Punjab-Haryana High Court
Sunder Lal vs State Of Haryana on 3 September, 2013
Author: K.C.Puri
Bench: K.C.Puri
Crl. Appeal No. S-1097-SB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. S-1097-SB of 2002 (O&M)
Date of Decision: September 03, 2013.
Sunder Lal
.....Appellant
Versus
State of Haryana
.....Respondent
CORAM: HON'BLE MR. JUSTICE K.C.PURI
Present: Mr.J.S.Bedi, Advocate for the appellant.
Mr. Amit Kaushik, Sr. DAG, Haryana.
K.C.PURI, J.
This is an appeal directed by accused-appellant against the judgment dated 1.06.2002 and order dated 4.06.2002, passed by Sh.Dharampal-I, Addl. Sessions Judge, Hisar, vide which the accused-appellant has been convicted convicted under Sections 452 and 376 IPC and sentenced to undergo imprisonment and to pay fine as under:-
Accused Name Under Sentence In Default of fine Sections awarded Sunder Lal 376 IPC R.I for R.I. for three months.
seven years and to pay a fine of ` 3,000/-Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 2
Accused Name Under Sentence In Default of fine Sections awarded 452 IPC R.I. for R.I for one month two years and to pay a fine of ` 1,000/-
Briefly stated the case of the prosecution is that on 10.10.2000 prosecutrix aged about 14 years was present alone in her house at about 2/2.30 P.M.. After washing the clothes she went inside the room to put the soap. In the mean time accused Sunder Lal entered in the room and shut and bolted the door from inside and forcibly made her lay on the cot and by breaking open the string of the salwar committed rape upon her again her wishes. When she raised alarm which attracted Lachhman witness who came there and 2/3 children also came there. When Lachhman opened the door of the room, the accused on seeing him ran away from there. The parents of the prosecutrix were called from the field and the prosecutrix narrated the occurrence to her father and went to police station to lodge the FIR. The prosecutrix was medico legally examined and after investigation challan was presented against the accused in the Court.
Copies of challan as envisaged under Section 207 Cr.P.C. were supplied to the accused free of costs and the case being exclusively triable by the Court of Sessions was committed to the Court of Sessions and was entrusted to Addl. Sessions Judge.
Learned Addl. Sessions Judge, framed charge against Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 3 the accused under Sections 452 IPC and 376 IPC, to which he pleaded not guilty and claimed trial.
The prosecution in order to bring home the guilt of the accused examined PW1 Dr. Kirshan Kumar, PW2 HC Suresh Kumar, PW3 Constable Randhir Singh, PW4 Constable Subhash Chander, PW5 Inspector Raja Ram, PW6 HC Bhanwar Lal, PW7 Kamla, PW8 Lachhman, PW9 Dr. Saroj Bukal, PW10 ASI Siri Bhagwan and PW11 Promila Sareen, Head Mistress and closed the prosecution evidence after tendering certain documents.
After closure of the prosecution evidence the accused was examined under Section 313 Cr.P.C and all the incriminating evidence was put to the accused to which he denied and pleaded falsely implication.
Accused was called upon to lead his defence evidence but he opted not to lead any defence evidence.
The learned trial Court after appraisal of the evidence found the accused guilty under Section 452 and 376 IPC and sentenced him to undergo rigorous imprisonment and to pay a fine as narrated above.
Feeling dis-satisfied with the aforesaid judgment dated 1.06.2002 and order dated 4.06.2002 passed by Sh.Dharampal-I, Addl. Sessions Judge, Hisar, the accused-appellant has preferred the present appeal.
Learned counsel for the appellant has submitted that story of the prosecution is full of contradictions and is improbable. It is submitted that before the doctor prosecutrix stated that she was Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 4 raped by someone at about 2.00 P.M on 10.10.2000. She has further stated that person has committed rape upon her 4-5 times. In the cross-examination PW9 Dr. Saroj Bukal has stated that prosecutrix has not disclosed the name of the person by whom she was raped. It is submitted that the name of the appellant was not given to the doctor so, her statement does not support the prosecution version. It is further submitted that statement made before the doctor is admissible in evidence in view of Section 6 of the Indian Evidence Act. In support of this contention learned counsel for the appellant has relied upon authority Mohan Lal Gangaram Gehani Vs. State of Maharashtra, AIR 1982 Supreme Court 839, Debdas Ghosh Vs. State of West Bengal (Calcutta) (DB) 2008 (4) AICLR 126.
