Punjab-Haryana High Court
Avdesh Alias Ajay vs State Of Haryana on 25 October, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.1224-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.1224-SB of 2003
Date of Decision:- 25.10.2013
Avdesh alias Ajay
...Appellant
Versus
State of Haryana
...Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Joginder Sharma, Advocate (Amicus Curiae)
for the appellant.
Mr.Sagar Deswal, AAG Haryana for the State.
Mehinder Singh Sullar, J. (Oral)
The contour of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant criminal appeal and emanating from the record, as claimed by the prosecution, is that the prosecutrix (PW5) (name withheld), aged 10/11 years, was a student in Vishavkarma School, Saini Colony, Panipat. On 20.3.1999 at about 11.30 PM, she had gone to attend Devi Jagran along with her mother Bijendri Devi (PW6) in the locality (Mohalla). Her father was sleeping in the house. She was going to call her father to attend the Jagran. As soon as, she reached near the Dera of Jaswant Kataria, in the meantime, appellant-convict Avdesh alias Ajay son of Laxmi Narain (for brevity "the appellant") suddenly appeared, gagged her mouth and took her to the cremation ground (place of occurrence). He committed forcible rape with her there. The prosecutrix shouted loudly with pain and blood started Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 2 oozing out of her private part. Thereafter, appellant slipped away from the spot. Then, she went to the venue of Jagran and narrated the entire tale of her woe to her mother. Meanwhile, her father also reached the venue of Devi Jagran. They took her to the hospital, where she was admitted, medico legally examined and treated by the doctor. The police came to Civil Hospital, Panipat and recorded her statement (Ex.PD). Taking into consideration the serious condition, she was referred to PGI Rohtak, where she remained admitted for 6/7 days.
2. Narrating the sequence of events, in all, the prosecution claimed that on 20.3.1999, the appellant has committed forcible rape with the prosecutrix, who was a student at the relevant time of incident. In the background of these allegations and in the wake of her statement (Ex.PD), the present case was registered against the appellant, by means of FIR No.104 dated 21.3.1999, on accusation of having committed the offences punishable u/ss 376 and 341 IPC by the police of Police Station City, Panipat in the manner depicted here-in-above.
3. After completion of the investigation, the final police report (challan) was submitted by the police against him to face the trial for the indicated offences.
4. Having completed all the codal formalities, the appellant was accordingly charge-sheeted for the commission of offences punishable u/ss 376 and 366 IPC. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
5. Sequelly, the prosecution, in order to substantiate the crime against the appellant, examined the prosecutrix as PW5, who has deposed in the following terms:-
Arvind Kumar Sharma2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 3
"It is stated that I am student of 3rd standard in Vishva Karma School. Sometime back, when I was student of 1st standard, at night I had gone to attend a Devi Jagran along with my mother in the Mohalla. My father was sleeping at home. During night time, I was going to my house to call my father and my mother was at that time attending Jagran. I was going all alone from the venue of Jagrata to my home. On the way accused present in the court was standing near the Dera of Jaswant Kataria. He clutched my mouth with his hand and took me to cremation ground. There he opened my Salwar and committed rape on me. I shouted loudly with pain and I started bleeding profusely but he kept rapping me. While he was committing rape on me, at that time also he had clutched my mouth with his hand and after doing rape with me he ran away. I kept loudly shouting. From there, weeping loudly I had gone to the venue of Jagrata where my mother was sitting. Then I told the whole incident to my mother. In the meanwhile, my father also reached the venue of Devi Jagran. Thereafter, my parents took me to hospital. At that time also blood was coming out of my vagina profusely. Then doctor in the hospital examined me and gave me medical treatment, because blood was coming out profusely from my lower portion. Since my physical condition was very serious and my vagina was torn badly, therefore civil hospital Panipat had referred my case to PGI Rohtak. While I was in civil hospital, Panipat police had recorded my statement. I had signed the same. My statement is Ex.PD, my complaint to the police. I remained admitted in Medical College Hospital, Rohtak for 6 or 7 days w.e.f. 21.3.99 onwards, as indoor patient, since injury on my vagina were very serious and painful. The accused present in court had committed rape on me. He should be punished as there is so much horror of that incident in my mind."
6. Likewise, the prosecution has also examined Vijinderi wife of Rajinder and mother of prosecutrix as PW6, who has supported the prosecution version. Instead of reproducing her entire evidence and in order to avoid the repetition, suffice it to say that she has corroborated the statement of prosecutrix and the version contained in her initial statement (Ex.PD), which formed the basis of FIR on all vital counts. Similarly, PW7 Smt.Murti Devi, wife of Santosh, has maintained, on oath, that on 1.4.1999, she and Azad (PW) were present near the house of Rajinder in Saini Colony, Panipat. At about 1.30 P.M. accused Avdesh alias Ajay son of Laxmi Narain came and confessed his guilt that he had committed rape with Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 4 the prosecutrix and police was chasing him. He requested them to help him to compromise the matter with the family of prosecutrix to avoid police harassment. PW7 has given the detailed description of the information supplied by the appellant to them in his extra judicial confession. She has inter-alia maintained that the appellant has admitted his guilt and incident in the manner projected by the prosecution. Thereafter, they handed over the appellant to the police. The police recorded their statements and extra judicial confession (Ex.PG) of the appellant.
