Shankar vs State
2022 Latest Caselaw 11353 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
               D.B. Criminal Appeal No. 574/2014

Shankar S/o Jagannath, aged about 37 years, R/o Rasulpura,
Police Station Nimbahera, Distt. Chittorgarh.
(Presently lodged at Central Jail, Udaipur.).
                                                                    ----Appellant
                                   Versus
State of Rajasthan.
                                                                  ----Respondent


For Appellant(s)         :     Mr. D.K. Godara.
For Respondent(s)        :     Mr. R.R. Chhaparwal, PP.
                               Mr. Ravindra Singh.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI

                             JUDGMENT

13/09/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

1. The appellant herein has been convicted and sentenced as

below vide judgment dated 03.10.2013 passed by the learned

Additional Sessions Judge, Nimbahera, District Chittorgarh in

Sessions Case No.35/2012:

Offences            Sentences              Fine                 Fine    Default
                                                                sentences
Section 323 IPC     1 Year's R.I.

Section 354 IPC     2 Years' R.I.          Rs.5000/-            6          Years'
                                                                Additional
                                                                Imprisonment
Section 376 IPC     Life                   1,00,000/-           2          Years'
                    Imprisonment                                Additional
                                                                Imprisonment

All the substantive sentences were ordered to run concurrently.

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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 disposal of the appeal

are noted herein below:-

As per the allegations set out in the written report (Ex.P/4)

lodged by PW-5 Shri Jagannath (father of the appellant) at Police

Station Nibahera, the appellant herein was embroiled in a

matrimonial strife with his wife Smt. Bhairi Bai who had lodged a

case of demand of dowry against the appellant and was living at

her father's house. Shankar used to live alone and would cook his

own food. His minor daughter Mst. 'S' aged 14 years and minor

sons Master 'R' and Master 'P', aged 6-7 years, would sometime

stay with the complainant and also used to occasionally visit the

house of the appellant. On 27.04.2012, Mst. 'S had gone to the

house of Shankar but she did not return on which, the

complainant went there and saw 'S' lying unconscious inside the

room. Numerous marks of violence were visible all over the body

of 'S' including the eyes, cheeks, hand, back and chest. The

complainant and his wife Smt. Bagdi Bai picked up Ms. 'S' and

took her to the Government Hospital, Nimbahera. It was alleged

that Shanker had assaulted Mst. 'S' and had also outraged her

modesty. 'S' had not regained senses till the time of lodging of the

report.

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On the basis of this written report, FIR No.275/2012

(Ex.P/13) came to be registered at the Police Station, Nimbahera

for the offences punishable under Sections 323 and 354 IPC and

investigation was commenced. The child victim was medically

examined by Dr. Dayal Wadwani (PW-10) who issued the Medico

Legal Report (Ex.P/11) taking note of the following injuries on her

person:

S. No. Particulars

1. Contusion 2x1 cms. on upper region of right eye.

2. Contusion 2x1 cms. on upper region of left eye.

3. Contusion 3x1 cms. on upper part of right arm.

4. Contusion 2x1 cms. on upper part of left arm.

5. Abrasion (At three places) 1/2 x 1/2 cms. on right hand.

6. Abrasion (At four places) 1/2 x 1/4 cms on left arm.

7. Abrasion (teeth mark) 3x2 cms. near the right nipple

8. Contusion 4x3 cms. on right thigh

9. Contusion 3x2 cms. on left knee.

The doctor stated that the victim was unconscious at the

time of medical examination and the consent of her mother was

taken to conduct the medical examination. Dr. Nitin Mali (PW-11)

examined the victim for marks of sexual assault and took note of

the fact that her hymen was freshly torn and contused. The doctor

gave the report (Ex.P/12) with a categoric opinion that the victim

had been subjected to sexual assault.

The victim Mst. 'S' regained senses and her statements were

recorded under Sections 161 Cr.P.C. as well as 164 Cr.P.C.

wherein, she categorically stated that her father called her to his

house on the pretext of preparing food. She cooked food for him.

Thereafter, her father switched on the T.V. Her two younger

brothers were sent out of the house under the guise of bringing

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biscuits. Thereafter, her father shut the door, forcefully disrobed

her, removed his own clothes and then subjected her to sexual

assault. She was brutally beaten. When she shouted, her father

increased the volume of the T.V. She was beaten by a stick. Her

father also bit her chest. Later on, she overheard her father

talking to a woman named Shanti that the girl should be thrown

into the well. Her brothers came back after some time. Her

grandfather also came and then she was taken to the hospital. On

the basis of this version of the girl, offence punishable under

Section 376 IPC was added to the case. Documents were collected

from the school wherein, date of birth of the victim was recorded

as 16.08.1999. Thus, the victim was about 13 years of age on the

date of the incident. The accused was arrested and his underwear

was seized for the purpose of forensic examination. The forensic

samples viz. clothes of the victim, vaginal smear and slide were

collected for serologinal examination.

