Shiv Prasad vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Shiv Prasad present appellant alongwith Kanhaiya (P.W.11), Dinesh (P.W.3), Manoj Kumar (P.W.4) were working as Labourers at M.B.K. Brick Kiln owned by Jagdish (P.W.2). All the labourers were engaged through Lahuri (P.W.13) who was a labour contractor. On 14.1.2006 at about 7:00-8:00 PM appellant offered sweets to seven years old daughter of Kanhaiya (P.W.11) (name has been withheld to protect identity and hereafter called ''victim'') took her towards a deserted place, thereafter committed rape with victim and caused her death.

Kanhaiya (P.W.11) presented written report (Ex.P.1) before Sawai Singh (P.W.14) who was then posted as SHO, Police Station Kanota. On the basis of written report (Ex.P.1), a formal FIR (Ex.P.8) bearing No. 29/06 was registered at Police Station Kanota for offence under Sections 302, 376 IPC.

The appellant was tried by the court of Additional Sessions Judge (Fast Track) No. 1, Jaipur District, Jaipur. The said court vide impugned judgment dated 20.5.2006 held the appellant guilty of offence under Sections 302 and 376 IPC. The trial court vide a separate order of even date sentenced the appellant as under:-

U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo three months rigorous imprisonment.

U/s. 376 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo three months rigorous imprisonment.

Kanhaiya (P.W.11) in written report (Ex.P.1) stated that he is a resident of Uttar Pradesh (U.P.) and was working as labourer at M.B.K. Brick Kiln. He was residing in a hut at the site of brick kiln alongwith his family. In adjoining huts, other labourers were also staying. On 14.1.2006 at about 7:00-8:00 PM his daughter aged seven years was not found in the hut. Search was carried out for the daughter in nearby huts. Then one young child disclosed that Shiv Prasad, the present appellant, has taken the victim in the evening after offering sweets to her. Kanhaiya (P.W.11) accompanied by Lahuri (P.W.13) reached near a farm adjoining to the brick kiln. They saw that victim was naked and appellant was lying over her. Seeing them, the appellant ran away from the spot. Complainant went near the victim and found that child was unconscious and she was oozing blood from her vagina. They brought the child to the hut. They thought that child was alive. They applied heat pad and massaged the child. But the child died due to rape committed by the accused. It was night time. He further stated that since they belong to another State, in the night they could not go to the police station. In the morning, owner of the brick kiln came. They informed him the entire incident and then went to lodge the report alongwith Jugal Kishore Meena (P.W.1), a relation of the brick kiln owner. Request was made to police to take action against the accused.

On the basis of aforesaid written report (Ex.P.1), a formal FIR (Ex.P.8) was registered. Appellant was charged for offences under Sections 376 and 302 IPC. He denied charges and claimed trial. Prosecution in all examined 15 witnesses and has also placed on record 20 documents.

Renu (P.W.6) is child aged seven years. She stated that she knew the deceased and name of the accused is Fazlu. Accused had taken victim in the evening alongwith him. He had offered sweets to her. At the spot, camel was lying dead. He had thrown the victim behind the camel.

Manoj Kumar (P.W.4) stated that Lahuri (P.W.13) is a labour contractor. Manoj Kumar (P.W.4) is working as a labourer at the brick kiln. He knew Kanhaiya (P.W.11) and Shiv Prasad the accused. This witness further stated that he is staying at the brick kiln after making a hut. He further stated that in the evening he saw that the accused was offering sweets to victim, daughter of Kanhaiya Lal and had taken her towards the fields. Afterward child was raped by accused appellant.

Kanhaiya (P.W.11) and Lahuri (P.W.13) have been produced as eye-witnesses of the occurrence. Kanhaiya (P.W.11) reiterated as to what was stated by him in the written report (Ex.P.1). He stated that he is doing labour work at M.B.K. Brick Kiln, Kanota. Alongwith him, 12 other labourers are working. All of them are of Uttar Pradesh (U.P.). Victim was his younger daughter. On the day of occurrence around 7:00-8:00 PM he was doing labour work. His wife was in the hut and was cooking meals. The child was playing outside the hut. His wife came to him and informed that the victim has not returned to the home. They searched for the victim in nearby huts. Then he was informed by daughter of his neighbour Renu that after offering sweets, Shiv Prasad had taken the victim towards the farm where camel was lying dead. Then he and Lahuri reached at the Farm. They saw that Shiv Prasad was lying on the victim. On seeing them, the accused ran away from the spot. Kanhaiya (P.W.11) lifted his daughter/victim and brought her to the hut. Blood was oozing from her private parts. She was not wearing underwear, but was wearing a frock. As nobody was known to them, they waited for the whole night. In the morning, Babulal came and accompanied them to Police Station to lodge the report and the case was registered. The prosecution could not cause any dent in the statement of the witness, during cross-examination.

