Punjab-Haryana High Court
Samitri vs State Of Hayana on 15 February, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.1088-SB of 1998
Date of decision: February 15, 2010
Samitri
.. Appellant
Vs.
State of Hayana
.. Respondent
Criminal Appeal No.14-SB of 1999 Ishwar Singh .. Appellant Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sudhir Mittal, Advocate for the appellant in Crl. Appeal No.1088-SB of 1998.
Mr. N.D. Achint, Advocate for the appellant in Crl. Appeal No.14-SB of 1999 Mr. Rajiv Malhotra, Addl. A.G. Haryana for the respondent.
A.N. Jindal, J This judgment of mine shall dispose of two connected appeal Nos. 1088-SB of 1998 and Crl. Appeal No.14-SB of 1999, filed by Samitri and Ishwar Singh respectively against the judgment dated 11.12.1998 passed by the learned Additional Sessions Judge, Hisar, convicting and sentencing them as under :-
Ishwar Singh U/s 376 IPC : To undergo rigorous imprisonment for seven years and to pay fine of Rs.2000/-.
Samitri @ Savitri U/s 376/109 IPC : To undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/-.
Criminal Appeal No.1088-SB of 1998 & Criminal Appeal No.14-SB of 1999 -2- The prosecutrix (name not disclosed) in this case is an unmarried, 17 years old mentally retarded and physically challenged girl suffering from paralysis of right part of her body. On 7.10.1995, at about 3.00 p.m. she alone was present in her house whereas other members of her family had gone for their work. Samitri @ Savitri also known as Bholi came to her and took her to the house of Ishwar. After leaving her in his room she bolted the door from outside. Accused Ishwar threw her on the chatai/bed sheet lying on the floor and raped her. Accused Samitri @ Savitri remained outside the room and opened the door at the instance of the accused Ishwar. After reaching the house, the prosecutrix narrated the occurrence to her mother who had arrived by that time. They kept waiting for Amar Singh father of the prosecutrix who arrived at the house at 7.00 p.m. He was explained about the incident and then he summoned Samitri and her husband but none of them turned up. Panchayat of fraternity was also convened. At about 11.30 p.m. the prosecutrix was taken to the Government Hospital at Hansi, but they referred her to report the matter to the police. When the prosecutrix along with her father Amar Singh was going to report the matter to the police, Yad Ram ASI met them on the way where her statement Ex.PB was recorded, on the basis of which formal FIR Ex.PB/1 was recorded by Chander Bhan ASI. Yad Ram ASI took up the investigation, got the prosecutrix medico-legally examined on 8.10.1995, prepared the scaled site plan Ex.PH of the place of occurrence and also took into possession jamper, salwar and under wear of the prosecutrix into possession vide memo Ex.PJ. The accused was arrested on 8.10.1995. His under wear was also taken into possession vide memo Ex.PK. Statement of the witnesses were recorded. On completion of the investigation challan was presented against the accused.
On finding a prima facie case against the accused, they were charged for the offences under Section 376/109 IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges the prosecution examined eight witnesses. Dr. Telu Ram (PW1) had examined Ishwar Singh and found that there was nothing to suggest if he was unfit to perform sexual intercourse. He proved his report Ex.PA. ASI Chander Bhan (PW2) after Criminal Appeal No.1088-SB of 1998 & Criminal Appeal No.14-SB of 1999 -3- receiving the statement of the prosecutrix Ex.PB from ASI Yad Ram recorded formal FIR Ex.PB/1. HC Puran Mal (PW3) tendered his affidavit Ex.PC and C. Raj Pal (PW4) tendered his affidavit Ex.PD in evidence. Dr. Urmil Dattarwal (PW5) had examined the prosecutrix on 8.10.1995 and observed that she was mentally retarded and handicapped from right side of her body. She detected no marks of violence on any part of her body and further stated that her clothes including salwar were stained with blood. Underwear was torn at many places. A tear on the posterior vaginal wall of the size of 1.5 cm x 2.1 cm extending up to mueosal layer was found. Bleeding from the tear was present and it was painful. Secondary sexual characters were found in developing stage. Pubic hair were well developed and some pubic hair were removed and vaginal swabs were taken for chemical examination. As per report Ex.PX human semen was found on salwar Ex.P1, human blood was found over the swabs and salwar, shirt and underwear of the prosecutrix. She, in view of the aforesaid facts, opined that the prosecutrix was subjected to sexual intercourse. Prosecutrix (PW6) reiterated the entire version with regard to taking her by the accused Samitri @ Savitri and raping by the accused Ishwar. Shamsher Singh (PW7) Draftsman proved the site plan of the place of occurrence Ex.PG. ASI Yad Ram Investigating Officer (PW8) proved the investigation. After tendering into evidence report of the Forensic Science Laboratory Ex.PX and Ex.PX/1 prosecution closed the evidence.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication. However, Samitri @ Savitri @ Bholi further explained that there was quarrel among the children and because of that enmity the complainant had raised false allegations against her. Similarly, Ishwar Singh stated that there was a dispute regarding street falling between his house and the house of the prosecutrix and because of that enmity he has been falsely implicated.
