Punjab-Haryana High Court
Rakesh Kumar @ Bablu vs State Of Haryana on 31 August, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-313-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-313-SB of 2002
Date of decision: 31.8.2010
Rakesh Kumar @ Bablu
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. Vinod Sharma, Advocate, Advocate for the appellant.
Mr. Paramjit Batta, Additional Advocate General, Haryana.
JORA SINGH, J.
Rakesh Kumar @ Bablu S/o Prem Chand filed this appeal to challenge the judgment of conviction dated 18.1.2002 and order of sentence dated 24.1.2002 rendered by the learned Additional Sessions Judge, Panchkula, in Sessions Case No. 67 of 2000, arising out of FIR No. 22 dated 28.2.2000, registered under Section 376 of the Indian Penal Code at Police Station Kalka.
By the said judgment, he was sentenced to undergo Rigorous Imprisonment for seven years and directed to pay a fine of Rs.25,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for one year.
Prosecution story, in brief, is that on 28.2.2000, at about 11.00 a.m. Shero Devi (hereinafter referred as 'the prosecutrix') had gone to answer the call of nature. She was present in the field to ease herself then Rakesh Kumar came from backside. On seeing the accused, the prosecutrix stood up and started running. The prosecutrix CRA-S-313-SB of 2002 -2- was caught hold by the accused and he forcibly opened the string of her salwar. Prosecutrix was raped against her wish and when she was lying on the ground, her aunt Soma Devi came there and on seeing her accused had fled away from the spot. Entire occurrence was brought to the notice of Soma Devi by the prosecutrix while weeping. After that prosecutrix came to her house and entire occurrence was brought to the notice of her parents. To save the reputation of the family matter was not disclosed to anybody else. Accused was also begging pardon for his act. Ultimately, intimation was given to the police. After recording the statement of prosecutrix Ex. PE, the same was sent to the police station on the basis of which formal FIR was recorded.
Prosecutrix was produced before Dr. Rajiv Kumar Dhiman, who had medico-legally examined her. Clothes worn by the prosecutrix were made into a sealed parcel by the doctor and the sealed parcel was handed over to the Investigating Officer. Sealed parcel was taken into police possession vide memo attested by the witnesses.
Investigating Officer had gone to the spot and after inspection prepared the rough site plan with correct marginal notes. Accused was arrested on 29.2.2000 and was produced before Dr. K.K. Bansal. Accused was medico-legally examined and Ex. PA is the copy of the MLR. After completion of the investigation, challan was presented in the Court.
Accused was charge-sheeted under Section 376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.
In order to substantiate its case prosecution examined number of witnesses. PW-1 Dr. K.K. Bansal, on 29.2.2000, had medico- legally examined Rakesh Kumar and opined that he was fit to perform sexual intercourse.
PW-2 Avtar Singh, Patwari, stated that he had prepared the CRA-S-313-SB of 2002 -3- scaled site plan Ex. PB with its correct marginal notes. PW-3 HC Mohinder Singh, tendered his affidavit Ex. PC. PW-4 Constable Rajesh Kumar, tendered his affidavit Ex. PD.
PW-5 is the prosecutrix aged about 13 years and stated that she had gone to answer the call of nature on 28.2.2000. When she was in the fields then accused came from backside. On seeing the accused she stood up and started running. She was forcibly caught hold by the accused and opened the string of her salwar. She was raped against her wish. When she was lying on the ground her aunt Soma Devi came there and on seeing Soma Devi accused had fled away from the spot. Entire occurrence was brought to the notice of her aunt and after that she came back to her house then disclosed about the entire occurrence to her parents. To save the reputation of the family matter was not disclosed to anybody else. Accused was also begging pardon for his act. Her statement was recorded by the police. She was also medico- legally examined by the doctor.
PW-6 Soma Devi has supported the version of the prosecutrix by saying that prosecutrix was raped by the accused.
