Punjab-Haryana High Court
Rajmal Alias Billo vs State Of Haryana on 6 November, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA No.677-SB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.677-SB of 2001
Date of Decision : 06.11.2012
Rajmal alias Billo
.......Appellant
Versus
State of Haryana
.......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Ashit Malik, Advocate,
and Mr. Ajit Attri, Advocate,
for the appellant.
Mr. Ajay Gulati, DAG, Haryana.
****
JITENDRA CHAUHAN, J.
The present criminal appeal has been preferred by the appellant challenging the judgment and order dated 05/08.05.2001, passed by the Additional Sessions Judge, Karnal, (hereinafter as 'the trial Court'), convicting the accused-appellant for committing offence under Sections 376 read with Section 511 of the Indian Penal Code (for short, 'the IPC') and sentencing him to undergo rigorous imprisonment for a period of five years and to pay a fine of `2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.
CRA No.677-SB of 2001 -2-
The brief facts of the case in hand, as recorded by the learned trial Court in para 1 of the impugned judgment, are reproduced as under:-
"2. Briefly stated the facts of this case are like this that the present case was registered on the statement of Smt. Anju, who had come to the police station along with her husband Som Parkash and her daughter xxxxxxx (here-in-after called the prosecutrix) wherein she has stated that she is resident of Dhobi Mohalla, Karnal. Her husband is a shop-keeper. They have four children. The eldest daughter is the prosecutrix aged about nine years, second daughter Shalu is aged about seven years, one son Rinku aged about six years and the youngest is Abishek, who is one year old. On 18.6.2000 at about 11.00 AM his younger daughter Shalu and son Rinku had gone to the shop of Rajmal alias Billo, Barber for hair cutting. She has given currency note of Rs.100/- to them for payment. Rajmal barber was not having a change of Rs.100/-. So Rajmal asked the children to bring the change and both the accused came to home. At about 1.30 PM she sent the prosecutrix by giving Rs.14/- to pay to Rajmal barber. But her daughter returned after a lapse of long time and she told her that when she tried to CRA No.677-SB of 2001 -3- pay Rs.14/- to Rajpal, he caught hold of her from her hand and took her inside the room. He put off his pant and under-wear and taken out his penis and asked the prosecutrix to see it and tried to take off the frock of the prosecutrix. But she raised alarm and ran away. After hearing this she kept silent because her husband was away and she did not tell anything to any one out of shame. When her husband Som Parkash came at night, she narrated the entire version to him and on the next day when the shop was opened, they went to the shop of Rajmal and asked him about the occurrence. So many people gathered there and after that she came to report the matter to the police. On this statement formal First Information Report Ex.PA was recorded..."
After completion of investigation challan was presented in Court.
Charge under Section 376/511 IPC, was framed against the accused-appellants to which, he pleaded not guilty and claimed trial.
In order to substantiate the charges against the accused, the prosecution examined four witnesses, viz., PW1-Smt. Anju, the complainant, who deposed about the occurrence; PW2-the prosecutrix; PW3-Prem Kumar, Constable, who proved the scaled site CRA No.677-SB of 2001 -4- plan, Ex.PB; and PW4-ASI Ishwar Singh, the Investigating Officer. PWs Som Parkash, Inspector/SHO; Om Parkash, Clerk from the office of Municipal Council; Constable Sushil Kumar; and Dr. Dinesh Sharma; were given up being unnecessary.
In his statement under Section 313 Cr.P.C., the accused- appellant denied all the allegations of the prosecution case and pleaded false implication. It was contended that the accused is a tenant in the shop of Rajinder Jain, who is maternal uncle of the prosecutrix and in order to get him ejected from the shop, the accused had been falsely implicated in this case. However, he did not lead any evidence in defence.
The learned trial Court, after hearing both the parties, convicted and sentenced the accused-appellant as indicated in para 1 of this judgment. Hence the present appeal, which was admitted by this Court on 19.06.2001.
The learned counsel for the appellant contends that there is unexplained delay in lodging the FIR. The alleged occurrence took place on 18.6.2000 at about 11.00 a.m., whereas, the matter was reported to the Police on 19.06.2000, at about 1.15 p.m. The learned counsel further contends that no case under Section 376/511 IPC is made out in the present case. From the bare perusal of the FIR, no attempt to commit rape upon the prosecutrix is made out. Section 511 IPC postulates a situation wherein the action fails through circumstances independent of the man who seeks its completion. The CRA No.677-SB of 2001 -5- learned counsel contends that there are material improvements in the statement of the complainant so as to bring the case within the ambit of Section 376 IPC.
On the other hand, the learned State counsel argued that the prosecution has proved its case against the accused-appellant beyond reasonable doubt. The delay has been sufficiently explained. The complainant, mother of the prosecutrix, PW1 as well as the prosecutrix, PW2, have fully supported the case of the prosecution. The contradictions, if any, in the statements are minor and liable to be ignored.
I have heard the learned counsel for the parties and perused the record.
The incident in question took place on 18.06.2000, at about 1.30 p.m. The FIR, Ex.PA, was recorded on 19.06.2000, at about 3.45 p.m. Though, there is apparent delay in lodging the FIR, but the same has been sufficiently explained by the prosecution. It has come in the statement of the complainant that her husband was away at the time of the incident. He came in the night and the entire incident was narrated to him. In the morning, they went to the shop of the accused- appellant and confronted him, however, the accused started quarreling with them. Thereafter, they went to the Police and the matter was reported.
It is commonly seen that in such like cases, the delay is of no consequence as the honour of the family and social reputation of the CRA No.677-SB of 2001 -6- prosecutrix are at stake. In our society, the parents of a victim, who is an innocent child of tender age, would always be reluctant to report the matter to the Police on account of fear of social stigma and shame.
In the instant case, the victim is a minor girl of 8 years. At this tender age, she was not expected to give the minute details of the occurrence. As is evident from her statement while appearing as PW2, she referred to the private part of the accused as well as of herself. The statement of the prosecutrix is corroborated by the statement of PW-1, Smt. Anju. Both these witnesses have fully supported the case of the prosecution during her examination and their statements inspire confidence in the prosecution story. When the complainant appeared as PW1, she stated that the accused, after removing his pant and underwear, also removed the underwear of the prosecutrix. During her examination as PW2, the prosecutrix stated that when she had gone to make the payment, the accused took her inside the shop and tried to insert his penis into the vagina. Then she raised alarm and ran towards her and told the incident to her mother.
In Dinesh @ Buddha Vs. State of Rajasthan, AIR 2006 SC 1267, Hon'ble the Supreme Court has observed as under:-
"12. In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-CRA No.677-SB of 2001 -7-
permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in the rape case...."
In view of the above discussion, this Court feels that the prosecution has been successful in bringing home the guilt against the accused-appellant beyond a shadow of reasonable doubt.
The huge age gap between the accused, who was 34 years at CRA No.677-SB of 2001 -8- the time of occurrence and the victim's age being 8 years, further increases the gravity of the offence.
Accordingly, the present appeal is dismissed. The appellant is stated to be on bail. His bail bonds shall stand cancelled. He be taken into custody forthwith, to suffer the remaining part of his sentence.
( JITENDRA CHAUHAN ) 06.11.2012 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No