The abovesaid arguments looks attractive but is without any legal force. In this case the FIR was registered at about 5.00 P.M on 10.10.2000 and thereafter she was taken to the doctor. In the FIR the name of appellant as accused is there, moreover the appellant has not put the said fact to the prosecutrix. The statement made before the doctor at the most can be construed as previous statement and is not a substantive evidence unless it is brought to the notice of the witness for corroboration or for the contradictions. Furthermore, it is not requirement of the law that name of the assailant should have been disclosed to the doctor or any other expert witness. The allegation in the present case is in respect of rape of a girl about 14 ½ years so, in these circumstances the above said statement made to the doctor does not create doubt in the Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 5 prosecution version. Authority Mohan Lal Gangaram Gehani's case (supra) is distinguishable as in that case the victim has stated the name of particular person as assailant to the doctor but subsequently giving the name of another person as his assailant, so under those circumstances it was held that the doubt has crept in the prosecution version. Moreover, the statement made before the police is prior in time in which name of the appellant as accused has been mentioned and statement to the doctor was recorded at about 7.00 P.M which is later in time. Authority Debdas Ghosh's case (supra) is also distinguishable as in that case deceased made statement immediately after the occurrence to the doctor as to who was the assailant and such statement was held to be admissible and that statement amounts to even dying declaration. In the present case prosecutrix had made statement in the Court and was subjected to lengthy cross-examination but nothing could be brought on record to discard her sworn testimony.
Learned counsel for the appellant has further submitted that the prosecutrix in her cross-examination has stated that she had seen the accused for the first time in the Court so, it is submitted that allegation of rape cannot be held to be proved in these circumstances. So, the prayer has been made for acquittal of accused-appellant.
Learned State counsel has supported the judgment of trial Court.
I have considered the submissions made by both the sides but do not find any force in the said submissions. Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 6
The prosecutrix has categorically stated the name of the appellant in the examination-in-chief, a stray line in the cross- examination is not sufficient to discard the prosecution version. The prosecutrix was subjected to rape and the report of chemical examiner proved the said fact as semen (spermatozoa) was found on the vaginal swab of the prosecutrix. No reasoning has been given by the accused for falsely implicating him even suggestion has not been put to any witness that there is motive for false implication. Lachhman other prosecution witness who has also identified the appellant so, the identity of the accused is not in dispute.
Learned counsel for the appellant has further submitted that prosecutrix was a habitual to sexual intercourse. There was no injury on the private part of the prosecutrix or on her body. So the story of the prosecution regarding sexual intercourse forcibly is wrong on the face of it. He has further contended that the Hon'ble Apex Court in authority Krishan Kumar Malik Vs. State of Haryana (SC) 2011 (3) R.C.R. (Criminal) 589 has held that in case DNA in respect of male semen is not conducted in that case the prosecution story cannot be believed.
I have carefully the said submissions but do not find any forces in said submissions.
It is settled law that the lapse on the part of investigating agency is not a ground to throw away the prosecution story altogether. In case DNA was not conducted by the I.O, for that purpose whole of the prosecution story cannot be said to be defective. So far as the authority Krishan Kumar Malik's case Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 7 (supra) is concerned in that case prosecutrix knew the name of accused but in the report she has not disclosed his name but in the present case the name of the appellant is in the FIR itself so, above said authority is distinguishable.
The Hon'ble Apex Court in authority Lillu @ Rajesh Vs. State of Haryana reported in 2013 (3) Recent Apex Judgments (R.A.J.) 1 held that in case vagina of prosecutrix admitted two fingers and she was habitual in sexual activities does not give presumption of consent. It has been further observed in that ruling that even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone.
