Punjab-Haryana High Court
Vipin Kumar @ Nitu S/O Sita Ram vs The State Of Haryana on 6 April, 2010
Crl. Appeal No. 935- SB of 2007
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 935-SB of 2007
Date of Decision : 06.04.2010
Vipin Kumar @ Nitu s/o Sita Ram, r/o H.No. 463, Anand Colony, Old
Hamida, Yamuna Nagar.
.... Appellant.
Versus
The State of Haryana
.... Respondent
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CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Rahul Vats, Advocate with
Mr. H.S. Jaswal, Advocate
for the appellant.
Mr. Sandeep Mann, Sr. DAG, Haryana
for the respondent-State.
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SHAM SUNDER, J.
The instant appeal is directed against the judgment of conviction dated 17.4.2007, and the order of sentence dated 18.04.2007, rendered by the Court of Sessions Judge, Yamuna Nagar, vide which it convicted the accused,(now appellant) and sentenced him as under:-
Crl. Appeal No. 935- SB of 2007
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The offences for which conviction was Sentence awarded recorded.
U/S.376 IPC Rigorous imprisonment for 07 years. Fine of Rs.5000/-. In default of payment of fine to undergo rigorous imprisonment for six months.
U/S 363 IPC Rigorous imprisonment for three years. Fine of Rs.1000/-.
In default of payment of fine to undergo rigorous imprisonment for six months.
The substantive sentences of the accused were ordered to run concurrently.
2. The prosecutrix is the daughter of the complainant, Smt. Gulshan. She was a student of 10th standard on the day of her dis-appearance. She had left for her school at 6.15 am on 11.5.2006. She did not return home, at the usual time at 1.00 pm, which caused anxiety, in the mind of her mother, who immediately rushed to the School in her search. The School teacher informed the complainant that all the students, in the first shift, had returned to their respective homes . She also informed that the exact information could be gathered on the following day i.e. on 12.5.2006. In this view of the matter, the mother of the prosecutrix, went to the school, on 12.05.2006 and came to know that the her daughter did not attend the School on the previous day i.e. 11.5.2006. She asked her son to search his sister Crl. Appeal No. 935- SB of 2007
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in the neighbourhood. They were unable to trace the prosecutrix. The complainant informed her husband namely Ali Hassan and his younger brother, Ali Mohd. about the dis-appearance of the prosecutrix, who also made frantic efforts to trace her, but all in vain. The complainant doubted the involvement of Vipin Kumar alias Nitu son of Sita Ram Dhiman, in the dis-appearance of her daughter. On the basis of the statement of the complainant, an FIR was registered.
3. During the course of investigation, on 18.05.2006, Vipin Kumar, accused was arrested. The prosecutrix was also found alongwith him. Her statement was recorded. The prosecutrix and the accused were got medicolegally examined in Civil Hospital, Yamuna Nagar. The clothes and the swabs of the prosecutrix were sent, in sealed parcels, for Chemical analysis. After the completion of investigation, the accused was challaned.
4. On his appearance, in the Committing Court,the accused was supplied copies of all the documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363, 366 and 376 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.
Crl. Appeal No. 935- SB of 2007
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5. The prosecution, in support of its case, examined Dr. Prithvi Singh, Medical Officer,(PW-1), Madan Lal, Assistant Sub Inspector,(PW-2), Ashok Kumar, EHC, (PW-3), Ram Kumar Patwari, Halqa Yamuna Nagar, (PW-4), Jai Pal, Assistant Sub Inspector, (PW-5), Mukesh Kumar, Constable, (PW-6), Randhir Singh, Head Constable, (PW-7), Yash Pal, Assistant Sub Inspector, (PW-8), Kehar Singh, Assistant Sub Inspector, (PW-9), Pawan Kumar, Inspector, (PW-10), Dr. Sarita Gulati, Medical Officer, (PW-11), Smt. Gulshan, complainant, (PW-12), Dalip Khan, (PW-13), the prosecutrix, (PW-14), and Naresh Bala, Head Mistress, (PW-15). Thereafter, the Public Prosecutor for the State, after tendering into evidence Ex.PX, certificate issued by the Registrar of Births and Deaths, Yamuna Nagar, closed its evidence.
6. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he was involved, in this case, at the instance of Dalip Khan, who had taken money from his father for the purchase of a plot. It was further stated by him that the complainant had purchased grocery items to the tune of Rs.27,000/- from the grocery shop Crl. Appeal No. 935- SB of 2007
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of his father. Dalip Khan agreed to pay the amount, outstanding against the complainant, but he backed out subsequently, and, on account of this reason, he was falsely implicated, in the instant case. He, however, did not lead any evidence in defence.
7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal has been filed by the appellant.
