HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 1485/2003
Madan @ Madniya @ Sheopal S/o Shri Modiya, b/c Bawariya,
Resident of Village- Todi, Police Station Chomu District Jaipur. At
present Deraband Basdi, P.S. Gudha District Jhunjhunu (Raj.)
(Accused in District Jail, Jhunjhunu)
—-Appellant
Versus
The State of Rajasthan, through P.P.
—-Respondent
For Appellant(s) : Ms. Shaifali Sharma, Amicus Curiae
For Respondent(s) : Mr. B.N.Sandu, AAG/Public Prosecutor
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE G R MOOLCHANDANI
Judgment
16/05/2018
1. Criminal law was set into motion when Ramdev (PW-4)
went to Police Station Gudha, District Jhunjhunu at 9.30 P.M. on
01.01.2003 and informed that he was a resident of Rohi Mauja
and was residing there with his wife Mohini, his grand daughter
(prosecutrix), aged 9 years, daughter of Shankar Lal, who was his
brother and at around 10.00 in the morning the prosecutrix left to
graze goats in the company of a few girls and went towards
stream. At around 5.30 in the evening Suman (PW-8) came and
informed that one Bawariya had abducted the prosecutrix.
Accompanied by 3-4 persons he ran towards the stream and saw
the Bawariya whose name was Madaniya (the accused), who used
to work in their fields was attempting to run away on seeing them.
Salwar which prosecutrix was wearing was not there. She was
crying and bleeding from her private parts.
(2 of 6) [CRLA-1485/2003]
2. Investigation was immediately taken over by the SHO
of the Police Station, Gopal Singh (PW-13) who proceeded to the
spot and recovered a green colored Salwar as recorded in the
seizure memo Ex.P-8 which was witnesses by Mangla Ram(PW-
10). He took custody of the prosecutrix and took her for medical
examination to the Government Hospital, Gudha where Dr. Rajesh
Barupal (PW-1) in the company of Dr. Smt. Rajkumari examined
the prosecutrix at 9.15 P.M. and recorded the MLC Ex.P-1. The
same records as many as seven abrasions on the body of the
prosecutrix. Three abrasions are around the right and the left
nipple and the other are on the back (lumbar region), elbow and
the lateral aspect of the thigh.
3. Gopal Singh thereafter recorded the statement of
Mohini (PW-5), the prosecutrix (PW-6), Sanjana (PW-7) and
Suman (PW-8). He drew up the Site Plan Ex.P-9.
4. On being apprehended the appellant was taken to
B.D.K. Hospital, Jhunjhunu on 04.01.2003, where Dr. Narendra
Singh Naruka (PW-11) examined him and drew up the medical
examination report Ex.P-13 recording therein that the appellant
was capable of sexual intercourse. Pursuant to a disclosure
statement the appellant got recovered a gun as per Seizure Memo
Ex.P10 witnessed by Mangla Ram.
5. The exhibits seized during investigation being the
salwar, the vaginal swabs etc. of the victim were sent for forensic
examination as deposed to by constable Lal Chand (PW-3), but
regretfully the FSL report concerning the exhibits has not been
proved at the trial and thus evidence concerning semen stains on
the Salwar or semen in the vaginal swabs of the victim being
detected has eluded our appreciation.
(3 of 6) [CRLA-1485/2003]
6. As noted hereinabove, in the FIR Ex.P-7, PW-4 stated
that Suman (PW-8) had given contemporaneous information to
him and thus we note the testimony of Suman who appeared as
PW-8. Deposing in Court on 24.07.2003 she stated that on the
day of the incident she along with Sanjana and the prosecutrix
were with the goats near the stream. The accused who was
present in Court accosted them. He was armed with a gun. They
got scared. The accused caught the prosecutrix. She and Sanjana
ran towards their house. She gave this information to her Dadi
Mohini (PW-5), in the presence of her Dada Ramdev (PW-4). All of
them ran towards the spot and saw appellant lying on top of the
prosecutrix and on seeing them he ran away.
