Rajasthan High Court - Jodhpur
Shivnath vs State (2025:Rj-Jd:41330-Db) on 16 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:41330-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 559/2016
Shivnath S/o Shri Gulabnath Kalbeliya, Age 25 years, R/o Sesali,
P.S. Bali, District Pali.
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Rajesh Saharan, amicus curiae
For Respondent(s) : Mr. Vikram Singh Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE SANDEEP TANEJA
Judgment
16/09/2025
BY THE COURT : (PER HON'BLE MR. MANOJ KUMAR GARG,J)
Instant criminal jail appeal has been received by post on
behalf of the appellant through Superintendent, Central Jail, Ajmer
challenging the judgment dated 03.05.2016 passed by learned
Special Judge, POCSO Act (Sessions Judge), Bhilwara, in Sessions
Case No.08/2016 by which the learned Trial Court convicted and
sentenced the appellant as under:
S.No. Offence U/s Sentence Fine Sentence in
default of fine
1. 363 IPC Three Years' R.I. Rs.5,000/- 1 month's SI
2. 366-A IPC Five Years' R.I. Rs.10,000/- 2 months' SI
3. 342 IPC One Year's R.I. Rs.1,000/- 7 Days' SI
4. 5(K)(M)/6 of Life Rs.25,000/- 5 months' SI
POCSO Act Imprisonment
All the sentences were ordered to run concurrently.
Brief facts necessary to be noted for deciding the controversy
are that on 08.11.2015, complainant- Sanvar Bagariya S/o Pratap
Ji submitted a written report at Mahatma Gandhi Hospital Thana-
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Bhimganj, District- Bhilawra to the effect that his sister- Dali had
sustained a fracture in her leg. Following this, the complainant,
along with his wife and other family members, accompanied her to
Mahatma Gandhi Hospital in Bhilwara. At approximately 02:00 AM
on the same day, the complainant and his family members were
resting within the hospital premises. During this time, they
observed an individual seated nearby, who was covered with a
yellow blanket. The complainant requested a matchstick from this
person to light a bidi, which was received. After this exchange, the
complainant fell asleep, and the individual with the yellow blanket
also appeared to be sleeping beside him. At around 3:30 AM, upon
awakening, the complainant discovered that his elder daughter-
Sharda, aged approximately two and a half years, was missing.
Additionally, the man who had been lying nearby was also absent.
A search was conducted, during which Rajendra informed the
complainant that a person covered with a yellow blanket had
taken his daughter and was heading towards the main gate. The
complainant immediately reported the incident to the police
chowki at the hospital. Subsequently, his daughter- Sharda was
recovered, and the individual responsible for taking her was
apprehended by the police. The police authorities admitted the girl
for treatment, noting that she was covered with blood.
On the said report, Police registered the FIR against the
accused-appellant and started investigation. During the course of
investigation, Police arrested the accused-appellant. On
completion of investigation, police filed challan against the
accused-appellant before the concerned court.
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Thereafter, learned Trial Court framed, read over and
explained the charges to the accused-appellant for the offence
under Sections 363, 366-A, 342 IPC and Section 5(k)(m)/6 of
POCSO Act. He denied the charges and sought trial.
During the course of trial, the prosecution examined as many
as twenty-seven witnesses and also got exhibited relevant
documents in support of its case.
The accused appellant was examined under Section 313
Cr.P.C. In defence, no witness was examined.
Learned trial Court, after hearing the arguments from both
the sides, taking into consideration and appreciating the
documentary evidence and the statements of witnesses, vide
judgment dated 03.05.2016 convicted and sentenced the accused-
appellant for offences as mentioned hereinabove. Hence, this
criminal jail appeal.
Mr. Rajesh Saharan, amicus curiae, representing the
accused-appellant, contended that the incident occurred at
approximately 02:00 AM during nighttime, a period when visibility
is limited, making it unlikely to identify the accused appellant with
certainty. He further submitted that Rajendra (PW-11) stated
during his cross-examination that the accused was covered with a
yellow blanket, which hindered his ability to recognize or identify
the accused. Counsel also highlighted significant discrepancies,
improvements, and omissions in the testimonies of the
prosecution witnesses. Consequently, he urged that the order of
conviction passed by the learned Trial Court against the accused-
appellant be quashed and set aside.
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Per contra, the learned Public Prosecutor vehemently
opposed the prayer advanced by the counsel for the accused-
appellant. He submitted that the accused was apprehended by
certain individuals and subsequently handed over to the police.
Furthermore, PW-11 Rajendra, has identified the accused in the
identification parade. The Public Prosecutor also emphasized that
the medical evidence corroborates the prosecution's case,
indicating that the accused committed a heinous offense of raping
a deaf and mute minor girl, approximately two and a half years of
age. In light of the gravity of the crime, the Public Prosecutor
contended that no leniency or sympathy should be extended to
the accused. Accordingly, he urged that the appeal be dismissed.
We have considered the submissions of the counsel for the
parties made at bar and perused the impugned judgment as well
as record of the case.
In the present case, the prosecution has levelled a serious
allegation against the accused appellant, asserting that he
committed the offence of rape upon a minor girl, who is deaf and
mute, approximately two and a half years of age. A careful
examination of the evidentiary record reveals that the testimonies
of the witnesses are consistent and cohesive, thereby
strengthening the prosecution's case.
The statements of PW/1-Sanwarlal, the victim's father, and
PW/2-Sugana, the victim's mother, are in complete accord with
each other and align with the allegations made in the FIR. Notably,
their testimonies lack any contradictions, which underscores the
reliability and truthfulness of their accounts. Furthermore, PW/11-
Rajendra explicitly stated that he observed the minor girl being
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taken by an individual wearing a yellow-colored blanket.
Subsequently, the accused appellant was apprehended, and
Rajendra identified him during the identification parade,
reinforcing the link between the accused and the victim.
Additionally, PW/23-Kanhaiyalal, who was posted at the relevant
chowki, testified that he apprehended the accused with the child
and observed bleeding from the victim's body. When asked, the
accused disclosed his name as Shivnath, further establishing his
identity. This chain of events, corroborated by independent
witnesses, provides compelling circumstantial evidence connecting
the accused to the commission of the offence.
The medical evidence further consolidates the prosecution's
case. PW/6- Dr. Gyan Maheshwari observed three injuries on the
victim's body, indicating the possibility of violence and assault.
Similarly, PW/7- Dr. Gunwanti confirmed the presence of injuries
and opined that there was a plausible likelihood of rape. The
medical findings, therefore, substantiate the allegations and align
with the testimonies of the witnesses.
In light of the aforementioned evidence, there exists a
consistent and corroborated account from multiple independent
witnesses, reinforced by medical expert opinion. The cumulative
weight of this evidence leaves no reasonable doubt regarding the
guilt of the accused. The prosecution has, therefore, successfully
established the accused's guilt beyond all reasonable doubt.
Therefore, based on the totality of the evidence, the conviction of
the accused appellant is justified and warranted.
In the result, the present criminal jail appeal is hereby
dismissed. The accused appellant is hereby convicted for the
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offences under Sections 363, 366-A, 342 of IPC and Section 5(k)
(m)/6 of POCSO Act and sentence passed by the Trial Court is
upheld. He is in jail and will serve out the remaining part of the
sentence.
The record of the trial court be sent back forthwith.
A copy of this order be communicated to the accused-
appellant.
(SANDEEP TANEJA),J (MANOJ KUMAR GARG),J
32-Ishan/-
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