Punjab-Haryana High Court
Ajit Singh vs State Of Haryana on 7 February, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Amol Rattan Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. D-106-DB of 2007
DATE OF DECISION : 07.01.2013
Ajit Singh
.... APPELLANT
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Tapan Kumar, Advocate, for
Mr. Jaivir Yadav, Advocate,
for the appellant.
Mr. Vinod S. Bhardwaj, Addl. A.G., Haryana.
***
SATISH KUMAR MITTAL , J.
1. Appellant Ajit Singh was tried by the court of learned Additional Sessions Judge, Rewari, for the offences under Section 376 and 292 IPC, for committing rape on his 12 years old school going minor daughter, and distributing an obscene book to her to read. The trial court, vide its judgment dated 21.11.2006 convicted the appellant for the aforesaid offences, and vide order dated 22.11.2006, he was sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/-, in default of payment of fine to undergo rigorous imprisonment for three months, under Section 376 IPC; and to undergo rigorous imprisonment for a period of two years and to Crl. A. No. D-106-DB of 2007 -2- pay a fine of ` 2,000/-, in default of payment of fine to undergo rigorous imprisonment for one month, under Section 292 IPC. The substantive sentences were ordered to run concurrently. Against the said judgment and order, the instant appeal has been filed by the appellant.
2. The case of the prosecution is based upon the written complaint dated 5.4.2006 (Ex.PB) made by Mukesh Kumari (PW.2), wife of the appellant, to Superintendent of Police, Rewari. In the complaint, she alleged that her elder daughter (whose name is not being mentioned in the judgment and who is being referred as `the victim'), aged 12 years, was studying in 8th Class. The appellant had been committing rape upon the victim since October, 2005. This fact was told to the complainant by the victim in the evening on 3.4.2006, when she came back to her village Pali from the village of her maternal uncle. The victim had gone to the village of her maternal uncle about one week ago, and when the complainant asked her to return back, she started crying. When she was brought back to village Pali, she told her mother about the bad act of her father. It was also told by the victim that the appellant had also delivered an obscene book to her to read. It was further alleged by the complainant that her younger daughter Varsha and son Vikrant also told that they had also seen the bad act of the appellant one day through window of the room. According to the complainant, the victim told her that earlier she could not disclose about the bad act of the appellant, because she was given threat to cause death by him and not to Crl. A. No. D-106-DB of 2007 -3- disclose about the alleged act to any one.
3. On receipt of the written complaint, on 5.4.2006 itself, DSP, Headquarter, Rewari, immediately marked the same to SHO, Police Station Khol, who made his endorsement (Ex.PO) on the application and sent the same to the Police Station for registration of the case against the appellant. On the basis of the said complaint, FIR (Ex.PE) under Sections 376 and 292 IPC was registered against the appellant at Police Station Khol. On the same day, the victim was medico legally examined by Dr. Sharda Dabas (PW.11), with the alleged history of rape by the appellant repeatedly since October, 2005. In the Medico Legal Report (Ex.PK), it was found that the victim was subjected to sexual intercourse. Her hymen was torned with old heal tears, though no fresh injury was seen on the body.
4. During investigation, the victim handed over the obscene book (Ex.PI) to the police, which was taken into possession vide recovery memo (Ex.PC). Statements of the victim, her mother, brother and sister and others witnesses were recorded under Section 161 Cr.P.C. On 7.4.2006, the appellant was arrested and he was got medico legally examined.
5. After completion of investigation, the challan was filed and charge under Sections 376 and 292 IPC was framed against the appellant, to which he did not plead guilty and claimed trial.
6. In support of its case, the prosecution examined thirteen witnesses.
Crl. A. No. D-106-DB of 2007 -4-
7. PW.1 Dharam Pal, Draftsman, SP Office Rewari, proved the scaled site plan (Ex.PA).
8. PW.2 Mukesh Kumari (complainant), who is wife of the appellant and mother of the victim, has reiterated the entire version, as stated by her in the complaint (Ex.PB), which was made by her on 5.4.2006 to the Superintendent of Police, Rewari.
9. The victim appeared as PW.3. She fully supported the prosecution version.
10. PW.4 SI/SHO Deen Dayal, PW.5 HC Chander Shekhar, PW.6 Constable Babu Lal, PW.7 HC Sarjit Singh, PW.8 HC Anita Devi and PW.9 HC Jagdish Kumar are the formal witnesses.
11. PW.10 Daya Ram, School Incharge, Modern Indian High School, Pali, proved the school leaving certificate (Ex.PJ) of the victim, according to which her date of birth is 03.03.1994.
