Punjab-Haryana High Court
Bhagirath @ Balwinder Singh vs State Of Haryana on 18 March, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-1448-SB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1448-SB of 2008
Date of decision: 18.3.2011
Bhagirath @ Balwinder Singh
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Athar Ahmed, Advocate, with
Ms. Gagan Geet Kaur, Advocate, for the appellant.
Mr. Manish Deswal, Deputy Advocate General, Haryana.
JORA SINGH, J.
This is an appeal preferred by Bhagirath @ Balwinder, to challenge the judgment of conviction and order of sentence dated 11.10.2007, rendered by the learned Additional Sessions Judge (Adhoc) Fast Track Court, Rohtak, in Sessions Case No. 60/2005, arising out of FIR No. 62 dated 11.2.2005, registered under Sections 363/366-A and 376 of the Indian Penal Code at Police Station City Rohtak.
By the said judgment, he was convicted under Sections 363/366 and 376 IPC and was sentenced as under:
CRA-S-1448-SB of 2008 -2-
1. Under Section 363 IPC To undergo rigorous imprisonment for a period of 4 years and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months.
2. Under Section 366 IPC To undergo rigorous imprisonment for a period of 7 years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months.
3. Under Section 376 IPC To undergo rigorous imprisonment for a period of 10 years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months.
All the substantive sentence were ordered to run concurrently.
Prosecution story, in brief, is that on 11.2.2005, police party headed by SI Rajinder Singh, was present at G.T. Road near cremation ground Rohtak, in connection with patrol duty, when Mainpal- complainant met the police party and got his statement recorded to the effect that his sister-in-law namely Kanta, was married at village Pasina Kalan, District Panipat. Nisha (hereinafter referred to as 'the prosecutrix') aged about 14 years is the daughter of Kanta and was residing with him for the last about 2 months. On 6.2.2005, he had gone to attend his duty. In his absence, Bhagirath, who was his tenant had kidnapped the prosecutrix with ulterior motive. An effort was made CRA-S-1448-SB of 2008 -3- to trace the prosecutrix but he could not find her. After recording the statement of the complainant, the same was sent to the police station on the basis of which formal FIR was recorded.
During investigation, prosecutrix was recovered from an abandoned room situated in the revenue estate of village Khokhra Kot, Rohtak, in the presence of Samra S/o Meer Singh and other police officials. Custody of the prosecutrix was handed over to her guardian vide memo Ex. PC. She was medico-legally examined. Statement of the prosecutrix was also recorded. Allegation of the prosecutrix was that she was abducted by the accused and was raped against her wish.
Accused was also arrested and produced before the doctor for medico-legal examination. After the completion of investigation, challan was presented in Court.
Accused was charge-sheeted under Sections 363/ 366-A/376 Indian Penal Code, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Mainpal, is the complainant and stated that prosecutrix is the daughter of his sister-in-law. Prosecutrix was staying with him for the last 2-3 months. On 6.2.2005, he had gone to attend his duty. Bhagirath @ Balwinder, was his tenant. In his absence, prosecutrix was kidnapped by the appellant. He made an effort to trace the prosecutrix but failed to trace her. On 11.2.2005, near cremation ground his statement was recorded.
PW-2 Samra, stated that he was with the police party and the police party was present near the cremation ground. Police had a CRA-S-1448-SB of 2008 -4- secret information. Prosecutrix and the appellant were found present in the dilapidated house but on seeing the police party appellant had fled away from the spot. Prosecutrix was produced before the doctor for medico-legal examination. After medical examination, prosecutrix was handed over to them vide memo Ex. PC.
PW-3 Kanta, is the mother of the prosecutrix and stated that prosecutrix was 14 years old and was staying in the house of Mainpal for the last about two months. From the house of Mainpal, prosecutrix was abducted. On 20.2.2005, prosecutrix was recovered from a room situated near Chamaria Chowk.
PW-4 Rajender Singh, Principal, Girls Senior Secondary School, Baroda, District Sonepat, stated that as per school record date of birth of the prosecutrix is 25.4.1989.
PW-5 Inspector Inder Singh, stated that after completion of investigation he had prepared the report under Section 173 Cr.P.c.
PW-6 Banarsi Dass, Incharge, Police Post Anaj Mandi, Rohtak, stated that on receipt of ruqa, he had recorded the formal FIR.
