.Suman was sent for medical examination in the District Women Hospital where she was medically examined on the same day at about 9.15 p.m. The X.ray of the victim and the pathology test were conducted on the same day i.e. 26.5.2002. Blood stained cloths were also handed over to the police which was marked as Ex.Ka.2. In the X.ray report, doctor has opined that the girl is aged about five years and in the pathology report, doctor opined that possibility of rape cannot be ruled out.Both medical report as well as pathology report confirmed that the victim was subjected to rape. After completing the investigation, charge sheet was submitted.Subsequent thereto charges were framed against the appellant. Since the accused appellant abjured guilt, the trial was conducted. In all three witnesses of facts namely Jahar Singh, Smt. Kallo and Smt. Munni were examined in support of the prosecution case. P.W. 1 is the father of the victim Jahar Singh narrating the incident as disclosed by his wife has deposed that the appellant is resident of Govindpur Thana Tatiya (Madhya Pradesh) and was working as labourer in Shanti Granite. He had taken away his minor daughter aged about five years while his wife had gone to attend a call of nature at the house of Khuman his father in law where none was present. The victim was raped by the appellant.On the shriek and cry of the victim, a number of persons reached on the spot and on seeing them the appellant ran away from the place of occurrence. When the victim cried,the mother of the victim including the complainant himself came at the place of occurrence. The blood stained frock and underwear of the victim was handed over to the police.In his cross examination he had stated that when the girl screamed, he was not present there. When he reached on the spot, he found 7/8 persons were there including three or four women. He also stated that he had no enmity with the appellant.He has not falsely been implicated in the case. Subsequent thereto Smt. Kallo (P.W.2) who is the mother of the victim was examined.She has stated in her examination in chief that when she returned back after attending a call of nature, she saw the appellant running away from the 'Kotha of her parents' (place of occurrence) and the girl was lying unconscious. Blood was oozing out from her private part.After committing the rape, the appellant ran away from the place of occurrence towards Crasher Granite and the appellant was caught by the villagers. The P.W.2 Smt. Kallo further submitted that when her husband returned back, she narrated the entire incident. At the time of lodging the report by her husband, she had accompanied the victim and her husband at the police station Baragaon. In her cross examination, she had completely denied the suggestion that there was any enmity with her husband and the appellant and contended that it is absolutely wrong to say that her husband ever demanded Rs. 500/- from the appellant. She had not seen the appellant taking away the victim but this incident was seen by a number of persons who had reached on the spot on hearing the shriek of the victim and the victim was lying unconscious and the blood was oozing out from her private part. The victim was wearing Salwar and Kurta at the time of incident.Thereafter Smt. Munni P.W. 3 was examined. She has stated that when she returned at about 5 'O' clock after collecting the wood. She found that her daughter Smt. Kallo (P.W.2) with the victim in her lap was crying bitterly. The appellant had run away from the place of occurrence and was caught by the villagers. She had seen the victim. The cloths of the victim was blood stained and the blood was oozing out from the private part of the victim. The cloths of the victim was blood stained.The P.W. 3 Smt. Muuni tied the dhoti from where blood was coming out. The frock and the cloth were soaked with blood. P.W.3 Munni and P.W. 2 Kallo had narrated the entire incident to the complainant when the complainant Jahar Singh (P.W.1) returned after doing his work and the written report was given by Jahar Singh (P.W.1).At that time she had accompanied her daughter and the victim along with the complainant. At the time of incident victim was wearing frock which was blood stained and was given to the police. It was disclosed by her that the appellant is residing at Datiya and his uncle had brought him from Datiya and on the day of occurrence he was wearing blue pant and red shirt. His son in law had never demanded Rs. 500/- from the appellant for giving him employment. In her cross examination,she had stated that the victim was taken at the police station and she had proved the cloths which was blood stained and the same was exhibited as Ex.1 to 4. The