Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2067 (RAJ)

Sunil Kumar v. State

2019-07-30

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide the judgment dated 09.06.2014 passed by learned Special Judge, POCSO Act Cases (District & Sessions Judge), Hanumangarh in Sessions Case No.05/2013: Section 363 IPC Three years' RI, a fine of Rs.2,000/- and in default of payment of fine to further undergo additional one month's SI. Section 366 IPC Five years' RI, a fine of Rs.4,000/- and in default of payment of fine to further undergo additional two months' SI. Section 376 (2)(i) IPC Life imprisonment for the remainder of his natural life, fine of Rs.25,000/- and in default of payment of fine to further undergo additional six months' SI. (All the substantive sentences were ordered to run concurrently.) 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- The complainant Smt. Teeja (PW 10) lodged a written report (Ex.P/21) alleging inter alia that she is a resident of Sureshiya Tehsil Hanumangarh. On 14.03.2013 at about 1:30 pm, her grand-daughter Mst. 'S', aged four and a half years (hereinafter referred to the as 'the victim' for brevity) took a sum of Rs.10/- from her and went to the shop nearby for buying something. Two other children namely Mukesh and Rakesh, who were aged about 2 to 3 years accompanied her. These children came back and told the informant that the victim had been carried away by a man, upon which, she ran towards the said direction and saw that the victim was sitting outside a house and crying. The victim told Teeja that a person had raped her. The complainant tried to catch hold him but since the front gate of the house was closed, the offender escaped from the rear gate of the house. The child was in a precarious condition and badly needed medical attention. 4. On the basis of the aforesaid report, an FIR No. 48/2013 (Ex.P/22) was registered at Mahila Police Thana, Hanumangarh Town for the offences under Sections 363, 376 IPC and Section 4 of Prevention of Children from Sexual Offences Act ('POCSO Act') and investigation was commenced. The victim was subjected to medical examination by a board constituted at the Government Hospital, Hanumangarh Town. The victim was subjected to medical examination by a board constituted at the Government Hospital, Hanumangarh Town. A large number of abrasions were noticed all over the body of the victim. Bruises were noticed on her loins. An abrasion was noticed on the labia majora. Clotted blood was present on the vaginal opening. Hymen was freshly torn and a laceration of x inch was present around introitus in vestibule (left side). The child was writhing in pain upon medical examination. The vaginal swabs, smear, sample of blood, saliva and clothes were collected for forensic examination. The Board opined that the child had been subjected to violent sexual assault and issued its report (Ex.P/1) 5. The place of incident was inspected. The appellant herein was apprehended and was got medically examined. The statements of the concerned eyewitnesses were recorded under Section 164 Cr.P.C. After concluding investigation, a charge sheet was filed against the appellant herein for the offences under Sections 363, 366, 376 (2)(h) IPC & Section 5(m)/6 of POCSO Act. Since the offences alleged were triable by the Special Court POCSO, Act Cases, the case was committed to the Special Court at Hanumangarh. The trial court, framed charges against the accused-appellant for the above offences who pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 27 documents to prove its case. 6. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same and claimed to have been falsely implicated under political pressure. A witness namely Rinku was examined in defence as DW.1. After hearing the arguments advanced by learned Public Prosecutor and learned defence counsel and after appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 7. Shri N.A. Rajpurohit, Advocate representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The identification of the accused-appellant as being the offender is in serious doubt. The victim named the assailant as Kalu in her evidence. The testimony of the child victim is not reliable because she was not in a position to identify the accused. The witnesses Mahaveer (PW.6), Balwant (PW.8) and Sajjan Kumar (PW.14) did not support the prosecution case and were declared hostile. The victim named the assailant as Kalu in her evidence. The testimony of the child victim is not reliable because she was not in a position to identify the accused. The witnesses Mahaveer (PW.6), Balwant (PW.8) and Sajjan Kumar (PW.14) did not support the prosecution case and were declared hostile. He further submitted that the witness DW.1 Rinku clearly established alibi of the accused by stating with firm conviction that the accused was working at his barber shop from the morning till 3 O' clock when the police arrested him. He thus urged that the impugned judgment is bad in the eyes of law and so also in facts and implored the Court to accept the appeal, set aside the impugned judgment and acquit the accused of the charges. 