PW-7 Constable Sumit Kumar, stated that he had prepared the scaled site plan Ex. PE.
PW-8 Constable Virender Singh, PW-9 HC Ram Kumar and PW-10 EHC Jagbir Singh, tendered their affidavits Ex. PF, Ex. PG and Ex. PH, respectively.
PW-11 HC Satbir Singh, stated that on 20.2.2005, he was with the Investigating Officer. As per secret information, raid was conducted. Prosecutrix and the appellant were found present in a room situated near Kacha Chamaria Road. On seeing the police party appellant had fled away from the spot. Prosecutrix was recovered and CRA-S-1448-SB of 2008 -5- was produced before the doctor for medico-legal examination.
PW-12 Dr. Kulpratibha, stated on 20.2.2005, she had medico-legally examined the prosecutrix aged about 15 years and observed as under:
"There was an abrasion of red colour present on the medial aspect of right wrist superficial cutting the skin only 1 x 0.1 cm. Clotted blood was present. No other external injury was seen. Breasts, axilliary and pubic hairs well developed, adult type distribution. External genital Examination: No external injury was seen. No bleeding was present. Hymen showing old healed tear 7'O Clock position. Vagina admits two fingers easily. No congestion was present."
PW-13 Dr. Vimal Sharma, stated that on 28.2.2005, he had medico-legally examined Bhagirath and he was found medically fit to perform sexual intercourse.
PW-14 is the prosecutrix and stated that on 6.2.2005, she was abducted by the appellant and was raped against her wish. She was recovered from a abandoned room situated near Chamaria Road. Appellant had fled away from the spot on seeing the police party.
PW-15 SI Rajender Singh, is the Investigating Officer. After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that his uncle along with his family was residing as a tenant in a room in the house of the complainant. He was also residing with his uncle. There was a dispute CRA-S-1448-SB of 2008 -6- regarding payment of rent. Due to this reason he was falsely implicated in this case.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of the evidence available on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that according to the prosecution story, occurrence had taken place on 6.2.2005, whereas FIR is dated 11.2.2005. Delay of about 5 days in lodging the FIR. Prosecutrix was medico-legally examined by Dr. Kulpratibha. No external injury was noticed. According to the MLR, prosecutrix was habitual to sexual intercourse. Prosecutrix was more than 18 years old. She seems to be the consenting party. For about 13-14 days prosecutrix was kept in same room. Prosecutrix was shifted from one place to another. Prosecutrix in cross-examination admitted that when appellant had gone outside then his friend had stayed in the same room but friend of the appellant was not challaned. Friend was not armed. In the absence of the appellant, prosecutrix could easily fled away from the spot. According to the report of the Forensic Science Laboratory, semen was not detected that means prosecution story is not genuine one. Lastly, argued that in case Court is of the opinion that prosecutrix was raped against her wish then stated that appellant has already undergone 5 years, 5 months and 10 day out of the actual sentence. Requested to take lenient view and appellant be directed to undergo imprisonment already undergone.
CRA-S-1448-SB of 2008 -7-
Learned State counsel argued that prosecutrix was 14-15 years old. According to the School Leaving Certificate date of birth of the prosecutrix is 25.4.1989. Prosecutrix when appeared in Court then stated that she was 15-16 years old. As per MLR, prosecutrix was 15 years old. No certificate from the office of Registrar, Death and Birth, on the file to show that prosecutrix was more than 16 years old. On 6.2.2005, prosecutrix was staying in the house of the complainant. Appellant was also staying in the same house as tenant. Father and uncle of the appellant had told the complainant that prosecutrix was taken away by the appellant. Father or uncle of the appellant failed to appear in Court to state that they did not disclose to the complainant that the prosecutrix was abducted by the appellant. Prosecutrix was kept in a dilapidated room till 20.2.2005. Appellant had threatened to eliminate the prosecutrix if raised raula. Due to fear prosecutrix did not disclose about the incidence to any body. Keeping in view the age of the prosecutrix consent is immaterial. Before the present occurrence, appellant had no enmity with the prosecutrix. Defence version is that there was a dispute regarding payment of rent but no suggestion to the complainant that there was a dispute regarding payment of rent. Uncle of the appellant was the tenant but he failed to explain that there was a dispute regarding payment of rent. Suppose there was a dispute then no question of false implication when reputation of a 14-15 years old un- married girl and that of her family was at stake. To recover rent Mainpal could easily file suit for recovery or ejectment application for eviction of the tenant.
