Punjab-Haryana High Court
Saurav @ Guddu vs State Of Haryana on 29 May, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Crl.Appeal No.S-1749-SB of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No.S-1749-SB of 2011(O&M)
Date of decision : 29.5.2012
Saurav @ Guddu
.......Appellant
Vs.
State of Haryana
....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK **** Present : Mr. O.P. Goyal, Senior Advocate with Mr. Gagan Bajaj, Advocate for the appellant.
Mr. Gaurav Dhir, DAG, Haryana.
...
RAMESHWAR SINGH MALIK, J
1. Having been convicted for the commission of offences under Sections 451, 376/511 of the Indian Penal Code (for short `IPC), vide judgement of conviction dated 11.4.2011 and having been sentenced for a period of 1 year rigorous imprisonment under Section 451 IPC and for a period of 4 years rigorous imprisonment under Section 376 read with Section 511 IPC, vide order of sentence dated 13.4.2011 passed by the learned Sessions Judge, Faridabad, the appellant has come up to this court assailing the aforesaid judgement and order of sentence, by means of the present appeal.
2. Briefly put, relevant facts of the case are: Karambir S/o Crl.Appeal No.S-1749-SB of 2011 2 Dharam Pal (PW-5) submitted a complaint, Ex.`PC' before the S.H.O., Police Station Old Faridabad on 5.7.2010 to the effect that his uncle Ved Parkash with his family was residing on rent on the first floor of H.No.951/3, Bhud Colony, owned by Raghav Prasad. His uncle and aunt both had left for their duties. He went to the room at Bhud Colony to see his sister Nirmala (the real name has been changed), at about 10 O' Clock in the morning. When he was going upstairs, he heard the shrieks of Nirmala. He immediately ran towards the room and there he saw that Saurav @ Guddu s/o Raj Kishore Prasad had laid down his sister Nirmala on the bed in the room. Her salwar had been put off and was coming under her feet. Saurav had gagged the mouth of Nirmala with one hand. His pants was open and he was lying on his sister-Nirmala. He was forcibly attempting to commit rape. On seeing him, he (Saurav) suddenly stood up. Nirmala told him that seeing the door of the room open and finding her alone, he was forcibly attempting to commit rape upon her. Saurav @ Guddu, suddenly started running towards down stairs. He tried to catch Saurav who fell down in the stairs. After a struggle, complainant caught him. Guddu's aunt (father's sister) Urmila-owner of the house also heard about it and gave beatings to him. Thereafter, complainant informed his uncle on telephone and requested him to come. The injuries suffered by Saurav @ Guddu were caused due to fall during attempt to catch him. Thereafter, having heard the noise, residents of the locality gathered there. Saurav @ Guddu had attempted to commit rape upon his sister Nirmala having her found alone. Had he not reached in time, Saurav Crl.Appeal No.S-1749-SB of 2011 3 would have committed the rape upon Nirmala. Saurav @ Guddu was the nephew of the owner of the house and was residing in that very house. Thereafter, the complainant and his uncle caught hold Saurav @ Guddu. They brought him to the police station and produced before the police.
3. Based on the abovesaid application Ex.PC moved by Karambir PW-5, FIR Ex.`PC/1' was registered and particulars thereof were mentioned on the application Ex.`PC' by ASI Sohan Pal, Police Station Old Faridabad, by way of his endorsement Ex.`PC/2'. Thereafter, the investigating officer started the investigation, recorded the statements of the prosecutrix and her father. He visited the spot and prepared the rough site plan Ex.`PB'. The prosecutrix was got medico legally examined in the B.K. Hospital, Faridabad, by moving an application Ex.`PE'. Accused Saurav @ Guddu was put under arrest. After completion of the investigation, report prepared under Section 173 Cr.P.C. was presented to the court. Finding the offences triable by the court of Session, learned Additional Chief Judicial Magistrate, Faridabad, vide his order dated 3.8.2010, committed the case to the court of Sessions. Accordingly, charges were framed against the appellant under Sections 451 and 376 read with Section 511 IPC.
