Punjab-Haryana High Court
Gajjan Singh vs State Of U.T. Chandigarh on 7 November, 2013
Author: Hemant Gupta
Bench: Hemant Gupta
CRA No.D-272-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-272-DB of 2009
Date of decision:7.11.2013
Gajjan Singh .....Appellant
VERSUS
State of U.T. Chandigarh .....Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
Present: Mr. Pardeep Singh Poonia, legal aid counsel
for the appellant.
Mr. Hemant Bassi, Advocate for U.T. Chandigarh.
*******
HEMANT GUPTA, J.
The present appeal is directed against the judgment dated 12.09.2008 passed by the learned Additional Sessions Judge, Chandigarh, convicting the appellant for an offence under Section 376 of Indian Penal Code (for short 'IPC') read with Section 109 IPC and sentenced him to undergo life imprisonment vide order dated 15.09.2008 and also directed the appellant to pay compensation of `1,00,000/- to the prosecutrix, who is none else but his minor daughter.
The prosecutrix, name withheld, gave a statement on 30.07.2007 Ex.PA to SI Harjit Kaur of Women & Child Support Unit, of Chandigarh Police. On the basis of such statement FIR, Ex.PK, was lodged Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 2 at 10:30 PM. Copy of the special report was delivered to the Illaqa Magistrate at 12:25 AM/midnight.
The prosecutrix has stated that she has three brothers. The eldest is of 17 years and the younger to him is 16 years. She is born next whereas her younger brother is aged about 10 years. She was student of 7th class in a school situated in village Khuda Ali Sher. Her real mother had died when she was a small child and her step mother has been residing in village with her father for the last 8-9 years. She stated that her father started doing wrong things with her, when she was student of 5th class. One day her father called her in a room when there was nobody else in the house. He bolted the room, undressed her and raped her. He threatened her that in case she tells this activity to anybody else then she would be beaten badly. She was really scared. Thereafter, whenever there was nobody in the house, her father would take benefit and would do bad things with her. She shared this with her step mother Laxmi but she rebuked her, gave beatings to her and threatened that if she tells this thing to anybody else, then she would treat her badly. She told her to comply with the wishes of her father. This process continued. About 10-12 days ago of giving statement, her father took her to a room and did wrong thing. When her father was coming out from the room after doing sexual intercourse, then his uncle Raj Kumar, who was residing for some months in the same house and his brother Makhan Singh came there. They asked her that what her father Gajjan Singh was doing in the room. She got scared and narrated the entire incident. Her uncle Raj Kumar shared information with Rahul. Thereafter, she came to lodge report along with her brother Makhan Singh, maternal uncle Raj Kumar and Rahul. She Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 3 stated that her father has been doing wrong things with her forcibly for about one and a half year. For doing these acts, her step mother has sided with her father.
The prosecutrix was subjected to medical examination. She was medico legally examined by Dr. Reeta Bhardwaj, later examined as PW-3, on 31.07.2007 at about 12:30 AM. The medico legal report was produced as Ex.PC. She had also taken vaginal swabs and her clothing in possession. The Doctor also referred her for Dental and radiological X-ray for bone age determination. She also reported that she found that height of the prosecution is 4' 9", weight 34 KG, hymen torn, old healed tear and vagina admits two fingers.
SI Harjit Kaur arrested Gajjan Singh on 31.07.2007. Statement of the prosecutrix Ex.PB was recorded by Sh. Mahesh Kumar, the then Judicial Magistrate Ist Class, Chandigarh at 3:50 PM. Though, the date has not been mentioned in the statement but as per SI Harjit Kaur PW-10, the statement was recorded on 31.07.2007. The prosecutrix has stated that her father raped her when she was alone in the house and her brothers were out of the house. Her father would undress her and rape her. She once told the entire events to her mother but she told her that she should go to her father. The present appellant was medico legally examined by PW-5 Dr. Arvinder Joshi at 11:55 AM on 31.07.2007. The report is that there is nothing to suggest that he was unfit to perform sexual intercourse. After completing the investigations, a report under Section 173 of the Code of Criminal Procedure (for short 'Cr.P.C.') was filed against the present appellant and his second wife Laxmi.
Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 4
To prove the charges against the accused, the prosecution examined PW-3 Dr. Reeta Bhardwaj. She proved her medico legal report as Ex.PC and also stated that as per opinion of the Dental Surgeon her age is between 12½ to 14 years whereas as per opinion of the Radiologist her bone age is 14½ to 16½ years and that she had repeated sexual intercourse. In the cross-examination, she denied the suggestion that she had given false report at the instance of the police with regard to the regular intercourse and with regard to admission of two fingers.
