Punjab-Haryana High Court
Bhupender vs State Of Haryana on 3 September, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
CRA-S-167-SB of 2004
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-167-SB of 2004
Date of decision: 03.09.2014
Bhupender
.... Appellant
Versus
State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers 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 ?
Present: Mr. A.S. Rai, Legal aid counsel, for the appellant.
Mr. Subhash Godara, Addl. A.G., Haryana.
*****
PARAMJEET SINGH, J.
The genesis of factual matrix lies in alleged rape of prosecutrix (name withheld) committed by appellant which ended up in registration of an FIR under Sections 376/452/342/506/216/120-B of the Indian Penal Code (in short 'IPC'), at Police Station Sadar Rohtak. The appellant was tried by learned Additional Sessions Judge, Rohtak for the aforesaid offences and ultimately trial ended in conviction and sentence of the appellant vide judgment of conviction and order of sentence dated 19.12.2003 under Sections 376/452/506 IPC for committing the offence of rape. Rape is universally considered as moral and physical reprehensible crime in the society. It is an assault on the body, mind, privacy and entire fabric of the prosecutrix. Rape is a crime of violence RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -2- CRA-S-167-SB of 2004 and violation of privacy. It is often said that a woman who is raped, undergoes two crisis i.e. the rape and the subsequent trial in Court. Vulnerable and feeble victim of rape is humiliated and her dignity is shredded by the society. Because of the societal stigma attached to the crime, many a times such crime would go unreported by the victim in order to escape the repercussions. Instant case is also one of such cases wherein appellant has been convicted and sentenced as under:
Conviction Sentence
U/S 376 IPC R.I. for ten years and a fine of ` 10,000/-, in
default of payment of fine R.I. for two years.
U/S 452 IPC R.I. for three years and a fine of ` 3,000/-, in
default of payment of fine R.I. for nine months. U/S 506 IPC R.I. for six months and a fine of ` 500/-, in default of payment of fine R.I. for one month.
All the sentences have been ordered to run concurrently. The factual matrix on which the prosecution version is founded is to the effect that on 17.02.2003 at about 6.00 a.m., ASI Jai Singh (PW12) along with HC Parkash Chander and other police officials was present at the bus stand of village Khidwali when prosecutrix (PW4) a student of 7th class aged about 13 years along with her parents Ram Kumar (PW11) and Smt. Shanti Devi met ASI Jai Singh and gave her statement (Ex.PF) to the effect that on 15.02.2003 at about 9.30 a.m. she was alone in her house sweeping the floor. Her parents had gone to the fields for bringing fodder for the cattle. Her brother and sister had gone to school. At that time accused Bhupender all of a sudden entered her house and closed its outer gate from inside, opening in the village street. He gagged her mouth and threw her on the bed in their "dokaria" room. RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -3- CRA-S-167-SB of 2004 After forcibly breaking open the string of her salwar, he forcibly raped her against her consent. When she tried to raise noise, he pressed her neck and threatened to kill but she went on weeping. When her parents came from the fields, they heard her cries, her father knocked at the outer door and called her from gate saying that he had come. Whereupon the convict left her there and fled away through the staircase after scaling the roof. She opened the outer door and apprised her parents, who then went to the house of convict to lodge protest. Mother of the convict, father of the prosecutrix and other villagers assembled, they talked but failed to give justice to her. When prosecutrix along with her parents was going to report the matter to police, police officials met them and statement was recorded and prosecutrix signed the same as Ex.PE. On the statement of prosecutrix endorsement (Ex.PE/1) was made on the basis of which formal FIR (Ex.PK) was registered by SI Om Parkash (PW9) for offences punishable under Sections 376/452/342/506 IPC. Prosecutrix was sent for medical examination with police application (Ex.PA/1) and Dr. Kulpratibha (PW1) in MLR (Ex.PA) noted the history of the case and examined her. After medical examination of the prosecutrix, lady doctor handed over to the police a sealed packet containing shirt (Ex.P1) and salwar (Ex.P2) of the prosecutrix along with two sealed vials; one having pubic hair and other having two vaginal swabs of the prosecutrix. A sealed envelop bearing five seals with forwarding letter was sent to Director, FSL along with sample seal. These were duly taken in police possession vide recovery memo Ex.PN, RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -4- CRA-S-167-SB of 2004 attested by parents of