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Manoj [email protected] Kumar vs State Of Rajasthan Through Pp on 4 June, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Appeal No. 708/2015

Manoj [email protected] Kumar S/o Tara Chand Puniya, aged about
25 years, B/c Jat, R/o Village Meethawas, Police Station
Mandawa District Jhunjhunu (Raj.).
(Presently confined in Jail at Jhunjhunu)
Accused-Appellant
Versus
State Of Rajasthan Through PP
—-Respondent

For Appellant(s) : Mr. Vijay Punia with
Mr. Karamveer Punia
For State : Mr. Prashant Sharma, PP

HON’BLE MR. JUSTICE PANKAJ BHANDARI, VJ

Judgment / Order

04/06/2019

1. Special Bench has been constituted with a view to achieve

the goal set up by the Judiciary for “Speedy Justice” and “Access

to Justice” to all, for disposal of the criminal appeals, in which

convict is in jail for five or more years.

2. Appellant has preferred this Criminal Appeal aggrieved by

judgment and order dated 20.07.2015 passed by Additional

Sessions Judge, No.2, Jhunjhunu in Sessions Case No.03/2013

(191/11) (197/2011), whereby appellant has been convicted for

offence under Section 363, 366-A, 376 201 of I.P.C. and has

been sentenced to three years rigorous imprisonment and fine of

Rs.5,000/- and in default of payment of fine to further undergo

two months imprisonment for offence under Section 363 I.P.C.,

five years rigorous imprisonment and a fine of Rs.2,000/-, in

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default of payment of fine, to further undergo four months

imprisonment for offence under Section 366-A I.P.C. and ten years

rigorous imprisonment and a fine of Rs.5,000/- in default of

payment of fine to further undergo six months imprisonment for

offence under Section 376 I.P.C. and one year rigorous

imprisonment and a fine of Rs.200/-, in default of payment of fine,

further one month imprisonment for offence under Section 201

I.P.C.

3. Succinctly stated facts of the case are that an F.I.R. was

lodged at 4:15 am on 23.10.2011 about missing of a girl aged five

years. It was narrated in the F.I.R. (Ex.P-1) that daughter of the

complainant was sleeping in the house at around 1:30 am, when

the complainant woke up, he did not find his daughter and after

searching in the near by locality, his daughter was not traceable.

Police immediately sprung into action and the daughter was

recovered at 7:30 am vide Ex.P-2. Child was bleeding from her

private parts at the time when she was recovered. Accused was

arrested on the same day at 4 pm which is Ex.P-25. His samples

were drawn with his permission and his blood samples were taken.

The truck in which the offence was committed was seized on the

same day vide Ex.P-23. Blood stained cement was recovered from

the place from where the girl was recovered vide Ex.P-18. Blood

stained soil was also recovered from the place where the appellant

had washed his blood stained clothes. Driving licence of the

appellant was also recovered from the owner of the truck. Reply to

the notice given under Section 133 of the Motor Vehicle Act was

taken from the owner which is exhibited as Ex.P-29. Information

was received under Section 27 of the Evidence Act from the

appellant and on his information the truck was seized.

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Photographs of the truck were obtained which have been exhibited

as Ex.P-46 to P-55. Mobile Forensic Unit visited the site and

examined the truck. The examination revealed the presence of

blood stains in the driver’s cabin. Blood stains were also recovered

from the gear box. Projectile blood stains were also recovered

from inner side of the gear and from the glass inside of the door

opposite to the driver in the cabin. Some blood stains were

recovered from the mudguard on the front tyre opposite to the

driver side. Some human hair were recovered from the cabin

under the driver seat. Blood stained articles were also seized by

the Police. Samples were sent for DNA. As as per the DNA report

Ex.P-37, semen was present on frock belonging to the victim child

matched with the blood sample of the appellant and the blood

present on pant and baniyan of the appellant was found to be

matching with the blood sample of the child victim.

4. Police after due investigation submitted charge-sheet against

the appellant. Appellant was charged for offence under Section

363, Section366-A, Section376 Section201 of I.P.C. Appellant denied the charges and

sought trial, upon which as many as 16 witnesses were examined

on behalf of the prosecution and 71 documents and 9 articles were

exhibited. Explanation of the accused was recorded under Section

313 of Cr.P.C. No defence evidence was produced on his behalf.

5. Trial Court after hearing the arguments has convicted the

appellant, as mentioned above, aggrieved by which the present

appeal has been preferred.

6. It is contended by counsel for the petitioner appellant that

mother PW-2 Sharda Devi and father PW-1 Sardara Ram of the

victim have not deposed against the appellant. Rather, they have

stated that the girl was in a habit of sleepwalking at night.

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7. It is also contended that majority of the witnesses have

turned hostile and there was not enough evidence to come to the

conclusion that offence was committed by the appellant. Father

PW-1 Sardara Ram of the victim in his cross-examination has

stated that no one had taken away his daughter and he has

specifically stated that appellant had not taken away his daughter.

