Punjab-Haryana High Court
Ram Bilas @ Basawan Son Of Shri Ram Aged 33 ... vs State Of Haryana on 20 September, 2013
CRA No. S-1657-SB of 2008 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. S-1657-SB of 2008
Decided on: 20.09.2013
Ram Bilas @ Basawan son of Shri Ram aged 33 years resident of
Village Bachhapar, Police Station Pur Pakri, District Baliya, UP
.....Appellant
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Mr. Jasdev Singh Mehndiratta, Advocate for the appellant.
Mr. Anupam Sharma, AAG, Haryana for the respondent.
***** S.P. BANGARH, J Case of the prosecution is that on 21.07.2006, prosecutrix aged about 7 years was sleeping in her house located at Shastri Nagar, Bahadurgarh. Her mother, Chinta (complainant) was also sleeping by her side on a separate cot. At about 1.45 a.m., the prosecutrix came weeping from outside and told her mother that the appellant had entered into their courtyard, gagged her mouth, took her away in the groove of kikar trees in the colony itself and subjected her to sexual assault . She cried in pain, but no one heard Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 2- her voice. When she felt more pain, she gave a bite on the chest of the appellant, who then fled away from there, leaving her there. The complainant (Chinta) kept on waiting for the arrival of her husband who had gone out to earn his livelihood by plying a cycle rickshaw. When the husband of the complainant namely Kamlesh reached at his residences, the complainant narrated him the whole episode. The complainant then alongwith her husband went to lodge the report in the police station. The police party headed by ASI Jagbir Singh met them on their way, before whom the complainant (Chinta) made statement (supra) Ex.P4, whereon, ASI Jagbir Singh made his endorsement Ex.P4/A and sent the same to Police Station, where formal FIR Ex.P8 was recorded.
During further investigation, prosecutrix was got medico- legally examined at CHC Bahadurgarh from Dr. Jaimala, who issued her medico legal report Ex.P31. She found a lacerated wound 1x.5 cm in size on the posterior forchette to upper marginal anus around at 4 O' clock position. She found presence of bleeding on touch. Laceration with reddish colour with oozing of blood on touching was present bilaterally on the clitoris. Tenderness was also present. The underwear Ex.P32 and skirt Ex.P33 of the prosecutrix, that she was wearing at that time, were made into a parcel and she was referred to PGIMS Rohtak for radiological examination. Dr. Nitin Kumar on radiological examination of the prosecutrix opined her age to be between 6 to 8 years and issued report Ex.P20 to this effect on the basis of x-ray films Ex.P21 to P29.
Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 3- The prosecutrix was admitted to PGIMS Rohtak, where she was examined by Dr. Rashmi Sindhwani, who also found the alleged injury on her person. On police request Ex.P17, she (Dr. Rashmi Sindhwani) gave her opinion Ex.P17/A to the effect that prosecutrix was fit to give statement. On 31.08.2006, she again gave her opinion Ex.P18/A to the effect that the final report regarding subjecting of the prosecutrix to sexual assault would be given after receipt of report of vaginal swabs and clothes sent to the Forensic Science Laboratory. The Forensic Science Laboratory in report Ex.P19 opined presence of human semen and blood on the underwear of the prosecutrix.
ASI Jagbir Singh took into possession the parcel containing the wearing apparels of the prosecutrix and her vaginal swabs vide recovery memo Ex.P34. He recorded the statement of Kamlesh, father of the prosecutrix, as also recorded the statement of the prosecutrix after she was declared fit to make statement. ASI Jagbir Singh also inspected the place of occurrence on 22.07.2006 and prepared its rough site plan Ex.P35. He also lifted certain broken pieces of bangles and earth from there and made them into a parcel, that was seized vide memo Ex.P36. Appellant was produced before ASI Jagbir Singh by Meera on 23.07.2006 and was taken into custody.
The appellant during interrogation suffered disclosure statement Ex.P10 and on the next day, he again suffered disclosure statement Ex.P12 and pursuant, thereto, he got recovered his Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 4- underwear, that was smeared with blood and human semen which were seized vide memo Ex.P14. The appellant also identified the place of occurrence vide memo Ex.P15. The statement of the prosecutrix Ex.P3 was got recorded from Sh. D.N. Bhardwaj, the then Sub Divisional Judicial Magistrate, Bahadurgarh.