After concluding investigation, a charge-sheet came to be

filed against the accused appellant for the offences punishable

under Sections 354, 323 and 375 IPC. The case was committed to

court of the Additional Sessions Judge, Nimbahera where charges

were framed against the accused for the above offences. He

pleaded not guilty and claimed trial. The prosecution examined as

many as 14 witnesses and exhibited 16 documents to prove its

case. The FSL report was proved as Ex.C/1. The accused, upon

being questioned under Section 313 Cr.P.C., claimed to have been

falsely implicated but he did not lead any evidence in defence.

After hearing the arguments advanced by learned Public

Prosecutor and the defence counsel and, upon appreciating the

evidence available on record, learned trial court proceeded to

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convict and sentence the appellant as above, vide judgment dated

03.10.2013 which is assailed in this appeal.

4. Shri D.K. Godara, learned counsel representing the

appellant, vehemently and fervently urged that the entire

prosecution case is false and fabricated. The appellant and his wife

were embroiled in a long standing marital disputes and owing to

this strife, the victim Mst. 'S' was tutored to give false evidence

and the appellant was falsely framed for the incident. As a matter

of fact, the girl was missing from her grandfather's house from

three days prior to the incident and in all probability, she might

have been ravished by some unknown man. The appellant was

roped into the case because of the marital dispute. He submitted

that the evidence of victim Mst. 'S' (PW-4) is contradicted by the

evidence of Jagannath (PW-5), Smt. Bagdi Devi (PW-6) and

Master 'P' (PW-12). On these grounds, learned counsel Shri

Godara, implored the Court to accept the appeal, set aside the

impugned judgment and acquit the accused appellant from the

charges.

5. Per contra, learned Public Prosecutor and learned counsel

representing the complainant, vehemently and fervently opposed

the submissions advanced by the appellant's counsel. They

submitted that the evidence of the child victim Mst. 'S' is

wholesome and convincing. She had no reason whatsoever to

falsely implicate the appellant her father for the gruesome crime.

The girl made emphatic allegation of rape associated with violence

against her own father, the appellant herein, in her sworn

testimony. The statement of the girl is duly corroborated by the

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evidence of her mother Smt. Bhairi Bai (PW-3), her grandfather

Shri Jagannath, the first informant (PW-5), her grandmother Smt.

Bagdi Devi (PW-6) and her brother Master 'P' (PW-12). The

evidence of the victim is also corroborated by the testimony of the

medical experts Dr. Dayal Wadhwani (PW-10) and Dr. Nitin Mali

(PW-11). They further pointed out that when the articles collected

by the I.O. during investigation were forwarded to the FSL for

forensic examination, the underwear of the accused tested

positive for presence of human semen which further corroborates

the allegation of rape levelled by the prosecution. They thus

submitted that the learned trial court committed no error

whatsoever in convicting and sentencing the appellant as above by

the impugned Judgment and, implored the Court to dismiss the

appeal.

6. We have given our thoughtful consideration to the

submissions advanced at bar and, have carefully re-appreciated

the evidence available on record.

7. At the outset, we may note here that the present one is a

reprehensible case of a father subjecting his own minor daughter

to rape. Not only the child but even the parents of the accused

gave evidence against him at the trial. The written report (Ex.P/4)

was lodged by Shri Jagannath father of the accused on

01.05.2012 wherein, it was clearly alleged that the child had gone

to her father's house about three days prior to the incident. She

did not return on which, the informant got worried and went there

on 30.04.2012 where, he saw the child lying unconscious in the

room in a badly injured condition. Making an assessment from the

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injuries noticeable on the body of the victim, the first informant

levelled allegation of outraging modesty and assault in the FIR.

However, when the girl was medically examined and the doctors

PW-10 Dayal Wadhwani and PW-11 Dr. Nitin Mali thoroughly

checked the child victim, it became clear that she had been

subjected to brutal sexual assault associated with physical

violence. The girl regained senses on 01.05.2012 and her

statement was recorded on 03.05.2012. Upon being examined by

the investigating officer, the victim made a categoric allegation of

rape associated with violence against the appellant herein being

her own father. Though the bed-head ticket was not exhibited but

it is available on the file and a perusal thereof reveals that the

child had to remain admitted at the Government Hospital,

Nimbahera till 09.05.2012.

