Rajasthan High Court
Gajendra Singh Choudhary vs State Of Rajasthan Through Pp on 12 September, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023:RJ-JP:20876-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 367/2014
Gajendra Singh Choudhary, S/o Shri Krishan Murari, aged 48
years, R/o Pasand Nagar Kotda, Ajmer, District Ajmer, Rajasthan
(At present in Central Jail, Ajmer)
----Accused/Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Accused(s) : Mr. Shyam Bihari Gautam, Adv.
For State : Mr. Javed Choudhary, Addl. GA
HON'BLE MR. JUSTICE PANKAJ BHANDARI
HON'BLE MR. JUSTICE BHUWAN GOYAL
Judgment
Judgment reserved on :: 04/09/2023
Pronounced on :: 12/09/2023
(Per Hon'ble Pankaj Bhandari, J)
1. Accused-appellants have preferred these appeals
aggrieved by judgment of conviction and order of sentence dated
21.12.2013 passed by Special Judge, Special Court, POCSO Act,
2012, Ajmer, whereby appellant has been convicted for offence
under Section 366 IPC and under Section 3/4 of POCSO Act, 2012
and has been sentenced to ten years rigorous imprisonment and
fine of Rs.1,000/- and on non-payment of fine, to further undergo
one year additional rigorous imprisonment for offence under
Section 366 IPC and life imprisonment and fine of Rs.2,000/- and
on non-payment of fine, to further undergo two years rigorous
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imprisonment for offence under Section 4 of POCSO Act. Both the
sentences were directed to run concurrently.
2. Succinctly stated the facts of the case are that on
03.02.2013, PW-2 (Manju)- mother of the victim lodged a written
report at Police Station Christianganj, Ajmer (Ex.P-1). It was
stated in the complaint that on 03.02.2013 at around 01:30 pm,
the accused appellant kidnapped the victim from Daharsen Park,
where the victim had gone along with her three siblings. In the
complaint, it was averred that accused-appellant lured the victim
and took her on the hillock, where he committed rape with her.
3. On the basis of said report, police registered FIR
No.51/2013 under Sections 363, 365 & 376 of IPC and under
Section 3/4 of POCSO Act, 2012. Police after due investigation
filed charge-sheet against the accused-appellant under Sections
363, 365, 376 IPC and Section 3/4 of POCSO Act. The case was
committed to the learned trial Court. The learned trial Court after
hearing the arguments on charge, framed the charges against the
accused appellant for offences under Sections 366, 376(2) IPC
and Section 3/4 of POCSO Act, 2012. Accused denied the charges
and sought trial. As many as 11 witnesses were examined and 40
documents were exhibited on behalf of the prosecution. The
explanation of the accused was recorded under Section 313
Cr.P.C., wherein he has denied the allegations and stated that he
has been implicated due to animosity with paternal uncle of the
victim- Rakesh (PW-6). Trial Court after hearing the arguments
has convicted the accused-appellant for herein above mentioned
offences. Aggrieved by which, accused-appellant has filed this
appeal.
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4. It is contended by counsel for the accused-appellant
that the accused was having animosity with uncle of the victim
and accused was badly beaten by the uncle and other relatives of
the victim and his clothes were filled with blood stains. There is
possibility that blood of present appellant was put on the clothes
of the victim to forcefully implicate him in this case. It is also
contended that the victim in her cross-examination has stated that
her family members told her to take the name of accused-
appellant.
5. Learned Addl. Government Advocate has opposed the
appeal. It is contended that victim is a six year old child who was
examined as PW-1 and who has stated that accused posing
himself as a ghost, took her behind the hills and after tearing her
clothes and disrobing himself, committed the offence with her, on
which she started bleeding. She has also stated that on her way
back, she found her aunt- Khatoon, who caught hold of hand of
the accused. PW-1 has clearly stated that the appellant took her
and committed offence with her. It is also contended that the DNA
report also connects the accused with the crime. PW-7 (Khatoon)
has identified the accused in the Court and has stated that she
saw the accused coming down the hill on 03.02.2013 at 06:00-
06:30 pm and she handed over the accused and the victim to the
uncle of the victim. It is also contended that the fact that victim
was raped is also evident from the statement of PW-8 (Dr.
Priyanka), who has deposed that something was inserted in the
vagina of the victim.
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6. We have considered the contentions and have gone
through the record and have also perused the judgment of the
learned trial Court.
7. Gajendra who was seen with the victim by Khatoon
(PW-7), has deposed about the same before the Court. PW-1
(victim) who was aged six years at the time of the alleged incident
has stated that she had gone to the park with her brother and
sister, when Gajendra took her away towards the hill, where he
after disrobing himself committed rape with her. PW-6 (Rakesh)
has deposed that on 03.02.2013, her sister-in-law informed her
that the victim is missing from Daharsen Park. He has stated that
Khatoon was holding the hands of Gajendra Choudhary who was
trying to escape from her clutches. This witness has stopped his
bus upon seeing Khatoon with the victim. This witness has also
stated that the victim narrated the incident to him. This witness
has denied the suggestion given to him that he had beaten
Gajendra and had broken his arms and to save himself, he has
falsely implicated the accused. He has also denied that blood of
the accused was put on the clothes of the victim.
8. From perusal of the FSL report (Ex.P-35), it is evident
that human semen was detected from underwear of the victim and
pants of the accused. As per the DNA report (Ex.P-36), the
conclusion of the DNA report is that "the female DNA profile
obtained from underwear of victim and vaginal swab of victim was
matching with the DNA profile obtained from pant of suspect
Gajendra Singh", meaning thereby the female DNA profile was
obtained from pant of Gajendra Singh which was matching with
that of DNA profile of the victim. Victim has clearly narrated the
[2023:RJ-JP:20876-DB] (5 of 5) [CRLA-367/2014]
incident which finds support from the statement of PW-6 (Rakesh)
& 7 (Khatoon) who had apprehended the accused on the same
day. There is no reason to disbelieve the statement of the victim,
more particularly when on examination of the victim, it was found
that recent penetration took place with her. There was bleeding
and human semen was detected in the underwear of the victim
and pant of the accused. The DNA profile was also matching.
9. The contention of counsel for the accused-appellant
that the victim was trained by her uncle is without any force. The
other contention that the victim stated in her cross-examination
that her family members had told her to take name of Gajendra
Singh, is also without any force, as the victim is a very young child
aged six years and she has stated that the offence has been
committed with her by the present appellant, and she is not giving
false evidence as her family members have told her to do so. PW-
2 (Manju) has also deposed that when she asked the victim, she
narrated the incident to her. The learned Trial Court has not
committed any error in appreciating the evidence and convicting
the accused.
10. Thus, we do not find any force in the present appeal
and the same is accordingly, dismissed. Judgment of conviction
and order of sentence dated 21.12.2013 passed by Special Court,
POCSO Act, 2012, Ajmer is affirmed.
11. Record of the Trial Court be sent back forthwith.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
CHANDAN /
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