The appellant was also got medico legally examined from Dr. Jyoti Parkash, who issued his medico legal report Ex.P7 opining, therein, that there was nothing to suggest that the appellant could not perform sexual intercourse. He also found a bluish contusion mark on the right side of the lower chest measuring 3 cms x 2 cms; besides, reddish brown scab 1 x 1 cm on the left side of lower chest and multiple brown abrasions on the anterior of the abdominal wall measuring 1 cm x .2 cm to 4 cms x .2cm. All these injuries were opined to have been caused within a probable duration of 48-96 hours with blunt weapon.
After completion of investigation, Station House Officer of Police Station, Line Par, Bahadurgarh, instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the appellant, before the learned Illaqa Magistrate to the effect that it appeared that he has committed offence punishable under Section 376 of the Indian Penal Code (IPC - for short).
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was entrusted to learned trial Court, where Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 5- charge under Section 376 IPC was framed against the appellant, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined, as many as, 15 witnesses who deposed as under: -
PW-1 Constable Mohinder Singh deposed that on 21.07.2006, he was posted in Police Station, Line Par, Bahadurgarh and on that day, HC Jora Singh handed over to him three envelopes containing special reports and he delivered those to the learned Illaqa Magistrate, Bahadurgarh, DSP, Bahadurgarh and SP, Jhajjar without any delay and tampering. He further deposed that on 31.07.2006, MHC Satish Kumar handed over to him, one parcel containing clothes and two small bottles of swabs alongwith sample seal sealed with the seal of doctor and one other parcel containing clothes sealed with the seal 'JS' and one parcel containing earth and broken bangles, sealed with the seal 'JS' with sample seal and he deposited those with the Forensic Science Laboratory on the same day and on return, he handed over receipt to MHC Satish Kumar. He also testified that, so long as, the parcels remained with him, neither he nor anybody else tampered, therewith.
Prosecutrix/victim aged about 8 years, who appeared as PW-2 was examined in camera. She being child witness was put following questions:
Q. Whether want to tell lie or speak truth?
Ans. One should not tell lie.
Sunder Sham
Q Whether theft is a good thing or bad?
2013.10.09 21:40
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh
CRA No. S-1657-SB of 2008 - 6-
Ans. Bad.
However, after putting these questions and hearing their answers, the learned trial Court recorded satisfaction that witness is able to understand the questions and is able to give statement. PW-2, thereafter, testified that the name of her mother is Chinta and she knows the appellant present in Court, whose name is Basawal @ Ram Bilas and he was living in the same house, where she lived, therefore, she knew him. She further testified that in the previous summer, she was sleeping on a cot and her mother and brother were also sleeping near to her. The appellant came and took her towards kikar trees nearby and put off her underwear (kachhi) and he also put off his underwear and applied spit on the place of her urination and then he put his organ of urinating in the place of her urinating. She started crying and the appellant ran away, thereafter. She further testified that at that place, there was light on a pole nearby and she came to her home and told all this to her mother. She further testified that in the morning, she told it to her father. When the appellant took her from her house, he gagged her mouth.
PW-2 (prosecutrix) also testified that the police had taken her to the police station, where she told all these facts and no officer had recorded her statement, as recorded today. Sealed envelope Ex.P2 was opened during the deposition of this witness, that was found to contain an application for recording the statement of prosecutrix and on her statement, she (PW-2/prosecutrix) identified her signature, that was Ex.P3.
Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 7- PW-3 Chinta (complainant) testified that about six moths ago during night time, appellant present in Court had taken away her daughter, when she was sleeping and after sometime, she (prosecutrix) came weeping and told her that the appellant had taken her away after gagging her mouth towards kikar trees, where he put off her underwear and committed wrong act with her. She also testified that the clothes of the appellant as also of her daughter (prosecutrix) were smeared with blood. She testified that then her daughter came to her and disclosed all the incident. In the morning, she told about the incident to her husband. Then, she alongwith her husband was going to report the matter, on the way, police met her and recorded her statement Ex.P4. She also testified that she alongwith her daughter (prosecutrix) and police went to the Civil Hospital, Bahadurgarh, where she was produced before the doctor but was referred to PGIMS, Rohtak, where PW-2 (prosecutrix) was got medico legally examined and remained there for two days. She also testified that on the next day of the incident, police went to the spot and lifted blood stained earth and broken bangles and at the time of incident, the appellant was residing at separate house and prior to the incident, they were living in one house separately.
