Punjab-Haryana High Court
Bhag Chand @ Lal Chand vs State Of Haryana on 12 December, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1322-SB of 2007
Date of decision: 12th December, 2011
Bhag Chand @ Lal Chand
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Ms. Geeta Sharma, Advocate for the appellant.
Mr. Anupam Sharma, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
The appellant was tried in a case arising out of FIR No.28 dated 20.02.2004 registered at Police Station Rampura under Sections 363, 366 and 376 IPC. The Court of Additional Sessions Judge (Fast Track), Rewari vide its impugned judgment dated 26th February, 2007 held the appellant guilty of offences punishable under Sections 366 and 376 IPC and vide a separate order dated 1st March, 2007 sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year under Section 376 IPC. The appellant was further sentenced under Section 366 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- and in default thereof to further undergo rigorous imprisonment for six months. Both the substantive sentences were ordered to run concurrently.
Aggrieved against the same, present appeal has been filed. Criminal Appeal No.1322-SB of 2007 2 As per the case of prosecution, on 19th February, 2004 in the area of Qutubpur, Rewari, the appellant had kidnapped the prosecutrix, a minor girl (name withheld to protect her identity) from the lawful guardianship of her parents and thereby committed an offence punishable under Section 363 IPC. Furthermore, prosecution case is that on the same date, time and place the child was kidnapped with intent to force her to illicit intercourse and thereafter, the prosecutrix was raped and thus, the appellant also committed offences punishable under Sections 366 and 376 IPC.
Prosecution case against the appellant emerges in the statement Ex.PH made by Khayali Ram PW-9, father of the prosecutrix. He stated that he was employed as a lineman in the Electricity Department. He along with his family was residing as a tenant in the house of Rao Sunder Lal, resident of Adarsh Nagar, Qutubpur. Accused Bhag Chand used to reside in another room as a tenant in the same premises. The accused was known to the children of complainant. On 19th February, 2004 at about 7.00 p.m. the prosecutrix, a child aged about four years, was playing in the house when the accused came on his rickshaw and took her along on the pretext of purchasing toffees for her. The accused had not returned for a long, whereupon the family members of complainant started searching for the prosecutrix. At about 10.00 p.m. the child was found in the room of the accused. At that time, she was weeping and blood was oozing from her vagina. On asking, the prosecutrix told that uncle Bhag Chand had taken her away and after laying her on the ground had committed bad act. Seeing the condition of the child, many neighbourers gathered and started beating the accused. Criminal Appeal No.1322-SB of 2007 3 It was stated that Bhag Chand had allured the child aged about four years and had committed rape with her.
On 20th February, 2004 the accused was medico legally examined by Dr.Rajesh Batra PW-1. He had found three injuries on the person of accused. Injury No.1 was bleeding from the nostrils; whereas as per injury No.2, right upper lip of the accused was swollen and right upper incisor tooth was missing from the socket. There were three abrasions of various sizes present on the left upper forearm of the accused. The doctor further opined that there was nothing to suggest that the accused was incapable of performing sexual intercourse.
Dr. Sharda Dabas, PW-11 was a member of the board of doctors, which had medico-legally examined the prosecutrix, a child aged about four years on 20th February, 2004. This witness stated that on examination, both the legs and thighs of the prosecutrix were stained with dried blood. Furthermore, clotted blood was present on labia majora and labia minura, and after cleaning of perimenium labia minura, there was swelling and congested two small tears of 0.5 cm x 0.25 cm muscle deep were present. There was bleeding on touch and cleaning at 5 O'clock and 7 O'clock position in the hymen anal ring. Tip of index finger could be introduced easily. According to the opinion of doctor, prosecutrix had been subjected to rape and sexual intercourse.
Khayali Ram PW-9, father of the prosecutrix, appeared and reiterated as to what was stated in his statement Ex.PH, on the basis whereof formal FIR Ex.PH/2 was registered. Phoolwati PW-10, mother of the prosecutrix, also stated that on the day of occurrence, she was cooking food, her husband was having the meals and the daughter was Criminal Appeal No.1322-SB of 2007 4 playing. She further stated that accused Bhag Chand had allured the prosecutrix to accompany him on the pretext of giving toffees (sweets) to her.
Counsel for the appellant has stated that the prosecutrix could not be examined as she died in an accident during the pendency of trial.
Ms. Geeta Sharma, Advocate appearing on behalf of the appellant, has contended that the appellant was a victim of false implication. It is stated that as a neighbourer, his relations with the complainant were not cordial, therefore, to settle score he has been falsely named by the complainant.
I am unable to accept the contention advanced by counsel for the appellant. Khayali Ram PW-9 and his wife Phoolwati PW-10 have stated in categoric terms that they were having cordial relations with the accused and even the child (prosecutrix) used to visit him. The accused on the fateful day had taken the child on the pretext of giving her toffees and had sexually exploited her. The medical evidence conclusively proves that the child was subjected to rape. Furthermore, Khayali Ram PW-9 being a truthful witness had stated in the FIR itself that when the neighbourers had found the child bleeding from her vagina, they had given beatings to the accused. The fact that the accused was given thrashings by the residents of locality is also proved from his medical examination.
An argument without any basis that the accused has been falsely implicated, cannot be accepted unless some material is placed before the Court. Complainant Khayali Ram PW-9 and his wife Criminal Appeal No.1322-SB of 2007 5 Phoolwati PW-10 will be the last persons to put the reputation of their family at stake as at the time when the complaint was made, the child was alive and in the Indian families every effort is made to protect the honour and reputation of a girl child of the family. In the present case, all residents of the locality had come to know that the child was sexually exploited by the accused-appellant.
Thus, taking totality of circumstances into consideration, there is no merit in the present appeal and the same is hereby dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE December 12, 2011 rps