Mukesh Harijan v. State of Rajasthan, Through P. P.
2018-06-05
MOHAMMAD RAFIQ, PANKAJ BHANDARI
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JUDGMENT Pankaj Bhandari, J. - Appellant has preferred this Jail appeal aggrieved by the judgment and order dated 30.10.2012 passed by Sessions Judge, Sikar (Rajasthan) whereby appellant has been convicted under Sections 363, 366, 376 (2) (f) and 450 IPC and has been sentenced for offence under Section 363 IPC for seven years rigorous imprisonment and fine of Rs. 5,000/- and on non payment of fine to further undergo one year's rigorous imprisonment, for offence under Section 366 IPC ten years rigorous imprisonment and fine of Rs. 5,000/- and on non payment of fine to further undergo one year's rigorous imprisonment, for offence under Section 376 (2) (f) imprisonment for life and for offence under Section 450 IPC ten years rigorous imprisonment and fine of Rs. 10,000/- and on non payment of fine to further undergo one year's rigorous imprisonment. The sentences were directed to run concurrently. 2. The factual matrix of the case is that on 7.6.2011 FIR Ex.P9 was lodged at Mahila Police Station, Sikar by Shankarlal to the effect that the complainant alongwith his family members were sleeping outside their house. At 6.00 a.m. in the morning his wife informed that their daughter is not at home. They searched in the neighbouring houses. At 7.00 a.m. Raju Harijan and Jamal came with their daughter, who was bleeding from her private parts. Police after registration of FIR conducted investigation picked up foot prints mould from the spot and arrested the accused-appellant on 9.6.2011. Appellant was having bruises on his right ankle. In pursuance of the information given under Section 27 of the Evidence Act at instance of appellant blood stained clothes of prosecutrix, shoes and clothes of the appellant were seized. Police after due investigation submitted charge-sheet against the appellant. 3. Trial Court after hearing the charge argument framed charges under Sections 363, 366, 376 (2) (f) and 450 IPC. 4. Appellant denied the charges and sought trial. As many as seven witnesses were examined on behalf of the prosecution and 24 documents were exhibited. Accused was examined under Section 313 Cr.P.C., 1973 No defence was produced on behalf of the appellant. 5. After hearing the arguments Court below convicted the appellant for the aforesaid offences and passed the sentence, aggrieved by which this Jail appeal has been preferred. 6.
Accused was examined under Section 313 Cr.P.C., 1973 No defence was produced on behalf of the appellant. 5. After hearing the arguments Court below convicted the appellant for the aforesaid offences and passed the sentence, aggrieved by which this Jail appeal has been preferred. 6. Counsel for the appellant contends that there was no injury on the private parts of the appellant to connect the appellant with the crime. It is also contended that from the FSL report blood group was not ascertained, hence, that evidence cannot be made basis of conviction. It is also contended that the girl was found naked, hence, if rape was committed after disrobing her, there are no chances of clothes of the prosecutrix being blood stained or having marks of semen. 7. In the alternative, it was argued that if the Court upholds the conviction looking at the young age of the appellant, sentence of life imprisonment be reduced to sentence of ten years for offence under Section 376 (2) (f) IPC. 8. Learned Public Prosecutor has opposed the Jail appeal. Her contention is that prosecutrix is six years old girl who has given evidence against the appellant and has recognized the appellant in Court as the person who has committed rape with her. It is also contended that the recovery of clothes of the prosecutrix which were having blood stains and marks of semen and recovery of underwear which was containing marks of semen corroborates the version of the appellant. 9. We have considered the contentions. 10. On the date of occurrence i.e. 7.6.2011 police vide Ex.P3 and Ex.P5 picked the mould of left and right footwear from the scene of occurrence. Appellant was arrested on 9.6.2011. In furtherance of the information given by the appellant vide Ex.P.14 at his instance his sports footwear was recovered vide Ex.P15. As per FSL report Ex.P20 the right sole impression and left sole impression of shoe mould tallied with the shoes recovered from the appellant. 11. PW1 Raju and PW4-Jamal have stated that they found the prosecutrix coming naked, she was bleeding from her private parts and there was a bite mark on her cheek. They took her to her parents home. 12. PW3 prosecutrix has stated that she was carried away while she was sleeping. She has stated in detail how the accused disrobed her and raped her.
They took her to her parents home. 12. PW3 prosecutrix has stated that she was carried away while she was sleeping. She has stated in detail how the accused disrobed her and raped her. She has also stated that she went to a house of a Muslim and the Muslim took her to her parents house. Prosecutrix has identified the accused in Court as the person who has committed rape with her. In addition to the direct evidence of the prosecutrix, as per information given by the accused under Section 27 of the Evidence Act, clothes of the prosecutrix and the accused have been recovered. From the FSL report Ex.P19 human semen was detected in underwear of the accused and in the vaginal swab and vaginal smear and chaddi of the prosecutrix. Thus, there was ample evidence to connect the appellant with the crime and the Court below has not committed any error in convicting the accused-appellant for the offences for which he was charged. 13. No ground is, therefore, made out for setting aside the judgment of conviction, but as far as sentence is concerned, this Court is of the view that looking to the age of the appellant sentence under Section 376 (2) (f) IPC should be reduced to ten years of rigorous imprisonment. Since learned trial Court has not imposed any fine with regard to Section 376 (2) (f) IPC, this Court is of the view that a fine of Rs. 50,000/- be imposed for the offence under Section 376 (2) (f) IPC. On non payment of fine the appellant would further undergo rigorous imprisonment of two years. 14. The appeal is accordingly partly allowed. While upholding the judgment of conviction and sentence passed for offence under Sections 363, 366 and 450 IPC, sentence with regard to Section 376 (2) (f) IPC is reduced to a period of ten years of rigorous imprisonment and fine of Rs. 50,000/-. The fine would be payable to the prosecutrix and on non payment of fine appellant would further undergo rigorous imprisonment of two years.