PW-4 Dr. Jyoti Parkash deposed that on 23.07.2007, on police requests Ex.P5 and Ex.P6, he medico legally examined the appellant. There was alleged history of sexual assault. He was moderately built. Vitals were normal. Secondary sex character were developed normally. Bilateral testis were developed normally. Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 8- Cremestric reflex was present. He was well oriented to time, place and person, appeared to have normal judgment and behaviour. He was not wearing any underwear at that time. There was no stains present on the clothes and on the body. There was no matting of pubic hair at that time. No mark of injury was on the glens and anywhere on the penis. Smegma was not present on glance and coronaradiata. He found following injuries on his person:-
1. There was bluish contusion mark on the right side of lower chest 3 cms x 2 cms.
2. Reddish brown scab 1 cm x 1 cm, on the left side of lower chest.
3. There were multiple brown abrasion on the anterior of the abdominal wall 1 cm x 2 cms to 4 cms x 2 cms.
All the injuries were declared simple in nature and caused by blunt weapon within duration of 48 to 96 hours. He gave his opinion that there was nothing to suggest that he cannot perform the act of sexual intercourse. MLR Ex.P7 bears his signature.
PW-5 Sumir Kumar brought the record of short stay of the prosecutrix in PGIMS, Rohtak, that included CR No. 534903, containing 41 pages, with 9 X-ray films.
PW-6 HC Jora Singh deposed that on 21.06.2006, he was posted in Police Station, Line Par, Bahadurgarh and on that day, he received ruqa Ex.P4 from ASI Jagir Singh through Constable Inder Singh and on the basis, thereof, he recorded formal FIR Ex.P8. He also testified that he made endorsement Ex.P4/1 on it and sent Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 9- special reports of this case to learned Illaqa Magistrate, SP and DSP through Constable Mohinder.
PW-7 Meera also testified that on 23.07.2006, at about 2.00 p.m., she was present at her shop and the appellant came to her shop, who was known to her earlier and told her that two days prior, he committed rape upon prosecutrix near the kikar trees near colony, after lifting her from the courtyard of her house, after gagging her mouth. She further testified that she had relation in police and asked her to produce before the police. She testified that she met police officer at Nahra-Nahri road and produced the appellant before him, who did writing work and obtained her signatures on the arrest memo of the appellant Ex.P9, extra judicial confession Ex.P10, memo of personal search Ex.P11. She also testified that her statement was recorded by the police.
PW-8 Constable Inder Singh also testified that on 21.07.2006, he was present with SI Jagbir Singh, HC Hoshiar Singh near Nahra-Nahri road, railway crossing for patrolling, where a lady, her husband and her daughter were present and statement of the prosecutrix was recorded by SI Jagbir Singh, who later went to police station and handed over the statement to HC Jora Singh. On 24.07.2006, SI Jagbir Singh interrogated the appellant, who suffered disclosure statement Ex.P12 to the effect that on the intervening night of 20/21/07.2006, he committed rape on the prosecutrix near kikar trees, who used to reside in Shastri Nagar and his underwear was smeared with blood and he concealed that nearby and could get Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 10- the same recovered. He testified that pursuant to his disclosure statement Ex.P12, appellant got recovered the underwear from the nearby kikar trees that was made into a parcel, which was sealed with the seal bearing impression 'JS' and seal after used was handed over to him (PW-8) and that parcel was seized vide memo Ex.P14. Parcel Ex.P13 was opened during the deposition of this witness, that contained underwear of the appellant.
