Punjab-Haryana High Court
Angrej Singh vs State Of Haryana And Another on 27 August, 2012
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CRA-D-701-DB of 2011 [1]
CRA-D-1325-SB of 2011
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CRA-D-701-DB of 2011
Date of decision:27.08.2012
Angrej Singh ...Appellant
Vs.
State of Haryana and another ...Respondents
(2) CRA-S-1325-SB of 2011
Date of decision:27.08.2012
Bhushan Lal ...Appellant
Vs.
State of Haryana ...Respondent
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Jai Bhagwan Sharma, Advocate,
for the appellant in CRA-S-1325-SB-2011.
Mr. Madan Gopal Gupta, Advocate,
for the appellant in CRA-D-701-DB of 2011.
Mr. Pardeep Singh Poonia, Addl. A.G., Haryana.
*****
RAKESH KUMAR JAIN, J.
Two criminal appeals bearing CRA-D-701-DB of 2011 and CRA-S-1325-SB of 2011 are being disposed of together as they arise out of order of the Trial Court dated 24.01.2011/25.01.2011.
CRA-S-1325-SB of 2011 is filed by the appellant-accused CRA-D-701-DB of 2011 [2] CRA-D-1325-SB of 2011 ***** against the order of conviction and sentence dated 24.01.2011/25.01.2011 by which he has been held guilty of the offence punishable under Sections 376, 366, 363 & 506 of the Indian Penal Code, 1860 [for short "IPC"] and sentenced for offence under Section 376 IPC for a period of 7 years rigorous imprisonment with fine of `3,000/- and 6 months further rigorous imprisonment in case of default of payment of fine, for offence under Section 366 IPC two years rigorous imprisonment and fine of `1,000/- and further rigorous imprisonment for a period of two months in case of default of payment of fine, for offence under Section 363 IPC, one year rigorous imprisonment and a fine of `1,000/- and further two months rigorous imprisonment in case of non-payment of fine and for offence under Section 506 IPC, six months rigorous imprisonment and a fine of `500/- and in case of default of payment of fine, further rigorous imprisonment for a period of one month. However, the period already undergone by the appellant during investigation and trial was ordered to be set off against the awarded substantive sentence.
CRA-D-701-DB of 2011 is filed by the father of the prosecutrix for further enhancement of sentence awarded to the appellant-accused.
The learned Trial Court narrated the version of Angrej Singh (PW14) as under:-
"The present case was registered on the complaint CRA-D-701-DB of 2011 [3] CRA-D-1325-SB of 2011 ***** Ex.P24 made by Angrej Singh on the allegations that he is having two children i.e. a daughter who is the prosecutrix (name withheld in view of the judgment of Hon'ble Supreme Court in case titled State of Punjab Vs. Gurmit Singh and others reported in AIR 1996 Supreme Court 1393) and son namely Goldy and both are studying in a private school in village Haripur. The prosecutrix is studying in 8th class and her date of birth is 1.12.1994. Complainant is having a Combine machine for harvesting crops and accused is employed as helper on the said combine machine for the last 1- ½ years. Due to this fact, accused used to come to the house of complainant. He has further mentioned that from 1.1.2009 till 25.02.2009, accused was committing rape with his daughter by threatening her to kill her brother and ailing mother. On 24.03.2009 around 8.00 P.M., accused came to their house and abducted his daughter by threatening and administering drug to her. Thereafter, on the basis of suspicion accused was apprehended by the police of Police Post, IIIrd gate, Kurukshetra University, Kurukshetra and Mahender Singh Sarpanch of village got released him. Thereafter, the CRA-D-701-DB of 2011 [4] CRA-D-1325-SB of 2011 ***** complainant sent his daughter to village Sonta Kapuri, District Patiala and the complainant was having knowledge about commission of above said offence by the accused. Accused also reached there and tried to commit such act. He brought his daughter back to his house. On 2.5.2009, his daughter told him about committing rape upon her by the accused. She also stated that she never told this fact to anybody as accused threatened her with dire consequences."
