HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.457/2016

Ratan Lal

—-Appellant
Versus
State

—-Respondent

For Appellant(s) : Mr.B.S.Charan.

For Respondent(s) : Mr.C.S.Ojha, P.P.

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR

Judgment

17/01/2019

The appellant Ratan Lal stands convicted and sentenced as

below vide judgment dated 24.3.2015 by the learned Additional

Sessions Judge, (Women Atrocities Act Cases), Bhilwara in

Sessions Case No.47/2010:

Offence u/s. Sentences Fine Fine Default
Sentence
366 I.P.C. 10 Years’ R.I. Rs.5000/- 6 months’ S.I.
376(2)(f) I.P.C. Life Term
Imprisonment

Being aggrieved of his conviction and sentences, the

appellant has preferred the instant appeal under Section 374(2) of

the Cr.P.C.

The prosecution case emanates from the written report

(Ex.P/3) lodged by Shri Laxman Ram to the SHO, Police Station

Badnor on 08.05.2010 at 11 p.m. alleging inter alia that on the

very same evening at about 7 O’Clock, Ratan Lal took away his
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minor daughter Mst.A aged 4 years and subjected her to rape. The

child had been admitted in the Badnor Hospital. On the basis of

this report, an FIR No.37/2010 was registered at the Police Station

Badnor for the offence under Sections 376 IPC and investigation

was commenced. The minor victim was subjected to medical

examination at the MG Hospital, Bhilwara from where, a report

was received to the effect that the vagina and the anus of the

child were severely damaged by trauma and had to be stitched

and repaired. The child remained hospitalized for a period of 11

days. The statements of various witnesses who saw the accused

taking away the child with him under the pretext of getting her an

ice-cream were recorded. The accused who had absconded, could

be apprehended as late as on 24.05.2010 vide arrest memo Ex.P-

9-A. His medical examination was conducted. Certain recoveries

were effected at his instance. After investigation, charge sheet

was filed against the accused appellant for the offences under

Sections 363, 366 376 (2) (F) IPC. Since the offences were

Sessions triable, the case was committed to the Court of Sessions

Judge, Bhilwara from where, the same was transferred for trial to

the Court of Additional Sessions Judge (Women Atrocities Act

Cases), Bhilwara. The trial court framed charges against the

accused for the offences under Sections 363, 366 and 376(2)(F) of

the I.P.C. who pleaded not guilty and claimed trial. The

prosecution examined as many as 15 witnesses in support of its

case. Upon being examined under Section 313 Cr.P.C. and when

confronted with the evidence adduced by the prosecution, the

accused denied the same and claimed to have been falsely

implicated. However, he did not lead any evidence in defence.

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After hearing the contentions advanced by the defence and the

prosecution and after appreciating the entire material available on

record, the trial court proceeded to convict and sentence the

accused appellant as above by the judgment dated 24.03.2015

and hence this appeal.

Mr.B.S.Charan, learned counsel representing the appellant

vehemently and fervently contended that the appellant has been

falsely implicated in this case owing to prior enmity. He referred

to the statement of P.W.7 Laxman being the father of the victim

and urged that the witness admitted that previously, the accused

had misbehaved with his sister Naina and thus as per Shri Charan,

there was no possibility that the girl would be easily sent away

with the accused to take ice-cream. He thus urged that ex-facie,

the theory set up by the prosecution that the accused took the

victim away under the pretext of giving her an ice-cream and then

subjected her to rape, is unbelievable. Shri Charan further

contended that as per the prosecution evidence, the accused

Ratan himself dropped the victim back outside the house of the

complainant. As per Shri Charan, in these circumstances and

since the victim was bleeding heavily, the clothes of the accused

were bound to have been stained with blood. As per him, the

absence of the blood stains on the clothes of the accused when he

was arrested, makes it clear that the entire case has been falsely

foisted against the accused. He further drew the court’s attention

to the statements of two doctors viz. Dr. Kavita P.W.9 and

Dr.Manish Pathak P.W.13, who subjected the victim to medical

examination and urged that both the doctors admitted that

injuries of the nature suffered by the victim could have been
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received if she fell on a pointed object. He thus urged that

possibility of the child having received injuries by fall on a pointed

object cannot be ruled out. Shri Charan further submitted that

lack of injuries on the private parts of the accused when he was

medically examined clearly rules out the possibility of him having

subjected the child to rape and hence the accused deserves to be

given benefit of doubt and acquitted.

