Goverdhan Bardhar, J. - A challenge has been made by the accused appellant in the instant criminal appeal filed under section 374 (2) Cr.P.C , 1973 to the Judgment of conviction and sentence dated 03.10.2011 passed by learned Addl. District & Sessions Judge, No. 2, Bayana (the learned trial court for short) in Sessions Case No. 29/2011 (old case No. 23/2009) whereby the accused appellant has been sentenced as under:-

U/s. 366A IPC:

Seven years Rigorous Imprisonment and Rs. 1,000/- as fine, in default of payment to further undergo three months simple imprisonment.

U/s. 376 IPC:

Seven years Rigorous Imprisonment and Rs. 1,000/- as fine, in default of payment to further undergo three months simple imprisonment.

U/s. 323 IPC:

Three months Simple Imprisonment and Rs. 100/- as fine, in default of payment to further undergo seven days simple imprisonment.

All the sentences were ordered to run concurrently.

2. Brief facts of the case are that the complainant Vishnu Kumar (PW2) submitted a written report (Ex.P1) on 13.03.2009 at Police Station Bayana to this effect that on 12.03.2009 in the night there was a marriage in Laxmi Palace Marriage Home, in which he was doing the work of halwai and his children went in the said marriage to take food. From the marriage, his daughter (who is to be referred as victim) aged 10 years was taken by some person after enticing her. In the night at about 9:00 the children told that whereabouts of victim are not known. Upon that search of victim was made but after making search in the whole of night, her whereabouts could not be made. At about 7:00 in the morning his daughter came with blood stained clothes and she told that one person took with him after telling that he is her Jija, her mother has called the tiny children, she should first go and he will take them later. After saying such, he took victim with him. The victim stated to be committing of rape with her twice. He took his daughter at the place where the rape was committed then she (victim) narrated that accused committed rape firstly with her near Railway Cabin, In Front of Girraj Children Academy School and thereafter she stated to be committed rape in the phooloen of punjoen in the fields situated in the mid of Railway and Gambhir River. The accused gave fists on the abdomen of victim and gave beating and thereafter accused went after leaving the victim there.

3. On the basis of aforesaid written report (Ex.P1). an FIR No. 106/2009 (Ex.P2) was got registered for the offence under sections 363 and 376 IPC.

4. After completion of investigation, the police submitted charge-sheet against the accused appellant on 11.5.2009 for the offence under sections 363, 366A, 376, 323 and 379 IPC. The matter was being triable by the Court of Sessions, thus, same was committed to the Court of learned Addl. District & Sessions Judge No. 1, Bayana. Vide order dated 18.3.2010 the District & Sessions Judge, transferred the matter to the Court of learned Addl. District & Sessions Judge (Fast Track) No. 3, Bharatpur Headquarter Bayana. Thereafter, the aforesaid matter was sent to the learned trial court.

5. After hearing learned trial court framed the charge against the accused appellant for the offence under sections 363, 366A, 376, 323 and 379 IPC, who denied the charges and claimed to be tried.

6. The prosecution in support of its case produced fourteen witnesses and got exhibited 42 documents.

7. Thereafter, the statement of the accused appellant was recorded under section 313 Cr.P.C., 1973 In defence the accused appellant produced two witnesses.

8. The learned trial court after hearing convicted and sentenced the accused appellant vide impugned Judgment for the charges levelled against him. The accused appellant aggrieved with the impugned judgment of conviction and sentence has preferred instant appeal.

9. Counsel for the accused appellant argued that the only evidence in the case is of victim (PW2). Counsel argued that the victim did not tell the name of the accused and neither the brother of the victim nor her sister went in search of victim. Counsel argued that no hue and cry was made by the victim. Counsel argued that the identification parade was made in the course of investigation when the accused appellant was in custody of police and the accused appellant was seen by the victim in the police station. Thus, identification of accused appellant by the victim is of avail. Counsel argued that the witness of identification parade i.e PW4-Jeetu has not supported the case of the prosecution and has thus been declared hostile. Counsel also argued that the learned trial court erred in not considering the statements of the defence witnesses. Counsel argued that the learned trial court erred in disbelieving the part of the story of the prosecution relating to recovery of earrings of the victim from the possession of the accused appellant. Thus, the prosecution has failed to prove its case despite that the learned trial court erred in convicting and sentencing the accused appellant.

10. Learned Public Prosecutor appearing for the State supported the impugned Judgment passed by the learned trial court and argued that the accused appellant is habitual of committing rape with an innocent and minor girl. Learned PP argued that in Sessions Case No. 46/2009, the learned Addl. District & Sessions Judge (Fast Track) No. 3, Bharatpur Headquarter Bayana vide judgment dated 09.06.2010 has also convicted the accused appellant for the offence under sections 323, 363, 366 and 376/511 IPC and at present he is also undergoing in the aforesaid case. Thus, the findings given in this case by the learned trial court of conviction and sentence of accused appellant are on the basis of material available on record and no interference is required to be made in the impugned judgment.

11. I have heard learned counsel for the accused appellant, learned PP appearing for the State, perused the impugned judgment and also gone through the record of the case.

12. I do not find any substance in the plea raised by learned counsel for the appellant that the prosecution has not been able to establish its case as to commission of rape by the accused appellant with the victim.

