Punjab-Haryana High Court
Arshad vs State Of Haryana on 12 November, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal S-1152-SB of 2002
Date of Decision : November 12, 2010
Arshad
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Rahul Vats, Advocate
Mr. Ravish Kaushik, Assistant Advocate General, Haryana
T.P.S. MANN, J. (Oral)
This appeal is directed against the judgment of conviction dated 12.6.2002 and order of sentence dated 15.6.2002 passed by Additional Sessions Judge, Gurgaon, whereby the appellant was convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months.
According to the prosecution, on 20.4.2001 at about 9.30/10.00 p.m., the prosecutrix, who was aged 16 years and a student of 5th standard, was sleeping in the Poli whereas her bhabi Birmati was sleeping in the room. The remaining members of her family had gone to hear the preachings of Arya Samaj in the village. While the prosecutrix Crl. Appeal S-1152-SB of 2002 -2- was sleeping, some one picked her up. In her sleep, she thought that her mother was picking her up to make her sleep at some other place. However, when the cord of her salwar was opened, she woke up and saw that it was the appellant, who was committing rape upon her. She started crying and on hearing the same, her mother and bhabi besides other inhabitants of the village reached there. The appellant managed to push aside the mother and bhabi of the prosecutrix and ran away from the spot.
On the basis of the statement made by the prosecutrix before the police, FIR No. 38 dated 21.4.2001 under Section 376 IPC was registered at Police Station Nagina against the appellant. During investigation of the case, the statements of the witnesses were recorded. The prosecutrix was got medico legally examined. The appellant was arrested and also subjected to medical examination. Upon completion of investigation and presentation of challan followed by commitment of the case, the appellant was charged for an offence under Section 376 IPC to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as fifteen witnesses, namely, PW1 the prosecutrix herself, PW2 Birmati, PW3 Premwati, PW4 Daya Chand, PW5 Dr. G.R.Anand, PW6 Dr.B.B.Aggarwal, PW7 Sarwan Kumar, Draftsman, PW8 ASI Ram Kishan, PW9 Dr. Santosh Jain, PW10 HC Jai Singh, PW11 HC Bir Singh, PW12 Constable Virender Singh, PW13 HC Manohar Lal, PW14 Crl. Appeal S-1152-SB of 2002 -3- ASI Dharam Pal and PW15 Siri Ram.
The plea of the appellant during his examination under Section 313 Cr.P.C. was of denial and false implication. In defence, he examined DW1 Israil and DW2 Raghbir Singh.
The trial Court believed the prosecution case and convicted and sentenced the appellant, as mentioned above.
I have heard learned counsel for the parties and perused the evidence with their able assistance.
At the time of lodging of the FIR, the prosecutrix had stated that she was 16 years of age and had passed 5th class. The said age was mentioned by PW9 Dr. Santosh Jain in the MLR Ex.PG in respect of the prosecutrix pursuant to her medical examination on 21.4.2001 at 3.30 p.m. During investigation of the case, the prosecution collected the record from Government Primary School, Gohana of which the prosecutrix was a student, to the effect that the date of birth of the prosecutrix mentioned therein was 10.3.1987 and, therefore, on the date of occurrence, i.e. 20.4.2001, the prosecutrix was 14 years of age. When the prosecutrix appeared before the trial Court as PW1, she stated her age as 14-15 years. She was confronted with her statement made to the police wherein she had not mentioned her age as 14-15 years. She denied the suggestion that she had given her age to the doctor as 16 years. PW2 Birmati, bhabi of the prosecutrix, did not state about the Crl. Appeal S-1152-SB of 2002 -4- age of the prosecutrix. However, PW3 Premwati, mother of the prosecutrix, deposed that the prosecutrix was aged about 15 years. PW9 Dr.Santosh Jain after conducting medico-legal examination of the prosecutrix had referred her to Government Hospital, Gurgaon for age verification. Pursuant to the same, PW6 Dr. B.B.Aggarwal conducted X-ray examination of the prosecutrix and gave his report Ex.PC as per which the radiological age of the prosecutrix was between 16 to 17 years. In cross-examination, he deposed that there could be variation of two years in the age of the prosecutrix on either side in case the radiological data was exclusively taken into account.
