Kan Singh vs State on 16 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Criminal Appeal No. 317 / 2010

Kan Singh son of Sh. Singa Singh, by caste Rawat Rajput, resident
of Lamba Choda, Police Station Devgarh, District Rajsamand

—-Appellant

Versus

State of Rajasthan

—-Respondent

__

For Appellant(s) : Mr. Sunil Mehta

For Respondent(s) : Mr. Vishnu Kachhawaha, PP
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

Judgment

16/09/2017

The instant cr. jail appeal has been filed by the accused

appellant Kan Singh from Central Jail, Udaipur challenging the

judgment dated 5.6.2010 passed by the learned Sessions Judge,

Rajsamand in Sessions Case No.39/2009 whereby the learned trial

court convicted the accused appellant for offence under Section

376 and 341 IPC and passed the following sentence:

Under Section 376 IPC 10 years RI with fine of
Rs.2,000/- and in default of
payment of fine to further
undergo three months SI.

Under Section 341 IPC 15 days SI with fine of Rs.100/-

and in default of payment of fine
to further undergo 5 days
additional SI.

As per facts of the case, the complainant PW–3 Panna

Singh submitted a report at Police Station Bheem on 25.10.2008
(2 of 9)
[CRLA-317/2010]

in which following allegations were levelled by him, which reads

as under:-

lsok esa]

Jheku~ Fkkusnkj lkgc
iqfyl Fkkuk Hkhe]
ftyk jktleUn ¼jkt-½

izkFkhZ % iUuk flag firk mn;flag jkor fuoklh Vksxh ¼dYyk
ekuk dk ckfM+;k½

fo”k; % dkuwuh dk;Zokgh djkus ckcr~A

egksn; th]

uez fuosnu gS fd vkt fnΠ25-10-08 dks eSa rFkk esjh iRuh
ehjk ‘kke dks djhc 5-00 cts gekjs chM+s [kk[kkyk Fkkd ls ?kkl
dkVdj okil ?kj tk jgs Fks jkLrs esa ubZ rykbZ esa ‘kh’ke ds iksM+
ds ikl esjs NksVs HkkbZ enu flag dh yM+dh lqJh pUnzk dqekjh mez
9 o”kZ feyh tks jks jgh Fkh ftls eSaus dgk fd pUnzk D;ksa jks jgh gS
rks eqs pUnzk us crk;k fd eSa cdjh;k¡ ysdj ?kj tk jgh Fkh fd
;gk¡ ,d vutku O;fDä vk;k tks eqs idM+dj okyh dh rjQ ys
x;k rFkk mlus viuk isUV [kksydj is’kkc djus dk fudkyk rFkk
esjh ;ksfu esa Mky fn;k o esjs lkFk [kksVk dke fd;k ftlls esjs
dkQh nnZ gqvk eSa fpYykus yxh rks mlus dgk fd fpYykbZ rks ekj
nw¡xk fQj eqs NksM+dj igkfM+;ksa esa Hkkx x;kA fQj pUnzk dks eSa rFkk
esjh iRuh ?kj ysdj vk, pUnzk ds ekrkfirk Hkh chM+k ls vk x,
tks jkLrs esa gekjs lkFk gks x,A ?kj vkus ds ckn pUnzk dh ;ksfu dks
ns[kk rks dkQh [kwu fudy jgs Fks ftls ge Hkhe gkfLiVy ysdj
vk, gSaA pUnzk ds lkFk fdlh vKkr O;fä us cykRdkj dj fn;k gS
pUnzk rhljh d{kk esa i+rh gS tks dHkhdHkh cdfj;k¡ pjkus Hkh
tkrh gSA fjiksVZ djrk gw¡ dkuwuh dk;Zokgh djkosaA

fnΠ25-10-08 ,lMh@
iUukflag

During investigation, the accused appellant was arrested on

the basis of the statement of PW–1 Mool Singh and, thereafter,

identification parade was conducted on 2.7.2008 by the Judicial

Magistrate, Dungarpur Smt. Brij Madhuri Sharma (PW–19). In
(3 of 9)
[CRLA-317/2010]

that identification parade accused appellant was identified by the

prosecutrix „C‟. The medical examination of the injuries suffered

by the prosecutrix was conducted by medical jurist at CHC, Bheem

at 10.00 pm on 25.10.2008 in which 9 abrasions were found upon

the body of 9 years old prosecutrix. Her medical examination was

conducted to ascertain the fact whether any sexual intercourse

was committed with her. After examination by the Dr. T.C.

