Punjab-Haryana High Court
Krishan vs State Of Haryana on 1 October, 2014
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA-S-1239-SB-2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1239-SB-2012
Date of Decision : 01.10.2014
Krishan
.......Appellant
Versus
State of Haryana
.......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Sanjeev Kumar Panwar, Advocate,
for the appellant.
Mr. Shekher Moudgil, AAG, Haryana.
****
JITENDRA CHAUHAN, J.
The present criminal appeal assails the judgment and order dated 19/22.03.2012, passed by the Additional Sessions Judge, Faridabad, (hereinafter as 'the trial Court'), convicting the accused- appellant for committing offence under Sections 363, 376 read with Section 511 of the Indian Penal Code (for short, 'the IPC') and Sections 3(iii) and 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the SC&ST Act'). He has been sentenced as under:-
ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -2-
Under Section 363 IPC To undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/-. In default of payment of fine, to further undergo rigorous imprisonment for a period of four months Under Section 376 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months.
Under Section 3(iii) To undergo rigorous
SC&ST Act imprisonment for a period of
two years and to pay a fine of
Rs.2,000/-. In default of
payment of fine, to further
undergo rigorous
imprisonment for four months.
Under Section 3(xi) To undergo rigorous
SC&ST Act imprisonment for a period of
two years and to pay a fine of
Rs.2,000/-. In default of
payment of fine, to further
undergo rigorous
imprisonment for a period of
four months
However, all the sentences were ordered to run concurrently. The brief facts of the case in hand, as recorded by the learned trial Court in the opinion paragraph of the impugned judgment, are reproduced as under:-
"2. The present case was registered on the complaint of Chaman. According to the complainant, ATUL SETHI he 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -3- has two daughters aged about 18 years and 6 years respectively. On 15.11.2010, at about 5.30 P.M., his younger daughter was playing in front of his house. Prem wife of Shiv Lal, Rajesh son of Phool Chand and Devener son of Bahadur Singh had seen Krishan, accused, enticing his daughter in a Tempo. The said persons thought that the girl was swinging in the Tempo and the accused would drop her after sometime. But the accused, forcibly , took her in fields behind Cremation Ground near village Bhainsrawali and there the accused gave beatings to her and consumed liquor and then after removing her clothes, tried to commit rape upon her. He also threatened to kill her. On finding chance, she came on road where a milkman came on motorcycle and on seeing him, the accused and his associates fled away. The milkman brought her in his house. There were injury marks by teeth on her face and back and her clothes and hair were smeared with mud. The case was registered. Spot was inspected and site plan was prepared. The prosecutrix was got medico legally examined. Statements of witnesses were recorded. The accused was arrested and on completion of investigation, challan against the accused was presented in court, for trial." ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -4-
Charges under Sections 363, 376/511 IPC and Sections 3(iii) and 3(xi) of the SC&ST Act, were framed against the accused- appellant to which, he pleaded not guilty and claimed trial.
In order to substantiate the charges against the accused, the prosecution examined the following witnesses:-
PW1-ASI Raj Kumar, deposed about the receipt of complaint from the complainant on the basis of which, formal FIR, Ex.PA/1, was registered. The prosecutrix as well as the accused, subsequent to his arrest, were got medico-legally examined at PHC Tiagaon;
PW2-MHC Man Singh, tendered into evidence his affidavit Ex.PW2/A, regarding the deposit of the case property in the malkhana, and sending the same to FSL Madhuban, through Conatable Basant Kumar, vide RC No.174 dated 2.12.2010; PW3-Dr. Vikas Sharma, medico-legally examined the accused-appellant on 15.11.2010. He proved carbon copy of MLR Ex.PG. He has also noticed that the accused had consumed alcohol and was seen under its effect;
PW4-Netarpal, the milk vendor who allegedly ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -5- brought the prosecutrix to her home, was declared hostile and during his cross-examination, he denied giving statement, Ex.PD, to the police; PW5-Dr. Rachna Mishra medico-legally examined the prosecutrix and found as under:-
1. Very mild bleeding was present from her vagina. Hymen was absent.
Vagina was reddish in colour. Patient was complaining of severe pain.