4. The prosecution, with a view to prove its case, examined six witnesses. PW-1 is Dr. Ajay Pal Singh, Medical Officer, B.K. Hospital, Faridabad, who proved the M.L.R. of the prosecutrix, which is Ex.`PA/1' and his affidavit is Ex.`PA'. Head Constable Sarwan Kumar stepped into the witness box as PW-2 to prove the site plan Ex.`PB', Crl.Appeal No.S-1749-SB of 2011 4 which was prepared by him on the demarcation pointed out by ASI Sohan Pal. The investigating officer ASI Sohan Pal appeared as PW- 3 and proved the steps taken by him during the course of investigation. Constable Gajraj Singh appeared as PW-4 to prove the special reports delivered by him to the learned Illaqa Magistrate and other higher police officers. PW-5 Karambir S/o Dharampal was the author of the FIR and deposed about the occurrence, which was witnessed by him. PW-6 is the prosecutrix. All the incriminating material was put to the accused, who pleaded not guilty and claimed trial. His statement under Section 313 Cr.P.C. was recorded.
5. The accused-appellant pleaded that the prosecutrix was residing with her parents in a rented accommodation in the house of his aunt Smt.Urmila DW-1. He further stated that he has been falsely implicated only with a view to put pressure on his aunt, who was asking the parents of the prosecutrix to vacate the rented accommodation. The prosecutrix had been consulting him regarding her studies, but her family members used to object to it. The accused also stated that the prosecutrix had one sided fancy for him. When she was talking to him on the date of incident, her family members started beating him mercilessly and he was saved by his aunt Smt.Urmila with the help of other tenant namely; Mewa Lal Tiwari. Thus, the accused stated that he was falsely implicated and claimed himself to be totally innocent. He also examined two witnesses in his defence. Smt. Urmila was examined as DW-1, whereas Mewa Lal Tiwari was examined as DW-2. Both these witnesses deposed that prosecutrix used to talk to the accused and her parents had been Crl.Appeal No.S-1749-SB of 2011 5 objecting to it. On the date of occurrence i.e. 5.7.2010 at about 11 AM, the prosecutrix was talking with the accused when her brother Karambir came there. He called the father of the prosecutrix on telephone and then both of them gave beatings to the accused. They brought the accused from the upstairs to the road while giving beatings. These witnesses also deposed that the case was lodged only because DW-1 was asking the father of the prosecutrix to vacate the house.
6. After hearing both the parties, the learned Sessions Judge, Faridabad, vide his judgement of conviction dated 11.4.2011, held the appellant guilty for offences under Sections 451 and 376 read with Section 511 IPC. Consequently, the appellant was sentenced to rigorous imprisonment for a period of 1 year and to pay a fine of Rs.2000/- for the offence under Section 451 IPC. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for a period of 2 months. The appellant was sentenced for rigorous imprisonment for a period of 4 years and was ordered to pay fine of Rs.5000/- for the offence under Section 376 read with Section 511 IPC. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of 4 months.
7. Feeling aggrieved against the abovesaid impugned judgement of conviction and order of sentence, the appellant has approached this court by way of instant appeal.
8. Learned Senior counsel for the appellant vehemently contended that the prosecutrix was a consenting party. She was all alone in her room with door open at the first floor of the house. The Crl.Appeal No.S-1749-SB of 2011 6 appellant had been living with his aunt at the ground floor of the same house. When the appellant was talking to the prosecutrix, PW- 5 Karambir came there. Since the appellant and the prosecutrix were on talking terms, the appellant was not talking to the prosecutrix against her wishes, although parents of the prosecutrix used to object to it. PW-5 Karambir, when found the appellant and the prosecutrix talking with each other, he started beating the appellant. The appellant was brought down stairs. In the meantime, her father had also come and he joined Karambir PW-5 in beating the appellant. Learned Senior counsel also contended that PW-1 Dr.Ajay Pal Singh did not suggest that any rape had been committed or attempt to rape had been made by the appellant. The case history was that of an assault. There was no swelling or tenderness. Prosecutrix was found conscious and the Medico Legal Report does not suggest any injury on the person of the prosecutrix. He further contended that from the combined reading of statements of PW-5 and the prosecutrix, no case of attempt to rape has been made out. He submitted that the story put-forth by the prosecution, that the accused-appellant was trying to undress the prosecutrix and was also trying to open his pants with one hand, whereas he had gagged the mouth of the prosecutrix with other hand, was clearly an exaggeration. Had he gagged the mouth of the prosecutrix, PW-5 Karambir could not have heard her shrieks. Learned senior counsel also pointed that it has not been alleged that the under garments of the prosecutrix and the accused-appellant had been removed. Thus, learned senior counsel further contended that there was no Crl.Appeal No.S-1749-SB of 2011 7 determination on the part of the accused-appellant and also there was no resistance on the part of the prosecutrix, as there was no external injury. Learned senior counsel concluded by submitting that the present case does not fall under Section 376 read with Section 511 IPC and prayed for setting aside the impugned judgement of conviction and order of sentence. To buttress his arguments, learned counsel for the appellant relied upon the judgement of the Hon'ble Supreme Court in Aman Kumar and another Vs. State of Haryana, 2004(1) RCR (Crl.) 925 and also a judgement of this court in Chander Vs. State of Haryana, 2010 (4) RCR (Crl.) 210.
