1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T D.B. CRIMINAL JAIL APPEAL NO.604/2004 (Darga Ram @ Gunga v. The State of Rajasthan) Under Section 383, Cr.P.C., against the Judgment dated 27-01-2004 passed by Shri C.L.Khatri, RHJS, the learned Additional Sessions Judge (Fast Track), Bali in Sessions Case No.32/2002 DATE OF JUDGMENT :::: 20-08-2007 PRESENT HON'BLE MR. JUSTICE BHAGWATI PRASAD HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr. K.R.Bhati, for Appellant (s). Mr. J.P.S.Choudhary, Public Prosecutor. BY THE COURT: (PER HON'BLE BHANDARI, J.):- This appeal has been preferred by the accused aggrieved by the judgment of Additional Sessions Judge (Fast Track), Bali 2 dated 27.01.2004 in Sessions Case No.32/2002. The case was initiated by lodging FIR by complainant – Udaram s/o. Wagaram on 11.04.1998 in Police Station, Rani. A written complaint (Ex.P-13) was submitted by complainant, stating therein that he is resident of Nadol. On 09.04.1998, they had arranged for “Jaagran” on the well belonging to him and Magga Ram to worship Mahadeoji. He and his family members were there in the “Jaagran”. The said programme continued during night hours while his relatives were also there. In all, around 50 people assembled for the said programme. His seven years old daughter was sleeping along with other children, close to the place of “Jaagran” On 10.04.1998, while he was returning to his residence, daughter Kamla was not seen, it was initially thought that she may have gone in relations, thus she was searched at relatives place today, but Kamla could not be traced out. Then he and his family members tried to trace her out in nearby area. In that process, he, Naina Ram, Magga Ram and Pura Ram visited “Magra”. When Magga Ram and Pura Ram were returning from “Magra”, then they saw dead body of Kamla. On their information, he and Naina Ram went to the place and found that unknown person had raped and killed Kamla. Her head was hit by a stone. The dead body of Kamla was found at 4.00 p.m. on 11.05.1998 and is still lying at the place. 3 FIR was lodged, being No.45/98 under Section 302-376 of IPC. Police conducted usual investigation and, thereafter, challan was filed against accused Darga Ram @ Gunga under Sections 302 and 376 of IPC. On filing challan in the Court of Judicial Magistrate, Desuri, it was committed to the Court of Additional Sessions Judge, Bali where the case was registered. The trial Court framed charges against accused under Sections 302 and 376 of IPC. Charge was read over to the accused, who denied the charge and claimed trial. At the trial, prosecution produced 19 witnesses and exhibited 41 documents. The explanation of the accused was recorded under Section 313 of Cr.P.C. No defence witness or document was produced. The learned trial Court, vide its judgment dated 27.01.2004, convicted accused under Sections 302 and 376 of IPC. For conviction under Section 302 of IPC, accused was sentenced with life imprisonment and penalty of Rs.3,000/-, in default to undergo three months' rigorous imprisonment. For conviction under Section 376 of IPC, accused was sentenced for 10 years rigorous imprisonment and penalty of Rs.1,000/-, in default to undergo one month's rigorous imprisonment. Both the sentences were to run concurrently. Learned counsel appearing for the appellant submitted that name of accused does not exist in F.I.R. and there is no eye witness to support prosecution case. Further, there exists no 4 evidence against the accused appellant to connect him with the crime. The circumstantial evidence available on record are not sufficient to prove prosecution case as chain of events does not exist to prove the guilt of accused. It was submitted that even the presence of accused on the faithful night of “Jaagran” is doubtful and could not be proved by the prosecution. Thus, accused could not be connected with the crime, more so, when there is no evidence to show that deceased Kamla was last seen with the accused. It was lastly urged that medical evidence does not suggest or proves it to be a case of rape. Thus, for all these reasons, learned counsel for the appellant urged that accused deserves to be acquitted from the offence under Sections 302 and 376 of IPC. Per contra, learned Public Prosecutor urged that the prosecution remained successful to bring sufficient evidence to prove the guilt of accused and there exists chain of circumstances which connects accused with the crime. Blood stained cloths were recovered on his information and medical evidence available on record proves it to be a case of rape. In this