Punjab-Haryana High Court
Jassa Singh vs State Of Punjab on 31 January, 2012
Author: S.S. Saron
Bench: S.S. Saron, Rameshwar Singh Malik
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.891-DB of 2006
Date of decision: January 31, 2012
Jassa Singh
.... Appellant
Versus
State of Punjab
.... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK.
Present: Mr. Vinod Ghai, Advocate (Amicus Curiae) for the appellant.
Mr. S.S. Gill, Addl. Advocate General, Punjab.
***
S.S. SARON, J.
This appeal has been filed by the appellant Jassa Singh alias Jaswant Singh against the judgment and order dated 27.10.2006 passed by the learned Sessions Judge, Mansa whereby the appellant has been convicted for the offence punishable under Section 376 (2)(f) of the Indian Penal Code ("IPC" - for short) and sentenced to undergo imprisonment for life; besides, pay a fine of Rs.50,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 2 years. In case of recovery of fine, it has been ordered that an amount of Rs.40,000/- shall be deposited in a fixed deposit receipt (FDR) in the name of the prosecutrix, which she will be able to withdraw on attaining the age of majority.
The FIR (Ex.PN) in the case has been registered on the statement (Ex.PB) of the prosecutrix (PW3) aged 12 years. It is stated by the prosecutrix that she is a resident of Fatehpur and studying in the 6th class in CRA No.891-DB of 2006 [2] Government High School, Fatehpur. Her date of birth is 11.11.1993. About 10 years earlier to her making the statement (Ex.PB), which was made on 21.8.2005, the mother of the prosecutrix namely Karamjit Kaur alias Seeto (PW1) along with her started living with Jassa Singh (appellant) resident of Fatehpur. The mother of the prosecutrix had told her that her previous husband namely Jaila Singh i.e. father of the prosecutrix resident of Behniwal was addicted to drugs and had left her. The mother of the prosecutrix along with the prosecutrix had, therefore, started living with Jassa Singh alias Jaswant Singh (appellant) son of Baggar Singh alias Chota resident of Fatehpur. The prosecutrix had one brother namely Ranjit Singh aged about 9 years. The said facts came to the knowledge of the prosecutrix after these were disclosed to her by her mother.
On the day of Lohri of 13.01.2005, the mother of the prosecutrix along with the brother of the prosecutrix had gone to her parents' house at village Jhabbar. The prosecutrix and her father Jassa Singh (appellant) remained at their house. In view of the festival of Lohri, the father of the prosecutrix namely Jassa Singh had consumed substantial liquor. After taking their meals, the prosecutrix and her father went to sleep in a room. The time must be around 9/10.00 p.m. at night that Jassa Singh (appellant) father of the prosecutrix came and lay on her cot. He threatened the prosecutrix to remain lying down quietly and in case she raised an alarm, he would kill her. The father of the prosecutrix forcibly removed her 'salwar'. The prosecutrix said that a father does not do such an act with her own daughter and that she was her daughter; besides, she stated not to do any wrong act with her. Despite, the prosecutrix stopping her father Jassa Singh (appellant), he forcibly committed rape on her. She being a young girl could not resist him. The prosecutrix further stated that she wept for a considerable CRA No.891-DB of 2006 [3] time, but her father made her quite after scaring her and then she lay down. She was stained with blood and her clothes also got stained with blood which her father washed in the morning. On account of fear, she did not disclose the said incident to anyone. On 4.8.2005, the mother of the prosecutrix had gone to Kaithal. She (prosecutrix) and her father (appellant) were alone at home and on that night also, her father forcibly committed rape on her. Her father used to say that he had been to jail many times and many cases were registered against him. He also threatened the prosecutirx that if she disclosed anything to anyone, he would kill her. A day earlier to the prosecutrix making her statement on 21.08.2005 i.e. on 20.8.2005, her mother again along with her brother was getting ready to go to the house of the maternal grandfather of the prosecutrix. The prosecutrix then started crying in front of her mother and she asked the prosecutrix as to why was she crying and asked her as to what was the matter. The prosecutrix then narrated as to all that had happened to her. On 21.08.2005 the mother of the prosecutrix along with her were going to Police Station Jhunir and at the bus- stand Fatta Maluka, Harpal Singh SI/SHO (PW-8) Police Station Jhunir met them and he recorded the statement of the prosecutrix. It was stated by the prosecutrix that her father Jassa Singh alias Jaswant Singh (appellant) against her wishes had forcibly been committing rape on her. The statement was heard by the prosecutrix and was accepted as correct. It was signed by the prosecutrix in Punjabi. Karamjit Kaur alias Seeto, mother of the prosecutrix, put her right thumb impression on it by stating that the statement was recorded in her presence. These were attested by Harpal Singh SI/SHO (PW
8), Police Station Jhunir on 21.08.2005.
The police proceedings (Ex.PM) were recorded by SI/SHO Harpal Singh (PW8) on 21.08.2005 wherein it is mentioned that he along CRA No.891-DB of 2006 [4] with ASI Rajinder Singh, HC Lakhmir Singh, Constable Jagga Singh, PHG Balwinder Singh in a Government vehicle No.PB12 G 9066 whose driver was Iqbal Singh were present in connection with patrolling in the area of Fatta Maluka. They were going to Landuka Harike etc. and when they had stopped at the bus-stand Fatta Maluka, the prosecutrix and her mother namely Karamjit Kaur alias Seeto (PW1) met them. The prosecutrix (PW3) in the presence of her mother got her above statement (Ex.PB) recorded with SI/SHO Harpal Singh (PW8). SI/SHO Harpal Singh (PW8) after writing the statement read it over and made them hear it and after hearing it they accepted it as correct. The prosecutrix signed her statement (Ex.PB) in Punjabi and her mother Karamjit Kaur alias Seeto put her right thumb impression on it which was attested by SI/SHO Harpal Singh (PW 8). From the statement of the prosecutrix, offences punishable under Sections 376 and 506 IPC were found to be made out. The statement (Ex.PB) of the prosecutrix against Jassa Singh alias Jaswant Singh (appellant) resident of Fatehpur was sent through Constable Jagga Singh to the Police Station for registration of case (FIR). The number of the case (FIR) after registration was asked to be informed. Besides, special reports were asked to be sent to the Senior Officer and PCR Mansa was also to be informed. A lady Constable was also asked to be sent at the spot.