9. Per contra, learned counsel for the state contended that there was no discrepancy in the present case. The witnesses have deposed in most natural manner, who were trustworthy. He further contended that keeping in view the facts of the present case, there was a strong determination on the part of the accused-appellant to commit the offence under section 376 read with section 511 IPC. Learned counsel for the State laid emphasis on the following words out of Section 511 which are-"and in such attempt does any act towards the commission of the offence".
10. Learned counsel for the State concluded by placing heavy reliance on the language and ingredients of Section 511 IPC, submitting that the appeal was without any substance and the same was liable to be dismissed.
11. I have heard learned counsel for the parties and with their able assistance, have gone through the record of the case.
12. The question that falls for consideration of this court is, as Crl.Appeal No.S-1749-SB of 2011 8 to whether the offence committed by the appellant would come within the scope of Section 376 read with Section 511 IPC or it would fall only under Section 354 IPC.
13. Since the main thrust of learned counsel for both the parties is on the ingredients of Section 511 IPC, it would be appropriate to reproduce Section 511 IPC for ready reference and the same reads as under :-
"Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
14. After giving my thoughtful consideration to the rival contentions raised and keeping in view the peculiar fact situation of the present case,coupled with the documentary as well as oral Crl.Appeal No.S-1749-SB of 2011 9 evidence brought on the record of the case, this court is of the considered opinion that the instant appeal is devoid of any merit and liable to be dismissed for more than one reasons to be recorded hereinafter.
15. First of all there are some basic facts, which are admitted between the parties. Presence of the appellant at the time and place of occurrence is not in dispute. Another material fact is that age of the prosecutrix was below 16 years at the time of occurrence as per her certificate (Mark `A')of Middle Examination issued by the Board of School Education Haryana, wherein her date of birth is recorded as 5.10.1994 and the occurrence took place on 5.7.2010. Further, the FIR had been lodged within half an hour of the occurrence as deposed by PW-3 and there was no delay in recording the FIR. Arrival of the complainant PW-5 Karambir at the time and place of occurrence is also not disputed.
16. It is not in dispute that the accused-appellant had suffered injuries at the hands of his aunt DW-1 Smt. Urmila and DW-5 Karambir-complainant, for his misconduct in the residential premises of DW-1, Smt.Urmila, before he was handed over to the police, by the complainant.
17. The close scrutiny and critical analysis of the prosecution evidence, particularly given by ASI Sohan Pal, investigating officer as PW-3, Karambir-complainant as PW-5 and that of the prosecutrix as PW-6, would show that the evidence produced by the prosecution is direct, categoric and trustworthy. All these three witnesses have successfully stood the acid test of cross-examination. I have closely Crl.Appeal No.S-1749-SB of 2011 10 examined the statements of all these three witnesses and combined reading thereof clearly establish that they have corroborated the prosecution version given in the FIR Ex.PC/1. Barring minor and negligible discrepancies which are bound to be there when three different persons deposed separately and independently in their own natural manner, no serious discrepancy has either been pointed out by the learned senior counsel or could be found by this court, which may prove fatal to the case of the prosecution. I say so because all these three material witnesses have deposed in natural manner and their statements do inspire confidence, when they are read either separately or collectively, in the given fact situation of the present case.