regard, FSL report is also important which was then considered by the trial Court, so the issue that no-body had seen the accused with the deceased, it was submitted that merely for that reason, prosecution case cannot be demolished when the material available on record proves case of 5 prosecution, otherwise beyond doubt. It was thus, urged that the judgment of the trial Court be maintained and appeal preferred by the accused be dismissed as it is a case of heinous offence committed by the accused, where the girl, at the age of seven years, who was raped and thereafter murdered brutally. We have heard the rival submissions of the parties and carefully examined the record. The prosecution case was initiated with the submission of report (Ex.P-13). The report shows that on 9.4.1998, “Jaagran” was arranged at the well of complainant – Ota Ram and Magga Ram, in which around 50 people assembled. As “Jaagran” was continued during night time, thus children slept there at the nearby place and deceased Kamla was also sleeping along with other children. Kamla was not found in the morning and after making effort, she was found dead. In the statement of Otaram (PW 4), he stated that accused also participated in “Jaagran” along with his other relatives and villagers. At the time of “Jaagran”, deceased Kamla was also present and after taking dinner, she also slept along with other children. In the morning, Kamla was not seen. Thus, she was first searched at the place of relatives and, thereafter, in nearby areas. Dead body of Kamla was found near “Magri” of Magga Ram next day. On receipt of the said information, he went to the place where it was found that her head was hit by a stone lying close to the body. Stone as well as deceased's 6 clothes were found blood stained. The Police was, thereafter, informed about the incident that Darga Ram accused has killed his daughter Kamla. Darga Ram was present in “Jaagran” and seems to have taken away Kamla from the place after 12 in the night. In the cross-examination, said witness admitted that “Jaagran” continued in night till 12 – 1.00 a.m., hence they stayed there uptil morning. His daughter Kamla was sleeping at a near place which was seen by him uptil 1.00 a.m. PW 5 Magga Ram stated that accused Darga Ram was present in “Jaagran”, who had taken tea with him at around 12 in the night and, thereafter, when Darga Ram left the place, is not known. Children were sleeping nearby the place of “Jaagran”. He and Pura Ram were involved in search of Kamla and they found that her dead body is lying near “Magri”. The dead body was found naked. In the cross-examination, said witness stated that he does not know the names of all the persons who visited “Jaagran”. However, it seems that 7 – 8 children were sleeping there. PW 1 Naina Ram also states that he had seen accused Darga in the “Jaagran” at around 12 in the night. At that time, tea was served and Darga was seen by him. Otaram's son and daughter Kamla were sleeping there. In the morning, Kamla was not seen. Thus, it was initially thought that she must have gone to some relative, but when she was not found there, then on 7 search, Pura Ram and Magga Ram informed that dead body of Kamla is lying near “Magri”. In the statement of PW 2 Nemaram, he stated that he was there at the place of occurrence, at the time when Police under- took its investigation and prepared various reports. Those reports were signed by him. Thus, the said witness proved preparation of report by the Police on the spot. In the cross- examination, said witness stated that he is not exactly remembering the date on which police visited the place of occurrence as it is a matter of 1998, however, tentative date 13.4.1998 was given. PW 18 Dr.Omprakash Kuldeep stated that he had prepared post mortem report which was marked as Ex.P-34. Said witness specified that Kamla was having many injuries on her vital and private parts. Her hymn was found congested and cause of death was due to shock out of head injury. In the cross- examination, no contradiction was found. Though the said witness admitted that no injury was found on the heaps, legs, palm and on the back of deceased. On a question raised that if rape is committed, then, injuries on those parts are possible or not, said witness stated that it depends on type of stone on which rape is committed. It is only when surface is rough, then the body may sustain injury. PW 16 Malam Singh stated that he had received Ex.P-13 8 and on inspection of scene of occurrence, they prepared reports in the presence of witness. They had collected blood stained