SI/SHO Harpal Singh (PW 8) along with other police officials and the complainant of the case proceeded to the place of occurrence at village Fatehpur. On receipt of the writing Bharpur Singh, ASI Police Station Jhunir recorded FIR No.119 dated 21.08.2005 (Ex.PN) for the offences under Sections 376 and 506 IPC. SI/SHO Harpal Singh (PW8) along with the prosecutrix and her mother went to their house at the spot. On the asking of the prosecutrix, he inspected the spot and prepared site plan CRA No.891-DB of 2006 [5] (Ex.PO) with correct marginal notes. Besides, he verified the facts. Nothing was recovered from the spot. Then SI/SHO Harpal Singh (PW8) was going towards the hospital along with the prosecutrix and her mother. At the bus- stand of Jhunir, lady Constable Manjit Kaur met him and she was associated with the investigation. Constable Jagga Singh also met him and he had brought the FIR.
The prosecutrix was medically examined at Civil Hospital, Mansa for which SI/SHO Harpal Singh (PW8) had filed an application (Ex.PE). The Senior Medical Officer vide endorsement (Ex.PE/1) deputed Dr. Navjot Kaur, Medical Officer, Civil Hospital Mansa (PW4) for conducting the medical examination of the prosecutrix. The medical examination of the prosecutrix was conducted on 21.8.2005 at 3.00 p.m. The prosecutrix complained of sexual assault for the period of approximately 6 to 7 months. On examination, hymen was found to be ruptured and healed, vaginal orifice admitted two fingers. On P/V examination, uterious A/v Fxnx free and LMP 25 days back was observed. Urine for pregnancy test was advised. Pubic hair and vaginal swab were taken and sent for chemical examination. Carbon copy of MLR, vaginal swab in a sealed vial, pubic hair in a sealed vial, sample seal with mark NKS, a packet with five seals containing clothes of patient, an envelope with five seals containing carbon copy of MLR, request letter and sample seal were handed over to the police. A report was obtained by Constable Jagga Singh and produced before SI/SHO Harpal Singh (PW8). The envelope addressed to Chemical Examiner and the articles were taken in possession vide memo Ex.PQ which was attested by the witnesses.
Harpal Singh SI/SHO (PW 8) then recorded the statement of Karamjit Kaur alias Seeto (PW1) mother of the prosecutrix and also other CRA No.891-DB of 2006 [6] witnesses. Harpal Singh SI/SHO (PW8) then came to the bus-stand Mansa where the Constable who had been deputed for delivery of special report met him and his statement was recorded. Harpal Singh SI/SHO (PW8) then went to Fatehpur village where Chowkidar Maghar Singh met him. He informed that the accused (appellant) was going towards village Moda and was wearing clothes of a particular design. Harpal Singh SI/SHO (PW8) then proceeded towards that village and the accused (appellant) met him. He (appellant) was arrested and memo of arrest (Ex.PR) was prepared, which was thumb-marked by the appellant and attested by the witnesses. On personal search of the accused (appellant) cash amount of Rs.20/- was recovered in respect of which memo Ex.PS was prepared, which was thumb- marked by the accused (appellant) and attested by the witnesses. The statements of other witnesses were also recorded. The accused (appellant) was then brought to the Police Station and the case property was deposited with MHC Gurcharan Singh in the Police Station with seals intact.
On the next day, the accused (appellant) was taken to Civil Hospital Sardulgarh for his medical examination. An application (Ex.PH) was filed. Dr. Sohan Lal (PW5) made his report (Ex.PH/1) as regards the medical examination that was conducted. The doctor (PW5) as per his opinion found no abnormality which showed that he (appellant) was unable to do sexual intercourse. On 23.08.2005 Harpal Singh SI/SHO (PW8) recorded the statement of MHC. The prosecutrix was also produced before the learned Judicial Magistrate Ist Class for recording her statement in terms of Section 164 of the Code of Criminal Procedure ("CrPC" - for short). The statements of formal witnesses were also recorded.
On 25.08.2005 the school certificate (Ex.PL) of the prosecutrix was produced by her in respect of which memo Ex.PC was prepared. Harpal CRA No.891-DB of 2006 [7] Singh SI/SHO (PW8) also recorded the statement of School Head Teacher as well as the official of the District Education Officer, Mansa. Besides, he took the relevant record in his possession. On completion of investigation, Police report (challan) was filed by him in the Court of learned Judicial Magistrate Ist Class, Mansa on 2.9.2005.
The learned Judicial Magistrate Ist Class, Mansa on perusal of the police report (challan) and document accompanying it observed that an offence under Section 376 and 506 IPC was alleged to have been committed by the accused (appellant). In terms of order dated 22.10.2005 it was observed that since the offence under Section 376 IPC was exclusively triable by the Court of Session, was committed the case to the Court of learned Sessions Judge, Mansa for 5.11.2005. The accused (appellant) who was in custody, was directed to be produced before the said Court.