the prosecutrix. Doctor opined that possibility of sexual assault on the prosecutrix could not be ruled out. Final opinion, however, was kept pending awaiting FSL report. After receiving FSL report (Ex.PB) same opinion was repeated. Human semen was found on the said two clothes of the prosecutrix and also on the underwear of the convict, later on seized from him after his arrest. ASI Jai Sing (PW12) after visiting the place of occurrence, prepared rough site plan (Ex.PO) and on coming back to the police station, sealed parcels were duly deposited with MHC Balwant Singh (PW5). Initially convict was absconding. Radiologist, Dr. R.K. Verma (PW2) examined the prosecutrix and gave his report (Ex.PC) with x-ray films (Ex.P3 to Ex.P8) that ossification age of prosecutrix was between 12 to 14 years. On 21.03.2003, on the basis of supplementary statements of the prosecutrix and her father that parents of appellant/convict and his grandfather had conspired with the appellant/convict for the crime and were harbouring appellant, offences punishable under Sections 120-B and 216 IPC were added and on 01.04.2003 Bimla and Balbir Singh i.e mother and grandfather of the convict were arrested. Appellant/convict surrendered himself in the Court on 03.06.2003 and was formally arrested and was joined in investigation with the permission of the Court. Appellant/convict was sent for medical examination with police application (Ex.PD) and Dr. Ranvir Singh (PW3) vide his MLR (Ex.PD/1) gave opinion that there was nothing suggestive that appellant/convict was not capable to perform sexual intercourse. On the RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -5- CRA-S-167-SB of 2004 basis of disclosure statement (Ex.PL) dated 03.06.2003 of the appellant/convict, police recovered his underwear (Ex.P9), which he was wearing at the time of crime, from an almirah of his house, vide recovery memo (Ex.PM) in a sealed parcel with seal 'JSD' attested by HC Parkash Chander (PW10). It was deposited with MHC Balwan Singh (PW5). All the aforesaid sealed parcels/packets deposited with MHC Balwan Singh were sent to FSL Madhuban through HC Jai Singh (PW6) and FSL report (Ex.PB) was received wherein it was stated that human semen was detected on the two clothes of the prosecutrix and the underwear of the convict but semen was not detected on the rest of the articles including pubic hair and vaginal swabs of the prosecutrix. Blood group of the semen remained inconclusive. After getting regular scaled site plan (Ex.PJ) prepared from official draftsman Constable Sumit Kumar (PW8) and after completion of other necessary investigations, above named three persons were challaned by SI/SHO Bijender Singh and Hari Kishan father of the appellant/convict was found innocent. Case was committed and appellant was charged for offences punishable under Sections 452/376/342/506 IPC and Balbir and Bimla for offences punishable under Sections 216/120-B IPC, to which they did not plead guilty and claimed trial.
To prove its case, prosecution examined as many as 12 witnesses viz. Dr. Kulpratibha as PW1, Dr. R.K. Verma as PW2, Dr. Ranvir Singh as PW3, Prosecutrix as PW4, HC Balwan Singh as PW5, EHC Jai Devi as PW6, C. Sunil Kumar as PW7, C. Sumit Kumar as RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -6- CRA-S-167-SB of 2004 PW8, SI Om Parkash as PW9, HC Parkash Chander as PW10, Ram Kumar, father of the prosecutrix as PW11 and ASI Jai Singh as PW12. After giving up all the remaining prosecution witnesses as unnecessary and tendering in evidence FSL report (Ex.PB), prosecution closed its evidence.
Statement of the accused was recorded under Section 313 Cr.P.C. Accused denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent.
In defence, accused brought in evidence Ex. DA copy of ration card of Hari Kishan and his son Bhupender, mother of the appellant and other children and Ex.DB copy of ration card of accused Balbir Singh. The accused also examined headmaster Ramphal as DW1, who on the basis of school record testified that 15.02.2003 i.e. the day of occurrence was Saturday and it was working day. The school timings were from 8.30 a.m. to 3.00 p.m. The prosecutrix was on leave from 15.02.2003 to 19.2.2003. As per school record, date of birth of the prosecutrix is 11.03.1990. Her parents names are Ram Kumar and Shanti Devi. She was admitted in 7th class in the school on 09.07.2002.
Trial Court, after appreciating evidence on record, came to the conclusion that age of the prosecutrix was 13 years on the day of occurrence and even four days' thereafter she did not attend the school, which also corroborated the case of the prosecution. Mother and grandfather of the appellant were acquitted and appellant was convicted and sentenced as aforesaid vide impugned judgment of conviction and RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -7- CRA-S-167-SB of 2004 order of sentence. Hence, this appeal.
