Punjab-Haryana High Court
Sonu @ Parma Nand vs State Of Haryana on 10 September, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.634-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.634-SB of 2001
Date of Decision 10.09.2010
Sonu @ Parma Nand
...... Appellant
VERSUS
State of Haryana
...... Respondent
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Mani Ram Verma, Advocate,
for the appellant.
Mr.J.S.Rattu, Deputy Advocate General, Haryana,
for the respondent-State.
*****
A.N.JINDAL, J:
The prosecutrix (name not disclosed), aged about 13 years, student of Yashoda School, Mori Gate, Hisar, fell prey in the hands of the accused, who took her away and raped her. Consequently, he was tried and ultimately, vide judgment dated 24.04.2001, passed by Additional Sessions Judge, Hisar, convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- under Section 363 IPC, rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- under Section 366 IPC and rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- under Section 376 IPC.
In nutshell, the prosecution version, as unfolded by the complainant Jeet Ram (PW8), through his application Ex.PA given before Assistant Sub Inspector Ramesh Chander (PW13) is that he had four children, out of whom, the prosecutrix, aged about 13 years, was a student of Yashoda School, Mori Gate, Hisar. She had acquaintance with the daughter of Balwant @ Balwan, who was residing in their neighbourhood. Criminal Appeal No.634-SB of 2001 2 Few days prior to the occurrence, Balwant had shifted his residence at Shanti Nagar, in a rented house. On 12.04.2000, Suman and Baljit, children of Balwant, came to his house and took the prosecutrix with them on the excuse of showing their new house to her. However, his daughter did not return till evening. On inquiry from Balwant and his wife Chanderkalan, they told that the prosecutrix had gone to the market and would return after sometime but when she did not return till late then he suspected that both Balwant and Chanderkalan had sent his daughter with the accused.
On the aforesaid statement, made by complainant Jeet Ram (herein referred as 'the complainant'), FIR Ex.PA/2 was registered by Sub Inspector Om Singh (PW2). ASI Ramesh Chander (PW13) conducted the investigation, prepared the rough site plan Ex.PN regarding the house of the complainant and made inquiry from the neighbours. On 17.04.2000, on the basis of secret information, he recovered the accused and the prosecutrix from Bus-Stand, Hisar. On interrogation, it came to light that the accused was running a clinic where he took the prosecutrix and raped her. The Investigating Officer also got the prosecutrix as well as accused medically examined from General Hospital, Hisar. He also got recorded the statement of prosecutrix Ex.PR under Section 164 Cr.P.C., wherein she disclosed that the accused had made misuse of her simplicity; threatened her and took her away. He had also taken her to Delhi and from Delhi to Mansa and continued committing rape upon her. After spending 2-3 days there, he had brought her to the house of one of his relatives at Hisar and on 17.04.2000, when she was being shifted to some distant place, she was recovered by the police.
On completion of investigation, challan was presented in the Criminal Appeal No.634-SB of 2001 3 Court. The accused was charged under Sections 363, 366 and 376 IPC to which he pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Sukhraj Singh (PW1), Sub Inspector Om Singh (PW2), Head Constable Amar Singh (PW3), Head Constable Same Singh (PW4), Constable Subhash Chand (PW5), Head Constable Kailash Chander (PW6), Dr.Usha Batta (PW7), Complainant Jeet Ram (PW8), prosecutrix (PW9), Ajit Chukela, Head Master (PW10), Satbir Singh (PW11), Dr.R.J.Bishnoi (PW12) and Asstt. Sub Inspector Ramesh Chander (PW13).
When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. No evidence was led in defence.
The trial ended in conviction.
Arguments heard. Record perused.
The prosecutrix in this case was abducted on 12.04.2000 and was recovered from the custody of accused on 17.04.2000. The prosecutrix has stated that she was forcibly taken away by the accused by making misuse of her simplicity and raped her by taking her to various places. Her testimony finds corroboration from medical evidence which clearly indicates that she was raped by the accused. Dr.Usha Batta (PW7), who medico-legally examined the prosecutrix observed as under:-
"Her height was 156 cms, her weight was 41.5 kgs. Her teeth upper jaw second and third molar were absent. Her teeth lower jaw third molar were absent of both the sides.