18. The arguments raised by the learned senior counsel that the prosecutrix was a consenting party and that is why she left the door of the room open, does not appeal to reason because there is nothing on record to support this argument raised by the learned senior counsel. Circumstances of the case also do not support this contention. Thus, the first argument raised by the learned senior counsel does not carry any weight, being without any force. The next submission made by the learned senior counsel, that the appellant was found talking with the prosecutrix and PW-5 Karambir started beating the appellant, is also without any substance, when considered under the peculiar facts and circumstances of the present case.
19. It was next contended by learned senior counsel that PW-I Dr. Ajay Pal Singh did not find any injury on the person of the Crl.Appeal No.S-1749-SB of 2011 11 prosecutrix and found the present one as only a case of assault, is also to be considered only to be rejected. It is the categoric case duly proved by the prosecution with the help of statements of PW-5 Karambir and PW-6 prosecutrix that the appellant had forcibly laid the prosecutrix on the bed. Once that is so, there was hardly any scope of suffering injury by the prosecutrix.
20. Another contention raised by learned senior counsel is that the story putforth by the prosecution was based on an exaggeration because, had the appellant gagged the mouth of the prosecutrix, the complainant-Karambir P-5 could not have heard her shrieks. I am afraid I do not find any force in this argument as well. The reason is very obvious. As per the site plan Ex.`PB', the distance between point `A' i.e. the bed room and point `B' where from PW-5 Karambir saw the appellant attempting to commit the offence of rape on the prosecutrix, was only a few meters and the high volume of the shrieks was not required.
21. The argument of the learned senior counsel that there was no determination on the part of accused-appellant for committing offence of rape is also bereft of any merit. He based his argument on the fact that since there was no external injury on the person of the prosecutrix, it shows that there was no resistance on the part of prosecutrix. However, record of the case clearly suggests to the contrary. The prosecutrix herself has clearly deposed that she gave thrashing to the appellant but he did not desist. In this regard, the exact statement of the prosecutrix as PW-6, reads as under:-
"The accused was also given thrashing by me but Crl.Appeal No.S-1749-SB of 2011 12 he did not desist and was attempting to rape me."
There cannot be any better piece of evidence than the statement of the prosecutrix, which was duly corroborated by PW-5, Karambir. Thus, strong determination on the part of the appellant to make an attempt to commit rape is well established, on the record of the case.
22. Final argument of the learned senior counsel is that DW-1, Smt. Urmila, was asking father of the prosectrix to vacate the house and he was avoiding it on one pretext or the other. The appellant has been falsely implicated by the prosecutrix, at the instance of her father to put counter pressure on the land lady. This argument is neither plausible nor it is acceptable to this Court. The reason of not finding any force in this argument is that, neither cousin nor father of the prosecutrix would go so much low and would become so mean that they would put at stake the honour and dignity of the prosecutrix, a young and unmarried daughter of the family, which would ruin her future adversely affecting the matrimonial prospects of the prosecutrix. The statement of the prosecutrix, in this regard, is also relevant where she deposed in her cross examination, as under:-
"There was nothing that our landlord was asking for vacation of the house. Rather we vacated at our own. We vacated the house on 15.7.2010 after the incident. Prior to this incident we were not asked to vacate the house. It is incorrect that the landlady Urmila was exerting pressure for vacating the house and for this reason also we got Crl.Appeal No.S-1749-SB of 2011 13 this case planted upon the accused."
In view of what has been discussed above, the arguments raised by the learned senior counsel having been considered and tested from each and every angle, are found without any force.
No other argument has been raised.
23. So far as the judgments cited by the learned Senior counsel in support of his contentions are concerned, there is hardly any dispute regarding the law laid down therein. However, it is settled principle of law that peculiar facts and circumstances of each case are to be seen first, before applying any codified or judgemade law thereto. Sometimes, even a difference of one word can make the world of difference. Thus, in view of the peculiar facts and circumstances of the case, judgments cited by the learned senior counsel are of no help to the appellant because the cited judgments are distinguishable on facts.
