1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: D.B. Criminal Jail Appeal No.855/2004 Shrawan Manjhi. vs. State of Rajasthan Date : 3rd August, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA HON'BLE JUSTICE SHRI KAILASH CHANDRA JOSHI Mr.Akalovya A.Bhansali, amicus curiae, for the appellant. Mr.AR Nikub, PP. - - - - - BY THE COURT (PER HON'BLE TATIA, J.) : Heard learned counsel for the parties. This appeal is directed against the judgment of conviction and order of sentence dated 16.7.2004 passed by the Court of learned Sessions Judge, Hanumangarh in Sessions Case No.20/2004 (39/2003) by which the learned trial court convicted and sentenced the accused appellant Shravan Manjhi as under :- 2 Conviction Sentence Sec.364 IPC 7 years RI & fine of Rs.500/- in default to further undergo 1 month RI Sec.376(2)(f) 7 years RI & fine of Rs.500/- in IPC default to further undergo 1 month RI Sec.377 IPC 7 years RI & fine of Rs.500/- in default to further undergo 1 month RI Sec.302 IPC Life Imprisonment & fine of Rs.1000/- in default to further undergo 2 months RI Sec.201 IPC 3 years RI & fine of Rs.200/- in default to further undergo 7 days RI Brief facts of the case are that on 6.11.2002 complainant Bhera Ram s/o Labhu Ram submitted a written report Ex.P/3 in Police Station Hanumangarh Junction stating therein that on 5.11.2002, he and his wife went on their job of labour leaving their 2 sons and 1 daughter Sapna at their home. In the evening at about 8:30 PM, when they returned, they did not find their daughter Sapna at their residence. They enquired about Sapna and in that course, they went to their relative Gordhan's house who told them that Sapna was playing outside his house at about 6:30 PM along with other children. The complainant did not found the girl Sapna and today, he was informed by the police at his residence that the police found one dead body of a girl at an abandoned place 3 behind Shiv Mandir Cinema Hall. Then I went with my relative Gordhan to the spot and found my daughter lying there. Upon this report, FIR No.741 was registered on 6.4.2002 for offence under Sections 364 and 302 IPC. During the course of investigation, the site was inspected, photography was conducted and from the spot, a red coloured under wear with blood stains was recovered and panchnama for the body was prepared. Thereafter, post mortem of the body was got conducted and after investigation, a challan was filed against the accused appellant under Sections 302, 364, 376(2)(f), 377 and 201 IPC. The appellant denied charges and sought trial. During the trial, prosecution produced PW1 Bhera Ram, PW2 Imana Ram, PW3 Gordhan, PW4 Pukhraj, PW5 Supari, PW6 Hira Lal, PW7 Devendra Singh, PW8 Kishan Lal, PW9 Maghar Singh, PW10 Ganpati Mahawar, PW11 Vinod Kumar, PW12 Iqbal Ahmed, PW13 Nawal Kishore, PW14 Dr.Jaspal, PW15 Shri Narayan and PW16 Narendra Godara. In the evidence, site report, recovery memo of blood stained under wear, deceased girl's photographs, recovery memo of clothes of accused etc. in all 67 documents & articles were produced by the prosecution. The accused statement were recorded under Section 313 Cr.P.C. wherein the accused denied the allegations and stated that due to rivalry, false 4 case was lodged against him and no recovery was effected from him and he was innocent. No defence evidence was produced. After hearing the arguments, the learned trial court heavily relied upon the prosecution evidence and particularly on the basis of statement of PW4 Pukhraj who was minor at that time and he was the star witness for seeing the accused taking the prosecutrix with him and who has not been cross examined by the side of the accused appellant. The learned trial court also accepted the extra judicial confession of the appellant made before PW8 Kishan Lal. In addition to the other evidence, the medical evidence fully supported the commission of offence with the prosecutrix. The trial court, after considering the evidence in detail in the judgment, convicted and sentenced the accused as stated above. Learned amicus curiae submitted that there is no direct evidence and the evidence produced by the prosecution is not sufficient to hold the appellant guilty. It is also submitted that the statement of witnesses are unreliable and the appellant has been involved in this false case because of fractionalism in village which developed the enmity between the complainant and the accused. We considered the submissions of learned 5 counsel for the appellant and learned public prosecutor and perused the record. In brief, we may recapitulate that the complainant lodged FIR on 6.11.2002 which is just next day to the missing of girl on 5.11.2002 evening. PW1 Bhera Ram complainant fully supported the prosecution case by stating that when he with his wife went on his job, he left his two sons including son Pukhraj and daughter Sapna at his residence and when he returned back to his house, he did not find Sapna at his house. He immediately enquired about her daughter nearby and than contacted his relative PW3 Gordhan. PW3 Gordhan stated that the complainant who is co-brother of PW3 enquired about the girl at his residence. PW3 Gordhan also stated that he in the evening was sitting outside his house and victim Sapna was playing with other children of her age in front of his house. Sapna's father came to him while searching Sapna and I told Sapna's father that Sapna was playing outside his house in the evening. He stated that they as well as neighbours also searched for Sapna. Sapna was not found and thereafter, police came to the house of Bhera Ram and informed that one dead body of a girl is lying behind Shiv Mandir Cinema Hall. Witness PW3 Gordhan was witness to the site report Ex.P1, seizure memo Ex.P2, panchnama Ex.P5 and also witness to the other proceedings in investigation. 