Sample of vagina-vaginal swab was
taken. Patient was not co-operative
and was very frightened.
Undergarment was also taken and
sealed.
2. Patient was complainant of pain on left cheek. Very mild swelling was present.
3. Bruise marks was seen on right thigh and on the right calf muscle.
4. Bruise marks was seen on the left thigh.
5. Mild swelling was present on the lower lip inner side. No fresh blood was oozing out.
She opined that the possibility of rape having been committed upon the prosecutrix cannot be ruled out;
PW6-Indraj Singh, EHC deposed that on ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -6- 15.11.2010, MHC handed over to him special report, which was delivered to learned Illaqa Magistrate, Commissioner of Police, DCP and ACP, Faridabad;
PW7-Chaman Singh, the complainant, reiterated the allegations made in the complainant;
PW8-ACP Naveen Kumar, deposed about the investigation carried out by him;
PW9-Sarwan Kumar, Draftsman, prepared the scaled site plan, Ex.PL;
PW10-Constable Basant Kumar, is a formal witness who tendered in evidence his affidavit Ex.PW10/A;
PW11-Smt. Neena Sharma, Advocate, deposed regarding recording of statement of the prosecutrix, Ex.PM, by the Investigating Officer, in her presence;
PW12-Inspector Nand Ram, deposed regarding preparation of report under Section 173 Cr.P.C.; PW13-Maya, the mother of the prosecutrix, did not support the case of the prosecution and was declared hostile. She also denied having given statement, Ex.PN, to the police;
ATUL SETHI2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -7- PW-14, the prosecutrix, would not be examined having been found incompetent therefor;
PW15-Rajesh, PW16-Premwati and PW17- Devender also did not support the prosecution version and were declared hostile. They also denied giving statements, Ex.PP, Ex.PQ and Ex.PR, respectively, to the police.
In his statement under Section 313 Cr.P.C., the accused- appellant denied all the allegations of the prosecution case and pleaded false implication. In defence, he examined Shri Dinesh Adhana, Advocate, District Court, Faridabad, as DW1, who deposed that on 09.12.2011, Chaman Singh, the complainant came to him and he identified Chaman Singh at point A of affidavit Ex.DX. Accused- appellant also placed on record mark A i.e. copy of the compromise that took place between his father Mahender and SI Lekh Ram and Sarpanch Pratap and others.
The learned trial Court, after hearing both the parties, convicted and sentenced the accused-appellant as indicated at the outset of this judgment. Hence the present appeal, which was admitted by this Court on 04.04.2012.
The learned counsel for the appellant contends that material prosecution witnesses have not supported the case of the prosecution. ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -8- PW4, Netar Pal, who is alleged to have met the prosecutrix after the occurrence and brought her back to the village, denied having any knowledge of this case. He further states that PW13, Maya, the mother of the prosecutrix, PW15-Rajesh, PW16-Premwati, and PW17-Devender, also did not support the case of the prosecution. The prosecutrix was held incompetent to depose before the Court.
It is further contended that the prosecution story is falsified on the ground that only the appellant has been made accused in the present case, whereas, it has been alleged in the complaint that after committing the crime, the accused and his associates ran away from the spot. No effort has been made by the prosecution to establish the identity of the other alleged associates of the appellant.
The learned counsel further refers to the testimony of PW3, Vikas Sharma, who medico-legally examined the accused-appellant. This witness specifically stated that he handed over the underwear of the appellant after examining him. However, when the sealed parcel containing a blue underwear was opened in the Court, he categorically stated that it was not the same underwear of the appellant which he handed over to the police. No DNA report was sought by the prosecution for the reasons best known to it.
The learned counsel lastly contends that the appellant has been falsely implicated in the present case on account of the enmity between Mahender (the father of the appellant) and Ex Sarpanch, Partap Singh, under whom the complainant is working. ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -9-
On the other hand, the learned State counsel argued that the prosecution has proved its case against the accused-appellant beyond reasonable doubt. The evidence of Dr. Rachna Mishra, PW5, is sufficient to prove that the prosecutrix was subjected to sexual assault by the appellant. The complainant has fully supported the case of the prosecution.
