Punjab-Haryana High Court
Ravi Kumar Alias Manga vs State Of Punjab on 16 January, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.2100 SB of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.2100 SB of 2010
Date of decision 16 .01.2013.
Ravi Kumar alias Manga
...... Appellant.
versus
State of Punjab
...... Respondent.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. H.S.Baath, Advocate for the appellant.
Mr. S.S.Chandumajra, Senior DAG, Punjab.
Mr. B.S.Jaiswal, Advocate for the complainant.
K.C.PURI, J.
Challenge in this appeal is the judgment and order dated 18.8.2010 passed by Shri Ashok Kumar Singla, learned Additional Sessions Judge, Tarn Taran vide which the accused has been convicted under Section 376 of the Indian Penal Code (in short - the IPC ) and sentenced to undergo imprisonment for ten years and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo imprisonment for six months.
2. The case of the prosecution in brief is that on 28.9.2006, prosecutrix aged about eight years daughter of Prem Kumar resident of Criminal Appeal No.2100 SB of 2010 2 village Bhikhiwind was alone in her house. The complainant had gone to his work and his wife had also gone to office of Election Commission at Block Bhikhiwind for preparation of identity card. At about 12.30p.m., complainant came to his house to take meals and reached near the house of Surinder Kumar, father of the accused. In the meantime, accused came there and on the pretext of giving toffees (sweets) took the prosecutrix to his house and forcibly raped the prosecutrix. However, in the meantime, complainant who was coming to take meal, reached near the house of accused and heard shrieks of the prosecutrix coming out of the room from his house. Outer gate of that house was open whereas the room was closed. The complainant saw from the window of the room and found that accused Manga ( Ravi Kumar ) son of Surinder Kumar was committing rape on his daughter. He raised alarm and knocked at the door , the accused opened the door and pushed him and succeeded in running away. Jyoti Rani wife of the complainant also reached there and after leaving his daughter with his wife he went to the police. His statement Ex.PA was recorded by ASI Mohinder Singh in chowk Bhikhiwind at about 1.30p.m., and on the basis of which formal FIR was recorded. The accused was arrested his underwear after making into parcel was taken into possession. Accused suffered a disclosure statement and got recovered shirt smeared with blood which was also made into parcel. Rough site plan was also prepared. After completion of the investigation challan against the accused was presented against the accused.
3. Copies of the document were supplied to the accused free of Criminal Appeal No.2100 SB of 2010 3 costs under rules. Finding a prima facie case punishable under Section 376 of the IPC, a charge under the said provisions was framed against the accused. The accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case examined prosecutrix PW1 ( name not disclosed due to directions of Hon'ble the Apex Court ), complainant Prem Kumar (PW-2), Constable Jarnail Singh (PW-3), Dr.Rupam Pasricha, Medical Officer, Civil Hospital, Amritsar ( PW-4 ), Dr.Sartaj Singh (PW-5) Balwinder Singh (PW-6), HC Karaj Singh (PW-7), SI Baldev Singh (PW-8) and closed the evidence after tendering report of Deputy Director (Serology) FSL, Punjab, Chandigarh.
5. The accused was examined under Section 313 of the Cr.P.C. and all the incriminating evidence was put to him to which he denied and pleaded false implication. It is pleaded that complainant was having a dispute with him regarding sale of vegetables. He has further stated that his mother levelled allegations against the complainant that due to adding some poisonous substance in the cooked vegetables consumed by her, his mother had suffered a paralytic attack and there was fight between the parties and a case under Section 326 of the IPC was registered. On that account false case was got registered against him and no occurrence has taken place. There is only one room in the house where his paralytic mother used to lay all the time.
6. The accused was called upon to lead his defence and he examined Harbans Singh DW-1.
7. The learned trial Court after appraisal of the evidence Criminal Appeal No.2100 SB of 2010 4 convicted the accused under Section 376 of the IPC and sentenced to undergo imprisonment as narrated above.
8. Feeling dissatisfied with the judgment and order dated 18.8.2010 passed by the trial Court, the accused has preferred the present appeal.
9. The learned counsel for the appellant has submitted that the trial Court has wrongly determined the age of the prosecutrix as eight years. The trial court, after discussing the report of ossification test has held that age of the prosecutrix can be 14 years. So, it is contended that age of the prosecutrix should have been taken as 14 years while awarding the sentence and not eight years.