This witness has also, on Court questioning has stated that he

found his daughter in the hospital and there were no injuries on

her private parts.

8. It is contended that PW-2 Sharda Devi has also stated that

she found her daughter in the hospital and she was not having

any injury.

9. It is contended that PW-3 Parsaram, PW-4 Idaan, PW-5 Hari

Singh Shekhawat PW-6 Hari Singh Dular, PW-10 Moolchand PW-

11 Mahaveer Prasad have turned hostile, thus, there was no

evidence to connect the appellant with the crime.

10. Learned Public Prosecutor has opposed the present appeal.

His contention is that appellant happens to be nephew of the

village and for that reason the witnesses did not depose against

him.

11. It is contended that the witnesses were under due pressure

and even if the parents have not supported the prosecution

version, the condition of the victim is established by the statement

of doctors PW-14 Dr. Anjana Mathur PW-15 Girdhari Lal.

12. It is also contended that the matching of DNA clearly points

to the guilt of the accused. On his information the truck was

seized and the truck was having blood stains and hair was

recovered from the truck.

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13. It is argued that the Trial Court has not committed any error

in convicting the accused. Offence having been committed with

five years old girl, the sentence also does not deserve to be

reduced.

14. I have considered the contentions and have carefully perused

the documents and statements of witnesses.

15. Missing of girl was reported immediately to the Police and

within three hours girl was recovered. Accused was arrested on

the same day and on his information the truck was seized. Mobile

Unit of the Forensic Science Lab inspected the truck and found the

truck to containing blood stains, blood projectiles and hair. On the

information of the appellant, his clothes were recovered and the

soil where he washed clothes was also recovered.

16. The fact that the girl had sustained injuries on her private

parts, is established from the statement of PW-14 Dr. Anjana

Mathur. She has reported that blood stains from the external

genital area were recovered. Labia minora was torn and lacerating

on both sides. Hymen was also torn and was also lacerating.

Bleeding was present in the vagina. Ex.P-12 is the medical report,

as per which the injuries were sustained due to insertion of male

organ i.e. penis into the vagina.

17. PW-1 Sardara Ram had admitted on giving the report, Ex.P-1

recovery of his daughter, Ex.P-2 making of the site plan from

where the girl was recovered, Ex.P-5 recovery of frock Ex.P-9

recovery of hair of child victim Ex.P-10. Medical report also admits

his thumb impression on sex assault report Ex.P-12 and his thumb

impression on identification form of his daughter Ex.P-13. Though

father of the child victim and mother of the child victim have

stated that they have not seen any injuries on the private parts of

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the child victim but the same does not corroborate with the

medical evidence. It appears that the witnesses turned hostile as

the appellant was nephew of village. Offence has been committed

with a five years old girl who was carried away at wee hours and

was subjected to rape in a truck. Non-production of the child

witness is of no consequence as the child victim was taken away

at wee hours and was subjected to rape in a truck, chances of her

recognizing the accused are remote.

18. The report of the Mobile Forensic Unit which visited the spot

on 23.10.2011 itself and examined the truck minutely, had

revealed that presence of blood stains in the driver cabin projectile

blood stains were also obtained in the inner side of the door on

the glass inside opposite to the driver in the cabin, hair were also

recovered.

19. Ex.P-36 confirms that human blood was detected on the iron

patti, aluminum patti, mudguard and iron sheets of the truck.

Frock of the victim and underwear and baniyan of the accused

also gave positive report with regard to detection of human blood.

20. Ex.P-37 report of DNA examination, which is admissible

under Section 293 Cr.P.C. found female DNA profile on blood

sample of Arti, mixed DNA profile on the frock, pant and baniyan

which matched with the DNA profile of the victim and the

appellant. The FSL team concluded that blood was present on

Exhibit No.3 and its source is Exhibit No.2, blood sample of Manoj

and partially mixed DNA profile was present on Exhibit No.5-pant,

Exhibit No.6-baniyan of accused, matches with the source of blood

sample of the victim.

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21. In view of the clear DNA report, PW-15 Dr. Girdhari Lal

Sharma in his statement has deposed that there was matching of

the DNA profile.

22. PW-16 Girdhari Lal Sharma Investigating Officer has stated

that missing report was received at 6:00 am. SHO Mandawa

informs that a girl child has been recovered near Vahidpura. He

depose that accused was arrested on the same day and truck was

seized with the permission of the accused. His hair and blood

stains were drawn for DNA profile.

23. The learned Trial Court has considered the entire aspect of

the matter and merely because the parents of the victim have

stated that victim was not having any injuries mark, this Court

does not find it a fit case for any interference with the impugned

judgment and order. There appears to be no error whatsoever in

the impugned judgment and order so as to entertain the present

appeal and this Court does not deem it proper to reduce the

sentence as offence has been committed with a five years old girl.

24. The present appeal deserves to be and is accordingly

dismissed.

25. The present appeal is dismissed.

(PANKAJ BHANDARI), VJ

AMIT KUMAR /6

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