PW-5 Dr. Arvinder Joshi proved medico legal report Ex.PF and also deposed that sample of the blood was drawn for the purpose of DNA. PW-6 Dr. Raman Nijhawan, Radiologist, had examined the prosecutrix for bone age and given report Ex.PG to the effect that she was 14½ to 16½ years of age. He denied the suggestion that the prosecutrix was major at the time of her examination.
PW-4 is Mohan Lal, Head Master of school of which prosecutrix was a student. He proved the school record which discloses the date of birth of the prosecutrix as 10.04.1993. The certificate is Ex.PD.
Apart from such witnesses, the prosecution examined the prosecutrix as PW-2. Raj Kumar, her maternal uncle was examined as PW-1 and Rattan Singh, her paternal uncle as PW-7. The Investigating Officer SI Harjit Kaur appeared as PW-10. The statement of the prosecutrix was recorded by the learned trial Court after satisfying that she is a competent witness. She deposed that her father lastly committed sexual intercourse with her on 30.07.2007 and he has been doing so since she was in 5th standard. She deposed that he committed sexual intercourse with her Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 5 on number of times but she cannot count the exact number. She deposed that the appellant committed rape upon her between 3:30 PM to 4:00 PM on 30.07.2007 but she did not tell this fact to her mother Laxmi on 30.07.2007, though, she had told this fact to Laxmi when she was in 5th standard. She supported her statement made to the police Ex.PA and also to the Magistrate Ex.PB. In the cross-examination, she stated that she is staying in Nari Niketan for last about 3 months. Earlier she was residing in her house but she has gone to Nari Niketan after her mother was granted bail and she suspected that her step mother may kill her. Accused Laxmi used to beat her but she never told the other relatives about Laxmi beating her. On one occasion she complained to her father with regard to beating by Laxmi and her cruel behaviour but she was rebuked and slapped. She deposed regarding number of rooms available in the house used for letting purposes and availability of women and children in such tenanted premises. She deposed that when the appellant and Laxmi had gone to jail, then rent used to be recovered by her paternal uncle Rattan Singh. His house is adjoining to their house and the partition wall intervene both the houses. She has never received any rent from the tenants. In further cross-examination, she admits that her maternal uncle had been staying with them for about 3-4 months prior to occurrence. She denied the suggestion that her maternal uncle Raj Kumar wants to grab rental income of house from her father. She denied the suggestion that her maternal uncle developed good relations with her paternal uncle Rattan Singh. She denied the suggestion that no rape was committed by her father and that nothing happened on 30.07.2007. Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 6
PW-1 is Raj Kumar, maternal uncle of the prosecutrix. He deposed that in July, 2007, he and his sister's son came from outside but when she entered the house they found Gajjan Singh coming out of the room whereas the prosecutrix was inside room. She was puzzled. She disclosed the act of commission of rape by the appellant. In cross-examination, he admitted cordial relations with Rattan Singh and have been visiting and meeting Rattan Singh even during life time of his sister and that the appellant and Rattan Singh were not on speaking terms. In further cross- examination, he stated that after arrest of Laxmi Kaur and Gajjan Singh, the elder brother Rattan Singh started taking the rent of the rented accommodation. He stated that he was not paying any rent to Gajjan Singh as he was invited by him to stay with him as he had sufficient accommodation in his house. He denied the suggestion that he and prosecutrix went somewhere on 29.07.2007 and returned late in the evening and the appellant and Laxmi snubbed him. He denied the suggestion that he had been keeping an evil eye on the prosecutrix. He denied the suggestion that he was under the impression that he will be thrown out from the house of Gajjan Singh on account of incident on 29.07.2007 and therefore, he has falsely implicated the appellant. He further stated that he and brother of the prosecutrix had taken the prosecutrix to police as they could not reach an opinion that what should be done immediately. He had gone to Rahul Sharma who had taken them to Women Cell Police Station.
PW-7 is Rattan Singh. He deposed that appellant is his real younger brother addicted to drinks. He married 3-4 times and that he was not on talking terms with him. He married Laxmi about 10-11 years back and Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 7 there is a wall separating his house. He stated that he came to know on 30.07.2007, for the first time, that the accused was sexually assaulting his daughter. In cross-examination, he deposed that accused was firstly married to Ranjit Kaur about 22-23 years back. She died after about 2 months of her marriage. Then he solemnized second marriage with Nasib Kaur about 18-19 years ago i.e. the real mother of the prosecutrix. Thereafter, Gajjan Singh married a woman hailing from Rajgarh area in Himachal Pradesh but he does not remember her name. She deserted him and, thereafter, he settled with a woman belonging to Burail but he does not remember her name. Gajjan Singh's marriage to Laxmi is his 5th marriage. He joined marriage of Gajjan Singh only twice, firstly when he married Ranjit Kaur and secondly when he married to Nasib Kaur. He deposed that he and Gajjan Singh had partitioned the residential building and agricultural land about 25 years ago and both of them were not interfering in the life of each other. He denied the suggestion that he and Gajjan Singh quarreled with each other. He denied the suggestion that he is not collecting rent of portion under possession of Gajjan Singh since the registration of case.