As is evident, the prime witness for proving the crime would

none else but the child victim herself who was examined as PW-4.

We have thoroughly gone through her sworn testimony and find

that she has affirmatively stated that her father and mother were

embroiled in a matrimonial strife. Her mother left her father and

went to live at her maternal uncle's house. Her father would often

call her to prepare food. During the fateful period, she had gone to

her father's house for preparing food. She cooked the food which

the accused consumed. Thereafter, her father sent her two

brothers out to bring biscuits. Then, he forced her to open her

clothes. She was tied up by the rubber nose and was disrobed.

The accused brutally beat her up and subjected her to rape. He

also bit her on the chest. She was given blows of a wooden pestle

used to grind spices. Then, the accused made her to take bath

with warm water and salt and gave her other clothes to wear. She

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overheard her father talking to a woman named Shanti and was

insinuating that the girl would be thrown into the well. Thereafter,

the accused went away in a tempo. She lost consciousness. Her

grandparents came and took her to the hospital where, she

regained full senses four days after the incident. Her statement

(Ex.P/3) was recorded by the Magistrate wherein, she disclosed

the complete sequence of events. On a perusal of the cross-

examination conducted from the witness (victim), it becomes clear

that the suggestions which were given to the girl were to the

extent that the accused did not fully penetrate her private parts

with his private part; that she did not raise a hue and cry; that

she fell down from the stairs and received injuries and that her

father did not subject her to rape. She emphatically denied these

flimsy suggestions. A suggestion was also given that on the date

of the incident, her father saw her indulging in wrong activities

with an unknown man and that is why, she was given a beating by

her father to chastise her. She denied this suggestion as well. She

also refuted the suggestion that she had been tutored to give the

statement against her father because of the pre-existing maternal

strife. We find the statement of the girl to be truthful and beyond

the pale of doubt. The evidence of the child victim is thoroughly

corroborated by the evidence of the first informant Shri Jagannath

(PW-5), her grandfather Smt. Bagdi Devi (PW-6) and most

importantly her own brother Master 'P' (PW-12), who stated that

he saw his father beating his sister who became unconscious. Shri

Jagannath and Smt. Bagdi are parents of the accused and they

unhesitatingly, gave evidence implicanting their own son for this

ghastly sinful incident. If at all, there was an iota of truth in the

defence theory that the accused became enraged on seeing his

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daughter engaged in sexual activity with an unknown man and

that is why, he thrashed her so as to chastise her, then in natural

course of events, the accused would be expected to report the

matter to the police. However, he made no such effort whatsoever.

Rather, he abandoned his unconscious daughter and escaped from

the spot. Apparently thus, there is no merit whatsoever in the

contention advanced by the defence counsel that the accused saw

some unknown man indulging in sexual activities with the victim

and that is why, she was thrashed by way of chastisement. The

allegation levelled by the victim regarding her having been

subjected to brutal rape and molestation in form of teeth bite on

her chest area associated with beating by wooden pestle, is duly

corroborated by the evidence of the medical jurists, referred to

supra. The date of birth of the victim was proved by Smt.

Ramsweta (PW-14) who exhibited the scholar register (Ex.P/14)

wherein, date of birth of the child is recorded as 16.08.1999.

Thus, there is ample evidence available on record to satisfy

the Court that the appellant herein, committed brutal sinful sexual

assault upon his own minor daughter. She was given forceful

blows of a wooden pestle and was also bitten on her breast. The

evidence available on record is wholesome and convincing and

does not suffer from any contradiction or infirmity whatsoever so

as to doubt the same. The trial court committed no error

whatsoever in appreciating the evidence and recording the

adverse findings of guilt against the appellant by the impugned

Judgment dated 03.10.2013 which does not suffer from any

infirmity whatsoever warranting interference therein.

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8. As a consequence, the appeal fails and is rejected as being

devoid of merit.

9. However, we noticed that while deciding the case by the

impugned Judgment dated 03.10.2013, the trial court did not

issue any direction for awarding compensation to the victim under

the Victim's Compensation Scheme. Consequently, it is hereby

directed that the trial court shall forthwith forward the case of the

victim for grant of compensation under the Victim's Compensation

Scheme to the District Legal Services Authority, Chittorgarh

where, maximum permissible compensation shall be awarded to

the victim as per the schedule of the Victim's Compensation

Scheme which exists as on date.

10. Record be returned to the trial Court.

                                   (FARJAND ALI),J                                        (SANDEEP MEHTA),J


                                    33-Tikam Daiya/-









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