7. Now adverting to the medical evidence, PW1 Dr.Ratna Bharti, PG student in the department of Obstetrics and Gynae, PGI MS Rohtak, has proved the application (Ex.PA) moved by In-charge, SHO of Police Station Medical College, Rohtak before him. PW4 Dr.Jaya Goel has, on 21.3.1999, medico legally examined the prosecutrix, vide MLR (Ex.PW4/A). She noticed a lacerated wound of 2 cm x 0.5 cm extending from lower part of vagina towards anal margins. Fresh bleeding was present. As per vagina examination, the patient was referred to PGIMS Rohtak for further examination and management. She also took two swabs and two slides from external part of her vagina and sent to Forensic Science Laboratory, Haryana, Madhuban (in short "FSL"). After consulting the report (Ex.PF) of FSL, PW4 opined that the prosecutrix had undergone sexual intercourse. PW14 Dr.K.L.Chopra medico legally examined the appellant. He, by way of his report (Ex.PS), has opined that there was nothing to suggest that he was incapable of doing intercourse.
8. Now coming to the evidence of police officers, PW2 HC Sumer Chand, PW3 HC Karan Singh, PW9 HC Naresh Kumar (retired) and PW12 C.Dharam Chand are the formal witnesses, who have tendered their Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 5 respective affidavits (Ex.PB, Ex.PC, Ex.PH and Ex.PM), to complete the chain of link evidence. PW8 ASI Partap Singh has partly investigated the case and formally arrested the appellant, who was produced by PWs Murti Devi and Azad. He has also recorded the extra judicial/confessional statement (Ex.PG) of the appellant and the statements of witnesses. PW10 C. Rajesh Kumar has prepared the scaled site plan (Ex.PJ) of place of occurrence at the instance of police with its correct marginal notes. PW11 HC Prem Singh has stated that on 21.3.1999, having medico legally examined the prosecutrix, the doctor handed over three parcels along with sample seals, which were taken into possession, vide recovery memo (Ex.PK) attested by the witnesses. On 24.3.1999, C.Karan Singh has produced before him two parcels having seals of MCH, which were also taken into possession, by means of recovery memo (Ex.PL). It bears his signatures.
9. Similarly, the last to note is the testimony of PW13 Inspector Karan Singh (retired), main Investigating Officer, who has deposed that on receipt of ruqqa (Ex.PN), he reached Civil Hospital, Panipat. He moved an application (Ex.PO) about fitness and recorded the statement (ExPD) of prosecutrix. It was read over and explained to her and she signed the same in token of its correctness. He made his endorsement (Ex.PQ) and sent it to the police station for registration of the case, on the basis of which, SI Raghbir Singh recorded the FIR. He has further stated that lady doctor LMO Jaya Goyal handed over to him a sealed parcel containing belonging of the prosecutrix, which was taken into possession by him, vide recovery memo (Ex.PK). He has recorded the statements of witnesses. Thereafter, he visited, inspected and prepared the rough site plan (Ex.PR) of the spot with its Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 6 correct marginal notes. He lifted the blood stained earth from the place of occurrence, which was put into a small tin box, sealed and taken into possession, by virtue of recovery memo (Ex.PE). He requisitioned the Dogs Squad from Madhuban. Subsequently, he handed over the investigation to ASI Partap Singh (PW8). PW13 has duly testified his entire investigation. This is the total oral as well as documentary evidence brought on record by the prosecution.
10. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, he has denied the prosecution evidence in its entirety and pleaded false implication. He did not lead any defence evidence despite adequate opportunities.
11. Taking into consideration the entire evidence on record, the appellant was convicted and sentenced to undergo rigorous imprisonment (in short "RI") for a period of four years, to pay a fine of ` 1000/- and in default thereof to further undergo simple imprisonment (for short "SI") for a period of six months for the commission of an offence punishable u/s 366 IPC. Likewise, he was further convicted & sentenced to undergo RI for a period of ten years, to pay a fine of ` 25000/- and in default thereof, to further undergo SI for a period of three years on accusation of having committed an offence punishable u/s 376 IPC. However, all the sentences of imprisonment were ordered to run concurrently, by way of impugned judgment of conviction dated 6.6.2003 and order of sentence dated 7.6.2003 by the trial Judge.
12. Aggrieved thereby, the appellant has preferred the instant Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 7 appeal. That is how I am seized of the matter.