The learned Sessions Judge, Mansa on 9.11.2005 charged the appellant on the allegations that he on 13.1.2005 and 4.8.2005 in the area of Fatehpur committed rape on a girl (prosecutrix) under 12 years of age and thereby committed an offence punishable under Section 376(2)(f) IPC and he directed that the appellant be tried by the Court. The appellant had heard and understood the charge and pleaded not guilty to the same and claimed trial.
The prosecution in order to prove its case examined Karamjit Kaur alias Seeto (PW1), mother of the prosecutrix, Gurcharan Singh (PW2) Head Constable who tendered in evidence his affidavit (Ex.PA), the prosecutrix (PW3), Dr. Navjot Kaur, Medical Officer, Civil Hospital, Mansa (PW4) who conducted the medical examination of the prosecutrix, Dr. Sohan Singh (PW5) who conducted the medical examination of appellant, Harbans Singh (PW6) who had brought the admission record containing application (ex.PJ/1) of the prosecutrix in the third standard of the school. The said CRA No.891-DB of 2006 [8] application was dated 15.5.2002 and was thumb marked by the appellant. As per particulars (Ex.PJ), the date of birth of the child was mentioned as 11.11.1993. The same date of birth was mentioned on the transfer certificate (Ex.PK) of the previous school. Gian Singh, Senior Assistant, District Education Officer (DEO) (Primary), Mansa (PW7) was examined and he proved the photocopy of the detailed mark-sheet (Ex.PL) which was signed Smt. Bhupinder Kaur then District Education Officer (Elementary). AS per the mark-sheet (Ex.PL), the date of birth of the prosecutrix was 11.11.1993. SI/SHO Harpal Singh (PW8), the investigating officer of the case was examined. Constable Jagga Singh (PW9) tendered in evidence his affidavit (Ex.PT) and the prosecution closed its evidence.
The statement of the appellant in terms of Section 313 CrPC was recorded and the evidence appearing against him was put to him. The accused (appellant) stated that he was innocent and had been falsely implicated in the present case. His wife used to go to the police and when he objected to her from going there, she in connivance with the police lodged the false report against him. The date of birth of the girl was wrongly mentioned by his wife. In defence, the appellant examined Harbans Singh alias Bansa son of Maghar Singh, Chowkidar of village Fatehpur (DW1) who stated that he knew the accused (appellant) and he never heard that the accused (appellant) had ever assaulted his daughter or committed rape on her. He had never seen the accused indulging in such activities. It was further stated that Karamjit Kaur alias Seeto (PW1) wife of the accused (appellant) was a characterless lady and the accused (appellant) used to stop her from such activities. Therefore, Karamjit Kaur alias Seeto (PW1) had involved the accused (appellant) falsely in the present case and got him arrested. The accused (appellant), it is stated, used to consider and treat the prosecutrix as CRA No.891-DB of 2006 [9] his daughter. Besides, Kaka Singh (DW2), a neighbour of the accused (appellant) was examined. He stated that the accused (appellant) used to treat the prosecutrix as his daughter and he got her educated. He had never heard that the accused (appellant) had sexually assaulted his daughter (prosecutrix) as the daughter of the wife of accused (appellant) was from her first marriage. The learned Sessions Judge, Mansa after considering the evidence and material on record vide order dated 27.10.2006 found the appellant guilty of the charge framed against him for the offence under Section 376 (2)(f) IPC and convicted him for the same. By a separate order passed on the same day, the appellant was sentenced to imprisonment for life; besides, pay a fine of Rs.50,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 2 years. In case of recovery of fine, an amount of Rs.40,000/- was ordered to be deposited in the FDR in the name of the prosecutrix which she was to withdraw at the time of her attaining majority.
Mr. Vinod Ghai, Advocate (Amicus Curiae) learned counsel for the appellant has submitted that there is considerable delay in lodging the FIR. It is submitted that in respect of the alleged incident of 13.1.2005, the FIR has been registered on 21.08.2005 after a delay of seven months which has not been explained satisfactorily. In any case, it is submitted that the prosecution has not led evidence so as to effectively determine the age of the prosecutrix and no ossification test was got conducted. Besides, the prosecution failed to produce any opinion of the Radiologist or Dental Surgeon regarding the age of the prosecutrix (PW3). The date of birth of the prosecutrix (PW3) which is given as 11.11.1993 it is submitted is on the lower side and has been given by the mother of the prosecutrix (PW3) namely Karamjit Kaur alias Seeto (PW1). A reference has been made to the deposition of Dr. Navjot Kaur, Medical Officer, Civil Hospital Mansa (PW4) CRA No.891-DB of 2006 [10] who in her deposition on examination of the prosecutrix stated that breasts were well developed. Nipple and areola were well developed, dark brown in colour. Axillary hair were well developed but scanty. Besides, external genitalia were well developed. Pubic hair were well developed. Therefore, these characteristics, it is submitted, are suggestive of the fact that the prosecutrix (PW3) was more than 13 years of age and in case she is not less than 12 years of age then the offence in any case would not fall within the ambit of Section 376 (2)(f) IPC. In that eventuality the sentence of imprisonment of the applicant in any case is liable to be reduced from that of life imprisonment to imprisonment of upto 7 years. It is submitted that in fact the appellant has been falsely implicated as Karamjit Kaur alias Seeto (PW1) alleges that the appellant used to beat her. Therefore, she in connivance with the police who was already inimical towards the appellant as he was involved in various cases under the Terrorists and Disruptive Activities (Prevention) Act ('TADA' - for short) in which he was acquitted. Therefore, the police also wanted to implicate him in some cases. It is further submitted that the evidence of the defence witness Harbans Singh alias Bansa (DW1) has not been correctly appreciated. Harbans Singh alias Bansa (DW1) had stated that he had never heard the appellant assaulting his daughter or committing rape on her. He rather blamed that the mother of the prosecutrix (PW3) namely Karamjit Kaur alias Seeto (PW1) was a characterless lady and the appellant used to stop her from doing such activities which was the reason of his false implication. Besides, it is submitted that spermatozoa was not found on the vaginal swab, pubic hair and on her clothes as per Chemical Examiner report (Ex.PF). It is submitted that Dr. Navjot Kaur (PW4) had opined that there was possibility of sexual intercourse being committed on the prosecutrix (PW3). In fact as per CRA No.891-DB of 2006 [11] examination of the patient, the vaginal orifice admitted two fingers, which was suggestive of the fact that the prosecutrix (PW3) was habitual of sexual intercourse. Therefore, it is submitted that the appellant is liable to be acquitted of the offence for which he was charged and in any case the offence under Section 376 (2)(f) IPC is not made out and the offence under Section 376 (1) IPC only can be said to be made out for which the sentence of imprisonment of life is not there and the sentence of imprisonment is liable to be reduced to that of imprisonment of less than the minimum of 7 years.