On the basis of this complaint, formal FIR (Ex.P25) was registered. The prosecutrix was medico-legally examined by Dr. Neha (PW1) who testified examination of prosecutrix on 02.05.2009 on a formal application (Ex.P1). She did not find any external mark of injury on her body. External genitalia was found normal for her age. Vagina easily admitted two fingers and hymen was ruptured and healed in multiple tears. The possibility of her subjected to sexual intercourse was not ruled out. Similarly, the appellant-accused Bhushan Lal was also medico-legally examined by Dr. Tanuj Aggarwal (PW2) on an application (Ex.P4). He found his external organs normal and fit to perform sexual intercourse. The sealed parcels containing clothes of the prosecutrix, swabs, dark brown strands of hair described as pubic hair and two microscopic glass slides were sent for forensic test at FSL, CRA-D-701-DB of 2011 [5] CRA-D-1325-SB of 2011 ***** Madhuban. As per FSL report (Ex.P19), human semen was detected on Ex-2 (underwear). However, it was not detected in rest of the exhibits.
The prosecutrix also suffered a statement under Section 164 of the Code of Criminal Procedure, 1973 [for short "Cr.P.C."] on 11.05.2009 before the JMIC, Kurukshetra.
In order to substantiate the charge, the prosecution examined 15 witnesses.
Dr. Neha (PW1) was examined to prove medico-legal examination of the prosecutrix.
Dr. Tanuj Aggarwal (PW2) was examined to prove the medico-legal examination of the appellant-accused Bhushan Lal.
HC Yadvinder Singh (PW3) deposed that after the medico- legal examination of the prosecutrix on 02.05.2009, he was handed over one parcel containing the clothes of the prosecutrix, one envelope, one parcel containing the slides, swabs and test tube, one sample seal and one MLR which he had taken in his possession by way of recovery memo (Ex.P6).
Ranbir Singh (PW4), Principal, Amar Jyoti Senior Secondary School, Haripur stated that the prosecutrix was admitted in the school vide Admission Serial No.37 where her date of birth is recorded as 01.12.1994. He proved photocopy of the admission and withdrawal register (Ex.P8) and provisional certificate (Ex.P9).
Darshan Singh (PW5) took into possession photocopy of CRA-D-701-DB of 2011 [6] CRA-D-1325-SB of 2011 ***** registration certificate of motorcycle No.HR07-H-1545 vide recovery memo (Ex.P10) and proved photocopy of the registration certificate (Ex.P11) and its original as (Ex.P12).
Amit Arya (PW6), JMIC, Kurukshetra, testified that he had recorded statement (Ex.P14) of the prosecutrix under Section 164 Cr.P.C. and proved the relevant certificate Ex.P14/A, Ex.P15 and the attendance sheet Ex.P16.
Const. Balinder Singh (PW7), HC Rishi Pal (PW8) and Const. Surinder Kumar (PW11) are formal witnesses who tendered their affidavits Ex.P17, Ex.P18 and Ex.P21 respectively. Inspector Amar Nath (PW9) stated that after completion of the investigation, he prepared the report under Section 173 Cr.P.C.
Sudeep Kumar (PW10), Draftsman, proved site plan (Ex.P20). Jai Bhagwan (PW12), Statistical Assistant in the office of Civil Surgeon, Kurukshetra proved photocopy of the register (Ex.P23) and entry regarding the birth of the prosecutrix at point A at Serial No.1.
The prosecutrix was examined as PW13 who alleged that the appellant had committed rape upon her at her residential house twice on 01.01.2009. She was administered "fruitee" on 24.03.2009 and was forcibly taken away by the appellants on his motorcycle to Kurukshetra, but was apprehended by the police at IIIrd gate of the Kurukshetra University and was released. On 22.04.2009, she went to CRA-D-701-DB of 2011 [7] CRA-D-1325-SB of 2011 ***** village Sonta, District Patiala but the appellant-accused reached there and started threatening her. A case was registered against the appellant-accused at the instance of her maternal uncle Tony. In her cross-examination, she stated that she had gone to Kalka Devi temple in the month of April, 2009 along with appellant-accused, her mother and Bua and had also attended marriage of cousin of the appellant- accused in the month of February, 2009. After the rape was committed on 01.01.2009 by the appellant-accused, she bled and her clothes were also stained.
