GANESH @ KANIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Having been convicted of offence under Sec. 376,366,366A Penal Code and for offence under Sec. 3(1)(xii) of the SC/St (Prevention of Atrocities Act, the appellant has approached this court.

(2.) Briefly, the facts of the case are that on 13.08.2005, the office of the Superintendent, District Ajmer received a letter sent by Satyapal (RW.5) wherein he claimed that on 01.08.2005 around 8:00 PM his wife, Smt. Geeta (RW.4), had taken their daughter, Kumari Seema (P.W.1), to a Shiv Temple, near the Madar Gate at Ajmer. After coming out of the temple, his wife and their daughter were standing near thd Badri Sweetmeat shop. While they were standing there. Ganesh (the appellant before this Court) and one Santosh were standing near them. Their daughter went to a water hut (Paiyo). However, the child never came back. Therefore, his wife searched for the child. She found that both Ganesh and Santosh were missing from that area. He further alleged that on 02.02.2005, a girl called Jassi, who sells almonds and cashew nuts near the Post Office Ajmer, told them that if they were to go to the Lohar Basti, near the Alwar Gate, they would be able to find their daughter. Consequently, his wife went to the Lohar Basti. There, she was told at night a girl had come in their neighbourhood. But, the child is no longer there. She was also informed that Ganesh is also missing. He further claimed that on 02.08.2005, his wife went to the Police Station situated at Clock Tower for filing a report. However, she was told to go to Police Station Kotwali. When she went to the Police Station Kotwali, she was sent back to the Police Station Clock Tower ostensibly on the ground that her daughter had disappeared form the Madar Gate, which fell within the jurisdiction of Police Station Clock Tower. When she went back to the police station Clock Tower, she was told to report to the Police Station Madar Gate. Eventually, when she reached Police Station Madar Gate, the police refused to record the FIR and dismissed her. He further alleged that since 1997, one Arjun has been threatening that he will either kidnap his wife, or his daughter. Furthermore, he claimed that on 05.08.2005, his wife had filed an application under Sec. 97 Cr.PC., for the production of their child, as she was conviced that Ganesh, Santosh and Arjun have Kidnapped their daughter and were illegally detaining her. His wife further apprehended that their daughter could be sold into the flesh trade. Upon this information, the learned Additional District Magistrate issued a search warrant against Ganesh and Santosh. The police informed the complainant that they will try to locate the child in the night of 5th Aug., 2005 and they should reach the police station on 6th Aug., 2005. They reported to the police station and went with the police party to Lohar Basti. Initially, the people of Lohar Basti fought with the complainant. But subsequently, told him that his daughter is being kept near the Railway Station, clock Tower, He further alleged that on 06.08.2005, around 11:00 AM, the child came back home. The child informed his wife that on 01.08.2005 when she had gone to the water hut, she had gone to ease herself. The child also told her mother that while she was easing herself, Ganesh had kidnapped her at the point of a knife. He forced her to have a cup of tea. After drinking the tea, she became unconscious. He took her to the Lohar Basti. When she became conscious in the morning of 2nd Aug., 2005, she found her clothes were missing; she realised that she had been ravished by Ganesh Lohar. She further claimed that Ganeshs sister, Smt. Kamla, got them a room. Even in the room, he forced her to have a cup of tea. She became unconscious; again she was ravished by him. She further told her mother that on 04.03.2005, a dispute arose between Ganesh and his sister Smt. Kamla. His sister told him to take the girl back to Ajmer. On Friday, she was placed on a train for sending her back to Ajmer. On 05.08.2005, she stayed at the Railway Station in the night and came back home on 06.08.2005. Lastly, the complainant alleged that his daughter told her mother that four days prior to 01.08.2005, she had seen Ganesh talking to Arjun. She further told her mother that while she was in the custody of Ganesh, she had been ravished by him.

(3.) On the basis of the complaint, a FIR, FIR No.127/2005, was registered for offences under Sec. 366, 366A, 367 and 120B IPC. Eventually a charge-sheet was submitted for offence under Sections 366.366A and 376 Penal Code and for offence under Sec. 3 (1)(xii) of the SC/ST Act. In order to prove its case, the prosecution examined fourteen witnesses, and submitted sixteen documents. On the other hand, the defence examined two witnesses, and submitted a few documents. After going through the oral and documentary evidence , vide judgment dated 23.08.2007, the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Ajmer convicted the appellant for aforementioned offences and sentenced him as under:- For offence under Sec. 376 IPC, the appellant was sentenced to ten years of rigorous imprisonment with a fine of Rs. 25,000.00, and was further directed to undergo two years of simple imprisonment in default thereof. For offence under Sec. 366 IPC, he was sentenced to five years of rigorous imprisonment and imposed with a fine of Rs. 5,000.00, and was further directed to undergo one year of simple imprisonment in default thereof. For offence under Sec. 366A, he was sentenced to five years of rigorous imprisonment and imposed with a fine of Rs. 5,000.00 and was further directed to undergo one year of simple imprisonment. For offence under Sec. 3(1 )(xii) of SC/ST Act, he was sentenced to two years of simple imprisonment. It was further directed that the fine of Rs. 35,000.00 shall be paid to the prosecutrix by way of compensation. Hence, this appeal before this Court.