Punjab-Haryana High Court
Balihar Singh And Another vs State Of Haryana on 9 August, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.1038-SB of 1998
Date of Decision : August 09, 2010
Balihar Singh and another
.....Appellants
Versus
State of Haryana
....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. R.K. Handa, Advocate with
Mr. Madan Sandhu, Advocate
Mr. Ravish Kaushik, Assistant Advocate General, Haryana
T.P.S. MANN, J.
The appellants had filed the present appeal against the judgment and order dated 25/26.9.1998 passed by Additional Sessions Judge, Karnal whereby they were convicted under Section 376(2)(g) IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- each and in default thereof, to undergo further rigorous imprisonment for two months.
According to the prosecution, on 20.3.1993, the prosecutrix, alongwith Kailasho Devi and Mange Ram, reached Police Station Sadar, Karnal and got recorded her statement to the effect that her father had died about 5-6 years ago and she was adopted by her Crl. Appeal No.1038-SB of 1998 -2- maternal uncle Mange Ram as his daughter as he was having no issue. She was a student of 6th standard. On 18.3.1993 at about 2.30 p.m., the prosecutrix went to the field of Lakshar Singh for easing herself. As soon as she sat down after untying the string of her salwar, the appellants came in that field. Appellant Daulat Singh gagged her mouth with her chunni and caught hold of her both hands whereas appellant Balihar Singh removed her salwar from her legs and committed sexual intercourse with her. Thereafter, appellant Daulat Singh tried to commit sexual intercourse with her but in the meanwhile the prosecutrix succeeded in removing chunni from her mouth and raised an alarm. Appellant Daulat Singh caught hold of her legs but on hearing her alarm, Kalu son of Puran, who was plucking fruits from a nearby Beri tree, rushed to the spot and caught hold of Balihar Singh and further raised an alarm. On hearing noise, Dhoop Singh also came there and on seeing him, appellant Balihar Singh got himself freed from Kalu and appellant Daulat Singh left her. Both the appellants fled towards village Dabri. The appellants could not be apprehended despite being chased by Kalu and Dhoop Singh. The prosecutrix was taken to the house of her maternal uncle by Kalu and Dhoop Singh. The prosecutrix narrated the whole occurrence to her maternal uncle and aunt on 20.3.1993 after they returned from village Kharkhali.
On the basis of the aforesaid statement, FIR was registered. ASI Man Singh carried out the investigation. The prosecutrix was got Crl. Appeal No.1038-SB of 1998 -3- medico legally examined from General Hospital, Karnal on the same day. Site plan regarding the place of occurrence was prepared. Statements of the witnesses were recorded. On 23.3.1993 the appellants were arrested and got medico legally examined from Government Hospital, Karnal.
After completion of the investigation and presentation of the challan, followed by its commitment to the Court of Sessions, both the appellants were charged under Section 376(2)(g) read with Explanation I IPC, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Dr. Yogesh Sethi, PW2 Malkiat Singh, Patwari, PW3 Dharam Pal Verma, Teacher, PW4 HC Dharam Pal, PW5 SI Raghbir Singh, PW6 Constable Ramesh, PW7 Constable Prem Chand, PW8 Dr. Subhita Ajmani, PW9 the prosecutrix, PW10 Constable Raj Kumar, PW11 HC Om Parkash, PW12 Dhoop Singh, PW13 Mali Devi and PW14 Mange Ram.
When examined under Section 313 Cr.P.C. both the appellants denied all the allegations levelled against them and pleaded innocence. They stated that on the date of occurrence, they were present in the village and some one else committed the offence. They also stated that the prosecutrix had illicit relation with Kalu son of Kapoor Singh, which become known to them and they raised the objection in the village and convened Panchayat in which maternal uncle of the Crl. Appeal No.1038-SB of 1998 -4- prosecutrix was also present. As the appellants had raised objections, they were falsely involved in the case. In defence, they examined Raj Pal @ Kalu son of Puran Chand as DW1 and Lashkar Singh son of Bishan Singh as DW2.
After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court came to the conclusion that the appellants committed gang rape upon the prosecutrix in furtherance of their common intention as Daulat Singh caught hold of the hands of the prosecutrix after gagging her mouth with chunni when Balihar Singh committed rape upon her and, accordingly, convicted and sentenced them, as mentioned above.
