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Judgment
Criminal law was set into motion when Ramdev (PW-4) went to Police Station Gudha, District Jhunjhunu at 9.30 P.M. on 01.01.2003 and informed
that he was a resident of Rohi Mauja and was residing there with his wife Mohini, his grand daughter (prosecutrix), aged 9 years, daughter of Shankar
Lal, who was his brother and at around 10.00 in the morning the prosecutrix left to graze goats in the company of a few girls and went towards
stream. At around 5.30 in the evening Suman (PW-8) came and informed that one Bawariya had abducted the prosecutrix. Accompanied by 3-4
persons he ran towards the stream and saw the Bawariya whose name was Madaniya (the accused), who used to work in their fields was attempting
to run away on seeing them. Salwar which prosecutrix was wearing was not there. She was crying and bleeding from her private parts.
Investigation was immediately taken over by the SHO of the Police Station, Gopal Singh (PW-13) who proceeded to the spot and recovered a
green colored Salwar as recorded in the seizure memo Ex.P-8 which was witnesses by Mangla Ram(PW10). He took custody of the prosecutrix and
took her for medical examination to the Government Hospital, Gudha where Dr. Rajesh Barupal (PW-1) in the company of Dr. Smt. Rajkumari
examined the prosecutrix at 9.15 P.M. and recorded the MLC Ex.P-1. The same records as many as seven abrasions on the body of the prosecutrix.
Three abrasions are around the right and the left nipple and the other are on the back (lumbar region), elbow and the lateral aspect of the thigh.
Gopal Singh thereafter recorded the statement of Mohini (PW-5), the prosecutrix (PW-6), Sanjana (PW-7) and Suman (PW-8). He drew up the
Site Plan Ex.P-9.
On being apprehended the appellant was taken toB.D.K. Hospital, Jhunjhunu on 04.01.2003, where Dr. Narendra Singh Naruka (PW-11) examined
him and drew up the medical examination report Ex.P-13 recording therein that the appellant was capable of sexual intercourse. Pursuant to a
disclosure statement the appellant got recovered a gun as per Seizure Memo Ex.P10 witnessed by Mangla Ram.
The exhibits seized during investigation being the salwar, the vaginal swabs etc. of the victim were sent for forensic examination as deposed to by
constable Lal Chand (PW-3), but regretfully the FSL report concerning the exhibits has not been proved at the trial and thus evidence concerning
semen stains on the Salwar or semen in the vaginal swabs of the victim being detected has eluded our appreciation.
As noted hereinabove, in the FIR Ex.P-7, PW-4 stated that Suman (PW-8) had given contemporaneous information to him and thus we note the
testimony of Suman who appeared as PW-8. Deposing in Court on 24.07.2003 she stated that on the day of the incident she along with Sanjana and
the prosecutrix were with the goats near the stream. The accused who was present in Court accosted them. He was armed with a gun. They got
scared. The accused caught the prosecutrix. She and Sanjana ran towards their house. She gave this information to her Dadi Mohini (PW-5), in the
presence of her Dada Ramdev (PW-4). All of them ran towards the spot and saw appellant lying on top of the prosecutrix and on seeing them he ran
away.
She was confronted with her statement recorded under Section 161 Cr.P.C. and relevant would it be to highlight that in said statement it is recorded
that they were five girls present, namely she herself, Aniya, Sanjana and one Rukli. She was also confronted with the sentence in the statement in
which it is recorded that she saw the accused dragg the victim. She was also confronted with the writing in the statement to the effect that Aniya,
Sanjana and Rukli ran away.
Learned Amicus urges in respect of this aspect of the cross-examination that the testimony of PW-8 lacks credence for the reason she changes the
number of girls who were present from 3 to 5 and the aspect of the appellant dragging the victim as recorded in said statement is missing from her
testimony in the Court.
It has to be kept in mind that PW-8 is a child from a rural setting. She was deposing with respect to the incident dated
01.01.2003 on 24.07.2003. She was aged 10 years. These are minor embellishments and are not of the kind which could discredit the testimony of
witness.
Fast tracking our judgment we highlight that the complainant who appeared as PW-4 deposed facts in sync with his statement recorded in the FIR
Ex.P-7. Nothing in crossexamination discredits the testimony of the witness. Mohini (PW5), the Dadi named by Suman in her statement recorded on
17.07.2003 corroborates Suman with the fact that Suman came at 5.30 in the evening and gave information of the appellant having overpowered the
prosecutrix and having committed rape upon her. 11. Sanjana(PW-7), the girl whom Suman named as the third girl present with them in her deposition
corroborated PW-8 and what had been deposed to by PW-4 and PW-5.
The prosecutrix was examined as PW-6. She has fully supported the case of the prosecution and has corroborated the presence of Sanjana and
Suman with her.
The testimony of PW-4, PW-5, PW-6, PW-7 and PW-8 corroborate each other and we see no reason why all of them would falsely implicate the
appellant. It is not only a case of the victim who has deposed but we have the testimony of PW-7 and PW-8 who were eye witnesses to the appellant
overpowering the victim and the two rushing to the village. We have the testimony of PW-4 and PW-5 informing them of what had happened and they
rushing to the spot and at the spot seeing the appellant running away from the scene of crime.
Mangla Ram(PW-10) deposed that the Seizure Memo Ex.P8 was drawn in his presence after the Salwar was recovered and he witnessed the
same. He also deposed that the gun got recovered by the appellant was in his presence and he was a witness to the Seizure Memo Ex.P10.
In view of eye witness account and the MLC of the prosecutrix Ex.P-1, we concur with the view taken by the learned Court of Sessions that the
prosecution has successfully established the appellant as the perpetrator of the crime. The conviction of the appellant for having raped the prosecutrix
is sustained.
On the issue of sentence we note that the sentence imposed is to undergo imprisonment for life.
Learned Amicus argues that the sentence may be reduced. Counsel urges that for rape of a minor victim the minimum sentence prescribed is of
10 years and Counsel urges that unless aggravating circumstances are brought out, the sentence to be imposed should ordinarily be the minimum
sentence.
In this context the MLC of the victim needs to be highlighted by us. It is not a simple rape. The victim has been ravished evidenced by abrasions
near right and the left nipple, abrasions on the back, lateral aspect of the thigh elbows etc. and shows that the victim struggled to save herself but the
appellant held his ground. It has also to be kept in mind that a gun was recovered pursuant to the disclosure statement by the appellant and in their
testimony both Suman as well as Sanjana and the victim have deposed that the appellant was carrying a gun to threaten and overpowering the victim.
Under the circumstances the sentence imposed to undergo imprisonment for life is upheld.
The appeal is dismissed.