prosecution examined its formal witnesse M.U.Siddiqui (P.W.4) who was posted as Moharrir at Police Station Baragaon and had prepared Chik FIR which was written and signed by him and the same was registered as Case Crime No.211 of 2002 under section 376 IPC and was exhibited as Ex.Ka.3. The G.D. entry of the first information report was proved by him in his hand writing and was marked as Ex.Ka.4. P.W.5 Dr. Smt. Alka Agarwal who was posted as Medical Officer at District Hospital Lalitpur on 26.5.2002 was examined and proved the medical report of the victim which was marked as Ex.K.6. She deposed that the child was appearing aged about 3'1/2 or 4 years of age. The prosecution further examined Dr.R.K.Misra, Pathologist as P.W.6 who was also posted in the District Women Hospital.He had examined the semen of the victim and found no spermatozoa in the vaginal smear and proved the pathology report prepared by him which was marked as Ex.Ka.7.The prosecution further examined Dr. Ashok Upadhyay (P.W.7 ) who was posted in District Hospital as Radiologist and had conducted the X.ray of the victim and prepared the report stating that the age of the victim was about five years.The X.ray report was marked as Ex.Ka.8 and the X.ray plate was marked as Ex.Ka.5.Durga Prasad Singh S.I. (P.W.8) who was posted at Police Station Baragaon District Jhansi at the relevant point of time was entrusted with the investigation of this incident.He had examined the complainant and on his pointing, site plan was also prepared which was marked as Ex.Ka.9. Blood stained frock which was worn by the victim at the time of incident and the blouse and a piece of green dhoti soaked with blood was taken into custody by the investigating officer. Recovery memo was also prepared by the investigating officer which was marked as Ex.Ka.2. The investigating officer arrested the accused appellant on 27.5.2002 and the statement of the accused appellant was also recorded and the underwear which was worn by the accused appellant at the time of committing the rape was taken into custody by the investigating officer and was kept under seal. Investigating officer had also recorded the statement under section 161Cr.P.C. of Jahar Singh (P.W.1), Smt. Kallo (P.W.2), Smt. Munni (P.W.3), Gulab Singh and constable M.U.Siddiqui (P.W.4) who had registered the first information report after collecting credible material submitted charge sheet against the appellant which was forwarded to the court. He had proved the memos prepared during investigation. He stood for cross examination but nothing adverse or contrary to the prosecution was found. The statement of the accused was recorded under section 313 Cr.P.C. where he had pleaded his innocence and false implication. No evidence was adduced by him in support of his case. The trial court found the evidence cogent and convincing on the basis of which the appellant was held guilty of committing rape on a minor girl aged about 5 years.The trial court convicted and sentenced the appellant for life imprisonment under section 376 (f) IPC and imposed the fine of Rs. 2000/-.
(3.) HEARD Sri Rajeev Gupta, Amicus Curiae appearing on behalf of the appellant and Sri D.R.Chaudhary, learned Government Advocate and gone through the material on record. It has been submitted by learned counsel for the appellant that circumstances and the evidence do not warrant conclusion of guilt of the appellant to be convicted for life imprisonment.The court below has not examined the evidence in true perspective. There is great inconsistency in the prosecution version and the statement of the witnesses who are partisan and related as such their evidence is unreliable.There is no ocular witness to substantiate that he has seen the incident committing rape on a minor girl by the accused hence he has been falsely implicated.The judgment and order passed by the court below is based on mis-appreciation of the evidence on record. Per contra Sri D.R.Chaudhary, learned Government Advocate submitted that entire evidence on record has been analysed by the court below which depicts horrendous and horrible manner in which the appellant has ravished the chastity of a minor girl. The prosecution has proved the guilt of the accused appellant by adducing oral and medical evidence.The circumstances have also been highlighted by the witnesses who are none other than the father, mother and grand mother of the victim. All the circumstances have fully been proved by the prosecution which only points towards the guilt of the accused appellant for committing heinous offence of rape on a minor helpless girl therefore, the trial court has rightly convicted the accused appellant. The order of the trial court deserves to be affirmed. ;