PW-9 Sh. D.N. Bhardwaj, SDJM, deposed that on 26.07.2006, he was posted as SDJM, Bahadurgarh and on that day, he recorded the statement of prosecutrix Ex,P3, aged about 7/8 years correctly without any addition or omission, on the police request Ex.P3/1. On that request, he passed the order Ex.P3/2 in his hand under his signature and before recording the statement, of prosecutrix, he issued certificate Ex.P3/3 in his hand and under his signature. He further testified that after recording the statement he sealed the same in envelop Ex.P2 and prior, thereto, the police was allowed to have copy of the statement. He further testified that before proceeding to record the statement, he ascertained by putting various questions to prosecutrix, as to whether she was capable of giving statement. Thereafter, he gave certificate Ex.P3/4 and proceeded to record the statement Ex.P3.
PW-10 Dr. Rashmi Sindhwani, Senior Resident, Department of Gynae and Obs, PGIMS, Rohtak deposed that on 21.07.2006, patient (name kept secret) was admitted in Ward No.2 with alleged history of sexual assault. She gave the history that her father was Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 11- involved in a quarrel with a localite at Ration shop at Bahadurgarh and at night after every one was asleep, she was taken away and raped in jungle. The patient had come walking on her own from the jungle and she was bleeding per vagina and complaining of pain in lower abdomen. The patient reached at her house at 2.00 a.m. on 21.07.2006 and informed her mother about the incident and she was taken to CHC, Bahadurgarh, where she was medico-legally examined and swabs were taken and the same and the clothes were sent to Forensic Science Laboratory. The patient was, thereafter, referred to PGIMS, Rohtak for expert opinion.
PW-10 Dr. Rashmi Sindhwani further testified that the patient reached on 21.07.2006 at 6.00 p.m., her general condition was fair. Her BP 110/70, pulse rate was 80 per minute. No bruise marks were present on abdomen. External genitalia was normal except a tear present at posterior fourchetter extending upto anus sphincter. Its size was approximately 1 cms x .5 cms. It was not bleeding. Rectal mucosa and sphincter were intact. No other tear/injury was present nor the patient was bleeding from any other place. She (PW-10) referred the patient for radiological examination. She (PW-10) testified that report Ex.P16, bears her signature. On the same day, on receipt of police request Ex.P17, she gave her opinion Ex.P17/A, that bears her signature. She also testified that on 31.08.2006, on police request Ex.P18, he had given her opinion Ex.P18/A. She further testified that after seeing the FSL report Ex.P19 on the file, she opined that the patient (name kept secret) Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 12- was subjected to sexual assault, as human semen and human blood were detected on her underwear.
PW-11 Dr. Nitin Kumar deposed that on the night of 21/22.07.2006, he was on duty in X-ray Department in PGIMS, Rohtak as a Radioligist. He testified that the patient was referred to him for radiological examination for determining the age of the patient. He exposed X-ray films and gave his report Ex.P20, whereby, he gave estimated age of the patient, as 6 to 8 years. He proved X-ray films Ex.P21 to Ex.P29.
PW-12 HC Satish Kumar tendered in evidence his affidavit Ex.P30.
PW-13 Dr. Jaimala testified that on 21.07.2006, she medico legally examined prosecutrix, aged 7 years female, who was brought by the police. On examination, the patient was conscious, cooperative, pulse was 80 per minute. She was well oriented with time place and person. Bilateral pupliary reaction with light was present. Her mother was present at the time of examination. History was told by the child herself alongwith her mother that during the night time some person had taken her away in the groove of kikar trees and unclothed her and removed her underwear. On examination, clothes were stained with blood posteriorly. Brown colour underwear also stained with blood. Shirt and skirt were of light green and printed colour. Menarche was not attendes till now. Clothes were not torn from any where, but stained with blood. No secondary sexual features developed i.e. breast, axillary hairs, pubic Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 13- hairs. No external injury was present on face, chest and arms.