6 The evidence of the prosecution witness PW4 Pukhraj who was of the age of 10 years is important and relevant. Before recording his statement, the trial court examined whether the said minor can be a witness or not ? and thereafter, after finding him to be a fit witness, recorded his statement. PW4 Pukhraj stated that he know accused Shravan. He stated that on the relevant date, his mother and father went to their job and in their absence, accused came to their house and enquired about his sister Sapna. Pukhraj told that she is playing outside. The accused told Pukhraj that you bring your sister, then I will give you Rs.5/- and in fact, he gave Rs.5/- to him and upon which, Pukhraj went outside his house and brought the girl from the place where she was playing. He gave peanut and toffee to his sister. Thereafter, Pukhraj started cooking and accused took Sapna with him. When his father and mother came in the night and found that Sapna was not in house, then he informed his mother that accused came there and gave peanuts to him and to his sister. His mother and father immediately started searching their daughter and could not found her and ultimately, he came to know that his sister had died. This witness has not been cross examined. Therefore, there is un-controverted statement of witness of taking victim by the accused. The complainant's wife PW5 also fully supported the prosecution case. Her statement 7 fully corroborated the statement of her husband Bhera Ram and her son Pukhraj. PW5 was also not cross examined by the appellant. Therefore, so far as the fact of taking away the prosecutrix before the incident by the accused is concerned, it is proved beyond doubt. Thereafter, nobody saw the victim alive and was seen only lying dead on the spot mentioned above. There is another material evidence which is the evidence of PW8 Krishan Lal who clearly stated that he knew accused as he used to come to him and used to take small money of Rs.50/- or Rs.100/- as loan from him and used to return that money. He stated that after the incident, about 5 months before, from the date of statement in Court, the accused came to him and asked for loan of Rs.350/- and on enquiry, the accused told him that he has to go to Bihar. At that time, the accused was not comfortable and ultimately, the accused told him that he has committed a big mistake and then told that he took away the complainant Bherji's daughter to the back side of Shiv Mandir Cinema Hall and committed rape with her and thereafter killed her by strangulation. The accused told that now he is not feeling comfortable and, therefore, he want to go to his village and, therefore, he is in need of money. PW8 Kishan Lal told accused that he should go to the police station immediately but the accused left. In cross examination, he stated that the appellant made extra judicial confession 8 before him about 10-15 days after the commission of offence. However, he stated that he did not tell this to the mother and father of the victim. Coupled with the above evidence, the recovery of body of the girl from the spot referred above and medical evidence supporting the commission of rape with the minor girl of 4 years clearly prove the fact of offence of rape by the accused in view of the connecting evidence which are opinion of PW12 Iqbal Ahmed who is finger expert and was holding the post of Director, Finger Expert Bureau who proved the report Ex.P36 wherein it was said that chance chappal impression mould was similar with specimen left chappal impression mould and with left chappal sole of accused. Therefore, accused's presence at the place of incident is proved in the chain of circumstances. PW16 Narendra Godara CI, who was investigating officer, gave his statement about entire investigation in detail. In sum and substance, the prosecution fully established the case of taking away the prosecutrix by the accused by giving her peanuts and toffee and committing of offence of rape by the accused with the minor girl of 4 years of age and her murder thereafter. The accused appellant failed to show any inconsistency much less to the contradictions in the statements of the witnesses referred above so as to cast doubt on the credibility of any of the above witness as well as 9 on the evidence produced by the prosecution. In view of the above reasons, the trial court was fully justified in holding the appellant guilty for committing the offences referred above for which he has been charged. Looking to the crime, we too are in full agreement that the sentences awarded to the appellant are also just and proper. There is no reason for taking any lenient view in the matter. In view of the above, there is no merit in this appeal and the same is hereby dismissed. [KAILASH CHANDRA JOSHI], J. [PRAKASH TATIA], J. S.Phophaliya