Punjab-Haryana High Court
Anand Kumar vs State (U.T. Chandigarh) on 23 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.798-SB of 2005 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.798-SB of 2005
Date of Decision: 23 - 2 - 2010
Anand Kumar .....Appellant
v.
State (U.T. Chandigarh) .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Ms.Sumanjit Kaur, Advocate
for the appellant.
Mr.Rajiv Sharma, Standing Counsel for U.T. Chandigarh.
***
KANWALJIT SINGH AHLUWALIA, J.
Present appeal has been preferred by Anand Kumar. He was named as accused in case FIR No.339 dated 20.8.2000 registered at Police Station Sector 39, Chandigarh under Sections 376, 307, 309 IPC.
The appellant was tried by the Court of Additional Sessions Judge, Chandigarh, who vide his judgment dated 18.10.2003 held him guilty of offence under Sections 376 and 326 IPC. The trial Court held that no offence under Sections 309 and 307 IPC was made out. Having held the appellant guilty of offence under Sections 376 and 326 IPC, on 22.10.2003, the trial Court passed the order of sentence. The appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- Crl. Appeal No.798-SB of 2005 [2] under Section 376 IPC. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months. The appellant was further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- under Section 326 IPC. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for three months. Both the sentences were ordered to run concurrently.
The prosecution case in brief is that on the intervening night of 19/20.8.2000, the appellant had committed rape upon the prosecutrix, aged 17 years (PW6) (name has been withheld to protect identity of the prosecutrix) and also caused injuries to her. On 19.8.2000, prosecutrix PW6 along with her mother Santosh Kumari PW8 and family members which included minor brothers and sisters was sleeping in courtyard of the house. The present accused-appellant arrived at the house of the prosecutrix at about 10.30/11.00 P.M. At about 3.30/4.00 A.M. on the intervening night of 19/20.8.2000, Santosh Kumari PW8 came out and slept on a cot lying in the courtyard. At that time, prosecutrix went to toilet. The accused- appellant who was armed with a knife forcibly committed sexual intercourse with the prosecutrix PW6 and thereafter stabbed her on her arms and stomach. Santosh Kumari, mother of the prosecutrix came to rescue her. The accused made an attempt to assault her also. Santosh Kumari locked the accused in a room by bolting the door from outside. The accused- appellant stabbed himself in the stomach with the same knife. Prosecutrix and her mother approached Surinder Kumar PW11 who was running a shop at a distance of about half a kilometer from their house. He informed the police on telephone and police reached there.
Prosecutrix was examined by Dr.Rupinder Singh Saini PW4 Crl. Appeal No.798-SB of 2005 [3] who found four injuries on her person. Injury No.1 was a stab wound which had affected the omentum. Injury No.2 was caused below umbilicus and had also affected the omentum. Injuries No.1 and 2 were declared as grievous.
Counsel for the appellant has submitted that appellant had undergone the entire sentence and has been released from the jail. This Court need not to give detail of all other evidence produced by the prosecution, as testimony of the prosecutrix PW6 and her mother Santosh Kumari PW8 inspire confidence. The prosecutrix stated that accused was known to their family. She further stated that accused was known to their family 3/4 years prior to the occurrence. He had visited their house once or twice earlier to the occurrence. When the accused came, he talked with the family members 10/15 minutes and requested them that he had to stay in the house of the prosecutrix in the night. Santosh Kumari PW8 stated that after she slept in the courtyard, she heard a noise of her daughter who was calling her `Mummi bachao - mummi bachao'. She went inside the room. Accused made an attempt to inflict a knife blow to this witness also.
Dr.Rashmi Bagga PW15 performed gynaecological examination of the prosecutrix. She had taken vaginal swabs, public hair, swabs of blood and labia majora. The doctor in cross-examination also narrated case history as disclosed by the patient-prosecutrix. This witness stated that prosecutrix had told her that she was sexually assaulted.
The appellant has admitted his presence at the spot. In his statement under Section 313 Cr.P.C., he has stated as under:-
"I am innocent. On that day, Monika complainant has seen me with her mother in compromising situation and on seeing this Crl. Appeal No.798-SB of 2005 [4] she picked up a knife and gave me knife blows and thereafter tried to commit suicide by the same knife."
The accused-appellant in defence has examined Shri Pushvinder Singh, Judicial Magistrate Ist Class, Chandigarh who proved statement of the prosecutrix recorded under Section 164 Cr.P.C.
Only argument raised before me is that medical evidence belie the version of the prosecutrix.
PW6 prosecutrix was not confronted with her statement Ex.DB/3 recorded by the Judicial Magistrate. The statement recorded under Section 164 Cr.P.C. is not the substantive piece of evidence. The learned trial Court has rightly held that the prosecutrix was subjected to forcible sexual intercourse which constitutes rape. Before the learned trial Court, much argument was advanced that hymen of the prosecutrix was intact and menstrual blood was coming out of the vagina, therefore, no rape was committed. In the present case, the prosecutrix has specifically stated that prior to the alleged occurrence, she had never performed sexual intercourse. She further stated that act of penetration was complete. Thus, the version of the prosecutrix is corroborated by the medical evidence and the trial Court has rightly held as under:-
"....Merely because labia majora and labia minor were not found injured and the hymen was intact and over and above this the vagina was found admitting only one finger it could not be taken that the prosecutrix was not sexually assaulted by the accused as deposed by her. Existence of human semen in her vagina as detected on vaginal swabs clearly showed that she was subjected to sexual assault on that very day. The Crl. Appeal No.798-SB of 2005 [5] prosecutrix was a virgin aged about 17 years. She had not indulged into sexual activity ever before. In such a situation and in the given circumstances, she must not have been able to make out the extent to which the penis was inserted in vagina. The accused must have taken 10-15 minutes in performing all the activities. In the process he might not have been able to insert the whole of his penis into the vagina. Even if a tip of the penis is penetrated in to the vagina that tantamounts to sexual assault. In the case in hand when the semen was detected on the swabs and in the smear taken out of the vagina immediately after the occurrence it stood proved beyond doubt that the prosecutrix was subjected to sexual assault as deposed by her. ..."
I have perused the record and testimonies of the witnesses. No other argument has been raised before me.
In view of the discussion made above, there is no merit in the present appeal and the same is dismissed.
( KANWALJIT SINGH AHLUWALIA ) February 23, 2010. JUDGE RC