In response, Sh. S.S. Gill, Additional Advocate General, Punjab learned State counsel has submitted that the prosecution has established and proved its case against the appellant beyond shadow of reasonable doubt. It is submitted that the prosecutrix (PW3) was subject to rape by the appellant as she was his step-daughter. Therefore, he committed rape on her while the wife of the appellant namely Karamjit Kaur alias Seeto (PW1) was out of home on 13.1.2005 on the festival of Lohri and again on 4.8.2005 when Karamjit Kaur alias Seeto (PW1) had gone to Kaithal. It is submitted that the delay in lodging the FIR in rape cases usually takes time as the victim and her family are generally reluctant to report the matter so as not to bring a bad name to the family. The age of the prosecutrix (PW3) it is submitted stands established from the deposition of the prosecutrix (PW3) herself who states that her date of birth is 11.11.1993. Besides, the prosecution examined Harbans Singh, Centre Head Teacher, Government Primary School, Fatehpur, Police Station Jhunir (PW6) who stated that the date of birth of the prosecutrix (PW3) was 11.11.1993 as per the records brought by him. Besides, Gian Singh, Senior Assistant, DWO (Primary), Mansa (PW7) also submitted that the date of birth of the prosecutrix (PW3) was 11.11.1993 as per the marksheet (Ex.PL). The evidence of Harbans Singh alias Bansa (DW CRA No.891-DB of 2006 [12]
1) on which reliance is placed by the learned counsel for the appellant, it is submitted, is hardly of any consequence. The Chemical Examiner report (Ex.PF) and the deposition of Dr. Navjot Kaur (PW4) it is submitted clearly establish the prosecution case against the appellant beyond shadow of reasonable doubt. Therefore, it submitted that the appeal is liable to be dismissed.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. The prosecutrix (PW3) in her deposition in Court was asked her date of birth and she stated that her date of birth was 11.11.1993. She had studied in the 6th standard because she had failed in the previous standard. The learned trial Court after satisfying itself that the witness was able to understand her welfare and as to what was wrong and what was right, recorded her statement. The prosecutrix (PW3) in her deposition in Court reiterates the stand as was taken by her in her statement (Ex.PB) before the police. It is stated by her that on the day of Lohri on 13.1.2005 her mother (Karamjit Kaur alias Seeto -PW1) had gone to her parents' house at village Jhabhar and she (PW3) was alone in the house with her father Jassa Singh alias Jaswant Singh (appellant) who committed rape on her. It was about 9 or 10.00 p.m. that the accused (appellant) had come to the house under the influence of heavy liquor. He had threatened her that he was having a pistol and if she raised an alarm she would be killed and that she should keep lying on the bed quietly. The appellant gagged her mouth by putting a piece of cloth. He then undressed her and committed rape. The clothes of the prosecutrix (PW3) were stained with blood. The appellant thereafter washed her clothes at the same time. The prosecutrix (PW3) did not disclose the fact of rape committed on her by her father to anyone CRA No.891-DB of 2006 [13] because she was very much scared of the accused (appellant). Thereafter, on the 4th day of month (i.e. the month of August), her mother had gone to Kaithal to pay obeisance at the temple of 'Mata'. She did not remember as to what was the month. She was alone in the house with her father. She did not remember how many months after the incident of Lohri the said incident had taken place again. Even on that night the appellant, it is stated, had committed sexual intercourse with her against her wishes. He threatened her that she would be killed if she disclosed the incident to anyone. Next day i.e. 5th of the month, her mother had come back from Kaithal. Then her mother was getting ready to go to her parents on the occasion of Rakhi and it was the 20th of the month (i.e. 20.08.2005). She was also taking the brother of the prosecutrix with her and then the prosecutrix (PW3) started weeping and her mother asked the reason as to why she was weeping. She told her mother that when she goes from the house and in her absence her father commits rape on her. She was later on medically examined and her statement (Ex.PB) was also recorded by the police, which was read over and explained to her by the police and she had signed the same. Thereafter her medical examination was conducted. Her statement was also recorded by the Magistrate. Mark 'A' was the photocopy of her school certificate and memo Ex.PC (i.e. memo of taking in possession Photostat copy of certificate) bears her signatures. In cross-examination it is stated that she was not tutored to make her statement by the police. Her date of birth was told to her by her mother. Her mother had got her admitted in Fatehpur school after she had shifted from Jhabhar. She did her 3rd standard in village Jhabhar and then she was shifted to Fatehpur school. She was not aware if her mother was married to some person earlier or that the previous marriage was dissolved. Many a times the accused (appellant) used to beat her mother under the influence of CRA No.891-DB of 2006 [14] liquor. She did not know if her mother had filed complaints before the police against the accused regarding the said incidents of the day. The prosecutrix (PW3) also did not know whether the police had arrested her father on the said complaint. She (PW3) had not seen any pistol in possession with her father. She was confronted with her statement (Ex.PB) as regards the fact as to whether she had informed the police that the accused (appellant) had gagged her mouth with a piece of cloth. In the statement (Ex.PB) it was not so recorded. It is further stated that she had some knowledge that her father (appellant) was arrested in TADA cases when she attained the age of discretion. It is stated that in the presence of her mother the accused did not try to outrage her modesty. The accused (appellant) it is stated was under
heavy influence of liquor on Lohri but it was not that he was not able to stand on his legs. It took about 15 to 20 minutes while the accused (appellant) committed rape on her. Even on the 4th of the month when the accused (appellant) committed rape on her, he was under the influence of liquor. She denied the suggestion that the accused did not commit rape on her or that she made a false statement on the asking of her mother. She denied the suggestion that since the accused (appellant) was beating her mother quite frequently, she was annoyed with him.