First submission of the learned defence counsel for the appellant was that there is delay in lodging the FIR. Delay is fatal but CRA-S-1448-SB of 2008 -8- after going through the evidence on file, I am of the opinion that submission of the learned defence counsel carries little weight.
On 6.2.2005, prosecutrix was staying with her uncle Mainpal-complainant. Appellant was also residing as a tenant in the same house. On 6.2.2005, prosecutrix was abducted by the appellant. Complainant appeared as PW-1 then question was put to the complainant, as to who had told him that prosecutrix was abducted by the appellant, then reply of the complainant was that he was told by the father and uncle of the appellant that prosecutrix was abducted by him (appellant) and he should not make hue and cry. Father and uncle of the appellant failed to appear in Court to state that they did not disclose to the complainant that the prosecutrix was taken away by the appellant. After abduction of the prosecutrix, complainant party tried to trace the girl but when they failed to trace the girl then report was lodged with the police on 11.2.2005. When a girl of less than 16 years old was abducted by the tenant then to save the reputation of the family immediately report was not lodged with the police. Before lodging complaint, complainant party thinks twice, when reputation of the prosecutrix and the family is at stake. Ultimately, when prosecutrix was not traceable the report is lodged with the police. In the present case also prosecutrix was staying with her uncle Mainpal (complainant) resident of Balak Nath Colony, Rohtak. Appellant was the tenant of Mainpal. With effect from 6.2.2005, appellant was missing. As per prosecution story, prosecutrix was also abducted on 6.2.2005. Father and uncle of the appellant requested the complainant not to raise hue and cry because prosecutrix was taken away by the appellant. That means the complainant had the knowledge that prosecutrix was taken CRA-S-1448-SB of 2008 -9- away by the appellant then to save the reputation of the family report was not lodged. Complainant party was making efforts to trace the girl. Ultimately, report was lodged with the police on 11.2.2005, when prosecutrix was not traceable so delay is not fatal. Suppose there was a delay of 5 days then delay itself is not sufficient for acquittal of the appellant. Delay is one of the suspicious substance to scrutinize the evidence with great care and caution.
Next submission of the learned defence counsel for the appellant was that prosecutrix was more than 18 years old. She was the consenting party. No external injury was noticed on the person of the prosecutrix. Semen was also not detected so the appellant is not liable for punishment under Section 376 IPC etc. After going through the evidence on file, I am of the opinion that submission of the learned defence counsel for the appellant is without any force.
According to the complainant, prosecutrix was 14 years old at the time of abduction. Mother of the prosecutrix also appeared in Court and stated that prosecutrix was 14 year old. Prosecutrix was medico-legally examined on 20.2.2005 and as per MLR prosecutrix was 14 years old. Suggestion was given to PW-1 Mainpal-complainant that prosecutrix was more than 18 years old but in support of this allegation no documentary proof on the file. School Leaving Certificate, Ex. PD, is on the file and as per certificate date of birth of the prosecutrix is 25.4.1989. No record of the office of the Registrar, Death and Birth, that prosecutrix was 18 years old. Ration Card or copy of voter list was also not produced in defence to show that prosecutrix was more than 18 years old. Prosecutrix appeared as PW-14 on 14.12.2006. Prosecutrix stated that she is 15-16 years old that means at the time of occurrence CRA-S-1448-SB of 2008 -10- she was 14 years old. No suggestion was given to the prosecutrix that she was more than 18 years old. Although suggestion was given to the complainant and mother of the prosecutrix that prosecutrix was more than 18 years old then record from the office of Registrar, Death and Birth, could easily be summoned to show that prosecutrix was 18 years old. Appellant could also produce in defence copy of the voter card or ration card to show that prosecutrix was more than 18 years old. No request to the Court to arrange ossification test to determine the age of the prosecutrix. Appellant when examined under Section 313 Cr.P.C. then did not state a word that prosecutrix was 18 years old. Oral as well as documentary evidence shows that prosecutrix was about 14 years old at the time of occurrence.