In defence, Som Nath son of Shiv Dayal was produced as DW- 1 who stated that there was a dispute regarding water of the street between Amar Singh and Ishwar Singh which took place in July, 1995 regarding which Panchayat was also convened who held Amar Singh guilty, therefore, Criminal Appeal No.1088-SB of 1998 & Criminal Appeal No.14-SB of 1999 -4- he threatened the accused with dire consequences.
The trial ended in conviction.
Arguments heard. Record perused.
There are two charges against both the accused. The charge against Ishwar is with regard to raping the prosecutrix, whereas, charge against Samitri @ Savitri is with regard to abatement of rape. Both the charges to my mind appear to be proved by ample oral as well as medical evidence. In the case of heinous crime of abduction and ravishment of the minor mentally and physically challenged girls, the court should not expect the prosecution to discharge the onus with so much certainty or vehemence as in the other cases. These victims already suffering from the disease and deformity are helpless and cannot produce or remonstrate their objection and denial by showing such resistance as their body is not in a position to display the same. Even the mentally retarded girls some times do not understand the meaning, nature and consequences of the offence. In case of such victims the statements of the witnesses, if any, the testimony of the prosecutrix as well as the medical evidence plays a great role. Here in this case, the prosecutrix is stated to be mentally retarded as well as physically challenged. While getting undue benefit of her helplessness, the accused Samitri @ Savitri took the prosecutrix to the accused Ishwar's house with an intention that she may be raped by him and immediately she was released by the accused after rape, she came to her house and informed her mother as she had arrived by that time. Her testimony speaks to the volumes of her truthfulness. She has withstood the test of cross examination and is proved to be credible and reliable qua what she spoke against the accused. It is also often seen that in case of rural woman folk, after wait for their husbands and proceed only after taking them into confidence. Same thing happened in the presence case. Occurrence took place at 3.00 p.m. and Amar Singh arrived at 7.00 p.m, thereafter they went to the hospital but were sent back to examine her medically only after the FIR is registered. On account of the circumstances as explained above, no substantial delay could be said to have occurred in lodging the FIR.
I also do not agree with the contention of the learned counsel for the appellants that medical evidence is in-consistent with the ocular Criminal Appeal No.1088-SB of 1998 & Criminal Appeal No.14-SB of 1999 -5- version. It may be that no injury was found on her person despite the fact that the prosecutrix stated that some teeth bites were given on her cheek and she received some abrasion on her back. In this regard, it may be observed that occurrence took place on 7.10.1995 at 3.00 p.m., whereas, she was medico-legally examined at 9.15 a.m. On 8.10.1995, therefore, the teeth bite or abrasion on the back may have vanished with the passage of time or on account of the fact that bed sheet was spread over the floor.
With regard to some contradictions in the statement of the prosecutrix, it may be observed that the prosecutrix being mentally retarded girl she could not be expected to give statement with so mathematical calculation at par with the other witnesses. As such, the aforesaid minor discrepancies with regard to medical evidence as well as factual situation could be ignored in the background of the present case.
The contention with regard to the fact that the occurrence took place in the densely populated area and the police did not find the blood on the floor and the bed sheet also could not attract the blood lacks substance as it has come in evidence that the occurrence took place in the mid of the day when the people of the locality were away at their work place. Even the parents of the prosecutrix were not at home. The prosecutrix was left in the room of the accused Ishwar and Samitri @ Savitri bolted the door from outside, therefore, in all probable circumstances, no witness could be said to be present at that time. It is also well settled by now that there is no hard and fast rule that the conviction could not be based on the solitary statement of the prosecutrix for the reasons that the prosecutrix cannot be treated at par with the accomplice. No evil designs, mischief or after thought versions could be expected from the mentally retarded girl and the question of deposing falsely by such witnesses cannot be imagined. Even if, there was some annoyance between Amar Singh and the accused Ishwar, then he would not have put his daughter's reputation in particular and family's reputation at stake while sacrificing his daughter to have vengeance. It is not that type of enmity which could be taken at the cost of his own daughter. It has also been observed in case Yash Pal vs. State of Haryana, 1998 (1) RCR (Criminal) 411 that the sole statement of the prosecutrix if found to be convincing, reliable and satisfactory, then no further corroboration is Criminal Appeal No.1088-SB of 1998 & Criminal Appeal No.14-SB of 1999 -6- required. Similar observations were made in case Rajinder vs. State of Haryana, 1998 (3) RCR (Criminal) 543.
As such, in the given circumstances of the case, testimony of the prosecutrix being corroborated by the medical as well as oral evidence could be treated as sufficient to hold the guilt of the accused.
On the other hand no plausible defence has been led by the accused to prove their innocence.
As a sequel of the above discussion, this court reaches the irresistible conclusion that Ishwar while getting undue benefit of the helplessness of the prosecutrix called her through accused Samitri @ Savitri @ Bholi who induced her to take her to his room on the pretext of doing some work, where, she after leaving her in the room bolted the same from outside. As such, the offence against both the accused stand established.
Resultantly, finding no merit in the appeals, the same are dismissed.
February 15, 2010 (A.N. Jindal) deepak Judge