Punjab-Haryana High Court
Raj Kumar vs State Of Haryana on 26 August, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-84-SB-2001 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-84-SB-2001 (O&M)
Date of Decision: August 26, 2013
Raj Kumar
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Veneet Sharma, Advocate,
for the appellant.
Mr. Anupam Sharma, AAG, Haryana,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in this appeal is to the judgment of conviction, dated 8.1.2001, and the order of sentence, dated 9.1.2001, passed by the learned Additional Sessions Judge, Faridabad, whereby the appellant was held guilty for the offences punishable under Sections 376 and 506, IPC, and ordered to undergo the following sentences:
Under Section Sentence (R.I.) Fine (in `) In Default (R.I.) 376, IPC 10 years 2,000/- 6 months 506, IPC 6 months -- --
2. Both the substantive sentences were ordered to run concurrently.
3. Vide order dated 9.10.2012, this Court had called a report from the Juvenile Justice Board with regard to the juvenility of the appellant, Raj Kumar.
Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 2
4. In compliance of the above, report dated 10.1.2013, has been received from the Principal Magistrate, Juvenile Justice Board, Faridabad, holding that the date of birth of the appellant, Raj Kumar, is 4.10.1981. The alleged occurrence had taken place on 3.1.1997. Therefore, the appellant was less than 16 years of age on the date of alleged occurrence.
5. The brief facts of the case are that on 5.1.1997, PW-13 Suresh, father of the prosecutrix, made statement to the police to the effect that on 3.1.1997, the appellant, Raj Kumar, had kidnapped his daughter - PW-11 (name concealed in view of the judgment of Hon'ble the Supreme Court), aged about 10 years, and committed rape on her without her consent when she was all alone at her house. On the basis of the said statement, FIR (Ex. PG/1) was registered and police was set into motion.
6. On 5.1.1997, at about 4.00 p.m., the medico legal examination of the prosecutrix was got conducted from PW-5 Dr. (Mrs.) Shashi Bala, Lady Medical Officer, B.K. Hospital, Faridabad. After his arrest on 7.1.1997, the appellant too was medico legally examined by PW-1 Dr. C. Pal, Medical Officer, B.K. Hospital, Faridabad. The rough site plan of the place of occurrence was prepared. The statements of the witnesses in terms of Section 161, Cr.P.C., were recorded. The clothes of the prosecutrix were sent to the Forensic Science Laboratory and after completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate.
7. Since the offence punishable under Section 376, IPC, was Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 3 exclusively triable by the Court of Session, therefore, the case was committed to the Sessions Court.
8. After hearing counsel for the parties and finding a prima facie case, charges for the offences punishable under Sections 376 and 506, IPC, were framed against the accused to which he pleaded not guilty and claimed trial.
9. In order to substantiate its allegations, the prosecution examined the following witnesses:
PW-1 Dr. C. Pal, Medical Officer, B.K. Hospital, Faridabad. PW-2 Mrs. Ishwar Sharma, Headmistress, Government Primary School, Bhatola, Tehsil and District, Faridabad.
PW-3 HC Ved Parkash.
PW-4 Constable Manoj Kumar, Draftsman.
PW-5 Dr. (Mrs.) Shashi Bala, Lady Medical Officer, B.K.
Hospital, Faridabad.
PW-6 Constable Om Parkash.
PW-7 SI Vishnu Dutt.
PW-8 SI Puran Chand.
PW-9 ASI Ranbir Singh.
PW-10 MHC Ram Kumar.
PW-11 Prosecutrix.
PW-12 Smt. Kanti, mother of the prosecutrix. PW-13 Suresh, complainant and father of the prosecutrix. PW-14 SI Davender Singh.
10. After completion of the evidence of the prosecution, the Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 4 statement of the appellant in terms of Section 313, Cr.P.C., was recorded wherein he pleaded innocence. However, he stated that one Ajit Aheria, his neighbour, had enticed away Shakuntla, wife of Parkash. The family of the prosecutrix used to reside in the fields of Ajit Aheria. That his father had helped Shakuntla and Parkash, therefore, Ajit Aheria nourished a grudge against him (appellant) and, thus, he has been falsely implicated in the present case at the instance of Ajit Aheria.