It is expedient to have a bird's eye view of the relevant prosecution witnesses hereunder: -
"(i) Dr. Kulpratibha, Medical Officer, General Hospital, Rohtak PW1 medico-legally examined the prosecutrix and opined that minarche has not yet started. Axillary hairs were absent. Breasts nodule just started developing. No external mark of injury was present anywhere on body. The doctor found that pubic hair just started developing fine sparse lanugo small along the margins of labia majora. Pubic hair shaved and taken in a vial marked A. Labia majora covering labia minora healthy. Hymen intact. There was congestion and inflammation of fourchette. Vaginal opening admitted tip of little finger only. No bleeding per vagina. Two swabs were taken, one from introitus and one from posterior vaginal fornix in a vial marked B. She opined that possibility of sexual assault cannot be ruled out.
(ii) Dr. R.K. Verma, who radiologically examined the prosecutrix appeared as PW2. He stated that as per ossification test age of the prosecutrix was 12-14 years.
(iii) Prosecutrix stepped into witness box as PW4 and stated that her younger brothers and sisters are school going. On 15.02.2003 at about 9.30 a.m. she was present at her home and was doing domestic work by sweeping. She stated that her mother Shanti Devi and father Ram Kumar had gone to field for fetching fodder for cattle and she was all alone at home.RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -8-
CRA-S-167-SB of 2004 Accused Bhupinder entered their house and bolted the door towards the street. He pressed her mouth and she was made to lie on bed. Accused opened the string of her salwar forcibly and committed sexual intercourse with her without her consent. Prosecutrix stated that she raised hue and cry and started weeping. Accused Bhupinder threatened to kill by throatling her if she would raise hue and cry. She continued weeping and crying. All of sudden her parents reached home. Bhupinder left her and fled away through staircase and via roofs. Prosecutrix unbolted the door upon which her parents entered the house and she appraised her mother about the incident. Her father was also present there. Her parents went to the house of Bhupinder for lodging protest. 2-3 persons were also called but they could not do justice.
Thereafter prosecutrix along with her parents set out for lodging the report to the police. Police officials met them at bus stand of the village at 6.00 p.m and she made her statement Ex.PE which was read over to her and signed by the prosecutrix. She further stated that on 21.03.2003 also police met her. On that day she made a statement to the police that Bimla and Hari Kishan parents of accused Bhupinder and his grandfather Balbir Singh told her that if she would make statement in Court, she might be killed. They also told her that they have made tikhana (place for hiding out Bhupinder). She would also be kidnapped to that place and would be no more.
(iv) Ram Kumar father of the prosecutrix was examined as PW11. He stated that he has five children, out of RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -9- CRA-S-167-SB of 2004 them two are sons and three are daughters. In February 2003 prosecutrix was a student of 7th class and was aged 13 years. On 15.02.2003 PW11 and his wife Shanti had gone to fetch barseem (fodder) in their baghi from the fields. Prosecutrix was left at house. When they returned home from the fields, they heard cries of the prosecutrix. He and his wife peeped through the window and saw Bhupinder accused going out from the house through the staircse, the accused climbed the roof and via roofs of the house he ran away towards his house. Prosecutrix unbolted the door from inside. Prosecutrix appraised her mother that she was raped by Bhupinder. He and his wife went to the house of Bhupinder to lodge protest regarding incident with his daughter. Accused Bimla hurled filthy language. From the house of accused he went to the house of Jita Sarpanch.
Sarpanch accompanied him to his house.
Grandmother of Bhupinder was called at their house. She showed her helplessness in the matter. When no one came forward to help them in the matter, then they left for police station for making report. Matter was reported to the police on 17.02.2003 at Khidwali bus stand. From there they went to Rohtak in a three wheeler, in police station. Again said that they went to Civil Hospital, Rohtak on 17.02.2003 where the prosecutrix was medico-legally examined. Clothes were taken into sealed parcel along with some vials through recovery memo Ex.PN which was signed by him and thumb marked by his wife."
RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -10- CRA-S-167-SB of 2004 I have heard the learned counsel for the parties and perused the record.
This appeal concerns three points for determination which are as under: -
"(i) Whether delay in lodging the FIR to police in the present case of rape is fatal to the case of prosecution?
(ii) Was the prosecutrix less than 16 years of age at the time of incident?
(iii) If so, whether appellant had the requisite mens rea, when he engaged in alleged sexual intercourse with prosecutrix, a girl under the age of 16 years (12-14 years)?"