PW-13 Dr. Jaimala further deposed that on genitalia examination; external on seeing staining of discharge and blood was present over external genitalia area. Mud was present in bilateral thigh. An lacerated wound 1 cms x .5 cms in size was present on the posterior forchette to upper marginal anus around 4 O' clock position with dirty base. Bleeding was present on touch. Laceration with reddish colour with oozing blood on touching was present bilaterally on clitoris. Tenderness was present. Internal examination of genitalia was not done. Referred to expert gynae opinion for internal examination. Two swabs from wounds were taken and sent for chemical analysis. Clothes like shirt-green colour, underwear brown colour, skirt printed flower green were sealed and sent for chemical examination. X-ray was also advised for determining the age and referred to PGIMS, Rohtak for radiologist examination. She also testified that for internal examination, patient was referred to expert gynaecological's opinion, CHC Bahadurgarh and PGIMS, Rohtak.
She (PW-13) further testified that the following things were handed over to the police:
1. Copy of MLR No.51/JS/06 dated 21.07.2006.
2. A sealed packet of clothes with six seals.
3. Two vial of swabs 1 and 2 having one seal on each;
4. A sample seal of JSH.
5. A sealed envelope with a letter to FSL, Madhuban with four seals and copy of MLR.
She (PW-13) further testified that medico legal examination Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 14- was conducted by a board of doctors consisting of her and Dr. Sunita and Dr. Sangeeta. According to the finding recorded in the MLR, it transpired that the patient was subjected to sexual assault. After seeing the report of the FSL placed on the record, she can say that the patient was positively sexually assaulted. Ex.P31 medicolegal report issued by the medical board also bears her signature as a member of the board, as well as the scribe of the report. She further testified that other members of the board/doctors had also signed the report and she identified their signatures. During her deposition, a sealed parcel was opened by the Public Prosecutor with the permission of the Court, that contained the clothes and after seeing the clothes, the witness identified the underwear Ex.P32 and skirt Ex.P33 being the same, that were in her possession at the time of medicolegal examination. During her deposition, another sealed parcel was also opened by the Public Prosecutor with the permission of the Court and that contained the underwear of the appellant.
PW-14 SI Jagbir Singh conducted the investigation of this case. He deposed on the lines of investigation, that has been reproduced in the earlier parts of this judgment.
PW-15 Ramesh Kumar Patwari testified that on 12.09.2006, he prepared scaled site plan Ex.P40 with correct marginal notes at the instance of prosecutrix, on the asking of ASI Jagbir Singh (PW-
14), that bears his signature. Thereafter, prosecution evidence was closed.
After the closure of prosecution evidence, the appellant was Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 15- examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case. He gave his own version that he has been falsely implicated in this case by the police in collusion with the complainant and her husband. In fact, he (appellant) was having illicit relations with the mother of the victim (prosecutrix). After some differences developed in those relations, the mother of the victim (prosecutrix) got him booked in this false case.
The appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, as also, after perusal of the evidence and documents on the record, learned trial Court vide impugned judgment of conviction convicted the appellant for commission of offence punishable under Section 376 IPC and vide impugned order of sentence, sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of `5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the offence punishable under Section 376 IPC .
Learned counsel for the appellant contended that the learned trial Court failed to see through the design to falsely rope in the present appellant, because of an altercation between the father of the prosecutrix and the appellant and a clear defence has been Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 16- taken by the appellant in his statement recorded under Section 313 Cr.P.C. that he had illicit relations with the mother of the prosecutrix and due to that he has been falsely implicated in the present case. He also contended that that the learned trial Court did not appreciate the fact that the medical evidence in this case does not at all suggest that sexual intercourse had taken place with the prosecutrix. He also contended that it is significant to mention that Dr. Jaimala (PW-13) who medico legally examined the prosecutrix on 21.07.2006 did not give any opinion regarding the sexual intercourse and the prosecutrix was referred to PGIMS, Rohtak, where she was examined by Dr. Rashmi Sindhwani (PW-10) and this doctor also did not give any opinion regarding sexual intercourse, while on the contrary, this doctor stated that the opinion could only be given after the receipt of report from the Forensic Science Laboratory.
Learned counsel for the appellant also contended that the prosecution has tried to build its case only on the basis of report received from Forensic Science Laboratory (Ex.P19) and this report gave an opinion regarding the presence of human semen and blood on the underwear of the prosecutrix, which itself cannot by any stretch of imagination lead to a conclusion that the prosecutrix was raped by the appellant. He also contended that the prosecutrix in this case was 7 years old child and had there been any intercourse, the doctors would have given a specific opinion at the very outset and evasive opinion by the doctors in itself shows the weakness of the prosecution's case.
Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 17- Learned counsel for the appellant also contended that the learned trial Court has not taken into account the inherent risks involved in relying upon the testimony of a child witness. It is no doubt true that a child is a competent witness but testimony of a child witness has to be minutely analyzed and there is always a risk of tutoring. He also contended that perusal of medico legal report Ex.P7 of the appellant would reveal that the injuries on the person of the appellant were caused with a blunt weapon and this fact further substantiates the defence taken by the appellant. He also contended that the prosecutrix had received injuries by fall from the bicycle.
So, the learned counsel for the appellant contended that the latter may be acquitted of the offence for which he has been convicted and sentenced by the learned trial Court by according him benefit of doubt.
On the other hand, learned Assistant Advocate General of Haryana contended that the learned trial Court rightly convicted and sentenced the appellant vide impugned judgment of conviction and order of sentence that may be upheld and affirmed, as these do not suffer from any illegality or impropriety.
Thoughtful consideration has been given to the contentions raised by learned counsel for the parties, as also, with their assistance, evidence and documents placed on the record of the learned trial Court have been perused.
Prosecutrix, who appeared as PW-2 is a child witness. Evidence of child witness is not required to be rejected per se, but Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 18- the court, as a rule of prudence considers such evidence with close scrutiny and only being convinced about the quality, thereof, and reliability can record conviction based, thereon.
Reliance can be placed upon Golla Yelugu Govindu v. State of Andhra Pradesh; 2008 AIR (SC) 1842; passed by Hon'ble Supreme Court of India, wherein, it was held that a child of tender age can be allowed to testify if he was intellectual capacity to understand questions and give rational answers, thereto. It was also held that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence, as well as, his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court, if from what is preserved in the records, it is clear that his conclusion was erroneous.
The Hon'ble Supreme Court of India in State of Karnataka v. Shantappa Madivalappa Galapuji and others; 2009 (12) SCC 731, held that Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. A child of tender age can be allowed to testify, if he has intellectual capacity to understand questions and give rational answers, thereto. It was also held that the evidence of a child witness is not required to be rejected per se, but the court, as a rule of prudence considers such evidence with close scrutiny and only being convinced about Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 19- the quality, thereof, and reliability can record conviction based, thereon. It was further held that even in the absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers, thereof.
It was also held that decision on the question, whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence. It was further held that though it is an established principle that child witnesses are dangerous witnesses, as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence, the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
The Hon'ble Supreme Court of India in Suryanarayana v. State of Karnataka; 2001 (1) RCR (Criminal) 602; held that evidence of child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider the evidence with close scrutiny and only being convinced about the quality of statement and its reliability, base conviction by accepting the statement of child witness. It was also held that while appreciating the evidence of child witness, courts are required to rule out possibility of the child being tutored.
The judgment (supra) has given vide powers to the learned Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 20- trial Judge who notices his manners, his apparent possession or lack of intelligence and such decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous.
Prosecutrix (PW-2) has been examined very carefully. The learned trial Court before beginning to record her statement put her two questions that have been reproduced in the earlier parts of this judgment and she (prosecutrix) gave correct/rational answers, thereto. From these answers the learned trial Court rightly concluded that prosecutrix can be examined as a witness in this case. The view taken by the learned trial Court cannot be held to be erroneous, inasmuch as, the examination of prosecutrix as PW-2 is concerned. It was satisfied by the learned trial Court after hearing her answers of PW-2 to questions, that she was able to understand the questions and to give statement.
Prosecutrix (PW-2) in her deposition candidly testified that the appellant to whom she also recognized in the Court on the night of incident took her towards kikar trees, who put off her underwear, as also of his own, and applied spit on the place of her urination and then he put his organ of urination in the place of her urination. She further testified that she started crying and the appellant ran away and, then she came to her home and told all this to her mother who further told it to her father. She also testified that the appellant gagged her mouth when she was taken from her house.
