Punjab-Haryana High Court
Ashwani Kumar @ Billoo vs State Of Haryana on 14 March, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-1194-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-1194-SB of 2002
Date of decision: 14.03.2011
Ashwani Kumar @ Billoo
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Gurcharan Dass, Advocate, for the appellant.
Mr. Manish Deswal, Deputy Advocate General, Haryana.
JORA SINGH, J.
Ashwani Kumar @ Billoo, preferred this appeal to challenge the judgment of conviction dated 14.3.2002 and order of sentence dated 16.3.2002, rendered by the learned Additional Sessions Judge, Panchkula, in Sessions Case No. 82 dated 13.11.2000, arising out of FIR No. 80 dated 9.9.2000, registered under Sections 452/376 of the Indian Penal Code at Police Station Kalka, District Panchkula.
By the said judgment, he was convicted under Sections 452/376 IPC and sentenced as under:
1. Under Section 452 IPC To undergo rigorous imprisonment for a period of 5 years and to pay a fine of ` 5000/- and in default of payment of fine to further undergo rigorous CRA-S-1194-SB of 2002 -2- imprisonment for a period of one year.
2. Under Section 376 IPC To undergo rigorous imprisonment for a period of 7 years and to pay a fine of ` 20,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years.
Both the substantive sentences were ordered to run concurrently.
Prosecution story, in brief, is that Aarti (hereinafter referred to as 'the prosecutrix), was about 15 years old and on 9.9.2000 at about 12.30 p.m. was alone in her house. Her mother (Tej Rani) had gone to the bank whereas her father and brother had gone to the house of her maternal uncle. Accused came inside the house. Main gate was bolted from inside. She was caught hold by the accused. String of her salwar was opened and she was raped against her wish. She raised an alarm. In the meantime, her mother Tej Rani and maternal uncle Laxman Dass came and had witnessed the occurrence. On seeing them accused had fled away from the spot. Statement of the prosecutrix Ex. PC/3 was recorded by ASI Pritpal Singh, while present near Gandhi Chowk. After making endorsement Ex. PC/2 at 2.15 p.m., statement was sent to the police station on the basis of which formal FIR Ex. PC/1 was recorded.
Prosecutrix was produced before the doctor and was medico-legally examined. Rough site plan with its correct marginal notes was prepared. Accused was arrested and after completion of investigation, challan was presented in Court.
Accused was charge-sheeted under Sections 452/376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. CRA-S-1194-SB of 2002 -3-
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Mukesh Kumar, SHO, PS, Pinjore, stated that he had prepared report under Section 173 Cr.P.C.
PW-2 Constable Manohar Lal, stated that he had prepared the scaled site plan Ex. PB, with its correct marginal notes.
PW-3 ASI Partap Singh, stated that on receipt of ruqa Ex. PC, he had recorded formal FIR Ex. PC/1.
PW-4 HC Krishan Kumar, tendered his affidavit Ex. PD. PW-5 Constable Mihan Singh, stated that he had delivered the special report to the Illaqa Magistrate at 4.30 p.m. PW-6 is the prosecutrix. She has reiterated her stand before the police by saying that when she was alone in her house then she was raped by the accused against her wish.
PW-7 Smt. Tej Rani, is the mother of the prosecutrix and stated that on the day of occurrence prosecutrix was alone in her house. She was 14½ /15 years old. She had gone to the bank to collect money and from the bank she had gone to her parental house. She along with her brother namely Laxman Dass, when came to her house then had seen the occurrence. Accused was committing sexual intercourse with her daughter and on seeing them had fled away from the spot. Report was lodged with the police.
PW-8 Mrs. Raksha Mangi, Principal, Hindu Girls High Secondary School, Kalka, had brought the summoned record and stated that prosecutrix was a student of 6th Class. Ex. PE is the School Leaving Certificate, issued by her. Date of birth of the prosecutrix is CRA-S-1194-SB of 2002 -4- 28.3.1986.
PW-9 ASI Pritpal Singh, is the Investigating Officer. PW-10 Constable Ranbir Singh, tendered his affidavit Ex. PM.
PW-11 Dr. Rajiv Kumar Diwan, stated that on 10.9.2000, Ashwani Kumar, was medico-legally examined and was found fit to perform sexual intercourse. Ex. PL is the carbon copy of the MLR.
On the same day, he had also medico-legally examined the prosecutrix aged about 15 years. Ex. PH is the carbon copy of the MLR.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that he was falsely implicated due to enmity with the maternal uncle of the prosecutrix.
In defence, DW-1 Dharampal, Member Panchayat, appeared and stated that he knows nothing about this case. He had produced the accused before the police.
