Bhanwar Singh vs State on 12 October, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 109 / 2010
Bhanwar Singh S/o Mod Singh, By Caste Rajput, Aged about 25
years, R/o Richadi, P.S. Swaroopganj, Tehsil Pindwada, District
Sirohi (Raj.)
(At present confined in Central Jail, Jodhpur)

—-Appellant
Versus
State of Rajasthan.

—-Respondent
__
For Appellant(s) : Mr. Shambhoo Singh Mr. Vikram Singh.
For Respondent(s) : Mr. R.K. Bohra, Public Prosecutor.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment:- 12/10/2017

By way of this appeal, the appellant Bhanwar Singh craves to

challenge the judgment dated 17.02.2010 passed by the learned

Additional Sessions Judge (Fast Track), Abu Road, District Sirohi in

Sessions Case No.17/2009 whereby, the appellant was convicted

and sentenced as below:

Under Section 366A IPC- 10 years’ R.I. and a fine of
Rs.2,000/- in default of payment of fine to further undergo 2
month’s R.I.

Under Section 376 IPC- 10 years’ R.I. and a fine of
Rs.2,000/- in default of payment of fine to further undergo 2
month’s R.I.

All the sentences were directed to run concurrently.

Facts in brief are that one Madan Singh (PW-10) lodged a

written report at Police Station Sarupganj on 17.03.2009 alleging
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inter alia that on the very same evening at about 6 O ‘Clock’, his

minor daughter Mst. ‘M’ (hereinafter referred to as “the victim”)

and his son Keshar Singh had gone to fetch firewood. They did not

return on which, a search was launched. Both children were found

at a distance of about 1 Km. from the village. The victim was

bleeding profusely from her private parts. Upon inquiry, she told

that she had been subjected to rape by a person who lives at the

Well of Modji. On the basis of this report, an FIR No.43/2009 was

registered at the Police Station Sarupganj for the offences under

Section 376 and 366A IPC and investigation commenced. The

appellant herein was arrested and after investigation, a charge-

sheet was laid against him for these offences. The case was

committed to the Court of Additional Sessions Judge, Abu Road for

trial from where it was transferred to the Court of Additional

Sessions Judge (Fast Track), Abu Road, District Sirhoi. The learned

Trial Judge framed charges against the appellant for the above

offences who denied the same and claimed trial. The prosecution

examined as many as 19 witnesses in support of its case. The

accused, upon being questioned under Section 313 Cr.P.C., denied

the prosecution allegations and examined witness Mod Singh (DW-

1) in defence. At conclusion of proceedings, the learned Trial

Judge proceeded to convict and sentence the appellant as above

by the impugned judgment dated 17.02.2010. Hence, this appeal.

Shri Shambhoo Singh, learned counsel representing the

appellant vehemently urged that the conviction of the appellant as

recorded by the trial court is grossly bad in facts and law. The

accused was not identified by the victim. Kismat and Keshar
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Singh, the children who were accompanying the victim, did not

support the prosecution story. There was no basis for mentioning

the appellant’s name in the FIR because the victim did not know

him from before. He further urged that the name of the appellant

appears to have been introduced in the FIR as the assailant

through an apparently visible interpolation. He further submitted

that the allegation of prosecution regarding the victim having been

subjected to forcible sexual assault is not corroborated by medical

evidence. The defence theory put up by the appellant that he was

falsely implicated owing to enmity is duly proved by the defence

evidence and the admissions made by the prosecution witnesses

in their statements. He relied upon the following judgments:

(1) Rahim Beg Anr. vs. State of U.P., AIR 1973 SC 343,

(2) Narender Kumar vs. State (NCT of Delhi), (2012)7 SCC 171,

(3) K. Venkateshwarlu vs. State of Andhra Pradesh, (2012)8 SCC 73,

(4) Krishan Kumar Malik vs. State of Haryana, (2011)7 SCC 130,

(5) Sunil @ Dinkli vs. State of Rajasthan, 2015(3) Cr.L.R. (Raj.) 1531,

(6) Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), 2011 Cr.L.R.

(SC) 901

(7) Kushal Kumar Gupta Anr. vs. Mala Gupta, 2011 Cr.L.R. (SC) 908

and urged that the impugned judgment is bad in facts as well as

law and the appellant is entitled to be acquitted of the charges.

Per contra, learned Public Prosecutor vehemently opposed

the submissions advanced by the appellant’s counsel. He

contended that the minor victim had no occasion to falsely

implicate the appellant. There is no allegation of defence that

there was any direct animosity between the appellant and the
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complainant Shri Madan Singh or his family. The land dispute

which allegedly to existed between Mod Singh, father of the

accused, and the victim’s uncle Nop Singh could not have been

remotely the reason for falsely implicating the appellant for the

ghastly offence of rape. The minor victim was found suffering from

a large number of injuries on her private parts which clearly

corroborates the allegation that she was subjected to vicious

violent sexual assault. The FSL report clearly corroborates the

prosecution evidence because the clothes of the victim as well as

the accused were found stained with human blood and semen. He

urged that the judgments relied upon by the defence counsel are

totally distinguishable on fact. Thus, he urged that there is no

merit in the contention advanced by the appellant’s counsel

regarding the case having been falsely foisted by the prosecution

and craved rejection of the appeal.

