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Madan @ Madniya @ Sheopal vs State on 16 May, 2018

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

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