Gangarani (PW–10) and Dr. Prem Nath reports Ex.P/19 and P/20

were prepared and given by the doctors. The investigating officer

collected the proceedings of identification Ex.P/43 in which

accused appellant was correctly identified by the 9 years old

prosecutrix and after completing investigation, the investigation

officer filed charge-sheet against the accused appellant under

Section 341, 376 and 201 IPC in the court of Addl. Chief Judicial

Magistrate, Bheem from where case was committed to the court of

District Sessions Judge, Rajsamand for trial.

The learned District Sessions Judge after framing charge

under Section 201, 341 and 376 IPC commenced, the trial.

During trial, the statements of 22 prosecution witnesses

were recorded and, thereafter, statements of the accused

appellant under Section 313 Cr.P.C. were also recorded by the

trial court in which the accused appellant denied all the allegations

and said that I have been wrongly implicated in this case, no

offence is committed by me with the prosecutrix. In defence, no

evidence was produced by the accused appellant.

After recording evidence, the learned trial court heard final

arguments and convicted the accused appellant vide judgment
(4 of 9)
[CRLA-317/2010]

dated 5.6.2010 in Sessions Case No.39/2009 for offence under

Section 376 and 341 IPC but acquitted him from the charge under

Section 201 IPC on the ground that prosecution has not proved

its case beyond reasonable doubt for offence under Section 201

IPC.

While challenging the aforesaid judgment, the learned

counsel for the appellant submits that there is no eye witness of

the incident, the entire case is based upon circumstantial evidence

of last seen, so also identification by prosecutrix but chain of

circumstances has not been proved beyond reasonable doubt that

the accused appellant has committed rape with the 9 years old

prosecutrix, therefore, the finding recorded by the learned trial

court is not sustainable in law. Learned counsel for the appellant

further argued that in absence of direct evidence although the

accused can be convicted on the basis of circumstantial evidence

or on the basis of identification by the prosecutrix, but here in this

case, prosecution has failed to prove its case beyond reasonable

doubt because none of the witnesses proved the fact of last seen

together or any evidence so as to connect the accused appellant

with the crime, therefore, the judgment impugned deserves to be

quashed. No other argument is advanced by the learned counsel

for the appellant.

Per contra, learned Public Prosecutor submits that it is a case

in which rape was committed by the accused appellant on the

small girl of 9 years of age, further submits that though there is

no direct evidence but the witness PW–3 Panna Singh and PW–4

Smt. Keri deposed in her statement before the court that on
(5 of 9)
[CRLA-317/2010]

25.10.2008 when he and his wife coming from the field after

cutting the grass, at that time, outside the Bide under the

Shisham tree, prosecutrix “C” was sitting and crying and informed

that one person wearing red t-shirt and jeans forcibly taken her in

the bushes and committed rap with her. The witness PW–3

Panna Singh immediately called Madan Singh, father and Keri,

mother and informed about the incident to them.

PW–2 Madan Singh and PW–4 Smt. Keri categorically

stated in their statements that after hearing voice of Panna Singh

at 5.30 pm on 25.10.2008 both went on spot and saw that their

daughter „C‟ was crying and informed that one unknown person

forcibly taken her in the bushes and committed rape with her. It

is also informed by prosecutrix that after committing rape run

away in the hills after giving threat to kill. The prosecutrix was

taken to the hospital for medical examination. The blood was

oozing from private part of 9 years old prosecutrix and as per

information given by the prosecutrix that the person who

committed rape with her was wearing jeans and red t-shirt. The

accused appellant was arrested and, thereafter, identification

parade was conducted as per law in which accused appellant was

identified by the prosecutrix. It is also argued that in the medical

examination number of injuries were found upon the body of the

prosecutrix, so also, as per medical examination hymen of

prosecutrix was ruptured and doctor gave opinion that there is

evidence of recent forceful sexual assault with the prosecutrix. In

the examination report Ex.P/20 number of injuries were recorded

by the medical jurist, therefore, it is a case in which the learned
(6 of 9)
[CRLA-317/2010]

trial court has rightly arrived at with the finding that rape was

committed with the small girl of 9 years by the accused appellant.

According to learned Public Prosecutor there is no force in

this appeal because prosecution has proved its case beyond

reasonable doubt.