Angrej Singh (PW14) is the complainant and father of the prosecutrix. He stated that appellant-accused was employed by him on his harvesting combine. His daughter was kidnapped on 24.03.2009 but the appellant-accused was apprehended by the police at the IIIrd gate of the Kurukshetra University. Then, he sent his daughter to the house of his brother-in-law at Patiala but the accused even reached there. In cross-examination, he stated that he could get his daughter free from the police of Police Post with the intervention of Sarpanch when she was apprehended with the appellant-accused.
ASI Raj Kumar (PW15) appeared as the Investigating Officer.
The entire incriminating evidence led against the appellant- accused was put to him while recording his statement under Section 313 Cr.P.C. He denied his involvement in the commission of crime CRA-D-701-DB of 2011 [8] CRA-D-1325-SB of 2011 ***** and alleged that he has been falsely implicated by PW14 because of a money dispute. He stated that he had lend a sum of `5 lac to PW14 who did not want to return it and when he insisted, the present case was registered against him. He led evidence in defence by examining MHC Devinder Singh (DW1) who brought the FIR No.41 dated 04.06.2009, registered under Sections 457 & 511 IPC at Police Station Ghanaur against the appellant-accused.
Learned counsel for the appellant-accused Bhushan lal has submitted that the learned Trial Court has erred in relying upon self- serving statement of the prosecutrix when she appeared as PW13 regarding commission of rape which was not mentioned by her before PW6 while suffering statement under Section 164 Cr.P.C. He further submitted that the prosecutrix voluntarily left her house with the appellant-accused and were nabbed by the police of Police Post, IIIrd Gate, Kurukshetra University, Kurukshetra and at that time she did not disclose anything about commission of rape upon her by the appellant- accused. It is also argued that the prosecutrix along with her mother and Bua attended the marriage of the cousin of appellant-accused at village Samashpur in the month of February, 2009 and thereafter went to the temple of Kalka Devi along with the appellant-accused, her mother and Bua in the month of April, 2009, but she never disclosed about rape to anyone. He submitted that no mark of external injury was found in the medico-legal examination of the prosecutrix, rather she CRA-D-701-DB of 2011 [9] CRA-D-1325-SB of 2011 ***** has been found to be sexually active as her vagina admitted two fingers and the hymen had old ruptured healed tear. In the end, it is argued that in the case registered vide FIR No.41 dated 04.06.2009, under Section 457 & 511 IPC at P.S. Ghanaur, the appellant-accused has already been acquitted on 26.04.2011 by the SDJM, Rajpura.
On the other hand, learned State counsel has argued that PW14 is stated to be the owner of 19-20 acres of land and a harvester combine. He has only two children; the prosecutrix and one son, namely, Goldy. Evidence has been led that the prosecutrix was born on 01.12.1994 which has been proved by PW4 and even if it is presumed that she was born on 25.01.1994, as stated by PW12, she was at the most 15 years of age at the time of commission of crime and no contrary evidence has been led by the appellant-accused to prove that she was more than 16 years of age as on 01.01.2009. It is submitted that her consent either for the sexual intercourse or her voluntary act of elopement with the appellant-accused is of no consequence to give benefit to the defence. He further submitted that while appearing as PW13, prosecutrix had stated on oath of having been raped by appellant-accused twice on 01.01.2009 and stated that she bled profusely inasmuch as her clothes were stained with blood. Though she had not so stated before the Illaqa Magistrate (PW6) when her statement under Section 164 Cr.P.C. was recorded, but her statement in the Court on oath is that she was raped and chased by the appellant-
CRA-D-701-DB of 2011 [ 10 ]
CRA-D-1325-SB of 2011
*****
accused even when she had gone to her maternal uncle's village Sonta, District Patiala. It is also submitted that the prosecutrix did not go alone with the appellant-accused even to attend marriage at village Samashpur in the month of February, 2009 and to the temple of Kalka Devi in the month of April, 2009 as she had gone in the company of her mother and Bua. It is further submitted that it is inconceivable that a farmer holding 19-20 acres of land and a harvester combine in District Kurukshetra where land is so fertile, would use his only and minor daughter of tender age as a tool to involve the appellant-accused in a criminal case in order to avoid the payment of some amount to him, as alleged by the appellant-accused in his statement recorded under Section 313 Cr.P.C. or even stated by Swaran Singh in case FIR No.41 dated 04.06.2009.