10. I have carefully considered the said submission but do not find any force in that submission.
11. The question in the present case regarding the age of prosecutrix is concerned that has been rightly determined as eight years by the trial Court. The prosecution story starts from the fact that accused allured the prosecutrix to come to her house for giving toffees/sweets. A child of eight years only can be allured for that purpose. The prosecution thereafter produced the school certificate where the prosecutrix had been shown as student of U.K.G. Class and her date of birth as October 02, 1998. The learned trial Court considered the prosecutrix as child witness put her the questions to satisfy himself that prosecutrix knew the sanctity of Court. The prosecutrix had also given her age as eight years though at the time of occurrence also at the time appearing in the court, the prosecutrix was cross- Criminal Appeal No.2100 SB of 2010 5 examined at length but nothing could be brought on the file to shatter her sworn testimony. Father of prosecutrix might have told the prosecutrix to keep the decorum of the Court. No further cross-examination of the prosecutrix was conducted as to what was disclosed to the prosecutrix by her father. So, it cannot be said that she is tutored witness, as argued by the counsel for the appellant.
12. The father of the prosecutrix has also given the age of prosecutrix as eight years. The Medical officer while conducting medical examination of the prosecutrix has given the age of prosecutrix as eight years and has described her as a child in the MLR Ex.PD. So, the age of the prosecutrix has been rightly determined as eight years.
13. The counsel for the appellant has further contended that the mother of the appellant is a paralytic lady. There is only one room in the house and as such it was not possible for the appellant to commit rape on the prosecutrix in the house as per story of the prosecution.
14. I have carefully considered the said submission but do not find any force in that submission.
15. This argument was also advanced before the trial court and the same has been rightly rejected. It is not the case of the appellant that at the time of occurrence mother of the appellant was present in the house. It cannot be presumed that all the time the mother of the appellant shall remain in the house. She might have gone to take the medicines or any where else. So, that argument is without any substance.
16. Learned counsel for the appellant has further submitted that Criminal Appeal No.2100 SB of 2010 6 since the house of the appellant is situated in a busy locality, therefore it cannot be said that occurrence has taken place. The neighbour must have objected in case the occurrence, as alleged, has taken place.
17. I have carefully considered the said submission but do not find any force in that submission.
18. The same argument was advanced before the trial Court but was rightly repelled by the trial Court. According to the statement of the complainant there are scattered houses. The underwear of the prosecutrix and shirt recovered from the complainant were found to be bloodstained as per report Ex.PO. The report of Chemical Examiner Ex.PE also states that vaginal swab from upper vagina and vaginal swab from lower vagina and spermatozoa were seen on both the vaginal swab, which clinches the issue. The doctor found that hymen absent which further lend supports to the prosecution version regarding forcible rape at the hands of the appellant. The case under Section 326 of the IPC was registered after two years of the occurrence and that cannot be a ground for discarding the testimony of the prosecutrix and her neighbour. There is not even a single piece of evidence on the file that prior to the occurrence there was any type of litigation or enmity between the parties. The plea of the paralytic attack on the mother of the appellant due to serving of poisonous substance in vegetable remains mere an assertion and is not proved on the file. The trial court has rightly held that said plea has been taken just to avoid the legal punishment.
19. Lastly, learned counsel for the appellant has submitted that as per custody certificate the appellant has undergone incarceration for a Criminal Appeal No.2100 SB of 2010 7 period of six years three months and fifteen days as on 10.9.2012 including remissions. It is further contended that according to the prosecution itself the age of the appellant was 18 years. So, the prayer has been made for reduction of sentence.
20. I have considered the said submission but do not find any force in the said submission.
21. The appellant was not a juvenile at the time of occurrence and learned counsel for the appellant has rightly not argued on that line. He has rubbish a girl of eight years who can be even allured by offering just sweets. The medical evidence corroborates the factum of rape upon the prosecutrix. In the Indian society the rape of a child of eight years virtually kill the prosecutrix as the reputation of such a girl is lowered in the estimation of the public otherwise also. The accidents of rapes are on increase and the culprits of rape are required to be dealt in by iron hand. So, considering all the circumstances, the case for reduction in sentence is not made out.
22. Consequently, the appeal is without any merit and the same stands dismissed.
23. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE January 16, 2013 sv