I have heard learned counsel for the parties and perused the evidence with their able assistance.
Learned counsel for the appellants has submitted that the FIR was lodged after a long delay of 51 hours after the alleged incident. No satisfactory explanation has been furnished by the prosecution to explain the said delay. There was also no concrete evidence to establish that the prosecutrix was less than 16 years of age on the date of occurrence. Neither her birth certificate was produced nor any ossification test conducted to prove her actual age at the time of occurrence. Further, the prosecution could not establish that the prosecutrix was subjected to rape or that it were the appellants who had Crl. Appeal No.1038-SB of 1998 -5- committed the offence. The prosecution did not examine Investigating Officer and, therefore, the site plan and other documents prepared during the course of investigation have not been properly proved. Finally, it has been submitted that the sentences of appellants are highly excessive and be reduced.
Learned State counsel has opposed the arguments raised on behalf of the appellants and submitted that the prosecution has been able to prove its case against the appellants beyond reasonable doubt. Therefore, the appeal be dismissed.
According to the prosecution, the occurrence had taken place on 18.3.1993 at about 2.30 P.M. On the date of occurrence, the maternal uncle and aunt of the prosecutrix, who had adopted her about 5/6 years ago as her father had died, were away from the village and returned on 20.3.1993. Only then the prosecutrix narrated the entire occurrence. On learning that the prosecutrix had been subjected to rape, her maternal uncle and aunt took her to Police Station Sadar Karnal where the statement of the prosecutrix was recorded and FIR registered at 5.45 P.M. Special report was, thereafter, sent and received by Additional Chief Judicial Magistrate, Karnal on the same day at 6.45 P.M. The delay, thus, caused in lodging of the FIR was explained by the prosecutrix when she made statement before the police and also when she appeared as PW9. To the same effect was the testimony of PW12 Dhoop Singh when he stated that the maternal uncle and aunt of Crl. Appeal No.1038-SB of 1998 -6- the prosecutrix were not present in the house when she was brought there. They had gone to some neighbouring village. PW4 Mange Ram, maternal uncle of the prosecutrix, deposed that he and his wife had gone to village Kharkhali on 17.3.1993 and returned therefrom on the third day.
It is a matter of common experience that in rape cases where the honour of the family is involved, it is for the members of the family to decide whether to report the matter to the police or not. At times family members inform the Panchayat for settling the matter. In the process, delay takes place but that is no ground to hold that a false version was set up for implicating the appellants.
When the prosecutrix lodged FIR Ex.PF she did not mention her age. When she was taken to PW8 Dr. Subhita Ajmani for medical examination, her age was noticed as 13 years. As per school certificate Ex.PD, her date of birth was 8.1.1980. The occurrence having taken place on 18.3.1993, the prosecutrix was 13 years and 2 months old. The school certificate Ex.PD had been proved by PW3 Dharam Pal Verma, Head Teacher. The real mother of the prosecutrix was also examined by the prosecution as PW13. She had deposed that entry regarding birth of the prosecutrix was recorded by Chowkidar but the record stood burnt. In view of the above overwhelming evidence, the appellants cannot be heard saying that best evidence in the shape of birth certificate had been withheld, besides the prosecutrix not being Crl. Appeal No.1038-SB of 1998 -7- subjected to ossification test. Mere fact that Dr. Subhita Ajmani PW8 had stated that the hymen of the prosecutrix showed old healed tears and vagina admitted two fingers and that the prosecutrix was habitual of intercourse is no ground to hold that the prosecutrix was more than 16 years of age on the date of occurrence. Rather, she was 13 years and 2 months old.