24. Considering the abovesaid peculiar fact situation of the present case, with a view to arrive at a conclusion, so as to answer the question posed above, there are three different and relevant stages, which are to be analysed from the point of view of this Court. The first stage was whether there was any mens rea which is sine qua non for commission of any offence. In the present case, the above noted first stage of mens rea came to be covered by the appellant, once he went upstairs knowing fully well that the prosecutrix was all alone. The second stage was the preparation. The accused-appellant covered the second stage also by catching hold the prosecutrix and thereafter, throwing her on the bed. The Crl.Appeal No.S-1749-SB of 2011 14 third and crucial stage was an attempt to commit the rape. It is to be seen at this stage, whether the appellant was determined for committing the offence or not. The relevant words from Section 511 IPC, quoted above, would come handy at this stage and the same read as under :-
"and in such attempt does any act towards the commission of the offence".
25. Applying the principle of harmonious interpretation, even one action taken at the hands of accused towards the commission of offence would amount to an attempt because the words are: "does any act". In the present case, the appellant did not only do one act, but more than five acts, which show his strong determination for commission of the offence. These acts were (i) gagging the mouth of the prosecutrix; (ii) putting off her salwar and bringing it down under her feet: (iii) opening his own pants; (iv) laying down himself on the prosecutrix; (v) resistance shown by the prosecutrix by giving thrashing and act of not desisting by the appellant and; (vi) using force by the appellant in not desisting. All these actions of the appellant, put together and considered, keeping in view the attending circumstances of the present case, go to establish the strong determination of the appellant in attempting to commit the offence of rape.
26. Thus, drawing thin line distinction between the commission of offence under Section 376 IPC read with Section 511 IPC i.e. attempt to commit rape and offence under Section 376 IPC i.e. offence of rape, this Court is of the considered opinion that the Crl.Appeal No.S-1749-SB of 2011 15 present case falls under Section 376 IPC read with Section 511 IPC and not under Section 354 IPC. In this view of the matter, the question posed , hereinbefore, is answered, accordinlgy.
27. It is the settled proposition of law that conviction can be based on the testimony of prosecutrix alone without any corroboration, if the testimony of the prosecutrix inspires confidence. I say so because the prosecutrix is not an accomplice, but victim. Her evidence would be more reliable than that of an injured witness. In the present case, the evidence given by the prosecutrix does inspire confidence and the conviction could have been based on the statement of the prosecutrix alone. However, there is a categoric and strong corroboration available in the present case, in the form of statements of other PWs, particularly PW-5, Karambir-complainant.
28. The above said view taken by this Court finds support from the judgment of the Hon'ble Supreme Court in Kamalanantha and others versus State of Tamil Nadu, (2005) 5 SCC 194. The relevant observations made in para 34 of the judgment, read as under:
"It is trite law that the prosecutrix is not an accomplice. The evidence of victim of sexual assault, if inspires confidence, conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration. Her evidence is more reliable than that of injured witness. In a case of sexual assault corroboration as a condition for judicial reliance is not a Crl.Appeal No.S-1749-SB of 2011 16 requirement of law but a guidance of prudence. Examining the testimony of prosecutrix in the background, as stated above, and in the facts and circumstances of this case, we are of the clear view, that the testimony of prosecutrix inspires confidence, on the basis of which alone conviction can be safely sustained. Moreover, in the instant case we find that the statements of the prosecutrix are well corroborated by medical and other contemporaneous documents. It is also well established principle of law that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. [See State of Punjab v. Gurmit Singh.)."
29. Therefore, keeping in view the fact situation and evidence discussed in the forgoing part of the judgment, I unhesitatingly hold that the present case would fall under Section 376 read with Section 511 IPC and it would not fall under Section 354 IPC.
30. After having examined the entire facts and circumstances of the present case, the evidence brought on record and also the law laid down by the Hon'ble Supreme Court in the judgment, noted above, this Court is of the considered view that the prosecution was successfull in bringing home the guilt of the accused and the appellant has been rightly convicted by the learned trial court.
31. In view of what has been discussed above, I have no Crl.Appeal No.S-1749-SB of 2011 17 hesitation to conclude that the instant appeal is bereft of any merit and must fail.
32. Under the totality of the facts and circumstances of the present case, noted above, coupled with the reasons aforementioned, the judgment of conviction and order of sentence under appeal are upheld. The appeal is devoid of any merit.
Accordingly, the instant appeal is ordered to be dismissed.
29.5.2012 (RAMESHWAR SINGH MALIK)
GS/AK Sharma JUDGE
Whether to be reported? Yes/No