I have heard the learned counsel for the parties and perused the record.
In the instant case, the occurrence took place at around 5.30 p.m. on 15.11.2010. Immediately thereafter, the complainant along with other witnesses reached the Police Station and made the statement, Ex.PH. The prosecutrix was taken to the hospital. The FIR came to be registered at 7.30 p.m. Thus, there is no delay, whatsoever, in lodging of the FIR.
As far as the argument with regard to the false implication of the appellant is concerned, during his examination under Section 313 Cr.P.C., the appellant pleaded that he has been falsely implicated in this case by the complainant at the asking of his employer, Pratap, Ex. Sarpanch, who had enmity with the family of the appellant. However, there is no record to support this assertion and it is hard to believe that a father, at the asking of his employer, would put the honour of his minor daughter at stake. Furthermore, in the FIR and in the deposition of the complainant, he has only alleged that the appellant tried to commit rape upon her, which further falsifies the claim of the ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -10- appellant of false implication. The complainant could have easily stated that the the appellant had committed rape upon the prosecutrix.
The most important piece of the evidence in this case is the testimony of PW5, Dr. Rachna Mishra, who medically examined the prosecutrix, and PW3, Dr. Vikas Sharma, who medically examined the appellant. Dr. Rachna Mishra, PW5, has stated that on 15.11.2010, at 9.05 PM, on the police request, Ex.PB, she medico- legally examined the prosecutrix. At that time the prosecutrix was conscious and a mild bleeding from her vagina was present. Hymen was absent. Vagina was reddish in colour. She was complaining of a severe pain. She was noticed to be not co-operative and was very frightened. The prosecutrix was also complaining of pain on left cheek. A mild swelling was present. Bruise marks were also noticed on right thigh, right calf muscle and left thigh. Mild swelling was also present on the lower lip from inner side. This witness opined that the possibility of rape cannot be ruled out. On seeking the FSL report, Ex.PF, she further deposed that human semen was detected on Ex.P1 and Ex.P2, the underwear of the prosecutrix as well as of the appellant. Dr. Vikas Sharma, who appeared as PW3, deposed that on 15.11.2010, on the police request Ex.PD, he medicolegally examined the appellant and observed as under:-
"Accused was well developed male of 23 years as told by him and police. General organs of the accused were well developed there is no ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -11- evidence of any disease. No history given of any venereal disease. Patient had consumed alcohol and was seen under its effect. He opined that there was nothing to suggest that the appellant was not capable of performing sexual intercourse."
While appearing as PW-7, the complainant, Chaman Singh has fully supported the prosecution version. He has categorically deposed as under:-
"I am schedule caste. I have two daughters. My elder daughter Suman is aged about 20/21 years. Name of my daughter is Rinki and she is aged about 6 years. On 15.11.10, I came back from my work at about 6 pm and came to know that Krishan son of Mahender had taken my daughter Rinki in a tempo. Today Krishan is present in court. Netrapal Dudiya (milk vendor) brought my daughter from village Tigaon.
Netarpal told me that he found Rinki near the canal. Thereafter we went to police station and lodged the report Ex.PH which bears my signature. Thereafter Rinki was taken to hospital for medical examination. There was mud on her head and injury marks on her chest, back and face. The ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh CRA-S-1239-SB-2012 -12- complained of pain on her body. Krishin is responsible for such condition of my daughter. After the medical examination, I was informed that rape was committed with my daughter."
The other limb of the argument with regard to the material prosecution witnesses turning hostile also pales into insignificance as the prosecution has successfully proved its case against the appellant beyond a shadow of reasonable doubt, as the complainant has fully supported the prosecution case. The medical evidence on record supports the ocular version. The FIR was registered promptly.
In view of the above discussion, the present appeal is dismissed.
( JITENDRA CHAUHAN ) 01.10.2014 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No ATUL SETHI 2014.11.17 17:11 I attest to the accuracy and authenticity of this document Chandigarh