Per contra, learned Public Prosecutor vehemently and

fervently opposed the submissions advanced by the appellant’s

counsel. He urged that the child witness Ms.Naina P.W.1

categorically stated that Ratanlal took away the victim Mst.A

under the pretext of getting her an ice-cream. Thereafter, the

accused dropped the victim back near her house and she was seen

lying down in a pool of blood coming from her nether region. He

further submitted that the victim Mst.A gave an affirmative

statement to the effect that the accused took her away; stripped

her, opened his clothes and fell down upon her as a result

whereof, she got seriously hurt and started bleeding profusely lost

consciousness thereafter. He further referred to the statement of

P.W.5 Prakash, who also stated that he saw Ratanlal taking away

the child on the pretext of getting her an ice-cream. Some time

later, the child was seen lying outside the house in an unconscious

state and was profusely bleeding. He further urged that testimony

of these witnesses coupled with the evidence of the medical jurists

is clinching and establishes beyond all manner of doubt that the

accused committed the reprehensible and heinous act of brutal

sexual assault on the tender child aged 4 years resulting into

severe traumatic injuries which have left her scarred for life. He
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further urged that the accused absconded after the incident and

could not be apprehended for more than 15 days, which also gives

a strong indication about his culpable mental state. He urged that

the prosecution has given clinching, cogent and convincing

evidence for establishing the guilt of the accused-appellant beyond

all manner of doubt and hence as per him, no interference is

called for in the impugned judgment.

We have given out thoughtful consideration to the

submissions advanced at Bar and have threadbare sifted the

evidence available on record.

We first proceed to deal with the submissions of the defence

counsel that the accused was falsely implicated owing to prior

enmity. The theory of prior enmity was buttressed by Shri Charan

on the premise that an incident previously happened in which the

accused misbehaved with Ms.Naina (P.W.1), the sister of the first

informant and maternal aunt (Bhua) of the victim and thus, as per

Shri Charan, there was no possibility that Ms.Naina would have

allowed the accused to take away the victim for any reason

whatsoever and would have raised an alarm. In this regard, we

have examined the cross examination conducted from Naina P.W.1

who stated about the incident involving her molestation by

Ratanlal which happened about four years before the present

incident. Human memory is short and thus with the passage of 4

years, Ms.Naina (who herself was a child aged 9 years when the

incident involving her and the accused took place) might not have

given much credence to the fact that Ratanlal was offering ice-

cream to the child and so as to make an attempt to thwart him.

Otherwise also, Ms.Naina herself was a small child of 13 years and
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thus it could not be expected from her that she would be

composed and mature enough to react and take such a decision

as if she was an adult. Thus, failure of Ms.Naina P.W.1 to stop the

accused from taking away the victim under the pretext of giving

her an ice-cream cannot in any manner affect or taint the

credibility of her testimony. In this background we are of the firm

opinion that the theory of false implication owing to prior enmity

putforth by Shri Charan for creating a doubt on veracity of

evidence of the prosecution witness Ms. Naina is totally

unconvincing and deserves to be rejected. We now proceed to

consider the submission of Shri Charan that the victim might have

received the injuries by falling on a pointed object. In this regard,

we have carefully perused and evaluated statement of the victim

herself and more particularly, the cross examination conducted

from her by the defence. Not even a vague suggestion was given

to the victim in cross-examination, that she fell on some pointed

object and received injuries on her private parts thereby. Thus,

this conjectural, flimsy and farfetched theory of contradiction with

medical evidence advanced by Shri Charan for assailing the

evidence of the minor victim is totally untenable. The minor victim

aged 4 years categorically and affirmatively stated that the

appellant took her away on the pretext of providing her an ice-

cream. She positively identified the accused-appellant in the court

as her assailant. She was taken away to a pond and was stripped.