12. PW.11 Dr. Sharda Dabas, who medico legally examined the victim, proved the MLR (Ex.PK), the police request (Ex.PL). After going through the FSL report (Ex.PK), she opined that in this case possibility of sexual intercourse cannot be ruled out. She identified the Salwar (Ex.P1), which was taken by her at the time of medical examination of the victim. She also proved the slides (Ex.P2 and Ex.P3) and test tubes (Ex.P4 and Ex.P5).
13. PW.12 Dr. Vijay Pal, who medico legally examined the Crl. A. No. D-106-DB of 2007 -5- appellant, proved the MLR (Ex.PM) and the police request (Ex.PN).
14. PW.13 Ram Phool, SI, the Investigating Officer, proved his endorsement (Ex.PO) on the written complaint (Ex.PB) made by the complainant; recovery memos (Ex.PC and Ex.PG), vide which he took into possession the obscene book (Ex.PI), as well as the parcel containing Salwar and swab and one envelope; rough site plan (Ex.PQ); and the recovery memo (Ex.PH) vide which parcel containing one underwear and one plastic box, MLR and one envelope were taken into possession.
15. In his statement under Section 313 Cr.P.C., the accused denied all the incriminating evidence appearing against him and pleaded his innocence. He stated that his wife Mukesh Kumari got him falsely implicated in this case to take revenge from him, as he used to object to her to go out of house with her PGF staff members on their motor-cycle, and her refusal to obey his words led to quarrels between them. It was also alleged by the appellant that his wife used to force him to sell out the land and house, which were in his name, and to reside at Rewari. When he refused to do so, she threatened that she will implicate him in a false case, for which he will always remember. So, according to the appellant, for taking revenge of quarrels, his wife got him implicated in the false case.
16. In support of his defence, the appellant examined four witnesses, namely DW.1 Rohtash, DW.2 Sri Krishan, DW.3 Babu Lal and DW.4 Dhapa. They have stated that the appellant is a man of good character. Crl. A. No. D-106-DB of 2007 -6- He always maintains his children nicely. It was not heard in the village that the appellant had committed any wrong act with his daughter. They have further stated that since the appellant was objecting his wife to go with her PGF staff members, therefore, relations between the husband and the wife were strained and were not cordial and for that reason, the quarrel used to take place between them.
17. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the medical evidence, which proved the factum of committing rape on the victim, and the testimony of Mukesh Kumari (PW.2), the victim (PW.3) and other link evidence, the trial court convicted and sentenced the appellant, as mentioned in the first para of the judgment.
18. We have heard learned counsel for both the parties and carefully perused the record of the case.
19. While assailing the judgment of conviction and the order of sentence, learned counsel for the appellant made five-fold submissions.
20. Firstly, it has been argued that from the medical evidence available on record, commission of rape on the victim has not been established. Secondly, learned counsel for the appellant argued that the prosecution story that the father has committed rape on his minor daughter is highly improbable, particularly when the prosecution has not explained as to why the victim remained silent for six months, as for the first time, the Crl. A. No. D-106-DB of 2007 -7- appellant allegedly committed rape upon the victim in the month of October, 2005, and the matter was reported to the police on 5.4.2006. It has further been argued that why the complainant could not come to know about the alleged act of rape upon her minor daughter, when the rape was alleged to be committed in the house itself. Thirdly, learned counsel argued that the testimony of the victim, who was minor at the time of the alleged occurrence as well as while deposing in the court, is unreliable, and solely on the basis of her testimony, conviction of the appellant is not sustainable. Fourthly, it has been argued that in this case, PW.2 Mukesh Kumari (wife of the appellant) had deposed against the appellant with a motive to teach him a lesson for stopping her to go with her PGF staff members on their motor cycle. It has been argued that with the aforesaid object and motive, PW.2 Mukesh Kumari procured an obscene book and implicated the appellant by tutoring her minor daughter to falsely depose against him. Fifthly, learned counsel argued that statement of the victim was not put to the appellant, while recording his statement under Section 313 Cr.P.C., therefore, his conviction is not sustainable.
21. We have carefully considered the aforesaid submissions made by learned counsel for the appellant, but do not find substance in any of these submissions and any illegality in the judgment of conviction and the order of sentence, passed by the trial court.
