Punjab-Haryana High Court
Raju vs State Of Haryana on 2 May, 2013
Author: L.N. Mittal
Bench: L.N. Mittal
351
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S No. 1829-SB of 2002 (O&M)
Date of Decision: 02.05.2013
Raju ...Appellant
V/s.
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE L.N. MITTAL
Present : Mr. G.S. Sandhu, Advocate
for the appellant.
Mr. Sidharth Sarup, DAG, Haryana
for the respondent.
***
L.N.MITTAL, J. (Oral).
Convict-Raju has filed this appeal assailing his conviction and sentence ordered by learned Additional Sessions Judge, Karnal vide judgment and order dated 21.09.2002 thereby convicting the appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and to pay fine of `500 and in default thereof, to further undergo simple imprisonment for three months.
Prosecution case is that the accused on the pretext of treating the prosecutrix aged about 18/19 years for evil spirit by way of black magic (jadoo tona), took her inside a room in her parental home and after doing some tantrums (jadoo tona), forcibly committed sexual intercourse with her by shutting her mouth with his hand due to which she could not raise alarm. The accused then left for his house instructing the prosecutrix not to disclose the occurrence to anybody. Immediately after the accused left, the prosecutrix informed her husband Khem Chand. They woke up the parents of the prosecutrix and they were also informed about the occurrence. The occurrence took place at about 11:00 p.m. FIR was lodged next morning on 18.03.2001. Prosecutrix was got medico-legally examined. Her statement under Section 164 of the Code of Criminal Procedure (in short, 'Cr.P.C.') was also got recorded. Statements of other witnesses under CRA-S No. 1829-SB of 2002 (O&M) -2- Section 161 Cr.P.C. were recorded. Other necessary investigation formalities were conducted. The accused was arrested and got medico-legally examined. Clothes of the prosecutrix and the accused and vaginal swabs of the prosecutrix were sent to Forensic Science Laboratory (in short, 'FSL'). According to FSL report, semen was detected on petticoat and vaginal swab of the prosecutrix and also on pants of the accused, but not on other clothes of the prosecutrix. On completion of investigation, police presented report under Section 173 Cr.P.C. for prosecution of the accused under Section 376 IPC.
Charge under Section 376 IPC was framed against the accused. He pleaded not guilty and claimed trial.
Prosecution has examined nine witnesses.
Dr. Saneh Singh, PW-1 stated about medico-legal examination of the prosecutrix.
The prosecutrix as PW-2 broadly stated according to the prosecution version.
Head Constable, Nahar Singh, PW-3, Head Constable Baldev Singh, PW-4 and Head Constable Lokesh Kumar, PW-5 are formal witnesses. Dr. Suresh Kumar, PW-6 stated about medico-legal examination of accused/appellant. There was nothing to suggest that he was not capable of performing sexual activity.
Prem Kumar, draftsman, PW-7 stated that he prepared scaled site plan of the place of occurrence.
Khem Chand, PW-8, who is the husband of the prosecutrix, also broadly stated according to the prosecution version.
SI Ram Kumar, PW-9 stated about investigation of the case conducted by him.
The accused in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against in the prosecution evidence and claimed to be innocent. He pleaded that he was feeding his family by working as CRA-S No. 1829-SB of 2002 (O&M) -3- labourer. He did not know the art of black magic and never cured any patient by it. He denied even having gone to the house of the prosecutrix. According to the accused/appellant, husband of the prosecutrix suspected that the prosecutrix was having illicit relationship with him (accused) and was pressurizing her to act according to his wishes and was also threatening to divorce her if she would not make false statement in the police station.
In defence, the accused examined Pala Ram as DW-1, who stated that the accused did not know the art of black magic nor he had undertaken treatment of the prosecutrix.
Learned trial court convicted and sentenced the appellant as noticed in opening part of this judgment. Feeling aggrieved, the convict has filed this appeal.
I have heard the counsel for the parties and with their assistance perused the case file including file of the trial court.
Counsel for the appellant reiterated that the appellant has been falsely implicated at the instance of husband of the prosecutrix because he suspected the prosecutrix to be having illicit relationship with the appellant. It was also argued that the prosecutrix in her statement under Section 164 Cr.P.C. stated that one leaf of the door of the room was lying open and in view thereof, the occurrence possibly could not have taken place. Reference was also made to cross-examination of the prosecutrix wherein she stated that when she narrated the occurrence to her husband, he threatened to divorce her.
On the other hand, learned State counsel contended that prosecution has adduced sufficient evidence to prove the guilt of the accused and he has been rightly convicted.
I have carefully considered the contentions raised by counsel for the parties. The prosecutrix has stated in detail about the occurrence. Her veracity could not be impeached in her lengthy cross-examination. There was no reason for CRA-S No. 1829-SB of 2002 (O&M) -4- the prosecutrix to falsely implicate the appellant in a case of rape which would effect her own honour, prestige and reputation and could also threaten her marital life. Her statement that after she narrated the occurrence to her husband, he threatened to divorce her, is of no help to the appellant. The alleged threat was due to commission of rape on the prosecutrix and not due to her alleged illicit relationship with the appellant. On the contrary, it was suggested by the prosecutrix that her husband had seen them (prosecutrix and appellant) in compromising position and then he extended the aforesaid threat to divorce the prosecutrix. This suggestion put to the prosecutrix in her cross-examination negatives the claim of the appellant that he had not even gone to the house of the prosecutrix. It would rather show that the appellant was committing sexual intercourse with the prosecutrix.
Conviction for offence under Section 376 IPC can be recorded even on the solitary statement of the prosecutrix (without corroboration) if her testimony is found to be credible. In the instant case, testimony of the prosecutrix is worthy of credence and could not be shaken in her cross-examination. Moreover, there is sufficient corroboration to the testimony of the prosecutrix. The corroboration is provided by testimony of husband of the prosecutrix. He has corroborated the case of the prosecutrix on material aspects. He would not have deposed falsely against the appellant by staking the honour and prestige of his own wife i.e. the prosecutrix. Further corroboration to the testimony of the prosecutrix is provided by medical evidence including FSL report regarding detection of semen on her petticoat and vaginal swab and also on the pants of accused/appellant. It is correct that both of them are married persons. However, when the instant occurrence took place after the appellant had come to the house of prosecutrix at about 10:00 p.m., it cannot be said that after the occurrence, the prosecutrix had had sexual intercourse with her husband. The accused has also not alleged that he had had sexual intercourse with his wife on that day. Detection of semen on clothes of the CRA-S No. 1829-SB of 2002 (O&M) -5- prosecutrix and the appellant and in vaginal swab of prosecutrix lends further credence to the prosecution case.
For the reasons aforesaid, I find that the prosecution has been successful in proving the guilt of the appellant. Learned trial court has analysed the evidence and has recorded reasons to hold the appellant guilty of the offence in question. The said finding recorded by the trial court is not shown to be suffering from illegality or perversity nor it is based on misreading or misappropriation of the evidence on record. Conviction of the appellant is well founded and the same is, therefore, upheld.
As regards quantum of sentence, the appellant has been sentenced to undergo imprisonment for seven years (besides fine) which is minimum sentence of imprisonment prescribed for the offence. Consequently, there is also no scope for reduction in sentence.
The obvious result of discussion aforesaid is that the instant appeal has no merit and is accordingly dismissed. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.
( L.N. MITTAL)
May 02, 2013 JUDGE
Divyanshi