Learned counsel for the appellant vehemently contended that there was no mark of injury and even hymen was intact. Learned counsel for the appellant further contended that evidence of the prosecutrix is shaky. In her cross-examination she has admitted that on the day of occurrence her school was closed due to holiday. She has also stated that her brother and sister had gone to school on that day. Headmaster Ramphal who appeared as DW1 has stated that school was working on that day. Evidence of Ram Kumar PW11 is assailed by contending that he had not seen the appellant running away from the spot through the staircase via roof from outer closed gate of the house. Learned counsel for the appellant further contended that no independent witness from the vicinity was examined. Learned counsel contended that there is inordinate delay of three days in reporting the matter to the RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -11- CRA-S-167-SB of 2004 police as the occurrence is of 9.30 a.m. on 15.02.2003 whereas report (Ex.PE) was given to the police at 6.00 p.m. on 17.02.2003, so there is ample possibility of falsely involving the appellant in the case. Learned counsel for the appellant further contended that prosecutrix had been tutored to depose against the appellant so the possibility of false implication cannot be ruled out.
Per contra, learned State counsel vehemently opposed the contentions made by learned counsel for appellant and contended that women particularly in villages are reluctant to go immediately to the police in rape cases due to social stigma and it is only after consulting the male members of their family, they report the matter. In the present case, the delay in reporting the matter to the police is reasonable and justified. The ocular version of prosecutrix as well as medical evidence proved that the prosecutrix was subjected to rape. Learned State counsel further contended that the contradictions, if any, did not materially affect the story given by the witnesses and, therefore, this was not a case where any benefit could be given to the accused. Learned State counsel further contended that since the prosecutrix was minor at the time of alleged occurrence, consent of prosecutrix is immaterial. Learned State counsel further contended that the prosecution has proved its case beyond reasonable doubt and the accused has been rightly convicted and sentenced by the trial Court.
I have considered the rival contentions raised by learned counsel for the parties.
RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -12- CRA-S-167-SB of 2004 Point No.(i):
Admittedly, there is delay of about three days in reporting the matter to the police. It is proved on record that father of the prosecutrix had gone to the house of accused to lodge protest and tried to get justice at their own level but having failed they decided to lodge report with the police. The case of the prosecution inspires full confidence. The prosecutrix belongs to conservative society, parents of the prosecutrix must have been reluctant to immediately report the matter to the police. Before approaching the police, they made due deliberations with their close relatives. Such incident involves honour of the unmarried girl and prestige of the family. It may affect the chances of marriage of a young girl. It is only after giving cool thought that a complaint of sexual offence is generally lodged.
In Om Parkash vs. State of Haryana 1999(1) Recent Criminal Reports 266 (Punjab and Haryana), it has been held that only after giving cool thought the complaint of sexual offence is generally lodged and delay in lodging the rape cases can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to police which concerns the prosecutrix and honour of the family. In the said case, there was a delay of 20 days when matter was reported to the police.
In view of the facts and circumstances discussed above, delay in lodging the FIR to police in the present case of rape is not fatal to the case of prosecution. Point No.(i) is answered accordingly.RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -13-
CRA-S-167-SB of 2004 Point No.(ii):
Perusal of medical examination of the prosecutrix indicates that her age has been found between 12 to 14 years. As per school record date of birth of the prosecutrix is 11.03.1990 and occurrence took place on 15.02.2003. Evidence of the parents of the prosecutrix also shows that her age was 13 years on the date of occurrence. So from the evidence it is clear that prosecutrix was minor and studying in seventh class.
In view of above discussion, I have come to conclusion that age of prosecutrix was between 12-14 years, thus, she was less than 16 years at the time of occurrence. Point No.(ii) is answered accordingly. Point No.(iii):
Section 375 'IPC' provides that sexual intercourse by a man with a woman without her consent will constitute the offence of rape and punishment for rape is provided in Section 376 'IPC'.