Karamjit Kaur alias Seeto (PW1) who is the mother of the prosecutrix (PW3) on 16.1.2006 in her deposition in Court stated that her previous husband was Jarnail Singh alias Jaila who was a drug addict; her marriage with Jarnail Singh was dissolved. She had a daughter from her marriage with Jarnail Singh alias Jaila whose name was - (prosecutrix -PW3) who was then about 12 years old. Karamjit Kaur alias Seeto (PW1) contracted marriage with accused Jassa Singh (appellant) about 10-11 years ago. A male child was born to her from the accused (appellant) whose name CRA No.891-DB of 2006 [15] was Ranjit Singh and he was about 10 years of age. The entry of the date of birth of her daughter was not reported to the Chowkidar. Karamjit Kaur alias Seeto (PW1) had not informed her daughter (prosecutrix - PW3) that she was earlier married with Jarnail Singh who was her natural father. The prosecutrix (PW3) was also not aware of the fact that Jarnail Singh was her father and the accused (appellant) was not her real father. Earlier the prosecutrix (PW3) was studying in the school at Burj Jhabbar. She was then shifted to the school of village Fatehpur in the 3rd standard. The accused (appellant) had got the daughter of Karamjit Kaur alias Seeto (PW1) admitted in Fatehpur Government School and the accused (appellant) gave the particulars of date of birth in the school record of Fatehpur. It is alleged by Karamjit Kaur alias Seeto (PW1) that on 21.8.2005 she was given a severe beating by the accused (appellant) and in that connection she had come to the police Station to report the matter. The accused (appellant) had started beating her about 7-8 months earlier to the said incident. Karamjit Kaur alias Seeto (PW1) was preparing to go to her parents' house for the Rakhi day of 2005 and both her children i.e. the prosecutrix (PW3) and Ranjit Singh were also ready to go with her to her parents' house. She told the prosecutrix (PW3) that she should stay with her husband because, again said the prosecutrix (PW3) started weeping because there used to always remain tension in her family. Since Karamjit Kaur alias Seeto (PW1) was given severe beatings by the accused (appellant), she came to the Police Station to report the incident and both her children accompanied her to the Police Station. It is stated that the prosecutrix (PW3) did not tell her (Karamjit Kaur alias Seeto-PW1) as to what had happened with her but she simply, again said she narrated the matter to the Police. The Police met them at the bus- stand of village Fatta Maluka. The thumb impression of Karamjit Kaur alias CRA No.891-DB of 2006 [16] Seeto (PW1) was obtained by the police and her daughter (prosecutrix - PW3) had signed the papers before the police. The police then came to their house. However, they did not see anything at the spot but the police arrested the accused (appellant) and took him along with them. The police also got the medico-legal examination of her daughter i.e. the prosecutrix (PW3).
She did not know if anything was produced before the police by the doctor because she was not in her senses because of beatings. The daughter of Karamjit Kaur alias Seeto (PW1) had informed her that when she had gone to her parents on the day of Lohri of the last year and the prosecutrix (PW3) was left back in the house with the accused she was subjected to sexual intercourse by the accused. Her daughter had informed her about the said incident after 3-4 months of the incident. Thereafter, Karamjit Kaur alias Seeto (PW1) had also gone to Kaithal on 4th of August of the last year along with many other residents of their common yard along with her son when her daughter i.e. prosecutrix (PW3) was left back in the house. The incident which happened with the daughter of Karamjit Kaur alias Seeto on Lohri day of 2005 and 4.8.2005 was told to her by her daughter on the Rakhi day while she was preparing to go to her parents. The husband of Karamjit Kaur alias Seeto (PW1) was earlier involved in terrorist activities and she was pursuing his cases while he was in custody. The entire facts were narrated to the police by the prosecutrix (PW3) daughter of Karamjit Kaur alias Seeto (PW1) but the police had obtained her (PW1) thumb impression on certain papers. In cross-examination it is stated by Karamjit Kaur alias Seeto (PW1) that divorce with her previous husband was effected by a Court decree. She had not brought the copy of the said judgment/decree of divorce. It was a decree granted by the matrimonial Court at Mansa. Before obtaining the divorce from the previous husband, she had been staying with her parents at village CRA No.891-DB of 2006 [17] Jhabar for about two or two and a half years. After divorce was granted she stayed with her parents for another two months. Her daughter (prosecutrix - PW3) was residing with her. After her marriage with the accused (appellant), her daughter was living with her parents in village Jhabar for about 3 years. She was admitted in School at Jhabar by her. The accused did not get her daughter admitted in school in village Jhabar. The admission of her daughter in Fatehpur was got done by her but her daughter was brought to Fatehpur on the asking of her husband. She was about 6-7 years old when she was brought from village Jhabar to village Fatehpur. The name of the father of her daughter in the school at Fatehpur was got recorded by her as Jassa Singh. The age of her daughter at Fatehpur school was got recorded by her. It is also stated that she did not file any complaint with the police for the acts of tortures of the accused. The criminal cases against her husband under TADA were pending in Bathinda Courts as well as at Mansa Courts. He was acquitted in all the cases. During the time the accused was in custody, she used to stay with her parents at village Jhabar. After her marriage with the accused (appellant) he remained in maximum custody in jail at Nabha for about one and a half year. It is stated that even in her presence, appellant had been committing the acts of sexual harassment with her daughter after the incident of Lohri of 2005.