It is true that at the time of her medical examination, no injury on the private parts or other parts of the prosecutrix was noticed. However, that does not mean that the prosecutrix had not been subjected to forcible sexual intercourse. While appearing as PW9, the prosecutrix had stated that due to sexual intercourse there was bleeding from her private parts. As per report Ex.PN of Forensic Science Laboratory blood stains were found on her Jampher and Salwar. Ever otherwise, the prosecutrix was subjected to medical examination after about 51 hours of the occurrence. In the intervening period, the injuries present on the prosecutrix could have healed and for that reason not noticed by the doctor. During cross-examination PW8 Dr. Subhita Ajmani stated that the prosecutrix was habitual to sexual intercourse. However, that is no ground to hold that the prosecutrix was not subjected to sexual intercourse in the manner as claimed by the prosecution. Even if the prosecutrix was of easy virtue, it did not give any licence to the offender to have sex with her and then to plead that it could not be termed as rape, more-so, when the prosecutrix is found to be far below 16 years of Crl. Appeal No.1038-SB of 1998 -8- age and not competent to give a valid consent.
As regards the argument of the defence that the identity of the appellants had not been established, the prosecution has relied upon the testimony of the prosecutrix herself as PW9 and of Dhoop Singh as PW12. According to the prosecutrix, Daulat Singh appellant had caught hold of her hands and gagged her mouth with her chunni whereas Balihar Singh appellant removed her salwar and raped her. When Daulat Singh appellant tried to commit sexual intercourse, she was successful in removing chunni from her mouth and raised an alarm which attracted Kalu and Dhoop Singh to the spot. Both the appellants were also residents of the same village as that of the prosecutrix. She had ample time to identify them. Nothing is available on the record to hold that the appellants were not previously known to the prosecutrix. There could, thus, be no mistake on her part in identifying them. Similarly, PW2 Dhoop Singh testified that on hearing the cries of the prosecutrix, he went to the spot and noticed that one Raj Pal @ Kalu was grappling with Balihar Singh appellant. On seeing the witness reaching there, Balihar Singh ran towards the village. Even Daulat Singh appellant escaped. He was, thereafter, informed by the prosecutrix that she had been subjected to rape by the appellants. Therefore, it cannot be held that the identity of the appellants in the commission of the crime has not been established.
ASI Man Singh, who had conducted investigation of the Crl. Appeal No.1038-SB of 1998 -9- case and prepared the site plan and other relevant documents had died before he could be examined by the prosecution in support of its case. This fact was brought to the notice of the trial Court by PW5 SI Raghbir Singh. Thereafter, said PW5 identified the handwriting and signatures of ASI Man Singh on the documents, including the site plan. Thus, the prosecution cannot be blamed for non-examination of the Investigating Officer.
The defence plea that the appellants had been highlighting in the village that the prosecutrix had illicit relations with Kalu and for that reason they have been falsely implicated in the case has no legs to stand upon. When the prosecutrix was cross-examined by the defence no such suggestion was put to her. Instead, it was suggested to Dhoop Singh PW that he had developed illicit relations with the prosecutrix and when the appellants had come to know of the same and complained to maternal uncle of the prosecutrix and the Panchayat and, therefore, he connived with the prosecutrix and lodged a false report. He specifically denied the suggestion. During their examination under Section 313 Cr.P.C., the appellants stated that the prosecutrix had illicit relations with Kalu, which became known to them and on their raising the objection and convening of Panchayat, wherein maternal uncle of the prosecutrix was also present, the names of the appellants were given to the police and therefore, they were falsely implicated.
The testimonies of DW1 Raj Pal @ Kalu and DW2 Lashkar Crl. Appeal No.1038-SB of 1998 -10- Singh that they were present in the fields and that no such occurrence as claimed by the prosecution had taken place in the fields do not advance the case of the defence. However, even DW1 Raj Pal @ Kalu admitted in his examination-in-chief that though no such occurrence had taken place in the field yet he had learnt in the village that it were the appellants who had committed the offence.
In view of the above, no case is made out for any interference in the conviction of the appellants for the offence under Section 376(2)(g) IPC.
Once the appellants are convicted under Section 376 (2)(g) IPC the law requires imposition of minimum sentence of ten years and fine. However, for adequate and special reasons the Court can impose a sentence of less than ten years. No material is available on the file from which it may be said that there are adequate and special reasons to impose a sentence of less than ten years. Moreover, both the appellants had committed gang rape upon the prosecutrix who was just 13 year and 2 months old at the time of occurrence.
Resultantly, the appeal is without any merit and is, accordingly, dismissed.
( T.P.S. MANN )
August 09, 2010 JUDGE
satish