Learned counsel for the appellant vehemently argued that the prosecutrix has been tutored by maternal and paternal uncle of the appellant who have enmity against the appellant, which is evident from the fact that the appellant and Gajjan Singh are not on speaking terms whereas PW-1 Raj Kumar has developed friendly relations with brother of the appellant. It is the enmity with the appellant which led to lodging of the FIR against the appellant. It is also argued that though the blood sample was taken for DNA Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 8 profiling but the same has not been produced in evidence, therefore, an adverse inference should be drawn against the prosecution.
We have heard learned counsel for the parties and find that the prosecution has proved the charges against the appellant beyond reasonable doubt. The present is a case of incest between an adult- father and a minor child. It is gross form of child sexual abuse. A child, student of 5th class was ravished by none else but by her father in the absence of her real mother. Instead of protector, he is proved to be violator of her tender person. Her step mother instead of stopping her husband from abusing small child has in fact told the prosecutrix to satisfy the lust of her father. The process continued for long time, when she was found in a room by her uncle, she spilled the beans which led to initiation of criminal proceedings against her father.
The prosecutrix was less than 14 years of age on 30.07.2007 when she reported her abuse for more than 1½ years. Such fact is proved by the record of school Ex.PD as well as opinion of Dental Surgeon and radiological examination Ex.PC. Though, the report of the radiological examination is that she was 14½ to 16½ years of age. Such report gives range of the age but keeping in view the other evidence on record, we have no hesitation to hold that she was less than 14 years of age on 30.07.2007 having born on 10.4.1993. Her medical examination conducted at 12:30 AM i.e. midnight of 30/31.07.2007 shows that she has been subjected to sexual intercourse quite frequently. The said report corroborates her testimony that she was sexually exploited by her father for one and a half year, before the matter was reported to police. She has suffered a statement before the Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 9 Magistrate under Section 164 of the Cr.P.C. Ex.PB on 31.07.2007. After three months, when her mother was released on bail, her living in the house became difficult and she preferred to stay at Nari Niketan. She appeared as a witness while residing in the Nari Niketan. She supported the prosecution case completely and in spite of lengthy cross-examination conducted on number of days, her testimony could not be shattered. Consistent testimony of the prosecutrix corroborated by the medical evidence and habitual subject to intercourse proves the offence under Section 376 IPC having committed by the appellant against his own daughter. The fact that the prosecutrix has chosen to stay at Nari Niketan rather than with her paternal or maternal uncle, who have appeared later on as witness, shows that she was not under the influence of any one. Child of such tender age has chosen her place of residence and also supported her abuse by none else but her father.
The only defence taken is that the brother of the appellant and maternal uncle of the prosecutrix has tutored the prosecutrix so as to grab his property. Even though, there is discrepant statement regarding collection of rent during absence of the appellant but the fact remains that his wife Laxmi Kaur, co-accused, was released on bail after about 3 months. It is not understandable how the property or the rent can be usurped by the maternal or paternal uncle of the prosecutrix. The appellant as an accused is not deprived of the rent or the title of the property. Firstly his wife is there to receive rent and also the sons of the appellant. It is a defence which is without any legs to stand. The differences between his brother stand settled when they partitioned their land and the house. As per Rattan Singh PW-7, both were not interfering in the life of each other. Such fact is admitted to Diwakar Gulati 2013.11.18 12:06 I attest to the accuracy and integrity of this document CRA No.D-272-DB of 2009 10 the fact that he had not attended any of the marriages said to be solemnized by the appellant. Even if we exclude the testimony of PW-1 Raj Kumar and PW-7 Rattan Singh, the sole testimony of the prosecutrix proves the commission of offence by the appellant.
The argument that the sample was taken for DNA test but no report has been produced, therefore, adverse inference can be drawn against the prosecution is devoid of merit. DNA profile may corroborate the commission of offence but keeping in view the testimony of the prosecutrix corroborated by the testimony of PW-3 Dr. Reeta Bhardwaj, the offence of rape against the appellant stands fully established. The learned trial Court has appreciated the entire evidence in correct perspective and we do not find any error in the judgment which may warrant interference in appeal.
In view of the findings and discussion, we find no merit in the present appeal. The present criminal appeal is thus dismissed.
(HEMANT GUPTA)
JUDGE
NOVEMBER 7, 2013 (FATEH DEEP SINGH)
'D. Gulati' JUDGE
Diwakar Gulati
2013.11.18 12:06
I attest to the accuracy and
integrity of this document