According to the MLR, no external injury was noticed. As per report of the Forensic Science Laboratory, human semen was not detected but the prosecutrix as PW-14 stated that while staying in the house of her uncle, she was abducted by the appellant and was raped against her wish. She was kept in a room for about 13-14 days. She was shifted from one place to another by showing a knife. She was under fear. Police came along with her relations then appellant had fled away from the spot, on seeing the police. She was arrested and was produced before the doctor for medico-legal examination. In cross- examination, prosecutrix stated that she had studied up to 8th standard. On the day of abduction she was taken to a kotha. Continuously for about 13-14 days she was raped against her wish. When appellant had left the kotha to bring food then his friend had staying with her. During the period of 13-14 days, she had not taken bath. Clothes were also not changed. During night time she was shifted from one place to other. CRA-S-1448-SB of 2008 -11- In the absence of the appellant, his friend used to remain with her. She was enticed by the appellant on the pretext of giving huge amount. Whenever she tried to raise alarm then knife was shown.
Mother of the prosecutrix and PW-2 Samra, stated that they were with the police party. Police party had a secret information. Raid was conducted and in the kotha, prosecutrix and the appellant were seen. On seeing the police party, appellant had fled away from the spot. She was taken into police custody and was produced before the doctor for medico-legal examination and from there she was handed over to her family members. Investigating Officer, also stated that as per secret information raid was conducted but on seeing the police party, appellant had fled away from the spot. Prosecutrix was taken into police custody and was produced before the doctor for medico-legal examination.
All discussed above shows that prosecutrix was about 14 years old at the time of commission of crime. No doubt prosecutrix stayed in a kotha for about 13-14 days but consent of the prosecutrix is immaterial. If no injury on the person of the prosecutrix then nothing to presume that she was the consenting party. Something could be said if age of the prosecutrix would have been about 18 years. No suggestion to the witnesses that prosecutrix developed illicit relations with the appellant. No love letter, card etc. on the file alleged to be written by the prosecutrix to show that prosecutrix had affair with the appellant. Appellant when examined under Section 313 Cr.P.C. then failed to state that he was having affair with the prosecutrix. Before the present occurrence, prosecutrix had no enmity with the appellant. Statement of the prosecutrix alone is sufficient to convict the appellant but statement CRA-S-1448-SB of 2008 -12- should inspire confidence. Prosecutrix was recovered from the kotha from where the appellant on seeing the police party had fled away from the spot. Prosecutrix was medico-legally examined and doctor stated that possibility of rape cannot be ruled out. Appellant was physically fit to perform sexual intercourse. When prosecutrix was recovered by the police at that time appellant was seen while fleeing away from the kotha on seeing the police party. All this shows that prosecutrix was raped against her wish.
Next submission of the learned defence counsel for the appellant was that there was a dispute regarding payment of rent and due to this reason appellant was falsely implicated but submission of the learned defence counsel for the appellant is without any force. Admittedly, complainant was the landlord. Prosecutrix relating to the complainant was staying in his house. Appellant along with his uncle and father was the tenant of the complainant. No suggestion to the landlord i.e. complainant that there was a dispute regarding payment of rent. If there was a dispute regarding payment of rent then suggestion could easily be given to the complainant. Suppose rent was due from the appellant then remedy with the complainant was to file suit for recovery or application for ejectment of tenant. There was no idea to implicate the appellant when reputation of the prosecutrix aged about 14 years was at stake. No person is to be implicated as accused by the complainant by saying that his close relation was raped. If appellant was to be implicated then complainant could easily level the allegation that appellant abused him or some household articles were stolen by the appellant. If rent was due from the appellant then complainant could easily file suit for recovery or ejectment application. No witness CRA-S-1448-SB of 2008 -13- appeared in defence to state that there was a dispute regarding payment of rent amongst the complainant and the appellant. Story regarding rent is an after thought.
Last submission of the learned defence counsel for the appellant was that at the time of occurrence appellant was 22 years old. He is unmarried and has already undergone about 5 years 5 months and 10 days out of the actual sentence.
Admittedly, appellant was 22 years old. He belongs to a poor family and is the first offender but 14 years old girl was raped against her wish. Girl was kept confined illegally for about 13-14 days. Occurrence was in the month of February, 2005. Prosecutrix seems to be the consenting party as per report of the doctor but prosecutrix was 14 years old, so, consent is immaterial. Keeping in view the nature of offence and antecedents of the appellant sentence is reduced from 10 years to 7 years under Section 376 IPC. All the sentences to run concurrently. Fine maintained.
For the reasons recorded above, instant appeal dismissed, with the abovesaid modification.
Appellant is in custody.
March 18, 2011 ( JORA SINGH ) rishu JUDGE