clothes of the deceased and two pubic hair from the private part of the deceased. Blood stained clothes of accused were also recovered on his information. The stone, having blood stained, was also recovered and these articles were sent for FSL report. The FSL report is marked as Ex.P-29, where deceased's clothes were found blood stained with “A” group blood and the same blood group was found on the pant and shirt of the accused. Based on material available on record, the learned trial Court came to the conclusion that chain of circumstances proves prosecution case beyond doubt that accused Darma had raped seven years old girl Kamla and, thereafter, she was killed. We now analyze the argument of the learned counsel for the appellant in the light of material available on record. The first argument of the learned counsel for the appellant is that accused has not been named in the First Information Report and there is no eye witness to support the prosecution case. The First Information Report (Ex.P-13) shows that at the time of submission of said report, accused was not known, therefore, report contains the facts which were in knowledge of complainant and it is a case of circumstantial evidence, thus question of presence of eye witness does not arise. It is not necessary that in all cases, accused should be in the knowledge 9 of the complainant at the time of submission of FIR and in absence of which, the prosecution should not be taken as correct. In many cases, the accused is traced out by the police during the course of investigation and in those cases, the Court records its finding based on circumstantial evidence available on record. If such evidence connects accused with the crime, then, finding of guilt is recorded. However, in the case, where the chain of circumstances does not exist or circumstantial evidence is not sufficient to prove prosecution case beyond doubt, the accused can be acquitted by giving benefit of doubt or acquitted otherwise. But all these depends on the evidence led by the prosecution, hence merely for the reason that the accused has not been named in the FIR or there is no eye witness of occurrence, prosecution case cannot be termed to be false. In the present case, merely for the reason that the accused was not named in the FIR or there is no eye witness, prosecution case cannot be thrown, but it is required to be seen as to whether there exists chain of circumstances to connect the accused with the crime. Circumstantial evidence should prove prosecution case beyond doubt. Hence, it is necessary to look into this aspect of the matter to see as to whether the prosecution has proved its case beyond doubt or not. Thus, we are not impressed with the first argument of the learned counsel for the appellant. 10 Coming to the circumstantial evidence, we find that the witnesses produced by the prosecution proves presence of Darga Ram in “Jaagran” uptil 12 in night when tea was served. It has also come on record that “Jaagran” ended in the night at around 1.00 a.m. and, at that time, Kamla was sleeping along with other children. In the morning, Kamla was not found and on her search, dead body was found near “Magri”. On investigation, it was found that she was raped and, thereafter, killed brutally by hitting her head by a heavy stone which too, was lying at the scene of occurrence. She was found naked and her clothes were found blood stained. Her private parts were found damaged and semen was seen and two pubic hairs were recovered. On further investigation, when the accused was arrested, then at his instance, his pant and shirt and other clothes were recovered which were found blood stained and in FSL report, it was matching to same blood group as was of the deceased. The accused was at the age of 18 years and as per his medical examination, he was found competent for sexual act. It is material that in his medical examination report dated 13.4.1998 (Ex.P-38), following injuries were found :- “(i) Abrasion 1x0.5 cm. Size Dorsal Aspect of (Rt) Elbow joint. (ii) Abrasion 3 x 2 cm. Size Medial Aspect of (Lt.) Elbow joint. (iii) Multiple Abrasion Varying in size Dorsal Aspect of (Lt.) 11 Elbow joint. (iv) Abrasion 7.5 x 1 cm size Ant. aspect of (Rt.) leg just below (Rt.) knee joint. (v) Abrasion 1.5 x 1 cm. Ant. aspect of (Lt.) knee joint. (vi) Abrasion 1 cm. X 0.5 cm Medial side of Ant. Aspect of (Lt.) knee joint. (vii) Abrasion 1 x 1 cm Lt. side of Ant. Aspect of (Lt.) knee joint. (viii) Abrasion 1 x 0.5 cm. Dorsal Aspect of Retracted prepuce. (ix) Abrasion 2 x 0.25 cm. Lat. Aspect of (Rt.) side of Retracted