22. A careful perusal of the MLR (Ex.PK) of the victim and the Crl. A. No. D-106-DB of 2007 -8- testimony of PW.11 Dr. Sharda Dabas, clearly reveals that the victim was subjected to sexual intercourse. As per the school leaving certificate (Ex.PJ), the date of birth of the victim is 3.3.1994. Thus, on the day, when she was subjected to rape for the first time in the month of October, 2005, she was less than 12 years of age. On 5.4.2006, when she was medico legally examined by PW.11 Dr. Sharda Dabas, she was about 12 years of age. During her medical examination, the Doctor clearly found that her hymen was torn with old heal tears at 3 `O' clock, 7 `O' clock and 9 `O' clock. It has been opined by the Doctor that possibility of sexual intercourse can not be ruled out. It has been argued by learned counsel for the appellant at length that no injury was found on the body or private part of the victim, therefore, it cannot be said that any rape was committed on her. In this regard, reference was made to the portion of the statement of PW.11 Dr. Sharda Dabas, where she stated that she did not observe any mark of violence or injury upon the person of the victim. Reference was also made to part of the statement, where it was stated that vagina admits one finger easily. In view of these facts, it has been argued that no rape was committed upon the victim. After considering the submissions made by learned counsel for the appellant, we are of the opinion that such contention cannot be accepted in this case, because the Doctor categorically stated that the hymen of the victim was torn at three places and those injuries healed. As per the prosecution version, the rape was committed first time in the month of Crl. A. No. D-106-DB of 2007 -9- October, 2005, and not on 3.4.2006, when the victim narrated the incident to her mother, and last time, a week prior to 3.4.2006. The rape was committed upon the victim by her father for four/five times since October, 2005, as stated by the victim herself. In these circumstances, the question of finding fresh injury on the body of the victim on 5.4.2006, when she was medico legally examined, does not arise at all. In reply to a question put to Dr. Sharda Dabas (PW.11) in her cross-examination, it was categorically stated by her that it is incorrect to suggest that no rape is committed upon the victim. No doubt, the doctor in her cross-examination also says that it is difficult to say that the vagina has been dilated by a penis or some other substance and that it is very difficult for her to say that defloration is the result of voluntarily carnal commerce or that it is the result of violence. However, the entirety of circumstances, especially the statement of the prosecutrix and her mother, read with the medical evidence, point to the fact that the tearing of the hymen was the result of the rape committed. Thus, in the present case, from the medical evidence available on record, which is reliable and trust-worthy, the commission of rape on the victim has been established.
23. Now, the question arises as to who has committed rape upon the victim, who was below 12 years of age at the time of the occurrence. The victim herself appeared as PW.3 in this case. Though she was minor at that time, but in the court, she categorically stated that since October, 2005, her Crl. A. No. D-106-DB of 2007 -10- father used to commit rape upon her under threat, when she used to be alone in the house, and he had given her an obscene book to read. She stated in the court that she could not disclose the facts of rape to her mother earlier, because she was put under threat of killing by her father. In her statement, she has given the details as to when, how and in what manner, the rape was committed upon her by the appellant. The statement made by the victim in the court is constant and clear. She faced a lengthy cross-examination, but even in her cross-examination, she firmly deposed that her father had committed rape upon her for 5/6 times, and for the first time, the bad act was done in the month of October, 2005. The statement of the victim inspires confidence and is reliable. It has been argued by learned counsel for the appellant that testimony of the victim as PW.3 in the court is not reliable, because she being minor was tutored by her mother, who has a motive to falsely implicate the applicant for taking revenge for the abuses given by him to the complainant. While referring to the defence witnesses, examined by the appellant, who categorically stated that the appellant was having good character and he used to maintain his children nicely, learned counsel argued that the complainant had tutored her minor daughter to falsely depose against the appellant.
24. We have carefully gone through the statement of the victim, a child, who appeared as PW.3 in the court, and find her statement to be credible and trust-worthy. It does not appear that the victim made the said Crl. A. No. D-106-DB of 2007 -11- statement in the court under any influence or tutoring. The statement of the victim that she was subjected to rape is corroborated by the medical evidence. No doubt, in her statement before the police, she did not state that she (prosecutrix) had been to her maternal uncle/maternal grand father's place and had, in fact, stated that "today my mother came home and my younger sister and brother told her about the incident. Thereafter, my mother asked me and I told her everything and my mother then took all three of us brother and sisters to my maternal uncle, aunt and grand father's place." Thereafter, in her examination-in-chief, she stated that she had gone to her maternal uncle's house in summer vacations. Her mother came to take her and she had returned to her village Pali where she had disclosed everything to her mother. After that, she went back to her maternal uncle's village. In her cross-examination also, she stated that her mother had come to take her on 3rd of the month but she did not remember the month and that she had made the statement to the police that her mother had come to take her from Village Saharanwas (maternal uncle's village). Thus, there is discrepancy in the statement made before the police and that made in the court. However, this does not amount to such a discrepancy so as to give benefit to the accused. In any society, rape by the father would be something which would be deliberated upon in any house before the matter is made public by reporting to the police. Hence, the possibility is very much there that the prosecutrix may have been at home on 3rd of April, 2006 and, in fact, it is Crl. A. No. D-106-DB of 2007 -12- her mother who may have come from village Saharanwas and then after deliberations with her brother and other family members, decided to go to the police and gave a version that the prosecutrix and the complainant (daughter and mother) had both come together from village Saharanwas and thereafter gone back there for deliberations with the complainant's family and thereafter gone to the police, to try and cover up for any perceived delay in lodging of the FIR. Thus, we find the testimony of the victim credible and reliable, and the same cannot be rejected merely because she was minor at the time of her deposition in the court.