After hearing learned counsel for the parties, I have

examined the entire evidence. There is no eye witness in this

case, but soon after the occurrence when the prosecutrix was

found near the tree of Shisham to the witness Panna Singh (PW–

3) informed that one unknown person wearing red t-shirt and

jeans forcibly took her and committed rape with her. As per

statement of PW–3 Panna Singh blood was oozing from her

private part of small girl and incident was immediately reported to

her father PW–2 Madan Singh and PW–4 Smt. Keli mother. Both

these witnesses categorically proved that information was given

by Panna Singh that somebody has committed rape with her

daughter and upon receiving such information both the witnesses

PW–2 Madan Singh and PW–4 Keri immediate take care of

prosecutrix „c‟ and took her to the hospital for medical

examination. The prosecutrix informed her father Madan Singh

(PW–2) and mother Keri (PW–4) that unknown person who

committed rape was wearing red t-shirt and jeans having no hair

upon his head. In the hospital prosecutrix was medically examined

by the medical jurist and after examination, report (Ex.P/19) was

given in which 9 abrasions were reported by the medical jurist.

The prosecutrix „c‟ was examined by the gynecologist and

gynecologist gave opinion that there are signs of recent forcible
(7 of 9)
[CRLA-317/2010]

sexual assault. The medical jurist PW–9 Prem Nath categorically

stated that prosecutrix „c‟ of 9 years of age was examined by him

on 25.10.2008 and after examination of her body, I find that

there were 9 abrasions upon her body. PW–10 Dr. T.C. Gagrani

medically examined prosecutrix „c‟ to ascertain the fact whether

intercourse is committed with her or not and after examination,

the PW–10 gave following statements in support of his report

Ex.P/10, which reads as under:

eSa fnukad 25-10-08 dks lh ,p lh Hkhe esa fpfdRlkf/kdkjh ds
in ij dk;Zjr FkkA ml fnu jkr dks 10 ctdj 20 feuV ij
dqekjh pUnzk iqh enu flag jkor mez 09 o”kZ fuoklh Vksxh dk]
cPph dk cykRdkj ls lacaf/kr ijh{k.k esjs }kjk fd;k x;k FkkA
blds fy, cPph dh cM+h ek¡ dh lgefr yh xbZA tks ijh{k.k ls iwoZ
lgefr yh xbZ FkhA ijh{k.k esa eSaus ik;k fd mlds xqIrkax ij
yslsjsVsV ?kko Fkk ftldh lkbt esa 1@2 ls-eh- x 1@4 ls-eh- Fkk
tks xqIrkax ds ck;ha rjQ FkkA nwljk 3@4 ls-eh- x 1@4 ls-eh-

xqIrkax ds nk;ha rjQ FkkA vkSj mlls [kwu cg jgk FkkA ih-ch
,Dtkfeus’ku tc eSaus fd;k rks mlesa fctkbuk esa ,d maxyh tk
jgh Fkh vkSj fYyh QVh gqbZ FkhA mlds ckn esa eSaus fotk;buk]
ljokbdy Loko ,oa fotk;buk Loko ds lsEiy fy,A eSaus ih ,l
Hkhe dks lqiqnZ fd,A eSaus viuh jk; esa ;g ik;k fd cPph ds lkFk
esa cy ds lkFk rktk cykRdkj ds fu’kku ik;s x;sA fjiksVZ esjs }kjk
rS;kj dh xbZ tks iz ih 20 gkssdj , ls ch esjs gLrk- gSA lh ls Mh
ppsjh ekrk deyk ds gLrk- gSA bZ ls ,Q pUnzk ds gLrk-] ,oa th
ls ,p lgefr gSA ;g lkjh tkap eSaus ckMZ ysMh ljLorh dh
mifLFkfr esa fd, Fks vkbZ ls ts ljLorh ds gLrk- gSaA

Similarly PW–9 Dr. Prem Nath gave following report with

regard to the injuries found upon the body of prosecutrix which

reads as under:

lkekU; ‘kjhj] ckyksa dk jax yM+dh ds gYdk Hkwjk FkkA cxy esa ,oa
isV ds uhps cky ugha FksA fnekx ls Bhd FkhA lsdsUMªh lsDl djsDVj
Moyi ugha FksA csLV Moyi ugha FksA vkokt uksjey FkhA mapkbZ
122 ls-eh- FkhA out 20 fd-yks- FkkA Nkrh Qykus ij 60 ls-eh-]
uksjey daMh”ku esa 57 lseh FkhA dqy 24 nkar FksA ftlesa 18 VsEijsjh
FksA ijekusaV nkar 6 FksA pksVksa dk fooj.k %
pksV ua- 1- [kjksap 1 1@2 x 3@4 ls-eh nk;h vka[k ds iklA
pksV ua- 2- [kjksap 1 1@3 x 3@4 ls-eh xky ds nk;h rjQ
(8 of 9)
[CRLA-317/2010]