9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The first question, that arises, for consideration, is as to whether, the prosecution was able to prove its case, against the accused, beyond a reasonable doubt, or not. The evidence of the prosecutrix, who appeared as PW-14 , is very material, in this regard. At the relevant time, she was a student of 10th standard in Government School Hamida. Ex.PX is the birth certificate , issued by the Registrar (Births and Deaths), Yamuna Nagar. It relates to the birth of a baby girl to Smt. Gulshan on 16.10.1991. The date of birth recorded therein is 16.10.1991.
Crl. Appeal No. 935- SB of 2007
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Smt. Gulshan, (PW-12) mother of the prosecutrix, deposed that this birth certificate relates to her daughter i.e. Prosecutrix. The birth was registered in the office on 22.10.1991. Ex.PV is the certificate of Middle Standard Examination of the prosecutrix, wherein her date of birth was written as 16.10.1991. Not only this, Naresh Bala, Head Mistress, (PW-15), while appearing in the witness box, deposed that the date of birth of the prosecutrix is 16.10.1991, as per the school record. It means that the prosecutrix was 15 years and 07 months of age, at the time of occurrence. The prosecutrix, while appearing, in the witness box as PW-14, in clear cut terms stated that on 11.5.2006, at about 6.00 am when she left her house, for the School, she was followed by accused Vipin Kumar. She further stated that she was enticed by the accused on the false promise of performing marriage with her. She was taken to the Railway Station, Jagadhri. Thereafter, she was taken around the town of Jagadhri in three-wheeler. It was also stated by the prosecutrix that the accused took her to Idgah against her wishes, and committed rape with her. Thereafter, he took her to the Bus Stand on the next morning, and put her in a bus for Ambala. Thereafter, the accused took her to some place in the State of Punjab. He also took her to Delhi and finally to a place called Barailey in the Crl. Appeal No. 935- SB of 2007
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State of Uttar Pradesh. It was also stated by the prosecutrix that the accused continued committing rape with her. It was also stated BY her that since Vipin Kumar, accused, ran short of funds, he brought her back to Jagadhri by train. When she alongwith the accused was sitting , at the platform of Railway Station Jagadhri, her uncle Dalip Khan arrived there with the Police force and nabbed them. The statement of the prosecutrix was duly corroborated, from the statement of Dr. Sarita Gulati, Medical Officer, (PW-11) who stated that the possibility of sexual intercourse with the prosecutrix, could not be ruled out. She also found that her hymen had been ruptured and heeled and margins were regular. Further corroboration to the statement of the prosecutrix, is provided through Ex.PX, the report of the Forensic Science Laboratory, Madhuban (Karnal). As per the report, human semen was detected, on the underwear of the prosecutrix. There was no reason, on the part of the prosecutrix, to falsely implicate the accused, in the instant case. She was minor, at the time of occurrence. She had no ill-will, or grudge against the accused, to depose falsely against him. She very well knew that, if the allegations of rape, levelled by her, against the accused, were found to be false, she would be looked down upon, in the society, and her reputation as also the reputation of Crl. Appeal No. 935- SB of 2007
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her family shall be tarnished. The parents of the prosecutrix must have thought over a hundred times before lodging the First Information Report that in case the allegations were found to be untrue, then the chances of the marriage of the prosecutrix, will become extremely bleak. The trial Court was, thus, right in holding that the prosecution was able to prove its case against the accused, beyond a reasonable doubt. This Court after re- appraisal and re-appreciation of the evidence, also comes to the same conclusion. The findings of the trial Court, that the accused committed the offences, punishable under Sections 363 and 376 of the Indian Penal Code, being based, on the correct appreciation of evidence and law, on the point, are endorsed.
11. The Counsel for the appellant, however, submitted that the prosecutrix remained with the appellant, for a number of days at various places, but she did not raise any alarm. He further submitted that even she was having love-affairs with the accused. He further submitted that under these circumstances, lenient view may be taken in the matter of sentence by reducing the same suitably. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Since the prosecutrix was a minor, her consent or no consent was hardly of any consequence. There is nothing on the record, that she was Crl. Appeal No. 935- SB of 2007
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having love affairs with the accused or had written love letters to him. No doubt, for special or adequate reason, the Court can award punishment lesser than the minimum provided for the offence, punishable under Section 376 IPC. However, in the instant case, there are no special or adequate reasons for awarding punishment, lesser than the minimum prescribed for the offence, punishable under Section 376 of the Indian Penal Code. By his act, the accused left a permanent scar on the life of the prosecutrix. The trial Court was right, in holding that he did not deserve any leniency. No ground, whatsoever, is made out ,for the reduction of sentence, awarded to the accused, by the trial Court. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected.
12. No other point, was urged, by the Counsel for the parties.
13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based, on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld.
14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 17.04.2007, Crl. Appeal No. 935- SB of 2007
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and the order of sentence dated 18.04.2007 are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled.
15. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. and compliance report be sent within two months.
16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame.
17. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the same.
06.04.2010 ( Sham Sunder) dinesh Judge