PW-7 Dr. Rajiv Kumar Dhiman, stated that prosecutrix was medico-legally examined by him. No external injury was noticed. Hymen of the patient was found absent. Discharge was present in vaginal canal. Possibility of rape cannot be ruled out.
PW-8 HC Hardial Singh stated that on receipt of ruqa from ASI Avtar Singh formal FIR Ex. PH was recorded by him. Special report was sent to the Illaqa Magistrate.
PW-9 Constable Suresh Kumar, stated that in his presence two sealed parcels were taken into police possession by the Investigating Officer vide memo attested by the witnesses.
PW-10 Constable Om Parkash stated that he had delivered CRA-S-313-SB of 2002 -4- the special report to the Illaqa Magistrate, on 28.2.2000 at 10.30 p.m. PW-11 SI Avtar Singh was the Investigating Officer. PW-12 Tej Parkash Gupta, brought the school record and stated that certificate Ex. PN issued by the school is correct as per record.
PW-13 SI Mukesh Kumar had submitted report under Section 173 Cr.P.C.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that false case was registered against him due to personal enmity.
After hearing learned Public Prosecutor for the State, learned defence counsel and going through the record the appellant was sentenced vide order, as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that according to the prosecution story prosecutrix was raped on 28.2.2000 at about 11.00 a.m. while present in the fields and was medico-legally examined by Dr. Rajiv Kumar Dhiman at 10.15 p.m. but as per report Ex. PF of the Forensic Science Laboratory, no semen was detected on any of the exhibits sent to Laboratory. Dr. Rajiv Kumar Dhiman was not sure as to whether prosecutrix was raped or not. Doctor stated that possibility of rape cannot be ruled out. So in view of the report of Forensic Science Laboratory Ex. PF prosecutrix was not raped. Occurrence was at 11.00 a.m. as per prosecution story but the report was lodged to the police at 9.00 p.m. Delay of 10 hours was not explained. In case story was genuine then there was no idea for the CRA-S-313-SB of 2002 -5- prosecutrix and her aunt Soma Devi, to visit the house of the appellant. In fact due to personal enmity amongst the parties appellant was named. Argued that occurrence was on 28.2.2000 and at that time appellant was 19 years old. He has already undergone 2 years and 6 months out of 7 years of sentence. Requested to take lenient view.
Learned State counsel argued that prosecutrix was 13 years old and was raped by the appellant. Prosecutrix was medico-legally examined by the doctor, who opined that possibility of rape cannot be ruled out. In case report of the Forensic Science Laboratory is to the effect that no semen was detected on any of the exhibits sent to Laboratory, then story is not to be ignored because to convict the appellant under Section 376 IPC discharge of semen was not necessary, mere presentation sufficient to convict. No suggestion to the prosecutrix or eye-witness as to why they have deposed against the appellant. Appellant is the cousin brother of the prosecutrix from the brotherhood. Earlier to the occurrence there was no enmity between the parties. Suggestion to the prosecutrix or eye-witness that they have deposed under pressure of the parents of the prosecutrix but why the parents of the prosecutrix pressurized her and the eye-witness to name the appellant when there was no enmity, particularly when reputation of the un-married girl was at stake.
