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2019 DIGILAW 991 (RAJ)

Manohar Lal v. State of Rajasthan

2019-04-03

BANWARI LAL SHARMA, SABINA

body2019
JUDGMENT : Banwari Lal Sharma, J. 1. Appellant has filed this appeal, challenging his conviction under Section 5/6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act") and sentence for life imprisonment and fine of Rs. 25,000/- (in default of payment of fine, three months rigorous imprisonment) by learned Special Judge, Prevention of Children from Sexual Offences Act Cases, Ajmer (hereinafter referred to as "the trial Court") vide judgment/order dated 29.01.2016 in FIR No. 543 registered at Police Station Beawar, District Ajmer on 12.09.2013 under Section 376 (2) of Indian Penal Code, 1860 and Sections 3, 4 & 6 of POCSO Act. 2. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. Prosecution had failed to prove its case. 3. Learned State counsel has opposed the appeal and has submitted that the prosecution had been successful in proving its case. 4. Prosecution story in brief, is that, on the intervening night of 11.09.2013 and 12.09.2013 appellant had raped his seven years old daughter. 5. On the basis of the written report submitted by mother of the victim (Exhibit-P-8), formal FIR (Exhibit-P-9) was registered against the appellant. 6. After completion of investigation and necessary formalities, challan was presented against the appellant. Learned trial Court framed charges against the appellant under Sections 3/4, 5/6 read with Section 29 of the POCSO Act. 7. During trial, prosecution examined six witnesses. Appellant when examined under Section 313 Code of Criminal Procedure 1973 prayed that he was innocent and had been falsely involved in this case by his wife. Appellant examined two witnesses in his defence. 8. The victim aged about seven years while appearing in the witness box as PW-1 deposed that on the day of occurrence, she was sleeping in her house. Her mother had gone out to answer the call of nature and in the meantime, her father(appellant) had raped her. She had suffered lot of pain and had started bleeding. She had started screaming. Her father closed the door. Her mother knocked heavily on the door and thereafter, her father opened the door and fled away. Thereafter, her grand-father and police arrived at the spot. She was taken to the doctor for medical examination. She had narrated the occurrence to the police. 9. She had started screaming. Her father closed the door. Her mother knocked heavily on the door and thereafter, her father opened the door and fled away. Thereafter, her grand-father and police arrived at the spot. She was taken to the doctor for medical examination. She had narrated the occurrence to the police. 9. Kamla, mother of victim appeared in the witness box as PW-3 and had corroborated the version of the victim. 10. PW-2-Dr. Vidya Saxena, proved the medical examination report of the victim, Exhibit-P-1. 11. As per Exhibit-P-1, hymen of the victim was found freshly torn and fresh bleeding was found present. As per medical opinion, there were signs of recent forceful sexual assault. It was also opined that the victim was not habitual of sexual intercourse. 12. PW-4 Gopi Singh, Investigating Officer deposed with regard to investigation conducted by him. 13. DW-1 Mukesh Kumar deposed that he knew the accused present in the Court. Accused was a liquor addict and on this account, there used to be a dispute between him and his wife. On 11.09.2013, dispute had arisen between the appellant and his wife as the gas cylinder had become empty. Wife of the appellant had given money to the appellant to get the gas cylinder refilled, but the appellant had consumed the liquor. Wife of the appellant had come to his house and had asked him to make a call to her father. Then he had made a call to Sitaram. Wife of the appellant had come between 8:00 to 9:00 p.m. However, the said witness in his cross-examination deposed that the appellant had left his house at about 9:00/9:30 p.m. on 11.09.2013. Thereafter, he had not seen the appellant. 14. DW-2-Mohan Lal deposed that he knew the appellant. Appellant used to take liquor everyday and due to this reason, there used to remain a dispute between him and his wife. On the day of incident, wife of the appellant had given money to the appellant to get the gas cylinder refilled but he had consumed liquor. Due to this reason, dispute arose between the appellant and his wife. Wife of the appellant had gone to house of her elder brother-in-law or younger brother-in-law Mukesh. On the day of incident, wife of the appellant had given money to the appellant to get the gas cylinder refilled but he had consumed liquor. Due to this reason, dispute arose between the appellant and his wife. Wife of the appellant had gone to house of her elder brother-in-law or younger brother-in-law Mukesh. As per this witness, quarrel had taken place between the appellant and his wife between 5:30 to 7:00 p.m. In his cross-examination, this witness deposed that he could not tell the date on which the dispute has arisen between the appellant and his wife. He could not tell the direction of the house of the appellant from his house. 15. In the present case, appellant is none other than the father of the victim. The victim is a young girl aged about seven years. The victim while appearing in witness box has duly stated that she had been raped by her father and she had started bleeding. The statement of the victim is duly corroborated by medical evidence. As per the medical opinion, there were signs of recent forceful sexual assault. The statement of the victim is duly corroborated by the statement of her mother (PW-3). 16. So far as the witnesses examined in defence by the appellant are concerned, no reliance can be placed on their statements. The occurrence in the present case had allegedly taken place in the mid night, whereas, DW-1 has deposed that the appellant and his wife had left his residence at about 9:00 p.m. and DW-2 has deposed that wife of the appellant had left for the house of DW-1 or her elder brother-in-law between 5:30 to 7:00 p.m. DW-1 had not seen the appellant after 9:30 p.m. on the day of occurrence. It appears that DW-1 has tried to help the appellant being his close relative. 17. The statements of DW-1 and DW-2 fail to rebut the statements of PW-1 (victim) and PW-3 (mother of victim) duly corroborated by medical evidence available on record. 18. It is very unfortunate that the victim has been raped by none other than her own father. Victim, who was aged about seven years, should have been protected by her father. Home is a place where daughters should enjoy the protection of their parents and feel safe. The incident must have traumatised the victim. 18. It is very unfortunate that the victim has been raped by none other than her own father. Victim, who was aged about seven years, should have been protected by her father. Home is a place where daughters should enjoy the protection of their parents and feel safe. The incident must have traumatised the victim. Hence, no ground for reduction of sentence qua imprisonment is made out. 19. In the facts and circumstances of the present case, learned trial Court had rightly ordered the conviction and sentence of the appellant under Section 5/6 of the POCSO Act. No ground for interference by this Court while exercising appellate jurisdiction is made out. 20. Dismissed.