pksV ua- 3 [kjksap 1 3@4 x 3@4 ls-eh nk;h vxz Hkqtk ijA
pksV ua- 4 [kjksap 3@4 x 1@2 ls-eh nk;h vxz Hkqtk ijA
pksV ua- 5 [kjksap 1@2 x 1 ls-eh nkfguh dksguh ds ikl esaA
pksV ua- 6 [kjksap 1@2 x 1@2 ls-eh ihB ds mijh Hkkx ijA
pksV ua- 7 [kjksap 3@4 x 1@2 ls-eh ihB ds ck;h rjQA
pksV ua- 8 [kjksap 1 @2 x 1@2 ls-eh ihB ds ck;h rjQA
pksV ua- 9 [kjksap 3@4 x 3@4 ls-eh ihB ds ck;h rjQA

lHkh pksVsa lkekU; izd`fr dh gksdj dqUn gfFk;kj ls dkfjr FkhA
pksVks dh vof/k 12 ?k.Vs ds Hkhrj dh FkhA ;ksuh ls [kwu fudy jgk
FkkA izkbZosV ikVZ dk ijh{k.k fd;k x;k tks Lh jksx fo’ks”kK Vh-lh-

xxjkuh ds }kjk fd;k x;kA ftldh fjiksVZ ikoyh ij layXu gSA**

The statement of prosecutrix „c‟ were also recorded as

PW–17 in which following statement is given by the prosecutrix,

which reads as under:-

oloky yksd vfHk;kstd us loky fd;k fd eSa gkftj vnkyr
eqyfte dku flag dks igpkurh gw¡A djhc ,d lky igys gkftj
vnkyr eqyfte dku flag us tc eSa [ksr ls cdfj;ka ysdj vk jgh
Fkh rks feyk Fkk tks eqs ysdj kfM+;ksa esa ys x;kA vkSj viuk isaV
[kksydj viuk is’kkc djus dk esjs is’kkc djus dh txg ij Mky
fn;kA eSa fpYykbZ ftl ij dku flag us cksyk fd dq, esa Mky nwaxkA
esjs [kksVk dke djus ls [kwu fudy vk;s FksA ml jkst gkftj
vnkyr eqyfte us yky Vh ‘kVZ o thal igu j[kk Fkk vkSj mlds
flj ds cky mM+s gq, FksA ?kj ls esjh eka o dkdk vk;s ftudks eSaus
lkjh ckr crkbZA mlds ckn eqs gkWLihVy ysdj x;s FksA esjh
MkDVjh dh FkhA esjs dks tsy esa ys tkdj igpku djkbZ Fkh fd
[kksVk dke fdlus fd;k gSA ogka ij Hkh eSaus tsy esa gkftj vknyr
eqyfte dks igpkuk FkkA ftldh QnZ f’kuk[rxh dk;Zokgh iz ih 43
ij , ls ch esjs gLrk- gSA

In above statement it is categorically stated by prosecutrix

that after identification by her before the magistrate the report

of identification parade (Ex.P/43) was prepared which bears my

signature. PW–19 Smt. Brij Madhuri Sharma who was working as

Civil Judge and Judicial Magistrate, First Class, Devgarh appeared

before the court and proved that identification parade was
(9 of 9)
[CRLA-317/2010]

conducted in jail at Bheem where prosecutrix identified accused

appellant and after identification the report Ex.P/43 was prepared

by me. All these witnesses were cross-examined by the defence,

but witnesses proved the incident of committing rape by the

accused appellant with 9 years old prosecutrix and medical

evidence categorically supported the fact of rape with prosecutrix

by the accused appellant.

Therefore, I am of the opinion that no error has been

committed by the learned trial court so as to convict the accused

appellant for committing such heinous offence of rape of 9 years

old girl. In my opinion, no sympathy is warranted in this case.

Therefore, this cr. jail appeal is hereby dismissed.

In view of the fact that prosecutrix was only 9 years of age

when incident took place and she was subjected to rape by the

accused appellant, therefore, the child victim is entitled for

compensation under Rajasthan Victim Compensation Scheme,

2011 as per Section 357A of Cr.P.C.. Therefore, the District

Services Legal Authority, Rajsamand is directed to consider the

case of prosecutrix for granting compensation as per the scheme

of 2011 after due inquiry and grant compensation as per the

provisions of the scheme within a period of two months from the

date of receiving the certified copy of this order. The copy of this

order may be sent to the DSLA, Rajsamand forthwith.

(GOPAL KRISHAN VYAS)J.

cpgoyal/ps

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