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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