Babloo @ Krishnanand vs State of Rajasthan

Complainant-Shivnarayan, vide Exhibit-P.1, made a written complaint to the Station House Officer of Police Station Mahila Thana (Women Cell),

Karauli. The complainant averred that on 23.1.2014 at about 8.00-9.00 AM his daughter/prosecutrix had gone to graze cattle from her house to Behda

(jungle) of Gularghata. His daughter was accompanied by her friends Sapna, Rachna and other young children. In between 11.00 AM to 12.00 Noon,

Bablu came from his fields and took the prosecutrix to Nade (drain) in Behde (jungle) and raped her. He came to know about the said incident from

children accompanying his daughter and immediately he reached the spot. When he reached the spot, his daughter was lying in an unconscious

condition and they saw Bablu running from the spot. His daughter was bleeding from her private parts.

On the basis of complaint, Exhibit-P.1, formal FIR No.15/14 dated 23.1.2014 was registered at Police Station Mahila Thana (Women Cell), Karauli

under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as ""IPC"") and Section 3 of Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as ""the Act"").

Statement of the prosecutrix was recorded under Section 164 of Code of Criminal Procedure, 1973 (hereinafter referred to as ""Cr.P.C."") on

31.1.2014.

After completion of investigation and necessary formalities, challan was presented against the appellant.

Charges were framed against the appellant under Section 376 IPC and Section 4/6 of the Act.

Appellant did not plead guilty to the charges framed against him and claimed trial.

During trial, prosecution examined 18 witnesses to prove its case.

Appellant when examined under Section 313 Cr.P.C. prayed that he was innocent and had been falsely involved in this case. In-fact, prosecutrix was

cutting Sheesham tree from his fields. He had slapped the prosecutrix and had snatched the Axe from her. Thereafter, her family members had

falsely involved him in this case. He was a student of B.A. Final.

Appellant did not examine any witness in his defence. The trial court, vide judgment/order dated 5.2.2016, ordered conviction and sentence of the

appellant as under:-

U/s. 376 IPC: Rigorous Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one month rigorous imprisonment.

U/s. 4 of POCSO Act: Rigorous Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one month rigorous imprisonment.

U/s. 6 of POCSO Act: Rigorous Life imprisonment, to pay a fine of Rs.10,000/- and in default thereof to undergo one month rigorous imprisonment.

Hence, the present appeal by the appellant. Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its

case. Appellant had been falsely involved in this case due to enmity. PW.4 Sapna, PW.5 Rachna and PW.10 Sooka @ Shiv Singh had not supported

the prosecution case during trial. Moreover, as per medico-legal examination report, it could be said to be a case of attempt of rape. Learned counsel

has further submitted that in case conviction of the appellant was liable to be upheld, then sentence of the appellant be reduced.

Learned State counsel, on the other hand, has opposed the appeal and submitted that prosecution had been successful in establishing its case. The

version given by the prosecutrix was duly corroborated by medical evidence.

Prosecutrix appeared in the witness box as PW.1. Prosecutrix has deposed that about ten months prior to recording of her statement, she had gone to

Beehad (jungle) for grazing cattle alongwith Sapna and Sooka. Bablu came to the spot and took her towards the drain. Appellant had shut her mouth

and took off his pant and also took off her Ghaghri and had raped her. She had started bleeding and was removed to the hospital. She remained in the

hospital for about three days. She identified the appellant present in the court.

PW.4 Sapna, PW.5 Rachna and PW.10 Sooka @ Shiv Singh have not supported the prosecution case during trial.

PW.2 Ramcharan deposed that on the day of incident he was called by Sapna. She told him that Bablu had taken away the prosecutrix towards the

drain. He immediately reached the spot and found that the appellant was committing the offence of rape and prosecutrix was raising alarm. In the

meantime, Shivnarayan came to the spot. He (witness) started taking care of the prosecutrix and appellant fled away from the spot. Prosecutrix was

bleeding from her private parts and was removed to the hospital for treatment.

Complainant Shivnarayan while appearing in the witness box as PW.3, has deposed as per the contents of the FIR.

PW.9 Shankar Bai mother of the prosecutrix deposed that on the day of incident her daughter had gone to graze the cattle. Sapna and Sooka informed

her that Bablu had taken away the prosecutrix towards the Nala (drain) after shutting her mouth. She reached the spot alongwith Ramcharan and

Shivnarayan and saw that the appellant was committing the offence of rape and her daughter was lying in an unconscious state. Appellant fled away

from the spot. Then they took her daughter to the hospital.

PW.17 Rajendra Kumar Tyagi has deposed with regard to investigation conducted by him.

Thus, although PW.4 Sapna, PW.5 Rachna and PW.10 Sooka @ Shiv Singh have not supported the prosecution case, but from the statements of

prosecutrix, her parents and PW.2 Ramcharan it stands duly established that the appellant had raped the prosecutrix.

Let us examine the fact as to whether the version of the prosecutrix is corroborated by medical evidence.

Exhibit-P.2 is the medical examination report of the prosecutrix. Exhibit-P.2 was proved by PW.7 Dr. Chain Singh and PW.8 Dr. Anita Gupta. A

perusal of Exhibit-P.2 reveals that the prosecutrix had suffered injuries on her private parts. Her 'hymen' was freshly torn and was bleeding when

touched. 'Vulva' was red and tender. It was opined by the medical board that there were signs of recent forceful attempts and there was nothing

suggestive that the prosecutrix was a virgin. This shows that it was a case of sexual assault. Thus, it can be said that medical evidence corroborates

the prosecution case with regard to commission of offence of rape by the appellant.

Learned counsel for the appellant has drawn our attention to the cross-examination of prosecutrix wherein she has stated that her mother and sister

had examined her private part and thereafter, her mother and sister had put their finger in her private part and thereafter, she had started bleeding.

However, PW.7 Dr. Chain Singh and PW.8 Dr. Anita Gupta have deposed in their cross-examination that it was not a case of fingering. Hence, the

argument raised by the learned counsel for the appellant to the effect that it was a case of fingering by mother and sister of the prosecutrix fails to

inspire confidence. Rather, from the testimonies of prosecution witnesses as well as medical examination report, it stands established that the appellant

had committed the offence of rape. Present case does not also fall within the definition of attempt to rape. As per report of Forensic Science

Laboratory, human blood was seen on vaginal swab and vaginal slides of the prosecutrix and underwear of the appellant.

With regard to age of the prosecutrix, reliance has been placed by the prosecution on Exhibit-P.8. As per the said report, medically it was opined that

age of the prosecutrix was between 10 to 12 years. Thus, prosecutrix was aged less than 12 years. Hence, the present case would fall under the

definition of 'aggravated penetrative sexual assault' as defined under Section 5(m) of the Act and not under Section 3 of the Act. Thus, conviction and

sentence of the appellant, as ordered by the trial court under Section 4 of the Act is set aside and conviction of the appellant under Section 6 of the

Act is upheld.

The next question that requires consideration is as to whether the punishment awarded to the appellant is liable to be reduced.

Keeping in view the facts and circumstances of the case, we are of the opinion that the sentence awarded to the appellant is liable to be reduced.

Hence, while upholding the conviction of the appellant under Section 6 of the Act, sentence of the appellant is reduced from 'imprisonment for life' to

'rigorous imprisonment for ten years'. Sentence qua fine is maintained. Since conviction and sentence of the appellant has been ordered under Section

6 of the Act, no separate order qua conviction and sentence of the appellant under Section 376 IPC was required to be passed. Accordingly,

conviction and sentence of the appellant under Section 376 IPC is set aside.

The appeal stands disposed of accordingly.