I have given my thoughtful consideration to the arguments

advanced at bar and have gone through the material available on

record.

The prompt written report (Ex.P/7) of the incident was

lodged by the victim’s father Madan Singh at the Police Station

Sarupganj on the very day of the incident i.e. at about 10.00 pm.

The defence theory regarding existence of enmity between the

complainant party and the accused party is absolutely far fetched.

The victim was aged just about 8-10 years at the time of incident

and thus, she could not have had any occasion or motive to falsely

name the appellant as her assailant because she was an innocent

child and cannot be attributed any revengeful attitude on account
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of the alleged enmity existing between the parties over a so-called

land dispute. That apart, the land dispute which the defence

claims to be the cause for the appellant’s false implication was in

relation to a Gochar Land. PW-4 Nop Singh admitted in his cross-

examination that a litigation was instituted between all the

villagers and Mod Singh in relation to the Gochar land of the

village. Thus, by no stretch of imagination, can the defence theory

be accepted because the land dispute was not a private one but

was in relation to the Gochar land belonging to the entire village.

The most material and significant circumstance which goes against

the appellant is that when he was arrested in this case soon after

the incident i.e. on 18.03.2009, he was subjected to medical

examination and the medical officer PW-14 Dr. Dinesh Kumar

noticed in the medical report (Ex.P/17) that numerous abrasions,

etc. were visible on various parts of his body. Most significantly,

abrasions were seen on the appellant’s penis. The doctor also

proved (Ex.P/15) the injury report of the victim who was found

suffering from numerous abrasions on her eyes, back, chest,

knees, etc. She was bleeding profusely from her genitals. The

medical officer clearly stated that the injuries noticed on penis of

the accused could not have been caused by simple assault. Dr.

Dalpat Singh (PW-16) gave a categoric opinion vide medical report

(Ex.P/20) that the victim was aged between 7 to 10 years. Dr.

Virendra Mahatma (PW-15) noticed that the victim had received

stitches on her external genitals. Thus apparently, the sexual

assault made on the victim was so brutal that her entire genital

area was torn up. The star witness of the prosecution is obviously
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the victim who is a child witness. In case, a child witness

understands the questions put to him/ her and is capable of giving

rational answers and the evidence of the witness has a ring to

truth then, the said witness has to be considered as a most

reliable witness. The victim, upon being examined at the trial as

PW-2, gave unimpeachable evidence to the effect that the accused

apellant lured her with an offer of good quality firewood and took

her away near the Naala. There, he sexually assaulted the victim.

The victim clearly stated that she scratched her assailant with

nails, etc. but the accused did not relent from his vicious acts. She

shouted on which, villagers came around and the accused ran

away on seeing them. No significant cross-examination was made

from the victim on the aspect her being raped. The victim agreed

to a suggestion given by the defence that the name of Bhanwar

Singh was being mentioned by her at the instance of her uncle

and father but in the very next breath, she stated that it was

wrong to suggest that Bhanwar Singh was being falsely implicated

because of enmity. The child witness clearly named the appellant

as her assailant. Thus, I am duly satisfied that the victim’s

evidence is natural and unimpeachable. The same clearly proves

beyond all doubt that it was none other than the appellant who

ravished her. PW-10 Madan Singh, the first informant also stated

in his evidence that when he reached near the place of

occurrence, the children told him that Bhawa had assaulted the

victim. The appellant Bhanwar Singh @ Bhawa was seen running

away from the place of the incident. He was arrested on the very

next day and upon being medically examined, was found having
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numerous injuries on his person including abrasions on his penis

which corroborate the allegation levelled by the victim that she

inflicted nail scratches on the person of her assailant during the

incident of rape. The FSL report (Ex.P/41) clearly indicates

presence of human semen on the underwear worn by the victim

as well as the accused. The serological report was received during

the pendency of the appeal and material exhibits were opined to

be stained with human blood. The injuries/abrasions noticed on

the penis of the accused are clearly indicative of his having

subjected a minor child to brutal sexual assault. The FSL report

lends strong corroboration to the otherwise unimpeachable

prosecution evidence.

In view of the discussion made hereinabove, this Court is

least convinced by the defence counsel’s argument that the

appellant was falsely implicated in this case by the complainant

and the victim owing to previous enmity. The judgments which

have been relied upon by Shri Shambhoo Singh learned counsel

representing the appellant are totally distinguishable on facts. The

trial court appreciated the entire evidence available on record

meticulously and appropriately and reached to the only possible

conclusion that it was none other than the appellant who sexually

assaulted the minor child. As noticed above, the sexual assault

was extremely vicious and brutal and left udelible marks of

physical as well as mental trauma upon the minor victim. In this

background, the sentence of 10 years’ R.I. awarded to the

appellant for the offences under Sections 366A and 376 IPC

cannot be held to be excessive by any stretch of imagination.

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Rather, I am of the firm opinion that the learned trial court acted

very liberally while sentencing the appellant to only 10 years for

the heinous offence of child rape. The facts as a matter of fact

warranted higher sentences.

The impugned judgment dated 17.02.2010 cannot be termed

to as suffering from any infirmity or shortcoming, either factual or

legal, so as to warrant interference in this appeal.

As a consequence of the above discussion, I find no merit in

this appeal which is hereby dismissed.

Record be returned to the trial court.

(SANDEEP MEHTA)J.

tikam daiya/

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