Prosecutrix (PW-2) was subjected to searching cross- Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 21- examination by the learned counsel for the appellant before the learned trial Court, but long cross-examination failed to elicit anything worth the name, which could possibly cause any dent in her testimony.
Learned counsel for the appellant contended that there was an altercation between the father of the prosecutrix and the appellant, as the latter was having illicit relations with the mother of the prosecutrix and on that account, he has been implicated falsely in this case. This contention is devoid of merit, as no one can put the honour of his own daughter at stake to take such revenge. In view of the testimony of the prosecutrix, it can be safely held that she has not been put on exploitation by her parents. While on the contrary, she narrated the incident correctly. She could not be tutored about this incident. Apart from that, the defence version has not been corroborated by any evidence and it seems to have been afterthought.
Fact remains in the deposition of prosecutrix (PW-2) that she was taken from her house by the appellant after gagging her mouth and later was raped in the groove of kikar trees near her residence. Pronto after the occurrence, the prosecutrix (PW-2) narrated the incident to her mother (PW-3). Therefore, the evidence of the mother of the prosecutrix as PW-3 becomes relevant under Section 6 of the Evidence Act that excludes the rule of hearsay. In this case, the appellant is accused of commission of rape PW-2 (Prosecutrix) and prosecutrix (PW-2) narrated this fact to PW-3 (Chinta). PW-3 (Chinta) also corroborated the testimony of PW-2 Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 22- (prosecutrix) and candidly testified that her daughter (PW-2) told her that she was raped by the appellant on the day of incident and she reported the matter to the police by making statement Ex.P4, that formed the basis of formal FIR Ex.P8.
Chinta (PW-3) was also subjected to searching cross- examination by the learned counsel for the appellant before the learned trial Court, but long cross-examination failed to elicit anything worth the name, which could possibly cause any dent in her testimony. So, PW-2 (prosecutrix) and PW-3 (Chinta) through their cogent and corroborating evidence proved that rape was committed upon PW-2 (prosecutrix).
Now, it is the case of the appellant also that the prosecutrix (PW-2) received injuries by fall from bicycle. This contention is also devoid of merit. It is no doubt true that Dr. Rashmi Sindhwani (PW-10) during cross-examination deposed that possibility of alleged tear having been caused on the person of the prosecutrix (PW-2) by a fall by bicycle could not be ruled out. This opinion could be upheld and affirmed, if underwear of the prosecutrix (PW-2) would not have been smeared with human semen. So, the presence of human semen on the underwear of the prosecutrix (PW-2) rules out injury on her vagina by a fall from bicycle. If the injury on the private part of the prosecutrix (PW-2) would have been by fall from a bicycle, then how human semen would have appeared on her underwear. The very presence of human semen on the underwear of the prosecutrix is in fact, indicative of commission of sexual intercourse upon the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 23- prosecutrix.
PW-10 Dr. Rashmi Sindhwani also testified that possibility of underwear of prosecutrix (PW-2) to have been smeared with human semen without subjecting her to sexual assault could not be ruled out. This opinion is again perfunctory and without any basis. This could be upheld and affirmed only, if prosecutrix (PW-2) in candid words had not repelled allegation of commission of rape by the appellant on her. If, there would have been no ocular evidence of commission of rape upon the prosecutrix (PW-2) by the appellant, only in that event, it could be held that without subjecting the prosecutrix (PW-2) to sexual assault, human semen could be present on her underwear.
PW-10 (Dr. Rashmi Sindhwani in her examination-in-chief candidly testified that prosecutrix was subjected to sexual assault, as human semen and human blood were detected on her underwear. When once PW-10 has taken this stand, now she could not retreat from this stand, that the underwear of the prosecutrix (PW-2) could be smeared with human semen without subjecting her to sexual assault. She (PW-10) gave this opinion after seeing the report of the Forensic Science Laboratory Ex.P19.