11. The appellant examined DW-1 Siri Chand and tendered few documents in his defence.
12. Learned counsel for the appellant submitted that even if the whole case of the prosecution is taken at its face value, then also it would a case attracting the michiefs of Sections 354 and 506, IPC, only. Having referred to the statement of the prosecutrix, recorded in terms of Section 161, Cr.P.C.; her deposition before the Court as PW-11; deposition of PW-5 Dr. (Mrs.) Shashi Bala, who medico legally examined the prosecutrix; statement of PW-13 Suresh, father of the prosecutrix; and the report (Ex. PJ) of the Chemical Examiner, learned counsel for the appellant submitted that from the above material, it has not come on record that, in fact, there was an attempt or actual sexual intercourse with the prosecutrix by the appellant. While referring to the statement of PW-5 Dr. (Mrs.) Shashi Bala, he submitted that the said witness very categorically admitted in her cross- examination that in her opinion neither any sexual intercourse took place nor was any mark of injury on the body of prosecutrix found. He has also referred to the examination-in-chief of PW-5 Dr. (Mrs.) Shashi Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 5 Bala, where she stated that there was no injury, no discharge, no redness of genetalia, no tenderness, hymen margins were normal, and posterior fourchette was intact. He has also referred to the statement (Ex. DA) of the prosecutrix wherein the offences mentioned by the police are Sections 376, 506 and 511, IPC. He has also referred to the contents of the said statement wherein it has been mentioned that day before she was all alone at her house. Raj Kumar son of Siri Chand, resident of Bhatola, came to her house and after shutting her mouth, placed her on the cot and thereafter took her on the roof where she was made to lie on the ground and after putting off her Salwar and his own pant, started doing bad work, but she raised noise and he ran away after leaving her there. While referring to the First Information Report (Ex. PG/1) where the offences were mentioned as Sections 376 and 506, IPC, he has also referred to the rough site plan (Ex. PH) prepared on 5.1.1997, where the Sections are mentioned as 376/511 and 506, IPC. He has also referred to the report under Section 173, Cr.P.C. (Ex. D1) wherein also the Sections are mentioned as 376/511 and 506, IPC. On the strength of the above, he submitted that at best it would a case attracting the mischief of Section 354, IPC, only. In support of his contentions, he has placed reliance on the judgments of Hon'ble the Supreme Court delivered in the cases of Aman Kumar and another v. State of Haryana, 2004 (1) R.C.R. (Criminal) 925; and Tarkeshwar Sahu v. State of Bihar, 2006 (4) R.C.R. (Criminal) 603. He further submitted that the appellant has since been declared as juvenile, therefore, he be released keeping in view the period of incarceration of more than 8 months, already suffered by him. Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 6
13. Learned counsel for the State very fairly concedes that the Principal Magistrate, Juvenile Justice Board, Faridabad, has held that the date of birth of the appellant is 4.10.1981 and the occurrence had taken place on 3.1.1997, therefore, the appellant was a juvenile on the date of occurrence, being less than 16 years of age. However, he has controverted the arguments raised by the learned counsel for the appellant that no case for the offence punishable under Section 376, IPC, was made out against the appellant.
14. I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
15. The deposition of PW5 Dr. (Mrs.) Shashi Bala, is reproduced as under:-
" On 5.1.97 at 11.15 A.M. I medically examined ...... (name omitted) d/o Suresh, aged 10 years, female, r/o V. Bhatola, Distt. Faridabad and observed as under:
Her breasts were not well developed. Auxillary and pubic hair were not developed. No history of menarche. There was no sign of struggle on her body. External genetalia was normal. There was no injury, no discharge, no redness of genetalia, no tenderness. Hymen margins were normal. Posterior fourchette was intact. No vaginal swab was taken. Her Salwar and Kamiz were sealed in a packet for semen examination in a parcel bearing three seals and was handed over to police alongwith sample seal, duly signed by me, MLR copy and police request copy. In my opinion, no sexual intercourse had taken place in this case. The child had no injury on her body. My report is Ex. PE. It bears my signatures and is in my hand.
Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 7 XXXXXX by Sh. R.S. Tanwar, Adv. for accused.
It is my confirm opinion that neither any sexual intercourse took place nor was any mark of injury on her body."
16. In her statement (Ex. DA) recorded on 5.1.1997, in terms of Section 161, Cr.P.C., the prosecutrix had stated that after seeing her all alone in the house, the appellant came there and put her on a cot and also slept there with her and thereafter took her to the roof and placed her on the ground and after removing his pant and her Salwar started doing the bad work, but when she made noise, then the appellant ran way from there.