13. Apparently, the case of the prosecution rests only on the evidence of victim (PW2) and she is the only witness of the incident. This witness in her statement stated that on 12.3.2009 when she was standing at Phoola Wale in Laxmi Marriage Home then one boy who was wearing T-Shirt of Red Colour and Pent of black colour came and told to her that he is her Jija. Thereafter, the said boy took her out. This witness further stated that the said boy after giving threatening removed her pent and underwear and did wrong with her. This witness further stated that thereafter the said boy taken in the hut of poola, where he after removing the clothes did wrong with her. This witness further stated that due to doing this wrong by that boy with her, pain started and blood started to ooze out. This victim further said thereafter the aforesaid boy told her to sleep and when she (victim) awaked then she found no-one else there. A note of Rs. 100/- was lying there. This witness further said that after reaching at her home she gave a note of Rs. 100/- to her sister and narrated about the whole incident. This witness (victim) identified the accused appellant in court and told that he is that boy who committed rape with her.

14. PW1-Vishnu and PW12-Pushpa are father and mother of the victim. Both the aforesaid witnesses supported the statement of the victim and stated that accused appellant committed rape with the victim after enticing her. Both the aforesaid witnesses have made such statement which has been made by the victim (PW2).

15. Thus, from the statements of PW1-Vishnu, PW12-Pushpa and victim (PW2) it is clear that the accused appellant after enticing the victim took with him and after giving threatening committed rape with her forcibly.

16. PW13-Dr. Bharat Meena, who was posted as Medical Officer, CHC, Bayana, District Bharatpur, stated that he medically examined the victim on 13.3.2009 on the letter of the police. This witness further stated that he prepared a report (Ex.P25) relating to injury and commission of rape of the victim in which he found the general position of the victim as weak. During the course of examination he found following injuries on her person:-

HINDI MATTER

This witness in his examination-in-chief has stated that HINDI MATTER

17. Thus, from the statement of this witness it is clear that the accused appellant committed rape with the victim which is clear from the fact that during internal examination of the victim by this witness he found that the blood is oozing out from her private parts.

18. PW-14-Naveen Meena in his statement has stated that on 30.03.2009 he was posted as Civil Judge (Jr. Division) & Judicial Magistrate, Bayana. This witness in his statement has specifically stated that the during the course of identification parade, the victim rightly identified the accused appellant and one witness Jeetu, which is Ex.P13A. This witness further stated that the victim during the course of identification identified her earrings which was of silver. Thus, the identification of accused appellant has rightly been proved.

PW-13-Aash Mohd, I.O and SHO of Police Station Bayana in his statement has specifically stated that after collection of evidence, he arrested the accused appellant and after finding case proved against the accused appellant he submitted charge-sheet against the accused for the offence under sections 363, 366A, 376, 323 and 379 I.P.C.

PW-3-Vishnu Kumar s/o Shri Babulal is a witness of phard-jabti of note of Rs. 100/- (Ex.P3), site-plan of the incident (Ex.P4), site plan (Ex.P5), phard-jabti of one leather sandle (Ex.P6), Phard-jabti of underwear (Ex.P7) and also Ex.P8 to Ex.P11. This witness admitted his signatures on the aforesaid exhibits.

PW-5-Maharaj Singh is also a witness of recovery. This witness in his statement has stated that he put his signatures on Ex.P15 to Ex.21.

PW-6-Dayanand Arya is also a witness of phardjabti of note of Rs. 100/- (Ex.P3), site-plan (Ex.P4 & 5), phard-jabti of one leather sandle (Ex.P6) and from Ex.P7 to Ex.11. This witness admitted his signatures on these exhibits.

PW-7-Randheer Singh, Constable, is a witness who deposited the articles in the State Forensic Science Laboratory, which is Ex.P22.

PW-10-Dr. Manvendra Pratap Shukal who was posted as Medical Officer, CHC, Bayana in his statement has stated that on 24.3.2009 he medically examined Anil Kumar (accused-appellant). This witness in his statement has specifically stated that accused appellant was completely fit for committing any sexual act.

19. Indisputably, the accused appellant is also undergoing sentence in Sessions case No. 46/2009 awarded by the learned Addl. District & Sessions Judge (Fast Track) No. 3, Bharatpur vide its judgment dated 9.6.2010 for the charges under sections 323, 363, 366 and 376/511 IPC.

20. From the statements of the prosecution witnesses, the documents exhibited and other material available on record it is clear that the offence committed by the accused appellant is heinous in nature. Thus, the prosecution has proved its case beyond all reasonable doubts.

21. Thus, keeping in view my aforesaid discussion, there is no legal infirmity or impropriety in the conviction of the appellant Anil Kumar recorded by the learned trial Court for the offence punishable under Sections 366A, 376 and 323 IPC, which is hereby maintained and affirmed.

22. In the result, the criminal appeal filed by the accused appellant is without any substance and accordingly stands dismissed and the Judgment of conviction and sentence dated 03.10.2011 passed by learned Addl. District & Sessions Judge, No. 2, Bayana in Sessions Case No. 29/2011 (old case No. 23/2009) is confirmed. The period spent by the accused appellant in custody during investigation, inquiry and trial shall be set-off as per the provisions of section 428 Cr.P.C , 1973in the light of Judgment delivered by the Division Bench of this Court in the case of Shankar Yadav v. State of Rajasthan, 2007 (1) Cr.L.R. (Raj.) 81.

23. Registry is directed to send back the record of the case to the trial court forthwith.