Dr. Jaimala (PW-13) also examined the prosecutrix (PW-2) and she testified that after seeing the report received from the Forensic Science Laboratory (Ex.P19) placed on the record, she can say that the patient (PW-2) was positively sexually assaulted. There is no reason to repel this evidence. This witness was subjected to Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 24- searching cross-examination by the learned counsel for the appellant before the learned trial Court, but long cross-examination failed to elicit anything worth the name, which could possibly cause any dent in her testimony. In the cross-examination, PW-13 admitted that the report of Forensic Science Laboratory was seen by her for the first time in the Court, but that has not bearing on the case, as the fact remains that this witness after seeing the report of the Forensic Science Laboratory Ex.P19 opined that the prosecutrix (PW-2) was positively sexually assaulted. As already held, there was presence of human semen on the underwear of the prosecutrix (PW-2).
It appears that after the sexual assault, the appellant cleaned his private part with the underwear of prosecutrix (PW-2) or the semen of the appellant would have fallen on the vagina of the prosecutrix and when after the incident she wore the underwear semen fell on her underwear. So, the ocular evidence of PW-2 (prosecutrix) and PW-3 (Chinta) to the effect that the former was raped by the appellant having been corroborated by medical evidence of PW-10 (Dr. Rashmi Sindhwani) and PW-13 (Dr. Jaimala) must be accepted to be veritable and on the basis, thereof, it must be held that it was the appellant, who committed rape upon the prosecutrix (PW-2), who was between 6 to 8 years of age at the time of incident, as can be seen from the testimony of Dr. Nitin Kumar (PW-11).
Dr. Jyoti Parkash (PW-4) deposed that there was there was nothing to suggest that the appellant cannot perform the act of Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 25- sexual intercourse. His evidence also could not be shattered during cross-examination and it follows, therefrom that the appellant was capable of commission of sexual intercourse. Even three injuries were found on the person of the appellant, when he was subjected to medico legal examination by Dr. Jyoti Parkash (PW-4). These injuries occurred to him during the incident and even prosecutrix (PW-2) deposed that she gave tooth bite on the chest of the appellant. This has been narrated in the shape of injury No.1 on the person of the appellant in the deposition of Dr. Jyoti Parkash (PW-4), who also gave medico legal report Ex.P7 of the appellant.
Injury No.2 on the person of the appellant is also on the left side of the lower chest. Injury No.3 was on the anterior of the abdominal wall 1 cm x .2cm to 4 cms x .2cm. These injuries were within a duration of 48 to 96 hours. The incident exactly happened 48 to 96 hours prior to the medico legal examination of the appellant. It was for the appellant to prove as to how, he suffered these injuries, as this fact was especially within his knowledge and burden of proving that fact was upon the appellant himself. He has not been able to discharge this onus, as to how the three injuries appeared on his body during his examination, that was conducted by Dr. Jyoti Parkash (PW-4) on 23.07.2006, on police requests Ex.P5 and P6. So, these injuries were suffered by the appellant during the incident only.
No motive can be ascribed to the police to implicate the appellant falsely in this case. No motive can be ascribed to the Sunder Sham 2013.10.09 21:40 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. S-1657-SB of 2008 - 26- prosecutrix (PW-2) and Chinta (PW-3) to testify falsely in this case, as they are not alleged to have any animus or hostility against the appellant prior to the incident. Besides, the appellant himself made extra judicial confession of the incident before PW-7 (Meera) whose testimony also could not be shattered during cross-examination. No motive can be ascribed to her to testify falsely in this case.
The appellant, thus, had sexual intercourse on the night of the incident with the prosecutrix (PW-2), who was between 6 to 8 years of age at that time and he, thus, committed an offence punishable under Section 376 (2) (f) IPC and minimum sentence prescribed, therein, is 10 years. The learned trial Court had no discretion to award rigorous imprisonment for a term less than 10 years and, therefore, rightly awarded minimum sentence of 10 years; besides, pay a fine of `5000/- to the appellant for commission of offence punishable under Section 376 (2) (f) IPC.
There is, thus, no force in the contentions raised by the learned counsel for the appellant and, therefore, are repelled. There is no illegality or impropriety in the impugned judgment of conviction and impugned order of sentence and there is no reason to set aside those. These are, therefore, upheld and affirmed.
Resultantly, appeal fails and is, hereby, dismissed.
(S.P. BANGARH)
JUDGE
September 20, 2013
Sunder Sham sham
2013.10.09 21:40
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh