HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 20 / 2012
Devraj Singh son of Ramchandra Mehar, R/o Khedli Police Station
Chechat District Kota.

At present in Central Jail, Kota.

—-Appellant
Versus
State Of Rajasthan Through PP.
—-Respondent

__
For Appellant(s) : Mr. Biri Singh Sinsinwar, Sr. Counsel with Mr.
Jaswant Singh Sinsinwar.

For Respondent(s) : Ms. Meenakshi Pareek, PP
__
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment / Order
04/09/2017

1. This appeal preferred by accused-appellant Devraj

Singh is directed against the judgment dated 16.12.2011 passed

by learned Special Judge, Women Atrocities and Dowry Case, Kota

in Sessions Case No.25/2011, whereby the learned trial court has

convicted accused for the offences punishable under Sections

376(i), 451 323 IPC and sentenced him as under:-

1. Section 376(i) IPC For Seven years rigorous
imprisonment and fine of
Rs.2000/- and in default
of payment of fine further
to undergo Four months
simple imprisonment.

2. Section 451 IPC For One year simple
imprisonment and fine of
Rs.500/- and in default of
payment of fine further to
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undergo One month
simple imprisonment.

3. Section 323 IPC For One month simple
imprisonment.

2. Heard learned counsel appearing for the accused-

appellant and also learned Public Prosecutor. Perused the

judgment impugned and material available on record.

3. Briefly stated, facts of the case are that complainant

Mohd. Ibrahim lodged an FIR stating therein that on 31.10.2010

at about 11:00 in night, when his wife Roshan and daughter

were sleeping in Tibari of his house, accused – Devraj, who is

residing near his house, took his daughter to the roof. His

daughter is mentally challenged. Devraj committed rape upon

her. His son Altaf Hussain came to his house from agricultural

field and saw Devraj on the roof. He waked up his mother

Roshan, both of them went to the roof. Then Devraj threw his

daughter from the roof into street and ran away. After

conducting investigation, charge-sheet was filed against the

accused-appellant for the offences punishable under Sections

376, 452 323 IPC. Learned trial court proceeded to frame

charges for the aforesaid offences, to which the accused denied

and claimed trial.

4. During trial, the prosecution examined as many as 14

witnesses and produced 14 documentary evidence. Accused was

examined under Section 313 Cr.P.C. in light of the prosecution

evidence, which he denied. He also stated that his mother was

Sarpanch of the village. Because of political rivalry and to extort
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money, this false case has been initiated against him. Two

witnesses were also examined in defence side. After hearing

both the sides, learned trial court proceeded to decide the case

and convicted the accused as stated above.

5. I have carefully scanned the judgment impugned in

light of the arguments advanced by both the sides as also the

material available on record.

6. It is an admitted case of the prosecution that PW-1

Mohd. Ibrahim, who had lodged the FIR, was present in his

agricultural field on the fateful night and was not present on the

scene of occurrence, so his statement is not very material. PW-6

Altaf Hussain is said to have reached home from the agricultural

field. He has stated that at about 11:00 in the night, he saw

shadows in light of the bulb. When he reached upstairs, he saw

that Devraj threw away his sister Shahista into the street and

jumped to his own house, which was said to be adjacent to the

house of the prosecutrix. He has corroborated the prosecution

case only to this extent and has shown his ignorance about the

rape having been committed by the accused. He has been

declared hostile by the prosecution side and has also denied to

have recorded Part ‘A’ to ‘B’ of his police statement Ex.-P/10. He

has denied the suggestion that there is any conflict of his family

with Devraj. PW-2 Smt. Roshan, who is mother the prosecutrix

Shahista, has stated that accused Devraj took her daughter

upstairs, he committed rape upon her there. On hearing the

noise, she got up from the sleep and saw that Devraj threw her

from the top into Bada in naked position and ran away. She has
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stated that at that time, her daughter was of 13 years of age

and was mentally challenged. The description which she has

given in her cross-examination is found to be in contradiction

with the statements of PW-6 Altaf Hussain, but these

contradictions are not very material as regards the crux of the

matter.

7. The most important witness in the case is PW-3

Shahista with whom the offence of rape was allegedly

committed. PW-3 Shahista has stated that she knows accused

Devraj, who took her upstairs and after putting down her clothes

committed rape upon her. Thereafter, he threw her from the top.

Though she has admitted that she did not know the meaning of

rape but has categorically stated that prior to rape Devraj put

down her clothes and climbed upon her. She has explained by

indicating to her genital parts that Devraj committed wrong with

her on that place. So far as the facts regarding throwing her

from the top after committing rape, there are some material

discrepancies in her statement also. But it is pertinent to keep in

mind that the girl is of minor age and is also mentally

challenged, so the contradictions or variation in describing the

sequence of incident cannot be termed as fatal to the

prosecution story. She has stated that she sustained injuries on

her body by fall in street. She has also stated that injury was

caused to her private parts also, but at the same time she has

denied the suggestion that this injury was caused due to fall.

