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2019 DIGILAW 2272 (RAJ)

Jagdish v. State of Rajasthan

2019-08-22

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : 1. Appellant had faced trial in FIR No. 30 dated 19.1.2013 registered at Police Station Udyog Nagar, District Alwar under Sections 363, 376(2)/376(g) Indian Penal Code, 1860 (hereinafter referred to as 'IPC') on a report lodged by complainant Jagdish S/o. Bheem Singh. 2. As per the prosecution story, on 18.1.2013 at about 7:00 p.m., complainant was present at the stand and his daughter came to call him. Since, his daughter could not find him, she returned home. While she was returning home, she was enticed away by Pappu and Jagdish S/o. Chotelal to some unknown place. Complainant could not locate his daughter at night despite efforts. In the morning at about 6:00 a.m., daughter of the complainant returned home while crying and told him that she had been raped by Jagdish S/o. Chotelal and Pappu. Victim was aged about 7 years. 3. After completion of investigation and necessary formalities, challan was presented against the appellant and his co-accused Pappu. 4. Charges were framed against the accused under Sections 366, 376(2)(g), 376(2), (f) IPC and Section 5(g)/6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'the Act'). 5. Accused did not plead guilty to the charges framed against them and claimed trial. 6. In order to prove its case, prosecution examined 18 witnesses during trial. Appellant when examined under Section 313 Cr.P.C., after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case. 7. Appellant did not examine any witness in his defence. 8. Trial Court vide judgment/order dated 18.5.2018, ordered the conviction and sentence of the appellant under Sections 366, 376(2)(f) IPC and Section 5(m)/6 of the Act. Co-accused Pappu was acquitted of the charges framed against him. Hence, the present appeal by the appellant. 9. Learned counsel for the appellant has submitted that the prosecution has miserably failed to prove its case. The version of the victim was not corroborated by the medical evidence. As per the medical evidence, there were no injury marks on the body or private parts of the victim. Hymen of the victim was intact. 10. Learned State counsel has opposed the appeal. 11. Victim while appearing in the witness-box as PW-1 deposed that she was student of IInd Class. As per the medical evidence, there were no injury marks on the body or private parts of the victim. Hymen of the victim was intact. 10. Learned State counsel has opposed the appeal. 11. Victim while appearing in the witness-box as PW-1 deposed that she was student of IInd Class. On the day of incident, she had gone to call her father but she could not find him and she was caught by the appellant. Appellant was not accompanied by any other person. Appellant took her in 'Batte Vadi' and opened her 'salwar' and lay on top of her. Appellant brought her home at 5:00 a.m. She could not tell as to what had been done by the appellant but she had felt pain on her private part and had started bleeding. She identified appellant in the Court. 12. PW-2 Jagdish S/o. Bheem Singh, father of the victim, has deposed as per the contents of the FIR. 13. PW-3 Guddi, mother of the victim, has corroborated the statement of the complainant. 14. PW-6 Dr. Sunita Jain deposed that she had medically examined the victim and proved the report in this regard Exhibit-P16. A perusal of Exhibit-P16 reveals that there were no injury marks on the thighs of the victim. On examination, of her genitalia, it was found that her hymen was intact. Margins of hymen were congested. There was laceration outside the hymen and inner to labia minora. It was also opined that there was slight bleeding from vagina. 15. PW-12 Dr. Ravi Mathur deposed that on 19.1.2013, he had medically examined the victim and proved the report Exhibit-PS. A perusal of Exhibit-P8 reveals that there were bruises on both the cheeks of the victim. 16. The other witness have deposed with regard to the investigation conducted in the case. 17. Present case relates to rape of a minor girl aged about 7/8 years. Victim while appearing in the witness-box has duly supported the prosecution case with regard to the involvement of the appellant in the crime. 18. Section 3 of the Act reads as under: "3. 17. Present case relates to rape of a minor girl aged about 7/8 years. Victim while appearing in the witness-box has duly supported the prosecution case with regard to the involvement of the appellant in the crime. 18. Section 3 of the Act reads as under: "3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 19. Thus, as per the above provision, when an accused penetrates his penis into the vagina of a child, he is said to have committed the offence of penetrated sexual assault. 20. Although, in the present case, hymen of the prosecutrix was found intact as is evident from the medico-legal-examination report of the victim, but from Exhibit-P16, it is further evident that there was slight bleeding from the vagina of the victim and the margins of hymen were congested and there were some laceration outside hymen and inner to labia minora. From this, it can be inferred that the penetration of penis into the vagina of the victim by the appellant had been done to some extent. Hence, the fact that hymen of the victim was intact, does not mean that the appellant was not guilty of penetrative sexual assault. In this regard, the ocular version of the victim stands duly corroborated by the medical evidence. As per Exhibit-P8, there were bruises on the cheeks of the victim. The victim is a young girl aged about 7/8 years and has deposed in a most natural manner. Statement of the victim inspires confidence. 21. In this regard, the ocular version of the victim stands duly corroborated by the medical evidence. As per Exhibit-P8, there were bruises on the cheeks of the victim. The victim is a young girl aged about 7/8 years and has deposed in a most natural manner. Statement of the victim inspires confidence. 21. Hence, the learned trial Court had rightly ordered the conviction of the appellant under Sections 366, 376(2)(f) IPC and Section 5(m)/6 of the Act. 22. The next question that arises for consideration is with regard to the sentence awarded to the appellant by the trial Court. 23. Trial Court has sentenced the appellant to undergo life imprisonment qua offence punishable under Section 376(2)(f) and Section 5(m)/6 of the Act. 24. As per Section 5(m) of the Act, whoever commits penetrative sexual assault on a child below the age of 12 years comes within the ambit of aggravated penetrative sexual assault. 25. Section 6 of the Act reads as under: "6. Punishment for aggravated penetrative sexual assault-Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." 26. Keeping in view the medical evidence on record and other facts and circumstances of the case, we are of the opinion that the sentence awarded to the appellant is liable to be reduced. Accordingly, the sentence of the appellant under Section 376(2)(f) and Section 5(m)/6 of the Act is reduced from life imprisonment to rigorous imprisonment for 10 years. Sentence qua fine is maintained. However, it is ordered that in case of default of fine, appellant shall further undergo rigorous imprisonment for two months instead of two years as awarded by the trial Court. 27. With the above modification, the appeal stands disposed of.