Learned counsel for the appellant has submitted that age of the prosecutrix has not been correctly determine by the trial Court. In the school record age of the prosecutrix has been recorded on the basis of information given by Raj Bala sister of the prosecutrix. The said Raj Bala has not been examined, otherwise PW11 Promila Sareen, Head Mistress has stated that only major member can made statement regarding the age. Prosecutrix was admitted in the school on 1.04.1992. Prosecutrix has stated in the cross-examination that Raj Bala is two years elder to her whereas, Lachhman Singh has stated that Raj Bala is 6-7 years elder to prosecutrix. Even if it is assumed that Raj Bala is elder by 6-7 years to prosecutrix even then according to the school leaving certificate Ex.PL prosecutrix was above 18 years. The entry in the school record without any corroborative evidence cannot be relied upon. To support this contention learned counsel for the appellant has relied Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 8 upon the authorities Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, (SC) 2008 (2) R.C.R. (Criminal) 193, Jaipal Singh Vs. State of Haryana (P&H) (DB) 2003 (2) RCR (Criminal) 310, Hira Lal Vs. State of Haryana (P&H) 1994 (2) R.C.R. (Criminal) 435, Makhan Vs. State of M.P. (Indore Bench) 2003 (3) R.C.R. (Criminal) 674, Sunil Kumar @ Bholu Vs. State of Haryana (P&H) 2008 (3), R.C.R. (Criminal) 531, Kamaljit Singh Vs. State of Punjab (P&H) 2007 (4) R.C.R. (Criminal) 178 and Tameezuddin @ Tammu Vs. State (NCT of Delhi) 2010 (2) Supreme Court Cases (Crl.) 695.
He has further contended that in case the prosecutrix is taken as more than 18 years in that case it can be a case of consent and as such does not fall within the definition of rape.
I have considered the said submissions but do not find any force in the said submission. The prosecutrix has given her age 14 ½ years while appearing in the Court. The said testimony is duly corroborated by the record produced by PW11 Promila Sareen, Head Mistress. The entry in the school record was made on the basis of form submitted by Raj Bala sister of prosecutrix. In the school leaving certificate Ex.PL the date of birth of the prosecutrix has been mentioned as 3.06.1985. The occurrence took place on 10.10.2000 and as such prosecutrix was below 16 years of age. It is not necessary that there must be an injury on the private part of body of the prosecutrix. Prosecutrix being of under age may not be able to put resistance at the time of rape and as such the presence of injury on the person of prosecutrix is not essential. In authority Jyoti Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 9 Prakash Rai @ Jyoti Prakash's case (supra) it has been held that an entry relating to the date of birth made in the school register is relevant under Section 35 of the Evidence Act and the Court has to see its evidentiary value. In the said case it was not proved on what basis the entry was made in the register. However, in the present case the entry in the school record was made on the basis of reason given by Raj Bala. In the year 1992 there was no apprehension that said entry would be used as evidence in a rape case. The authority Jaipal Singh's case (supra) is distinguishable as in that case the prosecutrix has given her age as 17 ½ years whereas in the school certificate her age was mentioned as 15 years. Under those circumstances the school certificate was not accepted. The authority Hira Lal's case (supra) is also distinguishable as in that case as per school record the age of prosecutrix was 17 years and 24 days and her age was found to be 18 years by this Court. The authority Makhan's case and Sunil Kumar @ Bholu's case (supra) are also distinguishable as in that case the school certificate was not accepted as the basis of recording the age was not proved. Otherwise, also there is nothing on the file that accused could prove a case of consent. The authority Kamaljit Singh's case (supra) is distinguishable as in that case prosecutrix has stated that she was forcibly raped and her private parts bleeded but the medical evidence contradict that fact. However, there is no such dispute in the present case. The authority Tameezuddin @ Tammu's case (supra) is also distinguishable as in that case the Hon'ble Apex Court reached to the conclusion that in view of the evidence on the file the testimony Manoj Kumar 2013.09.10 10:51 I attest to the accuracy and integrity of this document Crl. Appeal No. S-1097-SB of 2002 10 of prosecutrix require corroboration. There were number of grounds to reach at that conclusion by the Court. There was money dispute in that case and according to the prosecution prosecutrix went with her husband and where she was raped. Many persons were present and those persons were not examined so, under those circumstances Hon'ble Apex Court has held that semen strain on vaginal swab and on salwar can prove only the factum of sexual intercourse but not rape. There is no dispute to that proposition of law. However, in the present case the testimony of prosecutrix and Lachhman proved the guilt of the accused beyond reasonable doubt.
So far as the quantum of sentence is concerned the learned trial Court has awarded the minimum sentence and as such no ground for reduction in sentence is made out. Otherwise, also the counsel for the appellant during the course of arguments has not argued about the quantum of sentence.
Consequently the appeal is without any merit. The appeal stands dismissed.
September 03, 2013 (K.C.PURI)
Manoj Bhutani JUDGE
Manoj Kumar
2013.09.10 10:51
I attest to the accuracy and
integrity of this document