SHANKAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant herein has been convicted and sentenced as below judgment dtd. 3/10/2013 passed by the learned Additional Sessions Judge, Nimbahera, District Chittorgarh in Sessions Case No. 35/2012: <FRM>JUDGEMENT_175_LAWS(RAJ)9_2022_1.html</FRM>

(2.) Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Sec. 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 Nimbahera, 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 27/4/2012, 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. 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 Ss. 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: <FRM>JUDGEMENT_175_LAWS(RAJ)9_2022_2.html</FRM> 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 Ss. 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 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 Sec. 376 IPC was added to the case. Documents were collected from the school wherein, date of birth of the victim was recorded as 16/8/1999. 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 serological examination. After concluding investigation, a charge-sheet came to be filed against the accused appellant for the offences punishable under Ss. 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 Sec. 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 convict and sentence the appellant as above, vide judgment dtd. 3/10/2013 which is assailed in this appeal.