Thus, her statement clearly indicates that she sustained injury

on her private part due to the act of accused.

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8. The statement of PW-3 Shahista is corroborated by

the medical evidence also. PW-5 Dr. N.D. Irani, who has

medically examined the prosecutrix on the very next day of the

offence has stated that genitals were bleeding, valva was found

swollen with redness, labia mazoro was also swollen, hymen was

not found intact, blood stains were found around genitals, but no

seminal stains were present there. He has also stated that

sample of swab was taken. In the last, he has opined that the

possibility of forceful intercourse and penetration could not be

denied. But further confirmation can be done after FSL

examination.

9. PW-5 has also stated that he found six injuries on the

body of Shahista, which were as follows :-

1. Abrasion with Blood clot 1 x 1/2 cm. – on right knee over
dark red in colour palliate

2. – do – 2 x 1 cm. – left cheek near angle
of mark

3. – do – 2 x 1/2 cm. – right leg Ant.

4. – do – 2 x 1 cm. – over skin of tibia

5. – do – 1 x 1 cm. – right foot dorsum
aspect great toe

6. – do – 2 x 1/2 cm. – right leg col. area
(near gastropremius muscle)

10. The injuries reported by PW-5 as above are relevant

for the offence under Section 323 IPC. PW-5 has also narrated

the injuries found on the genitals and private part of Shahista.

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The oral evidence given by PW-3 Shahista herself and other

witnesses present on the scene during or just after the incident,

i.e. PW-2 Smt. Roshan and PW-6 Altaf Hussain corroborate the

prosecution case that the accused threw her down in the street

from the roof after committing rape.

11. After examining the accused-Devraj, PW-5 has

prepared report Ex.-P/9 and has stated that he was found

capable of sexual intercourse. Smegma was found present on

the penis, no any other injury or scratch were seen on the body.

PW-5 has stated in the cross-examination that the presence of

smegma on the penis is indicative of the fact that he had

performed sexual intercourse.

12. It is of-course true that the FSL examination report

has not been produced by the prosecution in the case but the

evidence of prosecutrix PW-3, which has been substantially

corroborated by the medical evidence is sufficient to prove that

the accused has committed rape upon the prosecutrix Shahista.

13. It had been crystallized by the Hon’ble Apex Court in

catena of judgments that the statement given by the prosecutrix

is itself sufficient to record conviction against the accused, if her

statements are reliable and the other attending circumstances of

the case do not shake her veracity. In the case in hand,

statements of prosecutrix PW-3 Shahista are found to be of

sterling worth. Moreover, she being a mentally challenged child,

cannot be expected to falsely implicate the accused.

14. The defence story, which has been set up by

examining of DW-1 and DW-2 that due to political rivalry
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accused Devraj was falsely implicated does not appear

convincing. It is unbelievable that to settle the score, father of

mentally challenged minor girl will make false allegations against

son of his political rival and wrongly implicate him in the offence

of rape. The prosecution evidence has established that after

committing rape upon PW-3 Shahista, the accused threw her

down in the street and ran away. The injuries sustained by girl

on account of the rape and being thrown away have been proved

by PW-5 Dr. N.D. Irani, who has examined Shahista on the very

next morning.

15. Learned counsel for the accused-appellant has

challenged the judgment impugned stating that there is major

contradiction between the statements of PW-2 Smt. Roshan and

PW-6 Altaf Hussain. They have given different version in regard

to the fact that when did they see Shahista alongwith accused

Devraj, who awakened Roshan when he saw these two persons

together. His argument is that the contradictions make the

prosecution story unreliable. Hence, the judgment impugned

convicting the accused is not sustainable.

16. I have given thoughtful consideration to the

arguments advanced by learned counsel and perused the

material available on record. In my considered view, learned

trial court has considered all these aspects in detail and has

come to the conclusion that the prosecution story is not

unreliable despite there being some minor contradictions. On the

basis of evidence available on record, I do not find any infirmity

in the conclusion drawn by the learned trial court.

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17. Learned counsel appearing for the accused has not

seriously contested the conviction recorded against the accused

for the offences under Sections 451 and 323 IPC. Even then, the

evidence in regard to these offences has also been perused. It

has been established by the prosecution that accused – Devraj

committed house tresspass in the house of prosecutrix which is

adjacent to his house in order to commit rape upon the

prosecutrix. It is also established that after committing rape, he

threw the prosecutrix on account of which she sustained injuries

as depicted in the report Ex.-P/8.

18. In the result, the conviction recorded against the

accused-appellant Devraj by the learned trial court for the

offences punishable under Sections 376, 451 323 IPC is liable

to be upheld. The appeal preferred on behalf of accused-

appellant accordingly fails and is dismissed.

(DEEPAK MAHESHWARI),J.

Rm/-