Punjab-Haryana High Court
Harpal Singh vs State Of Punjab on 7 November, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.2344-SB of 2009
Date of decision: 7th November, 2011
Harpal Singh
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. G.S. Sandhu, Advocate for the appellant.
Ms. Gagan Mohini, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal is directed against the judgment of conviction and order of sentence dated 24th August, 2009 passed by the Court of Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur, whereby the appellant was held guilty of an offence punishable under Sections 376 and 506 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 376 IPC. He was further sentenced under Section 506 IPC to undergo rigorous imprisonment for a period of two years. Both the substantive sentences were ordered to run concurrently.
Harpal Singh-appellant was nominated as an accused in case FIR No.50 dated 11.05.2007 registered at Police Station City Sunam under Sections 376 and 506 IPC. He had committed an offence of rape on 8th May, 2007 with a child (name withheld to protect her identity) aged about seven years.
Criminal Appeal No.2344-SB of 2009 2
To appreciate the arguments raised by counsel for the appellant, it will be necessary to recapitulate brief facts of the case.
Gurjit Singh PW-2 on 11th May, 2007 at about 6.15 p.m. at Civil Hospital, Sunam made a statement Ex.PA, on the basis of which formal FIR Ex.PW7/B was registered. In his statement Ex.PA, complainant Gurjit Singh stated that he is a resident of village Jagatpura and do labour work. They are two brothers and one sister. His sister is married and is having two daughters and one son. On 5th May, 2007 he had gone to the house of his sister Rani wife of Janta Singh and while returning he brought his niece (prosecutrix) aged about 7/8 years. On 9th May, 2007 he had gone out of his house in connection with some avocation. When he returned at about 2.00 p.m. his wife informed him that the prosecutrix (a child aged 7/8 years) for about two days is feeling pain while passing urine and on 9th May, 2007 a lot of blood has also come along with urine. Seeing the worse condition of the prosecutrix, the complainant asked her affectionately about the cause of pain, upon which the prosecutrix told that a neighbourer namely Harpal Singh, who was employed in Home Guard, used to give sweets (toffees) to her and a day before in the pretext of giving toffees he called her to his house and made her lie on the bed in a room and forcibly committed rape. The prosecutrix further stated that a lot of blood had fallen on the bed. Then Harpal Singh had put the prosecutrix under fear that in case she disclosed this fact to anybody she will be killed. Understanding the gravity of situation, complainant Gurjit Singh PW-2 had a talk with Karam Singh, Sarpanch of the village and brought his niece in a car at Government Hospital, Sunam, where she was under medical treatment. Criminal Appeal No.2344-SB of 2009 3 A grievance was made in the statement Ex.PA that Harpal Singh has committed an offence and therefore, he should be sternly dealt with.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The case was committed to the Court of sessions and was entrusted for trial to the Court of Additional Sessions Judge, Sangrur, which on 13th November, 2007 charged the appellant for an offence punishable under Sections 376 and 506 IPC. The appellant pleaded not guilty and claimed trial.
Prosecution examined the prosecutrix, a child aged about seven years, as PW-1. To appreciate the primary contention raised by counsel for the appellant that no offence under Section 376 IPC is made out and the offence, if any, will fall under Section 354 IPC; it will be apposite here to reproduce entire examination in-chief of the prosecutrix PW-1, which reads as under:
"On 5.5.2007 I had come with my maternal uncle to village Jagatpura to meet my maternal grand parents. Accused Harpal Singh present in the Court used to give me toffies. Then he committed rape on me by taking to his house by putting me on his bed. After two days I told my maternal aunt as my maternal uncle was away for work. He had injured me by putting his finger. Then I was taken to the hospital."
The prosecutrix admitted that her maternal uncle Gurjit Singh is having cordial relations with Karam Singh Sarpanch. However, she denied the fact that the accused was having any dispute with the Sarpanch.
Criminal Appeal No.2344-SB of 2009 4
Complainant Gurjit Singh appeared as PW-2 and reiterated as to what was stated in his statement Ex.PA, on the basis of which formal FIR Ex.PW7/B was registered. In cross-examination, complainant stated that Harpal Singh was married and his wife was residing along with him. He further admitted that the prosecutrix was taken for medico- legal examination on 11th May, 2007. This witness further stated that he had himself not noticed any stain of blood on the person of prosecutrix but it was informed to him by his wife Sandeep alias Sona.
Having noticed the ocular version, it is necessary to notice medico legal evidence.
Dr.Rakesh Jain, Medical Officer, Civil Hospital, Sunam appeared as PW-5. He had medico legally examined the accused Harpal Singh on 12th May, 2007 and had stated that there was nothing to suggest that the accused was incapable of performing sexual intercourse. However, this witness admitted presence of a brownish contusion on the tip of glance of penis of the accused. In cross- examination, this witness stated that it is correct that the possibility of some other injury on the other part of penis is not ruled out if a person commits intercourse with a girl aged 5/6 years.