DW-2 Pawan Kumar, stated that he is the owner of truck bearing registration No. HP-51-2790. Ashwani Kumar, was employed as conductor. On 9.9.2000, Ashwani Kumar, conductor was with him.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on file.
Learned defence counsel for the appellant argued that CRA-S-1194-SB of 2002 -5- prosecutrix appeared in Court but did not state a word that she raised hue and cry and had shown some resistance. According to the MLR, prosecutrix was habitual to sexual intercourse. Prosecutrix was the consenting party. Certificate regarding age is on the file but there is cutting. On the basis of affidavit, date of birth was recorded but affidavit is not on the file. Tej Rani and Laxman Dass, had witnessed the occurrence but Laxman Dass, was not examined. In fact appellant was a conductor with DW-2 Pawan Kumar. Appellant was inimical towards the maternal uncle (Laxman Dass) of the prosecutrix and due to this reason appellant was falsely implicated in this case.
Learned State counsel argued that before the present occurrence appellant had no enmity with the maternal uncle of the prosecutrix. No question to the prosecutrix or her mother that Laxman Dass was inimical towards the appellant. Prosecutrix was 14½ /15 years old. School Leaving Certificate, Ex. PE shows that date of birth of the prosecutrix was 28.3.1986, that means she was less than 16 years of age. No suggestion to Tej Rani or the Investigating Officer that prosecutrix was more than 16 years old. If she was more than 16 years of age then record could easily be summoned from the office of Registrar of death and birth. No case of the appellant that he had relations with the prosecutrix. As per doctor, prosecutrix was habitual to sexual intercourse then it does not mean that the appellant had the right to rape the prosecutrix against her wish. As per report of the laboratory, human semen was detected in case of vagina swabs. When there was no enmity of the complainant party with the appellant then there was no idea to name the appellant particularly when reputation of un-married CRA-S-1194-SB of 2002 -6- minor girl was at stake.
First submission of the learned defence counsel for the appellant was that prosecutrix when appeared in Court then did not state a word that she raised hue and cry and had shown some resistance. As per MLR, the prosecutrix was habitual to sexual intercourse that means prosecutrix was the consenting party but after going through the evidence on file, I am not in a position to agree with the submission of the learned defence counsel for the appellant.
Prosecutrix when appeared in Court as PW-6 then on oath stated that she was 16 years old at the time of her statement in Court. Mother of the prosecutrix stated that she was 14½ /15 years old at the time of present occurrence. Record was summoned from school and as per School Leaving Certificate, Ex. PE, date of birth of the prosecutrix is 28.3.1986, that means she was less than 16 years. No suggestion of the Investigating Officer or the mother of the prosecutrix that she was more than 16 years old. When appellant was facing trial then no request to the court to produce the prosecutrix before the doctor for ossification test. No record from the office of Registrar of death and birth, was summoned to show that prosecutrix was more than 16 years old. No suggestion to the prosecutrix or her mother that she had affair with the appellant and was the consenting party. No love letter or no writing by the prosecutrix on the file to show that she had affair with the appellant. Appellant when examined under Section 313 Cr.P.C. then did not state a word that he was having affair with the prosecutrix. No doubt, MLR on the file shows that prosecutrix was habitual to sexual intercourse and no external injury was noticed but if no external injury CRA-S-1194-SB of 2002 -7- was noticed on the person of the prosecutrix or prosecutrix was habitual to sexual intercourse then it does not mean that she was the consenting party. If prosecutrix was habitual to sexual intercourse then question is whether the appellant had the right to rape the prosecutrix against her wish. Ex. PC is the statement of prosecutrix, she stated before the police that she raised an alarm. As PW-6, prosecutrix failed to state that she raised an alarm and had shown some resistance but this fact only is not sufficient to opine that prosecutrix was the consenting party, consent is immaterial when prosecutrix was less than 16 years of age.
Next submission of the learned defence counsel for the appellant was that occurrence was witnessed by Tej Rani and Laxman Dass. Laxman Dass was not examined. In fact, Laxman Dass was inimical towards the appellant. Present case was registered at the instance of Laxman Dass. Tej Rani was serving as Peon in the hospital where prosecutrix was medico-legally examined. MLR was procured simply to implicate the appellant but after going through evidence, I am of the opinion that this submission of the learned defence counsel for the appellant seems to be not correct one.