It is the case of prosecution that the appellant had committed sexual intercourse with the prosecutrix by trespassing into her house. To determine this issue, it is necessary to examine only the deposition of prosecutrix (PW4). She clearly stated that on 15.02.2003 at about 9.30 a.m. she was present at her home and was doing domestic work by way of sweeping. She stated that her mother Shanti Devi and father Ram Kumar had gone to fields for fetching fodder for cattle and she was all alone at home. Accused Bhupinder entered their house and bolted the door towards the street. He gagged her mouth and she was RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -14- CRA-S-167-SB of 2004 made to lie on bed. Accused opened the string of her salwar forcibly and committed sexual intercourse with her without her consent. Prosecutrix stated that she raised hue and cry and started weeping. Accused Bhupinder threatened to kill by throatling her if she would raise hue and cry. She continued weeping and crying. All of sudden her parents reached at house. Bhupinder left her and through staircase and via roofs he ran away from the spot. Prosecutrix unbolted the door upon which her parents entered the house and she apprised her mother about the incident. Her father also reached there from fields. Her parents went to the house of Bhupinder for lodging the protest. 2-3 persons were also called there but they could not do justice. Thereafter prosecutrix along with her parents set out for lodging the report to the police. Police met them at bus stand of the village at 6.00 p.m and she made her statement Ex.PE which was read over to her and signed by the prosecutrix.
The conviction for offence under Section 376 'IPC' can be recorded even on the solitary statement of the prosecutrix (without corroboration) if her testimony is found to be credible. In the instant case, testimony of the prosecutrix is worthy of credence and could not be shaken in her cross-examination. Moreover, there is sufficient corroboration to the testimony of the prosecutrix. The corroboration is provided by testimony of PW 11 Ram Kumar, father of prosecutrix and PW 11 Dr. Kulpratibha, who medico-legally examined the prosecutrix. Person may tell lie but circumstances do not. Father of the prosecutrix RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -15- CRA-S-167-SB of 2004 had no occasion to depose falsely and implicate the appellant-accused by staking the honour and prestige of his daughter. He could not have been ignorant of the fact that he may even have difficulty in finding a suitable match for their daughter once it is known that she had been subjected to rape in her childhood. Therefore, it is presumed that what he deposed, was absolutely true and correct. The ocular version of prosecutrix was corroborated by the medical evidence.
Report of medical examination of the prosecutrix conducted by Dr. Kulpratibha (PW1), reads as under: -
"There was alleged history of sexual assault at about 9.00 a.m. on 15.2.2003. History of pain at the time of sexual assault. No history of bleeding. Clothes which she was wearing at the time of assault have been changed but not washed. Clothes were produced by the victim, which she was wearing that day, as per victim's mother (blue coloured salwar and blue shirt torn at front. Salwar was bearing whie coloured stains).
Menarche was not yet started.
Breasts nodule just started developing.
No external mark of injury was present anywhere on body. External Genital Examination: -
Pubic hair just started developing fine sparse lonugo, small along the margins of labia majora. Pubic hair shaved and taken in a vial marked A. Labia majora covering labia minora healthy. Hymen intact. There was congestion and inflammation of fourchette. Vaginal opening admitted tip of little finger only. No bleeding per vagina. Two swabs were taken, one from introitus and one from posterior vaginal fornix in a vial marked B."
RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -16- CRA-S-167-SB of 2004 The Doctor after medical examination opined that possibility of sexual assault on the prosecutrix cannot be ruled out. The version of prosecutrix was corroborated by the FSL report Ex.PB wherein it was mentioned that human semen was present on the clothes of prosecutrix and underwear of the accused.
In view of above, it is held that the appellant-accused with requisite mens rea had forced himself upon the prosecutrix and had violated her person. The appellant-accused is guilty of rape as defined in Section 375 'IPC' and has been rightly convicted and sentenced under Section 376 'IPC'. Point no.(ii) is answered accordingly.
So far as the conviction under Sections 452 and 506 'IPC' is concerned, since the accused trespassed in the house of the prosecutrix to commit rape upon her and threatened to kill her if she raised hue and cry, conviction and sentence awarded under Sections 452 and 506 'IPC' is legal and valid.
Conclusion:
On a conspectus of the evidence and the findings of the trial Court and the reasons stated above, I am satisfied that appellant's version has been correctly rejected by the trial Court. The appeal is devoid of merits and is dismissed. The conviction and sentence of the appellant are, therefore, upheld. The appellant-convict is stated to be on bail. His bail bonds stand cancelled and he is directed to surrender before the trial Court forthwith to undergo remaining part of sentence. In case, the appellant-accused does not surrender before the trial Court, it shall issue RAVINDER SINGH 2014.09.11 11:31 I attest to the accuracy and integrity of this document -17- CRA-S-167-SB of 2004 warrant of arrest of the appellant-convict.
(Paramjeet Singh)
September 03, 2014 Judge
R.S.
RAVINDER SINGH
2014.09.11 11:31
I attest to the accuracy and
integrity of this document