Punjab-Haryana High Court
Sakir Khan vs State Of Haryana on 18 January, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.700 SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.700 SB of 2000
Date of decision 18.1.2011.
Sakir Khan
...... Appellant.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. G.C.Shahpuri, Advocate for the appellant.
Mr. Amandeep Singh, AAG, Haryana.
K.C.PURI, J.
Sakir Khan has directed the present appeal against the judgment and order dated 15.7.2000 passed by learned Additional Sessions Judge, Faridabad vide which appellant-Sakir Khan has been convicted Sections 376 and 511 of the Indian Penal Code ( in short - the IPC) and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1000/-. In default of payment of fine, the appellant-accused was directed to undergo further rigorous imprisonment for a period of six months whereas his co-accused Jakir Khan, Azad Khan and Bannu Khan were also convicted under Sections 323 and 34 IPC and Criminal Appeal No.700 SB of 2000 2 released them on probation under the Probation of Offenders Act, 1960.
Briefly stated, it is the prosecution story that on 21.8.1998 at 3.00p.m. complainant was informed in his workshop by his eldest daughter Sonia that his younger daughter (prosecutrix) has been subjected to some wrong act by one man. He was required by her mother in the house immediately. Upon this information, he along with his daughter went to his house where his wife Chander Kanta told that at about 2.00p.m., while she was preparing food, one Sakir son of Bannu Khan of Nangla Enclave, Faridabad enticed away the prosecutrix by showing her a toffee and took her on the roof. After getting her underwear down, he has ejected the semen on the private parts of the prosecutrix and tried to commit wrong act. It was told by the prosecutrix to her sister. While Babita was telling this fact, Sakir was getting downstairs. She tried to catch hold him but he after giving her a push ran away. After sometime, Sakir, Bannu Khan and Azad came to their house while being armed with lathis and gave injuries to his wife Chander Kanta, his brother-in-law Sanjay and Dinesh, who had come to meet them. They inflicted injuries with the help of lathis, kicks and fist blows. They also threatened them to death. Upon this, FIR under Sections 376, 511, 452, 323 and 506 of the IPC was registered and the investigation commenced. The injured were got medico-legally examined. The accused were arrested. The Police recorded the statements of the witnesses. After completion of the investigation, the challan was presented before the Area/Judicial Magistrate Ist Class, Jalandhar, who found that the case was exclusively triable by the Court of Session. Therefore, after Criminal Appeal No.700 SB of 2000 3 complying with the provisions of Section 207 Cr.P.C., he has committed the case to the court of Sessions vide his order dated 11.12.1998.
Charge was framed against the accused persons on 14.1.1999. All the accused denied the charge and pleaded not guilty and claimed trial.
In order to prove its case, the prosecution has examined ASI Ramphal (PW-1), HC Om Kumar (PW-2), Dr. Sudhir Khaurana (PW-
3), Dr.Meenu Kapoor (PW-4), Constable Hari Pal (PW-5), SI Prem Narain (PW-6), HC Hari Chand (PW-7), Mukand Lal (PW-8), Chander Kanta (PW-
9), prosecutrix has appeared herself as PW-10, Sanjay Kumar (PW-11), Dinesh (PW-12) and Dr.M.K.Goyal (PW-13).
All the accused persons were examined under Section 313 Cr.P.C., in order to afford them an opportunity to explain the evidence/circumstances appeared against them in the prosecution evidence. All the incriminating evidence was put to them and they have denied the same. The accused took the plea of innocence and false implication in the present case. The accused did not lead any evidence in defence.
The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment and order dated dated 15.7.2000 as aforesaid.
Feeling dissatisfied with the aforesaid judgment, appellant- Sakir Khan -accused preferred the present appeal.
I have heard learned counsel for the parties and have gone through the records of the case.
Criminal Appeal No.700 SB of 2000 4
Learned counsel for the appellant has submitted that according to the testimony of Mukand Lal father of the prosecutrix, his elder daughter disclosed him about the occurrence and as per examination-in- chief of Mukand Lal, he directly went to the police station and submitted application Ex.PG. So, the information given by Mukand Lal to the police is based upon hearsay evidence and cannot be relied upon. The assertion made in the application Ex.PG that he went to the house where he came to know about the occurrence is belied on that account.
I have carefully considered the said submission but do not find any force in that submission.
The statement of a witness has to be read as a whole. Mukand Lal in Ex.PG has categorically mentioned that on receiving information about occurrence from Sonia, he went to his house and inquired about the occurrence. In his cross-examination also, Mukand Lal witness has stated that after receiving information, he went to the house from where he got the details of occurrence. So, there is no contradiction in the testimony of Mukand Lal father of the prosecutrix.
Learned counsel for the appellant has further submitted that there is no independent corroboration of the testimony of the prosecutrix. The medical evidence rules out the attempt to rape. At the most, if whole of the allegations are taken as gospel truth, only offence under Section 354 IPC is made out. The appellant has already undergone incarceration for a period of more than five months. He has nine children. He is facing trial for the last thirteen years i.e. since 1998.
Criminal Appeal No.700 SB of 2000 5
I have carefully considered the said submission and find myself to scribe that submission.
The statement of the prosecutrix, aged 6 years, has been relied upon by the learned trial Court. Her testimony is corroborated by statements of her parents. The appellant not only indulged in a heinous offence but thereafter he along with his family members has given a beating to the family members of the prosecutrix. The other co-accused have been convicted for offence under Section 323 IPC etc but keeping in view the total circumstances, they have been ordered to be released on probation. The prosecutrix has stated in clear terms that she was taken on the roof of the house on the allurement of giving toffee. The prosecutrix has further stated that she was helpless by the accused and the accused indulged in fondling with the private part and thereafter urinated upon her. The learned trial Court has rightly arrived at a conclusion that prosecutrix was aged six years only, in those circumstances, the urinating means discharging semen. The said fact is corroborated by the report of Forensic Science Laboratory. Semen was found on the underwear of the prosecutrix. So, in these circumstances, it cannot be said that only offence under Section 354 IPC is made out. All the acts attributed to the appellant leads to the only conclusion that he attempted to rape the prosecutrix.
Learned counsel for the appellant has further submitted that according to the prosecutrix she was not having an underwear and her mother has taken away her underwear. So, it is contended that the prosecution has implanted the underwear.
Criminal Appeal No.700 SB of 2000 6
I have carefully considered the said submission but do not find any force in that submission.
The prosecutrix and her family members are rustic villager and it cannot be believed that they can go to the extent of arranging a semen ejected underwear. The statement of the prosecutrix in this regard has to be read in right prospective keeping in view her tender age. The testimony of prosecutrix corroborated by statement of her parents. Moreover, the accused have not brought any reasoning on the file for his false implication. The stand of strained relations between the parents of the prosecutrix and that of accused is not proved on the file and has been only alleged to avoid the punishment.
So far as the reliance on authority Narinder vs. State of Haryana 2000(2) R.C.R.(Criminal) 305 is concerned that authority is distinguishable as in that case no semen was found on the pubic hair. Moreover, it depends upon facts of each case whether the testimony of the prosecutrix and other prosecution witnesses should be relied upon or not. In the present case, the prosecutrix and other witnesses have been cross- examined at length but nothing could be brought on the file to discard their sworn testimony. So, in these circumstances, the appellant does not have any benefit of the above said authority.
No other point has been urged before me during the course of arguments.
In view of the above discussion, the appeal is without any merit and the same stands dismissed.
Criminal Appeal No.700 SB of 2000 7
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
January 18, 2011
sv