Punjab-Haryana High Court
Raj Kumar @ Raju vs State Of Punjab on 4 November, 2008
Criminal Appeal No. 175-SB of 1998 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 175-SB of 1998
Date of decision : 04.11.2008
Raj Kumar @ Raju .....Appellant
Versus
State of Punjab ...Respondent
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. J.B.S.Gill, Advocate for the appellant
Ms. Manjari Nehru, Deputy Advocate General, Punjab .
S. D. ANAND, J.
The learned Trial Judge indicted the appellant on a charge of having attempted to commit rape upon the prosecutrix, a female child aged 13/14 years, on 18.9.1996.
On the relevant date, the prosecutrix ( who was a student of 9th standard) was returning from school at about 2.00 P.M. when the appellant met her enroute and forcibly carried her to a Mango Orchard where he forcibly tried to rape her. The offence was notified to the police. The appellant was arrested on 5.11.1996. The usual formalities, including medical examination of the prosecutrix and also the appellant, were complied with and the appellant was challaned in due course.
PW-1 Dr. Sarabjit Kaur had medico legally examined prosecutrix on 19.9.1996 and found the following injuries on her person:-
"1. A bruise about 1 cm size on the right leg, just below and side to the tibial tuberosity.
2. There were no seminal stains or blood stains found on the external genetilia or thighs."Criminal Appeal No. 175-SB of 1998 -2-
**** Besides it, she also made following observations:-
"There was no vaginal discharge or bleed per vagina. Vaginal swabs and vaginal smears of the patient collected and sealed and were handed over to the police, shirt, salwar, chuni of the patient sealed and handed over to the police. She was referred to the civil hospital for determination of her age and X- ray."
On receipt of the report Ex. PB of the Chemical Examiner, she opined that sexual intercourse had been had with the prosecutrix.
PW-2 Dr. Surinder Gangar, Radiologist, Civil Hospital, Hoshiarpur had X-rayed the prosecutrix for determination of her age on 10.11.1996. He conducted X-ray of right side of all the joints and gave his report Ex. PC to the effect that the skeletal age of the prosecutrix was between 15-1/2 to 16 years.
PW-3 Dr. Sunil Ahir had medico legally examined the appellant on 5.11.1996 and had opined that there was nothing to suggest that he was not capable of performing sexual intercourse.
PW-4 Sarwan Singh is the first informant and father of the prosecutrix.
PW-5 is the prosecutrix herself.
PW-6 Jaan Mohd., an eye witness did not support the prosecution case.
PW-7 Paramjit Singh, Patwari Halqa had prepared the scaled site plan (Ex. PG) of the spot on 19.12.1996.
PW-8 Nirmal Singh, Judicial Magistrate Ist Class, Hoshiarpur had recorded the statement under Section 164 Cr.P.C. of the prosecutrix.
PW-9 Mashander Lal, Principal, Government Senior Secondary School, Mehngrowal, proved certification Ex. PK to the effect that the date of birth of the prosecutrix had been recorded in the school Criminal Appeal No. 175-SB of 1998 -3- **** record as 28.6.1982.
PW-10 ASI Darshan Singh had investigated this case. PW-11 HC Vijay Singh, PW-12 Constable Gurnam Kumar and PW-13 Constable Gurdev Singh tendered their affidavits Ex. PM, Ex, PN and Ex.PO respectively into evidence.
Ex. PB is the report of the Chemical Examiner.
PW Gurmail Singh and PW Gurudutt were given up as having been won over; while PW Narinder Pal Singh was given up as he had gone abroad.
Appellant pleaded innocence and averred that "I have been falsely implicated in this case on account of party faction in the village and ill will of the family of the prosecutrix."
The appellant did not adduce any evidence in defence, Learned counsel, appearing on behalf of the appellant, argues that it was all a consensual affair as between the appellant and the prosecutrix and there is adequate evidence on record in support thereof.
The plea deserves to be merely noticed to be discarded for the simple reason that question of consent or otherwise of the prosecutrix pales into insignificance in view of the fact that she is proved on record to have been a minor female under the age of 16 years. That is only inference which can be safely culled out from the certification issued by the school authorities ( Mr. Mashander Lal, Principal, Government Senior Secondary School, Mehngrowal). There is no reason why the record- based testimony given by PW-9 Mashander Lal, who is Head of the Government institution aforementioned, should not be relied upon.
Even in the course of statement of the prosecutrix under Section 164 Cr.P.C., which had been recorded by PW-8 Mr. Nirmal Singh, she gave her age as 14 years. In the course of that statement, she had Criminal Appeal No. 175-SB of 1998 -4- **** categorically indicated that the accused, after having stripped her and also himself, was about to commit sexual intercourse with her when Jaan Mohd. came over there on hearing the Raula raised by her. She proceeded to aver that the appellant fled the spot when Jaan Mohd. arrived over there. Though Jaan Mohd. aforementioned, who was the only independent witness, did not support the prosecution plea, this Court has no reason to doubt the veracity of the testimony of the prosecutrix.
There is nothing on record to suggest that the parental family of the prosecutrix had any inimical inclination towards the appellant or had any other score to settle on account whereof the appellant could have been framed in this case. In the absence thereof, the assumption is that no family would like to stake the honour of a female child in a such like case by levelling allegation of this category. Inspite of whatever strides our country may have made on the various fronts, it is still a fact that the family of a female child, whose person is violated, is looked down upon by the other segment of the society.
In the light of the foregoing discussion, the appeal is devoid of merit and is ordered to be dismissed. However, in view of the fact that the appellant is facing ordeal of trial/appeal since the year 1997 and he was convicted only for an offence under Section 376/511 IPC, it is ordered that the sentence awarded to the appellant shall stand reduced to rigorous imprisonment for one year. Except with that modification, the appeal shall stand dismissed.
November 04, 2008 (S.D. ANAND) Pka JUDGE