Dr. Navjot Kaur (PW4) Medical Officer, Civil Hospital Mansa (PW4) stated that on 21.8.2005 at 3.00 p.m. she medico legally examined the prosecutrix (PW3) aged 12 years. She had been brought by the police and she complained of sexual assault for approximately 6 to 7 months. Patient was conscious, cooperative, moderately built and nourished. There was no scratch marks on any part of her body. On examination of breast it is stated that breasts were well developed, nipple and areola were well developed, CRA No.891-DB of 2006 [18] dark brown in colour. Axillary hair were well developed but scanty. On examination of external genitation, external genitalia were well developed. Pubic hair were well developed. Hymen was ruptured and healed. Vaginal orifice admits two fingers. On P/V examination, uterious A/V Fxnx free and LMP 25 days back. Urine for pregnancy test was advised. Pubic hair and vaginal swabs were taken and sent for chemical examination. It is stated that she had seen the report of the chemical examiner (Ex.PF) and no spermatozoa was seen on vaginal swab and other article seen by her for chemical examination. It is stated that since the hymen was ruptured and healed, there was possibility of sexual intercourse being committed on the prosecutrix (PW3). In cross-examination it is stated that as per the examination of the patient the vagina admitted two fingers. It was suggestive of the fact that she was used to sexual intercourse. She had advised for radiological examination for determination of the age of prosecutrix (PW3) but no report of the Radiologist was received by her. She could not say if the Chemical Examiner report (Ex.PF) did not provide any symptoms of rape. From the MLR she could not say if there were symptoms of rape but she could say that the girl was subjected to intercourse. The history of the patient was mentioned in the MLR at the instance of the mother of the girl. Hymen was ruptured and healed, as she gave the history that sexual intercourse was done about 5-6 months ago. She had not mentioned in the MLR that the girl was subjected to sexual intercourse.
From the deposition of the prosecutrix (PW3) her mother Karamjit Kaur alias Seeto (PW1) and Dr. Navjot Kaur, Medical Officer , Civil Hospital Mansa (PW2) it is quite evident that the prosecutrix (PW3) was subjected to rape. The appellant is the step-father of the prosecutrix (PW3). Karamjit Kaur alias Seeto (PW1) mother of the prosecutrix (PW3) CRA No.891-DB of 2006 [19] on two occassions i.e. on the day of Lohri festival on 13.1.2005 and thereafter, on 4.8.2005 had left the prosecutrix (PW3) alone with her step- father who is the appellant. The appellant then committed rape on the prosecutrix (PW3) which the prosecutrix (PW3) in unequivocal terms states that the appellant had committed rape on her. It is on the third occasion when Karamjit Kaur alias Seeto (PW1) the mother of the prosecutrix (PW3) was again going to her parents' house that the prosecutrix (PW3) started weeping and on asking she stated the fact of rape having been committed on her. The medical evidence of Dr. Navjot Kaur (PW4) corroborates the fact that the prosecutrix (PW3) was subjected to sexual intercourse. The sexual intercourse which appellant had committed with her step-daughter was without her consent which makes out an offence of rape.
The appellant has been convicted for the offence under Section 376 (2)(f) IPC which envisages that whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.
Learned counsel for the appellant has contended that the prosecutrix (PW3) was more than 12 years of age and therefore, it would not be a case which would fall within the ambit of Section 376 (2)(f) IPC. The date of birth of the prosecutrix (PW3) as 11.11.1993 has been stated by the prosecutrix (PW3) and it was told to her by her mother. The prosecutrix (PW3) was earlier studying in a school at Burj Jabhar and her date of birth there was mentioned as 11.11.1993 which was incorporated in the application form filed by the appellant. It is on the basis of the date of birth given by Karamjit Kaur alias Seeto (PW1), mother of the prosecutrix (PW3) that 11.11.1993 came to be recorded as the date of birth of the prosecutrix (PW3). CRA No.891-DB of 2006 [20] Harbans Singh, Head Teacher Government (Primary) Fatehpur, Police Station Jhunir (PW6) states that he had brought the admission record of the prosecutrix (PW3) and her date of birth is 11.11.1993 as per the record brought by him, which was also the date of birth mentioned on transfer certificate (Ex.PK) of the previous school. It is also stated by him (PW6) that he brought application for admission of the prosecutrix (PW3) in the third standard of the school and the application purports to be thumb marked by Jassa Singh (appellant), father of the child and was dated 15.5.2002. In cross-examination it is stated by Harbans Singh (PW6) stated that he did not have any personal knowledge of any document of which he stated in his examination-in-chief and he simply stated on the basis of the record. Gian Singh, Senior Assistant DEO (Primary) Mansa (PW7) deposed regarding issuance of the certificate of detailed marksheet in the name of the prosecutrix (PW3) having passed 5th standard examination from Government Primary School, Fatehpur, Jhunir-II, Mansa in the examination held in February 2005. The date of birth of the prosecutrix (PW3) is given as 11.11.1993 as per the marksheet Ex.PL and the register brought by her. In cross-examination it is stated that the date of birth of the child is recorded in their register on the basis of the information supplied by the school where the girl was studying.