The accused took off his clothes and pounced upon her. She

started bleeding severely. It is true that the child did not state

specifically that the accused penetrated her sexually but her

statement has to be evaluated keeping in view her tender age.

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The girl categorically stated that the accused removed her and his

own clothes, fell her down on the ground and forced himself on to

her. This resulted into tearing apart of the nether regions of the

victim viz. her vagina and her anal orifices and she started

bleeding profusely. The accused himself carried the girl, who had

fainted and dropped her near her father’s house. People saw the

accused bringing the girl and dropping her off while she was

bleeding profusely. In this background, we are of the firm opinion

that even if the minor girl did not, in so many words, state that

the accused penetrated her private parts, that by itself does not

absolve the accused from the charge under Section 376(2)(f)

I.P.C. The fact regarding the accused having taken away the victim

under the pretext of giving her an ice-cream; stripping her and his

own clothes; pouncing upon her and bringing her back and

dropping her off near her house in a profusely bleeding condition,

is proved beyond all manner of doubt by cogent convincing

evidence. In the backdrop of these facts and by virtue of Section

106 of the Evidence Act, the incidents intervening these two

events were exclusively in the knowledge of the accused, who was

under an obligation to explain as to how the victim received these

serious injuries on her private parts while she was in his control.

All these circumstances coupled with the fact that the girl has

given categoric evidence to the effect that the accused forced

himself upon her after opening his and her clothes, is sufficient to

satisfy the Court that the accused sexually assaulted and

penetrated the victim resulting into grave and serious injuries to

her private parts and anal orifices. Our findings are amply

supported by the evidence of the two medical officers Dr.Kavita
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P.W.9 and Dr.Manish Pathak P.W.13, who have given clear and

cogent evidence that they noticed brutal marks of penetration on

the victim’s nether regions when she was medically examined. The

violence committed by the accused on the victim was of such an

extreme, brutal and gruesome nature that victim’s vaginal and

anal orifices were torn apart. The doctors had to apply stitches to

join the wounds. The contention advanced by Shri Charan that

absence of injuries on the private parts of the accused and lack of

blood stains on his clothes, is clearly indicative that he was not the

assailant, is considered only to be rejected. As has been noted

above, the accused absconded after the incident dated 8.5.2010

and could be apprehended as late as on 24.5.2010 (Ex.P/9A).

Thus, definitely and undoubtedly, the injuries received by the

accused if any, would have healed during this period. That apart, it

is not absolutely inevitable that the offender invariably receive

significant injuries while penetrating the private parts of a minor

victim with his private parts. There is no conclusive opinion of

medical experts to support this proposition. Abscondance of the

accused for a period of 15 days from the incident also gives a

clear indication about his culpable mental state. In this

background, we are of the view that the lack of injuries on the

private parts of the accused when he was arrested, is of no

consequence whatsoever and does not adversely effect the

veracity of the prosecution case. We are of the firm opinion that

the evidence of the material prosecution witnesses viz.

Laxmanram P.W.7, Naina P.W.1 and victim Mst.A P.W.4 herself is

clinching, cogent and convincing so as to satisfy the Court that the

accused herein, committed the brutal, heinous and reprehensible
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offences of kidnapping followed by penetrative sexual assault on

the victim thereby tearing apart her nether regions including her

vaginal as well as anal orifices. The defence theory of false

implication owing to prior enmity is far too flimsy, farfetched and

conjectural so as to be accepted.

In wake of discussion made herein above, we are of the view

that the trial court appreciated the evidence available on record in

a just and apropos manner while reaching to a finding of guilt

against the accused appellant. The impugned judgment dated

24.3.2015 ex-facie does not suffer from any illegality, infirmity or

irregularity whatsoever warranting interfere in this appeal. Hence

the appeal fails and is dismissed as being devoid of merit.

Record be sent back forthwith to the trial court.

(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J

/tarun goyal/

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