17. From the perusal of the statement of PW-5, Dr. Shashi Bala, it is very much clear that no sexual intercourse had taken place with the prosecutrix. Even the report (Ex. PJ) received from the Forensic Science Laboratory, Haryana, Madhuban (Karnal), revealed that no semen was detected on the Salwar, ladies shirt and underwear. While discussing the report of the Forensic Science Laboratory and the medical evidence, this Court is conscious of the fact that discharge of semen is not an essential constituent for holding a person guilty for the offence punishable under Section 376, IPC, because according to Section 375, IPC, the offence of rape is complete with mere penetration of the male organ. However, in the case in hand, the medical evidence completely rule out the penetration. Even the investigating agency was in suspicion with regard to the commission of the offence punishable under Section 376, IPC, therefore, in the initial documents prepared by the police, Section 376 read with Section 511, Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 8 IPC, would not have appeared .
18. In the case of Tarkeshwar Sahu (supra), Hon'ble the Supreme Court held that where there was no penetration, there could be no rape. The facts of the said case were that the accused of the said case had forcibly taken the prosecutrix, aged about 12 years, to a Gumti and asked her to lie down with intention to commit rape on her. The accused could not succeed as some persons came there on hearing the screams raised by the prosecutrix. The conviction of the accused for the offence punishable under Section 376, IPC, was set aside and instead he was convicted for the offences punishable under Sections 366 and 354, IPC.
19. In the case of Aman Kumar (supra), Hon'ble the Supreme Court held that there was no evidence of penetration. The accused laid holding the prosecutrix, but there was no evidence that he determined to have sexual intercourse at all events despite resistance. The conviction of the accused was converted to Section 354, IPC, from Section 376 read with Section 511 IPC.
20. Keeping in view the totality of the facts and circumstances of the case, particularly the initial statement of the prosecutrix and the deposition of PW-5 Dr. (Mrs.) Shashi Bala, this Court is of the firm view that no sexual intercourse had taken place on PW-11. Therefore, the conviction of the appellant for the offence punishable under Section 376, IPC, is set aside and he is acquitted of the said charge. However, from the deposition of the prosecutrix and other material available on record, it has fully been proved that the appellant had outraged the modesty of PW-11/prosecutrix, therefore, the appellant is liable to be Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 9 held guilty for the offence punishable under Section 354, IPC. It is settled law that if the accused is charged for a graver offence and from the material available on record, lesser offence is made out, then he can be held guilty for the latter offence. There is no gainsaying that the offence punishable under Section 354, IPC, is a lesser offence of Section 376, IPC. Therefore, the appellant is held guilty for commission of the offence punishable under Section 354, IPC. From the material available on record, it is very much proved that the appellant while outraging the modesty of PW-11/prosecutrix also intimidated her. Therefore, his conviction under Section 506, IPC, is also upheld.
21. In the year 1997, the maximum sentence for the offence punishable under Section 354, IPC, was imprisonment for two years, or with fine, or with both. The appellant has been held to be juvenile on the date of occurrence. He has faced the agony of trial and appeal for approximately 16 years. He remained on bail during the said period, but did not misuse the said concession. According to the affidavit of the Superintendent, District Jail, Rohtak, produced by the learned counsel for the State, the appellant has suffered incarceration for actual sentence of 7 months and 6 days. Therefore, the substantive sentences of the appellant for the offences punishable under Sections 354 and 506, IPC, is reduced to the period already undergone by him.
22. In the facts and circumstances of the case, it is deemed appropriate that compensation should be awarded to the prosecutrix. Learned counsel for the appellant has agreed that the appellant shall pay `1,00,000/- as compensation to PW-11/prosecutrix.
23. In view of the said statement, the appellant is directed to Kapoor Prashant 2013.09.05 10:38 I attest to the accuracy of this order CRA-S-84-SB-2001 (O&M) 10 deposit `1,00,000/- in the Court of learned Chief Judicial Magistrate, Faridabad, within one month of passing of this judgment, otherwise the appellant shall suffer rigorous imprisonment for two years as enshrined in Section 354, IPC.
24. On deposit of the amount of compensation, learned Chief Judicial Magistrate, Faridabad, shall summon PW-13 Suresh, complainant/father of the prosecutrix, to call the prosecutrix to receive the amount of compensation. This course has been adopted in view of the fact that the marriage of the prosecutrix might have been solemnized and she might be residing at a different place.
25. The order of fine imposed by the learned Trial Court for the offence punishable under Section 376, IPC, shall be termed as fine imposed under Section 354, IPC.
26. With the above modifications, the present appeal is partly allowed.
(NARESH KUMAR SANGHI)
August 26, 2013 JUDGE
Pkapoor
Kapoor Prashant
2013.09.05 10:38
I attest to the accuracy
of this order