Punjab-Haryana High Court
Kashmira Singh vs State Of Haryana on 6 August, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-67-SB of 2000 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-67-SB of 2000
Date of decision: 6.8.2010
Kashmira Singh
........ Petitioner
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. S.S. Dinarpur, Advocate for the appellant.
Mr. Paramjit Batta, Additional Advocate General, Haryana.
JORA SINGH, J.
Kashmira Singh, appellant preferred this appeal to impugn the judgment of conviction dated 3.1.2000 and order of sentence dated 6.1.2000, rendered by the learned Additional Sessions Judge, Jagadhari, arising out of FIR No. 63 dated 1.3.1997, registered under Sections 376/511 of the Indian Penal Code, at Police Station Radaur. By the said judgment he was convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo Rigorous Imprisonment for three months.
Prosecution, story in brief, is that 27.2.1997, at about 4.00/5.00 p.m. Bala Devi alongwith her daughter had gone for collecting woods in the fields of Ghansham Rajput. While collecting woods, her daughter was on the other side of the field. Then she heard noise of her daughter. Then Bala Devi ran towards the place from where the shrieks of her daughter were heard. Kashmira Singh was seen with her daughter and at that time Kashmira Singh had opened the cord of the CRA-S-67-SB of 2000 -2- salwar of her daughter and was kissing her. Raula was raised. Then Kashmira Singh had left the spot after leaving her daughter. Bala Devi alongwith her daughter came back to their house. The matter was reported to her husband when returned to house at about 7.30 p.m. On the statement of Sompal father of the prosecutrix, recorded by ASI Sudharshan Kumar, formal FIR was recorded. ASI Sudarshan Kumar, had gone to the place of occurrence and had prepared the site plan. Statements of witnesses were recorded. Application was given to the doctor for seeking opinion as to whether scars on the face of the prosecutrix are due to teeth bite. Accused was arrested and after the completion of investigation challan under Section 173 Cr.P.C. was presented.
Accused was charge-sheeted under Sections 376/511 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
Prosecution examined PW-1 Dr. Vijay Athreja, who stated that on 2.4.1997, he had medico-legally examined Kashmira Singh S/o Mahinder Singh and was found fit to perform sexual intercourse. PW-2 Dr. Kanta Dhankar, stated that on 1.3.1997, as per request of police Ex.PB, prosecutrix was produced before her and after examination, report Ex.PB/1 was given. Biting scars were noticed on the cheeks of the prosecutrix. PW-3 Brij Bhushan Patwari, had prepared the scaled site plan of the spot i.e. Khasra No. 66/19 Ex. PC. PW-4 Ram Nath Saini, was the science teacher and stated that certificate Ex. PD regarding the date of birth of the prosecutrix was prepared by him, as per the school record. PW-5 SI Roop Chand, had recorded the formal FIR Ex. PE/1 on the basis of application Ex. PB. PW-6 is the prosecutrix and had stated on oath that she alongwith her mother had gone to the fields of Ghansham Rajput to collect woods. While collecting the woods she was on the other side of the field at a distance CRA-S-67-SB of 2000 -3- of about 1 killa from her mother. Then Kashmira Singh came there and took her inside the fields of sugarcane. He gave teeth bites on her both cheeks. String of her salwar was broken. Kashmira Singh had opened his pants and lay over her. She started weeping. Her mother came to the spot. Then the accused had fled away from the spot. The matter was brought to the notice of her father when came to house at 7.00/8.00 p.m. PW-7 Bala Devi is the mother of the prosecutrix and has supported her version by saying that Kashmira Singh attempted to rape her daughter. PW-8 Sompal is the father of the prosecutrix and stated that at about 7.00/8.00 p.m., he came back from the fields on 27.2.1997, then his wife brought to his notice that Kashmira Singh attempted to rape the prosecutrix. Panchayat was convened but Kashmira Singh did not appear before the Panchayat. Then matter was reported to the police.