The question regarding whether the prosecutrix (PW3) was more than 12 years of age or less than 12 years of age on the date when rape was committed on her is to be considered for the purpose as to whether the case would be one which would fall under Section 376 (2)(f) IPC or under Section 376 (1) IPC. It is admitted position that no radiological test or ossification test was carried out in respect of the prosecutrix (PW3). Dr. Navjot Kaur (PW4) has stated that she had advised for Radiological examination for CRA No.891-DB of 2006 [21] determination of the age of the prosecutrix (PW3), but no report of Radiologist was received by her. Besides, there is no dental or any other form of medical opinion led by the prosecution as regards the age of the prosecutrix (PW3). Dr. Navjot Kaur, Medical Officer, Civil Hospital Mansa (PW4) on examination of the breasts states that the breasts were well developed. Nipple and areola were well developed, dark brown in colour. Axillary hair were well developed but scanty. On examination of external genitation stated that external genitalia were well developed and pubic hair were well developed.
In Modi's Textbook of Medical Jurisprudence and Toxicology 24th Edition 2011 in Chapter 10 relating to 'Personal Identity' under the heading 'Age' has indicated the principle means, which enable one to form a fairly accurate opinion about the age of an individual, especially in earlier years, are teeth, height and weight, ossification of bones and minor signs. Para (1) relates to 'Teeth' in respect of which as already noticed that no dental opinion was sought. Para (2) relates to 'Height and Weight' regarding which also there is no evidence on record. Para (3) relates to 'Ossification of bones'. However, no ossification test was carried out in the present case. Para (4) relates to 'Secondary Sex Characters'; the relevant part of which reads as under:-
"The growth of hair appears first on the pubis and then in the axillae (armpits). In the adolescent stage, the development of the pubic hair in both sexes follows the following stages:
(a) One of the first signs of the beginning of puberty is chiefly on the base of penis or CRA No.891-DB of 2006 [22] along labia, when there are few long slightly pigmented and curled or straight downy hair;
(b) The hair is coarser, darker and more curled, and spread sparsely over the junction of pubis;
(c) More or less like an adult, but only a smaller area is covered, no hair on the medial surface of thighs;
(d) Adult type with the spread of hair of the horizontal (or classically 'feminine') pattern, also on the medial surface of thighs. In the case of girls, it commences with the appearance of soft and place coloured downy hair on the pubis at the age of about 13 years, and a few sparse dark hair appears at about 14 years. The growth becomes thicker in the course of a year or two, when hair commences to grow in the axillae. In the case of boys, downy hair appears on the pubis at about 14 years, and a few dark hairs appear at about 15, when downy hair begins to grow in the axillae. A thick growth of dark hair is well marked on the pubis, scrotum and in the axillae at about 16 or 17 years of age.
(e) Hair begins to appear on the chin and the upper lip between 16 and 18 years.CRA No.891-DB of 2006 [23]
The development of the breasts in girls commences from 13 to 14 years; however, it is liable to be affected by loose habits and social environments. During adolescence, the hormone flux acts and the breasts develop through the following stages:
(i) Breast and papilla are elevated as a small mound, and there is enlargement of areolar diameter.
(ii) More elevation and enlargement of breast and areola, but their contours are not separate.
(iii) Areola and papilla project over the level of the breast.
(iv) Adult stage- only the papilla projects and the areola merges with the general contour of the breasts."
In sub-para (d) above, it is mentioned that hair in the case of girls commences with the appearance of soft and pale coloured downy hair on the pubis at the age of about 13 years, and a few sparse dark hair appears at about 14 years. Besides, it is also mentioned that development of breasts in girls commences from 13 to 14 years; however, it is liable to be affected by loose habits and social environments. In terms of the deposition of Dr. Navjot Kaur (PW4), the pubic hair were well developed; besides, the breasts were well developed, nipple and areola were well developed, dark brown in colour. Axillary hair were well developed but scanty. Therefore, if the parameters of 'Secondary Sex Characters' of Modi's Textbook of Medical Jurisprudence and Toxicology, which has been well accepted by the Courts CRA No.891-DB of 2006 [24] over the years, the characteristics as mentioned do create a doubt as regards the age of the prosecutrix (PW3) being less than 12 years on the date of occurrence. The benefit of the same is to be given to the accused (appellant). The School Leaving Certificate (Ex.PJ) on which reliance is placed by the prosecution is given on the basis of information supplied by Jassa Singh alias Jaswant Singh (appellant), who in turn gave it on the basis of the previous school leaving certificate (ex.PL), in which the date of birth was got recorded by Karamjit Kaur alias Seeto (PW1). There is indeed a general tendency in villages to get age of the child recorded less than the actual age. The other documents also mention the date of birth of the prosecutrix as 11.11.1993. In fact the documents that are produced are based primarily on the information given by Karamjit Kaur alias Seeto (PW1). However, keeping in view the 'Secondary Sex Characters' as mentioned in Modi's Textbook of Medical Jurisprudence and Toxicology and the fact that the date of birth as given in the certificates Ex.PJ and Ex.PL are on the basis of the dates given by Karamjit Kaur alias Seeto (PW1) and the appellant Jassa Singh, benefit of doubt as regards the age of the prosecutrix (PW3) is liable to be given to the appellant. However, it would not, in any manner, mitigate the offence that has been committed and the only difference would be that instead of offence under Section 376 (2)(f) IPC, the case would be one which would fall under Section 376 (1) IPC. In case of an offence under Section 376 (1) IPC, the punishment provided is of minimum seven years but which may be imprisonment for life or for a term which may extend to ten years and also fine.
