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
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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/