First submission of the learned defence counsel for the appellant was that prosecutrix was not 13 years old and if the appellant had raped her then semen should have been detected on the salwar, Pants, Shirt, Kachcha and pubic hair. But after going through the evidence on file, submission of the learned defence counsel for the appellant carries little weight. Prosecutrix when appeared in the Court then stated that she is 13 years old. Prosecutrix had studied in the school up to 2nd standard. Ex. PN is the school leaving certificate of the CRA-S-313-SB of 2002 -6- prosecutrix and as per certificate date of birth of the prosecutrix is 11.8.1987. No suggestion to the prosecutrix that she was not 13 years old. No oral or documentary evidence in defence qua age. Statement of the prosecutrix and certificate issued by the school clearly shows that prosecutrix was 13 years old. Prosecutrix as PW-5 categorically stated that she had gone to the fields to answer the call of nature and when she was easing herself then sighted the accused. On seeing the accused she stood up and started running but she was caught-hold forcibly by the accused. After that string of her salwar was opened and she was raped against her wish. When she was lying on the ground then her aunt Soma Devi came there and on seeing her, accused had fled away from the spot. Entire occurrence was brought to the notice of Soma Devi and to her parents on return to the house. To save the reputation of the family occurrence was not brought to the notice of anybody else. In cross-examination stated that nobody else was in the fields. Accused was known to her earlier to the occurrence. He is the son of her aunt (Bhua). Wheat crop was standing in the fields. Firstly, string of her salwar was opened forcibly and then the accused had opened his pants but nothing had fallen on her clothes.
PW-6 Soma Devi stated that when she noticed the prosecutrix while weeping in the fields then she had gone to the spot. On seeing her accused fled away from the spot after raping the prosecutrix. Prosecutrix informed her that she was raped by the accused, by breaking the string of her salwar. After that prosecutrix was brought to her house. Suggestion was given to the prosecutrix and Soma Devi that they have deposed in Court under the influence of parents of the prosecutrix. When there is direct evidence of the prosecutrix and the eye-witness then report of the Forensic Science Laboratory to the effect that no semen was detected on any of the CRA-S-313-SB of 2002 -7- exhibits sent to Laboratory. Then prosecutrix and the eye-witness are not to be disbelieved that there was no rape.
Next submission of the learned defence counsel for the appellant was that due to previous enmity appellant was named and delay of 10 hours in lodging the report was not explained. Prosecutrix and her aunt Soma Devi deposed in the Court at the instance of parents of the prosecutrix but after going through the evidence available on the file, I am of the opinion that this submission of the learned defence counsel for the appellant seems to be not reasonable one. At about 11.00 a.m. on 28.2.2000, prosecutrix had gone to answer the call of nature in the fields of Suba. Suba was not produced in defence to state that there was no occurrence in his fields. After the prosecutrix was raped then she was brought to her house by her aunt Soma Devi. Entire occurrence was brought to the notice of the parents of the prosecutrix. Matter was not brought to the notice of anybody else simply to save the reputation of the family. Prosecutrix and her aunt Soma Devi had gone to the house of the appellant but parents of the appellant were not present. Appellant was staying with his maternal grand-mother. In the evening parents of the appellant came. When the appellant was related to the prosecutrix and the prosecutrix was raped against her wish then immediately matter was not brought to the police. Firstly, an effort was made by the parents to solve the controversy at the village level to save the reputation of the family. In case of rape before lodging report parents thinks twice because reputation of the un-married girl at stake. When the matter is not solved at the Panchayat only then matter is brought to the notice of the police. In the present case also appellant was begging pardon. An effort was made to solve the controversy by going to the house of the appellant. Maternal grand-mother of the appellant failed to appear in the Court to state that prosecutrix or her CRA-S-313-SB of 2002 -8- aunt Soma Devi had not come to settle the controversy or in the evening parents of the appellant had not come. Visit of the complainant party to the house of the appellant and arrival of the parents in the evening shows that there was a move for compromise because appellant was related to the prosecutrix and when there was no compromise then at 9.00 p.m. matter was brought to the notice of the police. So delay of 10 hours in lodging the FIR stands fully explained.