Shivkali (P.W.12) stated that her husband is doing Jalai work at M.B.K. Brick Kiln, Kanota. She stated that she told her husband that their daughter is missing. He went in search of the victim. Her husband returned back after carrying victim with him and told that Shiv Prasad was lying over her daughter. In cross-examination this witness stated that frock, underwear and pant worn by the victim were soaked with blood. Therefore, they changed the clothes. Since bleeding had not stopped, the clothes again worn by the deceased were also stained with blood.

Lahuri (P.W.13) stated that he had accompanied Kanhaiya (P.W.11) and at nearby farm house they found that Shiv Prasad was lying over the victim and after seeking them, he ran away from the spot.

Dr. H.N. Meena (P.W.7) on 16.1.2006 had medically examined accused and opined that there was nothing to suggest that appellant was not capable of performing sexual intercourse.

On 15.1.2006 Dr. H.N. Meena (P.W.7) alongwith Dr. Ajay Kumar Sharma (P.W.8) had conducted autopsy on the dead body of victim and as per post-mortem report (Ex.P.12) he found the following injuries on the person of deceased:-

"1. Bruise 1 x 1/2 cm at left side of neck.

Crecenllic marks (Auression) 1 x 1/4 cm, 4 in number at right side of neck.

Bruise 1/2 x 1/2 cm, 6 in number at right side of cheek.

Bruise at bilateral nostril of size 1 x 1 cm."

The doctor further found that deceased had suffered a fracture of hyoid bone with ecchymosis present at adjacent muscle. Ecchymosis was also present at carotid vessels. As per doctor, hymen was ruptured. Lacerated wound was extending from posterior fornix to posterior vaginal wall. Wound of M/3 type, size 6 x 5 x muscle deep having ecchymosis of skin margin was present, two fingers easily passed. He further stated that vaginal wall was torn till end. Cause of death was asphyxia due to strangulation.

Having broadly noted the evidence of above witnesses, we need not notice the evidence of the witnesses who had prepared site plan, were examined to prove link evidence regarding taking sealed samples to the FSL and who had participated in investigation.

The present appeal has been filed through Jail. Shri M.C. Jain, Advocate, appearing as Amicus Curiae, has contended that Shivkali (P.W.12) had stated in court that they had handed over the clothes which were worn subsequently by the deceased. The learned Amicus Curiae has drawn our attention to the cross-examination of Shivkali (P.W.12) wherein she stated that clothes worn by the deceased were soaked with blood, he remove the same and fresh clothes were worn by the deceased. But the same were also stained with blood and they had handed over the clothes to the police which were subsequently worn by the deceased.

Shri Jain has further stated that occurrence is alleged to have taken place in the month of January at 7-8 PM. At that time, it was dark and foggy night. Therefore, the witnesses were not able to identify the appellant. It is further contended that Renu (P.W.6) has stated that Fazlu had taken the child after offering sweets towards deserted place and therefore, the appellant has been falsely implicated.

We are not convinced with the arguments raised.

Ram Bahadur (P.W.5) has stated in the court that Shiv Prasad is also known as Fazlu. Kanhaiya (P.W.11) has stated that only 12 persons have been employed at M.B.K. Brick Kiln and were staying in nearby huts. Therefore, the witnesses will be in a position to identify the appellant from his gail, from his voice and physical appearance. Kanhaiya (P.W.11) and Lahuri (P.W.13) stated that they had identified the appellant. Kanhaiya (P.W.11) in cross-examination stated that accused Shiv Prasad was lying over the child. They identified him then and there

In the present case Miss Renu (P.W.6), Manoj Kumar (P.W.4) have specifically stated that they had seen accused offering sweets to child and taking him towards deserted place. Kanhaiya (P.W.11) and Lahuri (P.W.13) have no animosity with the accused. Lahuri (P.W.13) is an independent witness. He has specifically stated that he had seen accused lying over the victim. This witness further stated that on seeing them, the accused ran away from the spot.

Considering statements of Kanhaiya (P.W.11) and Lahuri (P.W.13) which are corroborated by the medical testimony and taking into account statement of Renu (P.W.6) and Manoj Kumar (P.W.4) we are of the view that accused appellant has rightly been convicted by the learned trial court. We are also of the view that nothing hinges upon handing over the clothes subsequently worn by the deceased to the police as eyewitnesses have categorically stated that accused was lying over the victim.

As a result of above discussion, we find no merit in the instant appeal. It is, hereby, dismissed.

A coordinate Bench on 14.5.2010 had called list of the counsel who have given their consent for appearing on behalf of the accused to the Legal Service Authority and appointed Shri M.C. Jain as Amicus Curiae to conduct the present case. In view of the order dated 14.5.2010 passed by the coordinate Bench, we direct the Member Secretary, Rajasthan State Legal Services Authority to pay necessary remuneration to Shri M.C. Jain who had ably assisted us.