On General examination, no external mark of injury on the body was seen, Breasts were developed, nipples were developed. Auxiliary hair were present on both the sides. Pubic hair were scanty and were taken and sent for chemical Criminal Appeal No.634-SB of 2001 4 examination.
On local examination, the pubic hair were sparse. Hymen was absent. Old tear, vagina admitted two fingers, cervix was forward, uterus was retroverted, fornix was clear last menstrual period was on the 10th April, 2000.
She proved the carbon copy of the medico-legal report Ex.PG and her endorsement on the application of the police Ex.PF/1. She handed over to the police sealed box containing two slides with two swabs sticks taken from the posterior fornix and one bottle containing pubic hair, sealed box containing salwar, kameez, duppata and underwear of the prosecutrix, sample impression of the seal, forwarding letter and copy of the medico- legal report. She identified the salwar Ex.P1, Kameez Ex.PZ, Duppata Ex.P3, Underwear Ex.P4, vial containing pubic hair Ex.P5, sticks of swabs Ex.P6 and Ex.P7 and the slides Ex.P8 and Ex.P9. She opined on the basis of medico-legal report and the reports of forensic science laboratory Ex.PH and Ex.P3 that the possibility of the rape on the prosecutrix could not be ruled out.
Similarly, the accused was also examined by Dr.R.J.Bishnoi (PW12), who opined that there was nothing to suggest that the accused was unable to perform sexual intercourse.
Complainant Jeet Ram (PW8), father of the prosecutrix, has also stated that the prosecutrix was about 13½ years old and a student of Yashoda School, Mori Gate, Hisar. The accused had kidnapped her from his lawful guardianship. The prosecutrix, while appearing in the witness box as PW9, has reiterated the prosecution version by stating that on 12.04.2000, Baljit and his sister Suman, while coming to their house, took her away on the pretext that they would show her their new house, taken on Criminal Appeal No.634-SB of 2001 5 rent by their father, however, she was handed over to the accused while going on his clinic. Earlier she used to consider the accused as her brother. However, on that day, he had allured her for marriage, assuring all comforts and enjoyment to her. The accused then took her to a room of his clinic and committed rape upon her and shut her voice. Thereafter, he took her to a canteen and from there to Delhi in a jeep where she was kept for a night. Thereafter, he shifted her to Ludhiana in a bus where they stayed at the house of his relative, who collected some persons and got performed their marriage in a temple forcibly against her wishes. She, while reiterating her story to bring and keep her in a house of his relatives in Azad Nagar, Hisar, she levelled allegations of rape against him. Her statement stands corroborated by medical evidence as well as other evidence The material question to be determined in the case is regarding the age of the prosecutrix. Both the prosecutrix as well as complainant Jeet Ram (PW8) have consistently stated that she was 13 or 13½ years old at the time of incident. Ajit Chukela, Head Master (PW10) has testified, from the school record, that her date of birth is 01.06.1987 from where it could be concluded that she was certainly 13 years of age at the time of incident. The argument of the learned counsel for the appellant that no reliance could be placed on the school record in the absence of any birth certificate, is without any merit as the school record finds corroboration from the testimony of the prosecutrix, who stated her age as 13 years before Dr.Usha Batta (PW7). Similar statement was made by her in Court. No evidence in rebuttal has been led by the accused in order to establish that she was more than 13½ years of age. Consequently, on conspectus of the entire evidence, as referred to above, the evidence in the shape of school record, as proved by Criminal Appeal No.634-SB of 2001 6 Ajit Chukela, Head Master (PW10) would have to be placed reliance. Similar observations were made in case Jarnail Singh vs. State of Haryana 2009 (2) RCR (Criminal) 543. As such, she having been kidnapped on 12.04.2000 was certainly below 16 years of age at the time of commission of offence.
Now coming to the question of consent, though it is well settled by now that when prosecutrix is less than 16 years of age then the consent is immaterial. Reliance has been placed on the judgment delivered in case Satpal Singh versus State of Haryana 2010 (4) RAJ 304 (SC). In this case also, the following circumstances initiate this Court to infer:-
1. Prosecutrix was taken away from her house and at that time she was not aware as to where she was taken and she never know that she would fell prey in the hands of the accused.