PW-9 SI Roop Chand stated that on receipt of ruqa Ex. PE he had recorded the FIR Ex. PE/1. SI Roop Chand remained posted as SHO with ASI Sudharshan Kumar, Investigating Officer in this case but Sudarshan Kumar ASI had died. He has identified the signatures of ASI Sudarshan Kumar and site plan Ex. PF and application Ex. PB.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
After hearing learned Public Prosecutor for the State, learned defence counsel and going through the record the appellant was convicted and sentenced vide order, as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
CRA-S-67-SB of 2000 -4-
Learned counsel for the appellant argued that according to the prosecution story the prosecutrix was 8 years old as per the certificate Ex. PD. The certificate was produced on file but certificate does not have any evidentiary value because the original record was not brought. Prosecutrix in her statement under Section 161 Cr.P.C. did not state a word that the appellant had removed his pants and lay on her but in Court the prosecutrix states that she was caught hold by the appellant. The appellant started kissing her and he removed his pants and lay on her. The mother of the prosecutrix also stated that the appellant had removed his pants and lay on her daughter. Prosecutrix was confronted with her statement but in the statement under Section 161 Cr.P.C. there was not a word stated by the prosecutrix before the police that the appellant had opened his pants and lay on her. No MLR on the file. Only report of the doctor is to the effect that teeth biting scars were noticed on her both cheeks and if the Court is of the opinion that appellant had committed an offence under Section 376/511 of the Indian Penal Code, then requested to take lenient view because the occurrence is dated 27.2.1997 and at that time the appellant was 19 years old. The appellant is the first offender and is a poor man. After the present occurrence the appellant has not committed any such act. Appellant remained in custody for about 1 month and 5 days. Requested to take a lenient view. Reliance was placed on 2008 (2) R.C.R. (Criminal) 193 "Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar" and 1983 (2) R.C.R. (Criminal) 449 "Sushil Kumar Vs. State of Haryana".
Learned State counsel argued that the prosecutrix stated that she is 8 years old. Certificate Ex. PD also shows that the date of birth of the prosecutrix is 10.8.1989. No question to the prosecutrix that she was not 8 years old. No question to her mother that she was not 8 CRA-S-67-SB of 2000 -5- years old. No question to the doctor that the prosecutrix was not 8 years old at the time of her examination. The appellant when examined under Section 313 Cr.P.C. failed to state about the age of the prosecutrix. No documentary or oral evidence was produced in defence to rebut the statement of the prosecutrix and her mother regarding age. In view of the certificate Ex. PD, statements of the prosecutrix and her mother the trial Court rightly held that the prosecutrix was 8 years old. Prosecutrix and her mother have fully supported the prosecution story that the appellant attempted to rape the prosecutrix. No allegation of the prosecutrix or her mother that number of injuries were given by the appellant. The case of the prosecution was that the appellant had given teeth bites on the cheeks of the prosecutrix while kissing. Application was given to the doctor to report whether any teeth bite on the cheeks was present. Evidence on file was rightly scrutinized by the trial Court.