7. She was confronted with her statement recorded under
Section 161 Cr.P.C. and relevant would it be to highlight that in
said statement it is recorded that they were five girls present,
namely she herself, Aniya, Sanjana and one Rukli. She was also
confronted with the sentence in the statement in which it is
recorded that she saw the accused dragg the victim. She was also
confronted with the writing in the statement to the effect that
Aniya, Sanjana and Rukli ran away.
8. Learned Amicus urges in respect of this aspect of the
cross-examination that the testimony of PW-8 lacks credence for
the reason she changes the number of girls who were present
from 3 to 5 and the aspect of the appellant dragging the victim as
recorded in said statement is missing from her testimony in the
Court.
9. It has to be kept in mind that PW-8 is a child from a
rural setting. She was deposing with respect to the incident dated
(4 of 6) [CRLA-1485/2003]
01.01.2003 on 24.07.2003. She was aged 10 years. These are
minor embellishments and are not of the kind which could
discredit the testimony of witness.
10. Fast tracking our judgment we highlight that the
complainant who appeared as PW-4 deposed facts in sync with his
statement recorded in the FIR Ex.P-7. Nothing in cross-
examination discredits the testimony of the witness. Mohini (PW-
5), the Dadi named by Suman in her statement recorded on
17.07.2003 corroborates Suman with the fact that Suman came at
5.30 in the evening and gave information of the appellant having
overpowered the prosecutrix and having committed rape upon her.
11. Sanjana(PW-7), the girl whom Suman named as the
third girl present with them in her deposition corroborated PW-8
and what had been deposed to by PW-4 and PW-5.
12. The prosecutrix was examined as PW-6. She has fully
supported the case of the prosecution and has corroborated the
presence of Sanjana and Suman with her.
13. The testimony of PW-4, PW-5, PW-6, PW-7 and PW-8
corroborate each other and we see no reason why all of them
would falsely implicate the appellant. It is not only a case of the
victim who has deposed but we have the testimony of PW-7 and
PW-8 who were eye witnesses to the appellant overpowering the
victim and the two rushing to the village. We have the testimony
of PW-4 and PW-5 informing them of what had happened and they
rushing to the spot and at the spot seeing the appellant running
away from the scene of crime.
14. Mangla Ram(PW-10) deposed that the Seizure Memo
Ex.P8 was drawn in his presence after the Salwar was recovered
and he witnessed the same. He also deposed that the gun got
(5 of 6) [CRLA-1485/2003]
recovered by the appellant was in his presence and he was a
witness to the Seizure Memo Ex.P10.
15. In view of eye witness account and the MLC of the
prosecutrix Ex.P-1, we concur with the view taken by the learned
Court of Sessions that the prosecution has successfully established
the appellant as the perpetrator of the crime. The conviction of the
appellant for having raped the prosecutrix is sustained.
16. On the issue of sentence we note that the sentence
imposed is to undergo imprisonment for life.
17. Learned Amicus argues that the sentence may be
reduced. Counsel urges that for rape of a minor victim the
minimum sentence prescribed is of 10 years and Counsel urges
that unless aggravating circumstances are brought out, the
sentence to be imposed should ordinarily be the minimum
sentence.
18. In this context the MLC of the victim needs to be
highlighted by us. It is not a simple rape. The victim has been
ravished evidenced by abrasions near right and the left nipple,
abrasions on the back, lateral aspect of the thigh elbows etc. and
shows that the victim struggled to save herself but the appellant
held his ground. It has also to be kept in mind that a gun was
recovered pursuant to the disclosure statement by the appellant
and in their testimony both Suman as well as Sanjana and the
victim have deposed that the appellant was carrying a gun to
threaten and overpowering the victim.
19. Under the circumstances the sentence imposed to
undergo imprisonment for life is upheld.
(6 of 6) [CRLA-1485/2003]
20. The appeal is dismissed.
(G R MOOLCHANDANI),J (PRADEEP NANDRAJOG),CJ
KKC/JKP/M-23