25. An argument has been raised that since the prosecution did not examine the younger brother and sister of the victim, who allegedly had seen the appellant committing rape upon the victim, therefore, the testimony of the victim was not corroborated by the other independent witnesses, therefore, it is not safe to convict the appellant on the sole testimony of the victim.
26. After considering the submissions, we do not find any force in the aforesaid arguments. It is well settled, as has been held by the Hon'ble Supreme Court in Panchhi v. State of U.P., (1998) 7 SCC 177 and Suryanarayana v. State of Karnataka, (2001) 9 SCC 129, that the evidence of a child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statement and its reliability, Crl. A. No. D-106-DB of 2007 -13- base conviction by accepting the statement of the child witness. The only requirement is that the court, at the time of scrutinising the evidence of a child witness, should take care and caution. If he/she is shown to have stood the test of cross-examination and there is no infirmity in his/her evidence, conviction can be recorded on the basis of his/her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. While appreciating the evidence of a child witness, the courts are required to rule out the possibility of the child being tutored. We have carefully examined the statement of the victim, who has appeared as PW.3, and do not find any discrepancy in her statement. We have already come to the conclusion that testimony of the victim in the court is reliable and trust-worthy. There is no ground to doubt the veracity of the testimony of this witness. We have considered the argument of learned counsel for the appellant with regard to the possibility of the victim being tutored by her mother, but from the facts and the evidence on record, we do not find that the victim deposed in the court against her father, on the asking of her mother. Her deposition cannot be said to be tutored one. In our opinion, the defence taken by the appellant that he has been falsely implicated in this case, because he was having quarrel with his wife, does not inspire any confidence. On a careful consideration of the examination- in-chief and cross-examination of the prosecutrix, there is nothing at all, to suggest that she was falsely implicating her father, with whom she had been Crl. A. No. D-106-DB of 2007 -14- residing along with her brother and sister all 11-12 years of her life. Learned Additional Sessions Judge, before whom deposition was made, has also specifically stated in para 34 of his judgment, that she stood the cross- examination satisfactorily and that she does not seem to be a tutored witness. Obviously, the behaviour and stance of the prosecutrix in the court at the time of her deposition, and as observed by learned Additional Sessions Judge, has to be given due weightage and importance.
27. The defence version and statements of the witnesses examined by the appellant in his defence are not reliable. In an ordinary prudence, it is not understandable that merely because of some altercation between husband and wife on petty issue, the wife will falsely implicate her husband in a rape case, and that too on the allegation that he committed rape with her daughter, and on the asking of her mother, no daughter will falsely depose against her father alleging rape upon her. In the present case, the allegation of rape levelled by the victim has been corroborated by the medical evidence. The statement of the victim, and more particularly when she was below 12 years of age at the time of commission of the offence, cannot be discarded merely on probabilities.
28. In State of Rajasthan v. Om Parkash, (2002) 5 SCC 745, it has been held that it is a well-settled proposition that conviction for offence under Section 376 IPC can be based on the sole testimony of a rape victim. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, referring to State of Crl. A. No. D-106-DB of 2007 -15- Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, the Hon'ble Supreme Court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision that testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
29. While considering the last submission made by learned counsel for the appellant, we have perused the statement of the appellant under Section 313 Cr.P.C. A perusal of the said statement clearly indicates that all the facts with regard to committing of rape by the appellant upon his minor daughter, as stated by the victim, were put to the appellant. Even it was put to him that all the witnesses had deposed against him and he only stated that they are deposing falsely. Therefore, it cannot be said that statement of the victim was not put to the victim, and we are of the opinion that this submission of learned counsel for the appellant is also devoid of any merit.
30. The victim, while appearing in the witness box as PW.3, has Crl. A. No. D-106-DB of 2007 -16- also proved the obscene book (Ex.PI), which was given to her by the appellant to read.
31. In view of the above, we are of the opinion that in the facts and circumstances of the case, the prosecution has fully established the guilt of the appellant beyond reasonable doubt, and the trial court was fully justified in convicting and sentencing the appellant under Sections 376 and 292 IPC.
32. In view of the above, the impugned judgment of conviction and the order of sentence, passed by the trial court, are upheld, and the appeal is, accordingly, dismissed.
( SATISH KUMAR MITTAL )
JUDGE
January 07, 2013 ( AMOL RATTAN SINGH )
ndj JUDGE