The contention of the learned counsel for the appellant that the evidence of the defence witness Harbans Singh alias Bansa (DW1) has not been correctly appreciated is devoid of merit. Harbans Singh alias Bansa CRA No.891-DB of 2006 [25] (DW1), Chowkidar of village Fatehpur stated that he knew the appellant. He had never heard that the accused (appellant) ever assaulted his daughter or committed rape on her. He had never seen the accused (appellant) indulging in such activities. In fact Karamjit Kaur alias Seeto (PW1) wife of accused (appellant) it is stated was a characterless lady and the accused (appellant) used to stop her from such activities. Therefore, Karamjit Kaur alias Seeto (PW1) had involved the accused (appellant) falsely in this case and got him arrested. The accused (appellant) used to consider and treat the prosecutrix (PW3) as his own daughter. In cross-examination it is stated that the prosecutrix (PW3) was about 11/12 years old at that time. Besides, whenever Karamjit Kaur alias Seeto (PW1) used to go to her parents' house or out of the house she used to leave her daughter (Prosecutrix -PW3) in the house. He did not know why Karamjit Kaur alias Seeto (PW1) and her daughter (Prosecutrix - PW3) had made false implication of the accused (appellant). The said deposition of Harbans Singh alias Bansa (DW1) is a general statement of his own opinion. Rather in his cross-examination it is accepted that whenever Karamjit Kaur alias Seeto (PW1) had gone out of her house she left her daughter (prosecutrix) behind in the house. Therefore, the mere opinion of Harbans Singh alias Bansa (DW1) is not such on the basis of which it can be held that the appellant had not committed rape on the prosecutrix (PW3). The fact that Harbans Singh alias Bansa (DW1) had never heard the appellant assaulting his daughter or committing rape on her is quite inconsequential as the prosecutrix (PW3) herself had kept quiet and had not disclosed this fact to her own mother Karamjit Kaur alias Seeto (PW1) and the prosecutrix started crying only when Karamjit Kaur alias Seeto (PW1) was again going out of the house and then narrated the incident.
Therefore, there was no occasion for Harbans Singh alias Bansa (DW1) to CRA No.891-DB of 2006 [26] know whether the appellant had assaulted his daughter or committed rape on her.
As per the chemical examiner report (Ex.PF), spermatozoa was not found in the vaginal swab, pubic hair and on the clothes of the prosecutrix (PW3). The same is also not of much consequence. The presence of spermatozoa on the vaginal swab, pubic hair and on the clothes of a victim only affords corroborative evidence. The existence of semen and blood in the vagina is no doubt a material piece of evidence in cases of rape, but nevertheless is not conclusive. Spermatozoa indicating semen being found in the woman's genitals is not a conclusive proof of rape. Therefore, in the circumstances when the prosecutrix (PW3) in her deposition has stated that she was subjected to rape by the appellant and there are other circumstances which go to establish the same including the deposition of Dr. Navjot Kaur (PW4) who has stated that the hymen was ruptured and healed; besides, she has opined that there was a possibility of sexual intercourse being committed on the prosecutrix (PW3). The rupture of hymen and the opinion of Dr. Navjot Kaur (PW4) to the effect that there was a possibility of sexual intercourse, corroborate the deposition of the prosecutrix (PW3) that she was subjected to rape. The contention that the vaginal orifice admitted two fingers which was suggestive that the prosecutrix (PW3) was habitual of sexual intercourse is also without any merit as it is well-known that promiscuous conduct of a lady would not mean that the appellant had a right to commit sexual assault. In case of rape, when the testimony of the prosecutrix (PW3) inspires confidence, the other attending circumstances are not such which are to be given unnecessary weightage. In fact there is no need for corroboration of the testimony of a prosecutrix in sexual offences CRA No.891-DB of 2006 [27] and the Courts do not have hesitation in accepting her evidence. Therefore, the contention of the learned counsel for the appellant is without any merit.
Accordingly, there is no merit in the appeal and the same is liable to be dismissed. However, in view of the fact that the offence under Section 376 (2) (f) is not made out, the appellant is liable to be convicted for the offence under Section 376 (1) IPC. The sentence of imprisonment is also liable to be modified as the learned trial Court had taken into consideration the fact that the appellant had committed rape on a girl who was less than 12 years of age inasmuch as the conviction of the appellant was recorded for the offence under Section 376 (2)(f) IPC. Nevertheless the appellant has committed the offence of rape with his step-daughter, therefore, although life imprisonment may not be the proper sentence, it would be just and expedient in the facts and circumstances of the case that the appellant is sentenced to rigorous imprisonment for 10 years. Besides, the sentence of fine and payment to the prosecutrix (PW3) in terms of the order of the learned trial Court is to remain intact.
The Crl. appeal with the modification of conviction from the offence under Section 376 (2) (f) IPC to that under Section 376 (1) IPC and the modification in sentence of imprisonment from rigorous imprisonment for life to rigorous imprisonment for 10 years is dismissed. The fine that has been imposed and the payment ordered to be made to the prosecutrix (PW3) by the learned trial Court shall remain intact as it is.
(S.S. SARON) JUDGE (RAMESHWAR SINGH MALIK) JUDGE 31.1.2012 amit