Submission of the learned counsel for the appellant was that no original record was produced by the prosecution regarding the age of the prosecutrix, but after going through the evidence available on file, I am of the opinion that submission of learned counsel for the appellant is without any force. The prosecutrix when appeared before the Court then stated about her age. The prosecution produced Ram Nath Saini, Science Teacher,who brought the record maintained by the school and stated that as per the school record, he has prepared the certificate Ex.PD regarding the age of the prosecutrix. On cross- examination the witness admitted that he has not brought record and stated that at the time of evidence he was not posted in the same school. No request by the learned defence counsel to defer the cross- examination of Ram Nath Saini and to bring the record. Certificate Ex.PD is dated 17.3.1997 but at that time Ram Nath Saini, was posted in Government Senior Secondary School, Naggal. Ram Nath Saini, CRA-S-67-SB of 2000 -6- appeared in the Court on 24.7.1998, at that time he was serving as Head Master, Government Middle School, Gilaur. Due to this reason he failed to bring the record. The appellant could easily request the Court to defer the examination of Ram Nath Saini, Science Teacher with direction to him to bring the record from the concerned school. In case Ram Nath Saini was not in a position to bring record from Government Senior Secondary School, Naggal then Clerk or any teacher of that school could be summoned with record to cross-examine the witness. No question to the witness that the date of birth is not correct. Prosecutrix as PW in chief stated that she is 8 years old. No question to the father and mother of the prosecutrix regarding the age. The appellant when examined under Section 313 Cr.P.C. then did not state a word regarding the age of the prosecutrix. In defence no document or oral evidence was produced to show that the date of birth of the prosecutrix was 10.8.1989. In 2008 (2) R.C.R. (Criminal) 193 Jyoti Prakash Rai @ Jyoti Prakash (supra) cited by the learned counsel for the appellant but after going through the facts of the abovesaid authority, I find that the above cited authority is not helpful to the appellant. Hon'ble Supreme Court opined that an entry regarding the date of birth made in the school register is relevant but the entry is of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on which the age was recorded. If Ex. PD certificate issued by the school regarding the age of the prosecutrix is ignored then there is a statement of prosecutrix on oath regarding her age. No reason to disbelieve the prosecution witness that she was 8 years old. Something could be said if in defence the appellant would have brought any other certificate regarding the age of the prosecutrix. In that case learned counsel for the appellant was right to argue that in the absence of material upon which the age was recorded, Ex. PD CRA-S-67-SB of 2000 -7- certificate is of without any evidentiary value. When no question to any witness regarding the age or no oral evidence in defence regarding the age of the prosecutrix, I am of the opinion that prosecutrix was 8 years old at the time of occurrence.
Second objection of the learned counsel for the appellant was that story regarding attempt to rape is not correct one because in the statement of prosecutrix under Section 161 Cr.P.C. there was not a word that the appellant had removed his pants and was seen while lying on the prosecutrix. Submission of the learned counsel for the appellant carries little weight. Occurrence was dated 27.2.1997, in the fields of Ghansham Rajput. Prosecutrix was raising raula when she was caught- hold by the appellant and was taken inside the field of sugarcane. In the field, the appellant started kissing the prosecutrix. Teeth bites were noticed by the doctor on both the cheeks at the time of examination. In the Court prosecutrix stated that when she was collecting woods in the fields of Ghansham Rajput and was at a distance of about one killa on the other side from her mother then the appellant came and took her inside the sugarcane field where she was given teeth bites on her both cheeks. The appellant broke the string of her salwar. After that the appellant had opened his pants and lay on her. Then she started weeping. Prosecutrix was confronted with her statement under Section 161 Cr.PC. In the statement under Section 161 Cr.P.C. there is not a word that the appellant had opened his pants and lay over her. But one thing was clear from the statement that the prosecutrix was taken inside the field of sugarcane while she was collecting woods and the appellant gave teeth bites on both the cheeks of the prosecutrix.