Dr. Susham Prabha PW-6 on 11th May, 2007 had medico legally examined the prosecutrix aged about seven years and on her local examination had opined as under:
"there was injury on external genitalia. Hymen was ruptured. There were lacerations on right and lateral vaginal walls. Postier commisure was torn. Vaginal opening little finger and samples were taken."Criminal Appeal No.2344-SB of 2009 5
In cross-examination, this witness stated that she had declared that sexual intercourse had taken place with the prosecutrix. During cross-examination, this witness stated that possibility of the injuries suffered by the prosecutrix by putting a finger in her vagina cannot be ruled out.
It is time to note the testimony of the official witnesses, who had participated in the investigation.
HC Ram Singh PW-3, HC Hardeep Singh PW-10 and Constable Gian Singh PW-11 tendered into evidence their affidavits Ex.PE/1, Ex.PW10/A and Ex.PW11/A respectively to prove link evidence.
SI Pushpinder Singh PW-7 proved various facets of the investigation including recording of statement of the complainant and registration of the case.
Daljit Singh PW-8 from the office of Civil Surgeon, Mansa proved birth certificate of the prosecutrix wherein her date of birth is recorded as 3rd January, 1999.
Manjit Singh, Assistant from the office of Punjab Home Guard, Sangrur appeared as PW-9 and proved service record of the appellant Harpal Singh.
Maninder Singh Draftsman PW-12 had prepared scaled site plan Ex.PW12/A of the spot.
Thereafter, prosecution closed its evidence and a statement of the accused appellant was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and Criminal Appeal No.2344-SB of 2009 6 pleaded false implication at the instance of Karam Singh, Ex-Sarpanch, with whom he was stated to be having strained relations.
Harpal Kaur, wife of the accused-appellant Harpal Singh, appeared as DW-1 and stated that the accused was having two sons aged 18 years and 16 ½ years. She further stated that on 8th May, 2007 his husband was present at the house and no incident had taken place. She stated that the accused has been falsely implicated due to his inimical relations with Karam Singh Sarpanch.
Sona @ Sandeep Kaur, wife of the complainant Gurjit Singh, appeared as DW-2 and stated that the prosecutrix had suffered an injury due to fall on a peg meant for tethering the cattle.
Mr. G.S. Sandhu, learned counsel appearing on behalf of the appellant, has very vehemently raised following two submissions:
(a) That the prosecutrix had herself stated that the accused had put his finger in her vagina, therefore the offence, if any, will fall under Section 354 IPC and not under Section 376 IPC.
(b) Secondly, complainant Gurjit Singh is having cordial relations with Karam Singh Sarpanch, with whom the relations of appellant are inimical. Therefore, the appellant has been falsely implicated at the instance of Karam Singh Sarpanch.
To fortify this submission, counsel has stated that non- examination of Karam Singh Sarpanch, to whom information was instantly relayed, should be construed adversely against the prosecution. He has urged that evidence of Harpal Kaur DW-1 wife of the appellant not only absolves Criminal Appeal No.2344-SB of 2009 7 the appellant of the offence but a categoric statement of Sona @ Sandeep Kaur DW-2 wife of the complainant Gurjit Singh also rules out the occurrence.
I have given a thoughtful consideration to the above submissions. There are a few broad features of this case which cannot be ignored. Firstly, the prosecutrix is aged about seven years. She has stated that the accused had taken her to his house and after putting her on the bed, had committed rape. It is later-on that she has stated that the accused had injured her by putting his finger. In entire cross- examination, the prosecutrix was not asked as to whether the finger was put before or after the act of rape. Be that as it may, a positive statement of the prosecutrix was recorded that the accused had committed rape. Putting of finger and causing injury thereby will not rule out the act of rape, for which the witness had made an assertion. Secondly, the medico legal examination of the accused after three days of the occurrence reveals that there was a brownish contusion present on the tip of glance of his penis. No explanation has been given by the accused as to how he had suffered the said injury or contusion on his penis. This part of the medical evidence cannot be ignored and it can be safely presumed that the appellant had committed rape with the child of about seven years. Furthermore, Dr.Susham Prabha PW-6 has stated that there was an injury on the external genitalia of the prosecutrix. Her hymen was ruptured. There were lacerations on right and lateral vaginal walls of the prosecutrix and her postier commisure was torn. This kind of injury and harm cannot be caused by insertion of finger only. Criminal Appeal No.2344-SB of 2009 8 Furthermore, the doctor had declared that sexual intercourse had taken place with the prosecutrix. Therefore, a stray line in the cross- examination of the doctor that possibility of such injuries being suffered by putting finger into the vagina cannot be ruled out, cannot be taken into consideration to negate entire conspectus of the case. Thus, this Court is firmly of the opinion that the prosecutrix was a victim of child abuse and rape.
Hence, no interference is warranted in the present appeal and the same is hereby dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE November 7, 2011 rps