Learned defence counsel for the appellant argued that as per report of the doctor there was no external mark of injury on the person of prosecutrix. Secondly, hymen was found absent, that means the prosecutrix was habitual to sexual intercourse but while appearing in the Court stated that earlier to the present occurrence she did not have sexual intercourse with anybody else. That means prosecutrix was not telling the truth. No doubt Dr. Rajiv Kumar Dhiman, stated that no external injury was noticed on the person of prosecutrix. Hymen was found absent. Prosecutrix while appearing in the Court then stated that she did not have sexual intercourse with anybody but no question to the doctor that injury was definite on the person of the prosecutrix when raped in the wheat crop field and when the hymen was found absent then prosecutrix was habitual to sexual intercourse. Place of occurrence was in the wheat crop field. Surface was not hard. If no injury was noticed on the person of the prosecutrix then story is not to be ignored. Doctor Rajiv Kumar Dhiman, stated that hymen was absent but with this line by the doctor nothing to presume that prosecutrix was habitual to sexual intercourse. Hymen can be absent due to some other reasons i.e. while playing and cycling. No suggestion was given to the prosecutrix that she was habitual to sexual intercourse. No case of the appellant that he had affairs with the prosecutrix and she was the consenting party or earlier to the occurrence prosecutrix used to have CRA-S-313-SB of 2002 -9- sexual intercourse with the appellant. So in view of the expert opinion prosecution story is not to be ignored.
As discussed earlier, prior to the occurrence there was no enmity between the parties. When there was no enmity then the question was why the appellant was named by the prosecutrix and her aunt Soma Devi. Only suggestion to the prosecutrix and her aunt Soma Devi is that they have deposed under the pressure of parents of the prosecutrix. When the prosecutrix was raped against her wish then why parents are to pressurize witnesses to depose falsely in the court. Instead of pressurizing the witnesses they are to be requested to state correctly in the Court as to what had happened. Appellant when examined under Section 313 Cr.P.C. simply stated that he was named due to personal enmity but when there was no civil or criminal litigation amongst the parties then there was no question of enmity. If the appellant was innocent then written complaints could easily be sent to different authorities but till today no complaint to any authority. After recording the statement of the prosecutrix at 9.00 p.m. special report was delivered to the Illaqa Magistrate at 10.30 p.m. So delay of 10 hours was not fatal and if we presume that there was a delay of 10 hours then mere delay was not sufficient for acquittal of the appellant. Delay was one of the suspicious circumstance, then evidence is to be scrutinized with great care and caution. Prosecutrix was 13 years old and was not well educated. She had no enmity with the appellant or his family. Parents of the prosecutrix were also not inimical towards the appellant. The parents were not expected to pressurize the prosecutrix to name the appellant when the prosecutrix was un-married and was 13 years old. If parents of the prosecutrix had enmity with the appellant then they could easily level some other allegation of theft etc. There was no idea to involve their un-married daughter, particularly when they CRA-S-313-SB of 2002 -10- were not to get anything.
Soma Devi had seen the accused on the spot. On seeing her the appellant had fled away from the spot. Immediately, after the occurrence prosecutrix had brought the entire occurrence to the notice of Soma Devi. Soma Devi had brought the prosecutrix to her house and after that Soma Devi had accompanied the prosecutrix to the house of the appellant. Soma Devi had no litigation civil or criminal against the appellant. Soma Devi is the wife of Hari Dass but nothing on the file that Hari Dass was inimical towards the appellant. No reason to disbelieve the prosecutrix and Soma Devi.
Admittedly, occurrence is dated 28.2.2000 and at that time appellant was 19 years old. Appellant has already undergone 2 years and 6 months out of the actual sentence, but close relation was raped by the appellant. Appellant being related to the prosecutrix was expected to protect her but instead of protecting the prosecutrix, by taking undue advantage of the situation raped the prosecutrix against her wish when she had gone to answer the call of nature. When un-married girl of 13 years was not safe at the hands of the relation appellant then no reason to take lenient view because daily un-married girls are being raped by the close relations.
No other submission was put forward.
In view of the above discussion, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. No reason to differ with the trial Court. There is no infirmity or illegality in the impugned judgment. Impugned judgment on the point of conviction and sentence is upheld and the present 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 CRA-S-313-SB of 2002 -11- directed to issue re-arrest warrants against the appellant to undergo remaining imprisonment as ordered by the trial Court.
August 31, 2010 ( JORA SINGH ) rishu JUDGE