13. Having heard the learned counsel for the parties, having gone the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present appeal.
14. Ex facie, the arguments of learned counsel that the appellant has been falsely implicated and the evidence brought on record by the prosecution falls short as is required to prove a criminal charge, are not only devoid of merits but misplaced as well.
15. As is evident from the record that prosecutrix (PW5) was minor student of 10/11 years at the relevant time of incident. As soon as, she was going to invite her father to the venue of Devi Jagran and reached near the Dera of Jaswant Kataria, in the meantime, the appellant suddenly appeared, gagged her mouth and took her to the cremation ground (spot), where he forcibly committed rape with her. The prosecutrix has duly supported the prosecution version in the manner reproduced here-in-above. Not only that, her statement finds further corroboration from the evidence of her mother Vijinderi (PW6). The contention of learned counsel that since appellant was not earlier known to prosecutrix, so, his identity is not established, sans merit as well. The prosecutrix had ample time to observe about his identity from the place where she was kidnapped till the commission of offences. She has duly identified him in the court and maintained that it was the appellant, who had committed forcible intercourse with her on the fateful day.
16. Not only that, there is a positive evidence of PW7 Smt.Murti Devi on record that on 1.4.1999, while she was present with Azad near the Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 8 house of Rajinder, in Saini Colony, Panipat, at about 1.30 P.M. accused came and narrated the entire incident that she had committed forcible rape with the prosecutrix and police was chasing him. He requested them to help him in effecting compromise with the family of prosecutrix, so that he may not be in trouble. He gave the complete narration of the occurrence before PW7 Murti Devi and PW Azad. Thereafter, they had produced the appellant before PW8 ASI Partap Singh. He (PW8) formally arrested him and recorded disclosure statement (Ex.PG). In that eventuality, it cannot possibly be saith that the identity of the appellant was not established on record as contrary urged on his behalf.
17. Thus, it would be seen that the prosecutrix has duly corroborated the prosecution case. Her statement finds further corroboration from her mother (PW6). Their presence in the venue of Jagrata was natural. Therefore, the story of prosecution is most probable and natural. PW5 and PW6 gave the vivid and consistent version of the incident. They unequivocally have deposed that the appellant took the prosecutrix to the cremation ground and committed forcible intercourse with her in the same manner as projected by the prosecution. The extra judicial confession made by the appellant was duly proved by PW7 Murti Devi. They were cross- examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to them as to why they would falsely implicate the appellant in this case. The evidence of prosecutrix (PW5), her mother (PW6) and Murti Devi (PW7) is reliable and trustworthy.
18. Sequelly, the mere denial by the appellant that he was innocent Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 9 & has been falsely implicated is ridiculous and outrightly deserves to be rejected in the absence of any evidence on record in this relevant connection. Moreover, it is highly improbable to believe that either the prosecutrix or her mother would play a dirty game and level such serious allegations of rape to ruin her (prosecutrix) future. Moreover, no girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married and having family life. Hence, the contrary arguments of learned counsel for the appellant "stricto sensu"
deserve to be and are hereby repelled under the present set of circumstances.
19. Faced with the situation, the learned counsel has fairly acknowledged that in view of cogent, oral as well as documentary & medical further evidence, he will not be in a position to contest the conviction of the appellant any more. He has no argument/material/ground, much less cogent, to assail the prosecution version. In this manner, since no other legal infirmity or major contradictions and inherent improbabilities to discard the indicated reliable and convincing evidence of the prosecution, have been pointed out by the learned counsel for appellant, so, the impugned judgment of conviction and order of sentence deserve to be and are hereby maintained, in the obtaining circumstances of the case.
20. Moreover, at this stage, the learned State counsel has placed on record the custody certificate, which would reveal that the appellant has already completed/served out his entire sentence of imprisonment of ten years. Not only that, he has undergone the sentence in lieu of fine as well. Since he has already undergone his entire sentence of imprisonment, so, there appears to be no ground even for reduction in the matter of sentence of Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh CRA No.1224-SB of 2003 10 the appellant.
21. Therefore, if the entire evidence of prosecution is perused and put together, as discussed here-in-above, then, to me, the conclusion is inescapable and irresistible that the prosecution has duly proved the charges u/ss 366 and 376 IPC. The learned counsel for the appellant did not point out any material, much less cogent, so as to warrant any interference in the impugned judgment of conviction & order of sentence. Thus, the trial Court has examined the matter and appreciated the evidence in the right perspective and correctly convicted the appellant, in the manner depicted here-in-above.
22. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
23. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is dismissed as such. Consequently, the impugned judgment of conviction & order of sentence of the trial Court are hereby maintained.
Sd/-
(Mehinder Singh Sullar) Judge 25.10.2013 AS Whether to be referred to reporter? Yes/No Arvind Kumar Sharma 2013.10.29 18:09 I attest to the accuracy and integrity of this document Chandigarh