We have heard counsel for the parties and perused the record with their able assistance.
Undoubtedly, there are two dates of birth of the prosecutrix; one given by PW4 i.e. 01.12.1994 as per her school record and the other by PW12 derived from the birth record as 25.01.1994. However, the occurrence took place on 01.01.2009, therefore, the prosecutrix was 15 years of age in any case if any of the date of birth is chosen to be correct in the absence of any date of birth of the prosecutrix given by the defence. Thus, the plea of the counsel for the appellant-accused that the prosecutrix was a consenting party either for CRA-D-701-DB of 2011 [ 11 ] CRA-D-1325-SB of 2011 ***** sexual intercourse or leaving her parental house with him at her own accord cannot be accepted at all. Secondly, the appellant-accused has stated that he has been falsely implicated on account of a money dispute with PW14, but except for his bald statement, no evidence has been led to prima facie prove that he had lend the money to PW14 who had refused to return it and in order to avoid the payment, registered the present case. It is really inconceivable in this society where girls are being done to death where they marry against the wishes of their parents in a different caste, PW14 who is a well to do farmer having 19-20 acres of land and a harvester combine which he used to lease out @ `1.5 lac per year, would set up his only and minor daughter as a tool to involve appellant-accused in this type of case putting her entire future life at stake even if he is successful in his accusation. No doubt that PW13 did not mention in her statement recorded under Section 164 Cr.P.C. about the commission of rape but it hardly create any doubt in the mind of the Court because she has very clearly stated in her statement recorded in the Court that she was raped on 01.01.2009 twice by the appellant-accused which led to her bleeding profusely. It is now well settled that the statement of the prosecutrix alone, if inspire confidence, does not require any corroboration. In the present case, statement of the prosecutrix is corroborated by the medical evidence that she has been subjected to sexual intercourse, however, with the passage of time, no mark of injury has been found on her body.
CRA-D-701-DB of 2011 [ 12 ]
CRA-D-1325-SB of 2011
*****
Insofar as the FIR No.41 dated 04.06.2009 is concerned, that was a case registered by Swaran Singh, who happens to be the brother-in-law of PW14 who lodged the DDR on 20.04.2009 on the basis of which formal FIR No.41 dated 04.06.2009 was registered. It is altogether separate matter that the SDJM, Rajpura vide his order dated 26.04.2011, has acquitted the appellant-accused observing that the application to the police on 20.04.2009 was anti dated as the complaint was moved with a motive to falsely implicate the appellant-accused due to the reason of rape case lodged against him at Kurukshetra.
After taking into consideration the entire evidence on record, this Court is of the view that the prosecution has successfully proved the guilt of the appellant-accused and no error has been committed by the learned Trial Court in passing the order of conviction and sentence.
Hence, the appeal filed by the appellant-accused bearing CRA-S-1325-SB of 2011 is hereby dismissed.
The second appeal bearing CRA-D-701-DB of 2011 is for enhancement of sentence.
It is argued by counsel for the appellant (Angrej Singh) that her daughter was of tender age, but the learned Trial Court has awarded the minimum sentence of 7 years for the commission of rape.
Against this, learned counsel for the appellant-accused Bhushan Lal has submitted that the prosecutrix was a consenting party CRA-D-701-DB of 2011 [ 13 ] CRA-D-1325-SB of 2011 ***** as she did not disclose the fact of rape committed on 01.01.2009 till she was apprehended with the appellant-accused by the police at the Police Post of IIIrd Gate of Kurukshetra University, Kurukshetra when she tried to run away with him. He has also argued that the appellant- accused is a widower, having a minor daughter of 4 years but there is no male member in his family to look after her.
We have heard counsel for the parties in this regard, keeping in view the facts and circumstances, we are satisfied with the quantum of sentence awarded by the learned Trial Court and feel that no interference is required in the order of sentence passed by the learned Trial Court in this appeal.
In view of the above, the appeal bearing CRA-D-701-DB of 2011 is also without any merit and hence, the same is hereby dismissed.
[ JASBIR SINGH ] [ RAKESH KUMAR JAIN ]
ACTING CHIEF JUSTICE JUDGE
27.08.2012
vinod*