It has appeared in the statement of PW1, the prosecutrix, that her date of birth was entered in the register of Chowkidar of the village. However, the prosecution did not take any steps to produce the register of the Chowkidar to show that the prosecutrix was less than 16 years of age on the date of the occurrence. Though in the record pertaining to the Government Primary School, Gohana, the date of birth of the prosecutrix was mentioned as 10.3.1987 yet PW15 Siri Ram, teacher of the said school, during his cross-examination stated that no birth certificate was attached with the admission form nor also any affidavit or any other proof regarding the date of birth of the prosecutrix. Under these circumstances, it cannot be said that the date of birth of the prosecutrix recorded in the school record as 10.3.1987 was correct. There is a general tendency with the parents to mention Crl. Appeal S-1152-SB of 2002 -5- less age of their wards while getting them admitted in the schools. Therefore, no implicit reliance can be placed upon the date of birth of the prosecutrix as mentioned in the school record.
In view of the above, the radiological examination of the prosecutrix assumes significance as per which the prosecutrix was 16 to 17 years of age on 4.5.2001 when she was subjected to X-ray examination. Therefore, it is held that the prosecution has failed to establish that the prosecutrix was less than 16 years of age on the date of the occurrence.
As regards the commission of rape by the appellant upon the prosecutrix, the prosecution examined PW9 Dr. Santosh Jain, who had medico legally examined the prosecutrix on 21.4.2001 at 3.30 p.m. The observations made by PW9 Dr. Santosh Jain were as under:-
"Face examination- No external injury was seen.
Chest and abdomen examination- No external injury was seen.
Breast normally present.
Vaginal examination: External examination- Pubic hair were present normally. No spot of semen was present on the pubic hair. Labia majora and minora present normally. No injury was seen on the majora and minora.
Internal examination:- P/V examination-two fingers tight entered into the vaginal orifice. No discharge, no Crl. Appeal S-1152-SB of 2002 -6- bleeding was present. Vaginal swab taken from vaginal orifice and surrounding area."
After seeing the FSL report Ex.PF and also the medico- legal report Ex.PG, PW9 Dr. Santosh Jain deposed in her examination- in-chief that there was no possibility of any sexual assault on the prosecutrix. Under these circumstances, it cannot be said that the appellant had sexual intercourse with the prosecutrix. Therefore, the conviction under Section 376 IPC cannot be sustained.
However, from the testimonies of PW1, the prosecutrix, PW2 Birmati, PW3 Premwati, it stands established that the appellant had laid himself on the prosecutrix at the time of the occurrence. Therefore, he cannot escape the charge under Section 354 IPC for having outraged the modesty of the prosecutrix.
Though the appellant had not been charged for offence under Section 354 IPC and only charged for offence under Section 376 IPC yet offence under Section 354 IPC being a minor offence and its ingredients established on the file, the appellant can safely be convicted for the offence under Section 354 IPC.
The occurrence in question had taken place more than nine years earlier. Ever since then the appellant has been facing the agony of criminal prosecution. He is not a previous convict. During his detention as an under trial, he appeared in 12th class. According to Crl. Appeal S-1152-SB of 2002 -7- learned counsel for the appellant, the appellant has since completed graduation and is doing a private job. He has already served a period of more than 1½ years in jail. Under these circumstances, the appellant can be extended the benefit of probation especially when he stands exonerated of the charge under Section 376 IPC and being convicted under Section 354 IPC.
Resultantly, the appellant is acquitted of the charge under Section 376 IPC. Instead, he is convicted under Section 354 IPC. However, he is ordered to be released on probation on his furnishing personal bonds in the sum of Rs.25,000/- with one surety of the like amount to keep peace and be of good behaviour for a period of two years and to appear and receive the sentence as and when called upon to do so during the aforementioned period. The fine of Rs.2,000/- imposed by the trial Court, if already paid, be treated as costs of proceedings.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
November 12, 2010 JUDGE
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