2. She was picked up by Baljit Singh and Suman from her house on the pretext of showing her their new house.
3. she has stated that she was allured by the accused on the pretext of providing all comforts of life and marriage.
4. She proved to be less than 16 years of age at the time of incident.
The prosecutrix was not known to the accused since prior to 12.04.2000, but she was kept upto 17.04.2000, when ultimately, she was recovered from her possession. The accused continued taking her to different places i.e. Hisar, Ludhiana, Delhi and Mansa leaving no chance for the prosecutrix to approach and convey her grievance to her parents or relations.
The prosecutrix in unequivocal words has tore out her abdomen stating that the accused had allured and taken her away and committed rape upon her without her consent. From the statement of Dr.Usha Batta and the Criminal Appeal No.634-SB of 2001 7 reports of Forensic Science Laboratory, it stands established that the prosecutrix was subjected to sexual intercourse by the accused.
Irrespective of the fact that the prosecutrix did not complain to any individual at any stage during the period of kidnapping and raping and she was not having any injury on her person and her hymen was absent but these circumstances do not render any help to prove the case of the accused that the prosecutrix was not raped. Since the age of the prosecutrix stands proved as below 16 years on the date of commission of offence and she was not competent to give consent for sexual intercourse, even if she was compelled by the circumstances submitted herself to the accused then in that situation also and in the light of observations given in Satpal Singh's case (supra), she cannot be said to have consented to sexual intercourse.
Now while determining the valuation of the statement of the prosecutrix, it may be observed that the prosecutrix while appearing as PW9 has categorically given a true, cogent and convincing account of the entire evidence. She being 13-14 years of age, daughter of a peon, having lost her mother at very young age and a student of 7th class and having very immature mind, could not be said to have a mature mind and was unable to think like a fully grown up major girl. She could not watch her good or bad. She, as coerced by the accused, submitted to his commands. It is a matter of common experience that such immature girls, being ignorant, of what they are doing, while, considering the marriage, good clothes and good ornaments, stretch their emotions. Some anti social elements exploit the immature thinking of such poor and school going girls in order to satisfy their lust. Resultantly, career of such minors is spoiled. The Apex Court has sanctity to the testimonies of such immature girls even though they Criminal Appeal No.634-SB of 2001 8 might not have fully cleared the test of cross-examination at the hands of intelligent, mature, senior and experienced advocates. It has also been mentioned time and again that some contradictions are bound to occur in the statements of the prosecution witnesses yet the same are not sufficient to disbelieve their testimonies unless the same affect substratum of the case. But having examined the statement of the prosecutrix, to my mind, she has withstood the test of reliability and credibility. She has stated whatever happened with her. Though her statement stands corroborated by the medical evidence yet the law has gone to the extent that the testimony of the prosecutrix if found reliable, then the Court should not look for its corroboration. To require corroboration would amount to an insult to an injury. If the prosecutrix has withstood the test of cross-examination then there should be no reason to disbelieve her. In his case, the prosecutrix has deposed about the events in complete sequence. She or her father had no enmity against the accused to falsely implicate him in the case. No father would like to sacrifice the repute and modesty of her daughter for petty motives. As regards the valuation of testimony of the prosecutrix, it has been observed in case State of Punjab versus Gurmit Singh 1996 (1) R.C.R. 533 as under:-
"The testimony of the victim in such cases is vital and unless there are some compelling reasons which necessitate looking for corroboration of her statement, Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelieve or suspicion ? Criminal Appeal No.634-SB of 2001 9 The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscious, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subject 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. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Court cannot cling to a fossile formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
It has been further observed in case State of H.P. versus Lekh Raj and another 2000 SCC (Criminal) 147 as under:-
"Hyper-technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and Criminal Appeal No.634-SB of 2001 10 weighing the evidence of the prosecution to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of the life have to be kept in mind while appreciating the evidence for arriving at the truth."
While taking stock of the entire evidence on the record, it transpires that the accused being a very clever private practitioner, making misuse of the real, rustic and domestic girl, exploited her sexually on the pretext of marriage and spoiled her human frame. As such, it would be appropriate to observe that the trial Court in its detailed judgment has expressed the right view and no exception could be made to the opinion expressed by the trial Court.
Resultantly, finding no merit in the appeal, the same is dismissed.
(A.N.Jindal) Judge 10.09.2010 mamta-II