8. Per contra, learned Public Prosecutor opposed the submissions advanced by the appellant's counsel. He drew the Court's attention to the evidence of the victim (PW.1) who identified the accused as her assailant. He urged that initially no cross-examination was made from the victim but thereafter the evidence of the victim was reopened and the accused-appellant was given an opportunity to cross-examine her. In her cross-examination, the defence tried to create a discrepancy by suggesting to the child that the name of the assailant was Kalu but as per the learned Public Prosecutor, no question was put to the victim regarding the substantive identification of the accused made by her in the Court. He further submitted that the FSL report (Ex.P/27) which was put to the accused during his statement under Section 313 Cr.P.C. conclusively establishes that human semen was detected from his underwear. Numerous injuries indicating severe sexual assault were noticed on the body of the victim when she was medically examined by the medical board. He thus urges that the impugned judgment is perfectly in order and does warrant any interference whatsoever. 9. We have given our thoughtful consideration to the submissions advanced at Bar and have re-appreciated and sifted the evidence available on record threadbare and carefully perused the impugned judgment. 10. The principal witness of the prosecution is none other than the victim (PW-1) who was a child of four and a half years on the date of incident and was subjected to a brutal vicious sexual assault. 10. The principal witness of the prosecution is none other than the victim (PW-1) who was a child of four and a half years on the date of incident and was subjected to a brutal vicious sexual assault. In her evidence recorded by the trial court on 12.06.2013, she identified the accused-appellant to be the assailant and stated that he fell on her. The girl further deposed that because of the foul act of the accused, she started bleeding from her vaginal area. On that day, no cross-examination was made from the victim despite the opportunity given to the accused-appellant. However, four months later, the victim was recalled for testifying and in the second round of her deposition, when she was crossexamined, the defence tried to confuse her by putting the name 'Kalu' in her mouth. However, no question was put to the victim suggesting that she had wrongly identified the accused appellant to be the assailant when she was examined on 12.06.2013. The Public Prosecutor re-examined the victim and thereupon, she categorically stated that she was not aware of the name of the assailant. The victim was medically examined by Dr. Amarjeet Chawla (PW.3) being the Member of the Medical Board constituted at the Government Hospital, Hanumangarh Town. Abrasions were noticed on her lips, cheek, abdomen and on the labia majora. Her hymen was freshly torn with a lacerated wound of x inch and clotted blood was noticed on the entire vaginal area. The Board gave a clear opinion that the victim has been subjected to sexual assault. The accused was medically examined by Dr. Rajpal (PW.12). Various samples including his underwear were collected which were forwarded to FSL for serelogical examination. A report (Ex.P.27) was received from the FSL, Jaipur as per which human semen was detected in most of the samples collected by the Investigating Officer including the underwear of the accused. 11. The fact that the witnesses Mahaveer (PW.6), Balwant (PW.8) and Sajjan Kumar (PW.14) did not support the prosecution case and were declared hostile would not detract from the strong evidence available to the prosecution in form of the victim herself. The testimony of the victim is the best evidence to prove the offence of sexual assault against the accused-appellant. 11. The fact that the witnesses Mahaveer (PW.6), Balwant (PW.8) and Sajjan Kumar (PW.14) did not support the prosecution case and were declared hostile would not detract from the strong evidence available to the prosecution in form of the victim herself. The testimony of the victim is the best evidence to prove the offence of sexual assault against the accused-appellant. The defence theory in the form of alibi as deposed by DW.1 Rinku is absolutely flimsy and untenable for the simple reason that even the accused himself did not take such a plea in his statement under Section 313 Cr.P.C and furthermore, the plea of alibi being a weak plea cannot supersede the strong direct evidence led by the prosecution to bring home the guilt of the accused appellant. 12. As the victim herein is a small innocent child and since she has categorically identified the accused as being her assailant and as her statement gets thoroughly corroborated by the medical evidence noticed above, we are of the firm opinion that the trial court was absolutely justified in convicting and sentencing the appellant as above by the impugned judgment dated 09.06.2014. The judgment of the trial court does not suffer from any infirmity factual or legal warranting interference therein. Hence, the appeal of the appellant is dismissed as being devoid of merit. Record be returned to the trial court forthwith.