No suggestion to the prosecutrix or her mother that Laxman Dass, maternal uncle of the prosecutrix was inimical towards the appellant. No defence, either oral or documentary that earlier to the present occurrence Laxman Dass, had civil or criminal litigation with the appellant. Appellant when examined under Section 313 Cr.P.C. then simply stated that Laxman Dass, was inimical towards the appellant so due to this reason he was falsely implicated. Now, the question is whether there was any civil or criminal litigation amongst the appellant CRA-S-1194-SB of 2002 -8- and Laxman Dass? No DW appeared in Court to state that earlier to the present occurrence there was some dispute amongst the appellant and Laxman Dass. Suppose there was some dispute amongst Laxman Dass and the appellant then question is what was the reason to implicate the appellant when reputation of un-married minor girl was at stake. If appellant was to be implicated then it was very easy for Laxman Dass and Tej Rani, to state that some articles were stolen by the appellant or appellant abused them or gave beatings. Tej Rani, while serving as Peon in the hospital could easily arrange MLRs qua injuries on her person or her brother Laxman Dass. If Tej Rani had the power to procure the MLR then she could easily request the doctor not to write a line in the MLR that prosecutrix was habitual to sexual intercourse. When there are number of eye-witnesses then all are not to be examined. Quality of evidence is to be seen not the quantity of evidence. In the absence of Laxman Dass, no reason to disbelieve the prosecutrix or her mother.
Ex. PX, is the report of the laboratory and report is to the effect that human semen was detected. Occurrence was at 12.30 p.m. on 9.9.2000. Statement of the prosecutrix was recorded then at 2.00 p.m. ruqa was sent to the police station. Special report was delivered to the Illaqa Magistrate at 4.30 p.m. So, within 2-3 hours without any enmity with the appellant there was no reason to concoct the story. No record was summoned from the bank that on 9.9.2000, Tej Rani, had not withdrawn payment from the bank. House of Laxman Dass, was near the house of the prosecutrix, so after collecting the payment from the bank there was a possibility of Tej Rani to visit the CRA-S-1194-SB of 2002 -9- house of her brother. Statement of the prosecutrix alone is sufficient to convict the appellant but statement should inspire confidence. Tej Rani had seen the appellant while committing the crime. On seeing, Tej Rani and Laxman Dass, appellant had fled away from the spot. Immediately, after the occurrence matter was reported to the police and on the same date prosecutrix was medico-legally examined. Human semen was noticed.
Defence version of the appellant was that he was a conductor with DW-2 Pawan Kumar and case is false but defence version seems to be an after thought. No suggestion to the prosecutrix and her mother that appellant was a conductor with DW-2 Pawan Kumar.
Pawan Kumar, appeared as DW-2 but he did not state a word that on 9.9.2000, he along with the appellant had gone to South and was not present in the village. Nothing on the file that Pawan Kumar, was owning a truck. Appellant when examined under Section 313 Cr.P.C. then did not state a word that he was a conductor with Pawan Kumar (DW-2). Suppose he was the conductor with Pawan Kumar then no reason to ignore the prosecution story. While serving as conductor with Pawan Kumar, appellant can go to the house of the prosecutrix to commit the crime. In cross-examination, Pawan Kumar, stated that he had gone to Himachal Pradesh to load apples and on 10.9.2000, mother of the appellant had met them near Parvanoo Barrier. Appellant was taken away by the mother of the prosecutrix but no record that Pawan Kumar, along with the appellant had gone to Himachal Pradesh and something was loaded in the truck. Regarding CRA-S-1194-SB of 2002 -10- loading of truck billty could be produced.
DW-1 Dharampal, stated that he had produced the appellant before the police. Appellant did not state a word that he was produced by Dharampal. No suggestion to the PWs that appellant was produced by Dharampal. In case appellant had not committed the crime on 9.9.2000, then there was no idea to produce the appellant before the police. Statement of DW-1 Dharampal is contrary to the statement of DW-2 Pawan Kumar. Defence version is an after thought.
Last submission of the learned defence counsel for the appellant was that appellant remained in custody for about 1½ years. Lenient view be taken.
Learned defence counsel for the appellant cited photocopy of the judgment dated 9.2.2011, passed by this Court in CRA-S-1343- SB of 2002. Conviction was under Section 363 IPC. Accused was directed to undergo rigorous imprisonment for a period of 4 years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 4 months. Accused was married having two minor children and had undergone 1 year 7 months and 14 days out of the substantive sentence of 4 years but in the present case appellant was 25 years old and was unmarried. Defence version was that he is innocent and was implicated due to enmity with Laxman Dass, maternal uncle of the prosecutrix but in support of this submission no evidence either oral or documentary. No reason to take lenient view. In case, lenient view is taken then un-married minor girls cannot be safe. Offence under Section 376 IPC is serious.
In view of all discussed above, I am of the opinion that CRA-S-1194-SB of 2002 -11- evidence on file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld.
For the reasons recorded above, appeal without merits is dismissed.
Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which learned Chief Judicial Magistrate, Panchkula, is directed to issue re-arrest warrants against the appellant to undergo remaining imprisonment as ordered by the trial Court.
March 14, 2011 ( JORA SINGH ) rishu JUDGE