prepuce. (x) Abrasion 0.25 x 0.25 cm. Dorsal Aspect of glans penis. (xi) Abrasion 2 x 0.25 cm. Lat. Aspect of (Rt.) Thigh. (xii) Abrasion 2 x 0.25 cm. (Rt) gluteal Region. (xiii) Abrasion 2 x 1 cm. (Lt) Palm. Duration of all injuries i.e., S.No. I to XIII is 3 – 5 days.” The injury report of accused is being proved by the witness and in the statement of the accused under Section 313 of Cr.P.C. No explanation has been given about all these injuries. The accused had not given explanation even as to how his clothes got blood stains. FSL report confirms that public hairs recovered were found to be of human organ. It is material to state that those public hairs were recovered from the private part of baby 12 Kamla. Thus, as per the statement of witness and supported by the medical evidence, it becomes clear that baby Kamla was raped and, thereafter, killed. Now, looking to the medical report of accused and the recovery of his blood stained clothes, matching to blood group of deceased recovered with recovery of pubic hairs of human origin, it becomes clear that circumstantial evidence available on record proves prosecution case beyond doubt. If accused would not have involved in the crime, then at least explanation regarding the injuries sustained by him coupled with his blood stained clothes, should have been given, but no explanation was offered. The medical report of the accused proves that he was having some injuries on his penis also. Thus, the statements of witnesses corroborated by the medical evidence proves prosecution case beyond doubt that the accused was involved in the crime. In fact, there exists chain of events to prove that accused was connected with the crime. Darga Ram was last seen at the time of “Jaagran”, where Kamla was also sleeping and, thereafter, Kamla disappeared and, on her search, she was found dead. Now, the subsequent investigation shows that she was raped and killed by hitting her head by stone. Her blood stained clothes, stone and pubic hairs found on the private part, were sent for examination and on arrest, blood stained clothes of accused were also recovered and in the FSL report, it was matching to the blood group of deceased. The accused was 13 having injuries which were major in nature of abrasion which is caused in the circumstances where one committs rape, therefore, all these chain of circumstances proves the prosecution case. Thus, the material available on record shows that circumstantial evidence available on record has proved prosecution case beyond doubt. Thus, we cannot accept, even the second argument of the learned counsel for the appellant. So far as the third argument is concerned, it has been submitted that even the presence of accused on the faithful night of “Jaagran” is not proved, said argument cannot be accepted, because presence of accused in “Jaagran” is being proved by the witnesses whose statements have already been discussed. Thus, even this argument of the learned counsel for the appellant is of no substance. The learned counsel for the appellant further submitted that accused was not last seen with Kamla and Kamla had not sustained injury on her hip, back, legs etc. thus, the case of rape is not corroborated by the medical evidence. The detailed discussions made above, shows that accused and deceased Kamla were seen at the place of “Jaagran” and in a case of this nature, where deceased at the age of seven years, sleeping on her cot, during night time, if taken away, it is not necessary that it is seen by someone, rather if it would have been seen by someone, unfortunate incident could not have taken place. 14 Thus, we are not impressed, even by the last argument of the learned counsel for the appellant. The perusal of record shows that it nos only a case of rape of girl at the age of seven years, but she was killed brutally by hitting her head by heavy stone. The accused has used his power on a child of under-age and that too, belonging to a weaker section. Thus, it is a heinous crime which has been committed by the appellant. The learned trial Court has discussed the material available on record, at length, in which we find no infirmity and we are not impressed by the argument of the learned counsel for the appellant. Thus, we are not persuaded to interference with the finding recorded by the learned trial Court as indicated above. The appeal preferred by the accused fails and the same is dismissed. The judgment of the learned trial Court is affirmed. The appellant is to serve the sentence as ordered by the trial Court. MUNISHWARNATH BHANDARI),J. (BHAGWATI PRASAD),J. scd.