Prosecutrix was examined by doctor and the doctor had noticed biting scars on both the cheeks. Mother of the prosecutrix in the Court stated that on hearing cries of her daughter, she had gone to the CRA-S-67-SB of 2000 -8- spot in the sugarcane field. The appellant was noticed while lying over her daughter who had given teeth bites on her both cheeks. Salwar of her daughter was found removed from her legs. The appellant had also removed his pants. Bala Devi was not confronted with her statement under Section 161 Cr.P.C. Learned defence counsel should have confronted Bala Devi with her statement because in her statement under Section 161 Cr.P.C. before the police she did not state that the appellant was seen while lying on the prosecutrix. Secondly, the salwar of the prosecutrix was found removed from her legs and at that time the appellant had also removed his pants. Her statement under Section 161 Cr.P.C. is to the effect that after hearing the cries of the prosecutrix she had gone to the place of occurrence in the sugarcane field. String of the salwar of the prosecutrix was found broken and at that time appellant was giving teeth bites on the cheeks of the prosecutrix. From the statement of the prosecutrix and her mother one thing is clear that while prosecutrix was collecting woods in the fields of Ghansham Rajput and was at a distance of about 1 killa from Bala Devi then appellant came near the prosecutrix. She was taken into the fields of sugarcane and in the fields by braking string of her salwar, the salwar was removed and the appellant had given teeth bites on both cheeks of the prosecutrix. In case the appellant had not removed the pants then the facts of the case are totally different. The trial Court rightly opined that the appellant attempted to rape the prosecutrix because she was taken into the sugarcane field and in the sugarcane field, string of her salwar was broken. The appellant had given teeth bites on both the cheeks of the prosecutrix. The appellant had the intention to rape her. If intention of the appellant was simply to give beatings to the girl then there was no idea to take the girl into the sugarcane field and break the string of her salwar and give teeth bites on both the cheeks. Prosecutrix was not CRA-S-67-SB of 2000 -9- married. Sometimes to save the reputation of the family exact facts are not disclosed to the police by saying that salwar was removed, pants was removed and after that the accused lay on the prosecutrix. Before the present occurrence the complainant party had no enmity with the appellant. No reason to disbelieve the prosecutrix and her mother. Evidence on the file clearly shows that the appellant had attempted to rape the prosecutrix.
Next submission of the learned counsel for the appellant is that no MLR on the file but this submission of the counsel for the appellant hardly carries any weight, because the prosecution story is that appellant gave teeth bites on the cheeks of the prosecutrix while kissing her. The prosecutrix was produced before the doctor. Application was given to the doctor as to whether any teeth bites on the cheeks. Doctor after examining the prosecutrix reported that there were biting scars on both the cheeks of the prosecutrix. Common experience shows that the prescribed registers are issued to the doctors for medical examination of the patients but if the report of the doctor is not on the prescribed proforma then report is not to be ignored. As per the prescribed register for medico-legally cases there are different columns i.e. the name of the injured, time when brought to the hospital, name of the attendant who brought the injured to the hospital, time when examined, fee deposited or not and whether earlier the patient was medico-legally examined by any other doctor or not. But sometime on the application, report is given by the doctor when request is as to whether there is injury on any part. In the present case also the allegation was that teeth bites were given on the cheeks while kissing. Doctor was requested to report as to whether any teeth bite is present on both the cheeks of the prosecutrix or not. Report Ex. PB/1 is to the effect that at 6.30 p.m. after examining the prosecutrix the doctor CRA-S-67-SB of 2000 -10- reported that biting scars on both cheeks. Statement of the doctor is very clear that the prosecutrix was brought by the police and was examined at 6.30 p.m. In case the report was not on the prescribed register then the same is not to be rejected.
No other submission was put forward by the learned counsel for the appellant.
In the light of the above discussion the appellant was rightly convicted under Section 376/511 of the Indian Penal Code.
The occurrence is dated 27.2.1997, at that time the appellant was 19 years old. He is the first offender. The appellant has already undergone about 1 month and 5 days of the actual sentence.
In 1983 (2) R.C.R. (Criminal) 449 "Sushil Kumar (supra) the case was under Sectiond 376/511 IPC. Accused was aged about 19 years old. He was convicted and was ordered to be released on probation. Prosecutrix was 6½ years old. In the present case the appellant was 19 years old and was a labourer. He is to become hardcore criminal, if again sent to jail to undergo imprisonment as ordered by the trial Court. Ends of justice would be fully met in case a lenient view is taken.
Keeping in view the facts and circumstances of the case, I take lenient view and direct the appellant to undergo imprisonment as already undergone (1 month and 5 days) and further directed to deposit Rs.20,000/- as fine payable to the petitioner as compensation. Fine is to be deposited within two months before the trial Court.
For the reasons recorded above, the present appeal without merits is dismissed with modification on the point of sentence and fine.
August 6, 2010 ( JORA SINGH ) rishu JUDGE