Punjab-Haryana High Court
Dharampal Son Of Siri Ram vs State Of Haryana on 8 January, 2003
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta
JUDGMENT Ashutosh Mohunta, J.
1. Dharampal appellant has challenged his conviction under Section 376, Indian Penal Code, and sentence to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, or in default to undergo further rigorous imprisonment for three months, awarded by the learned Additional Sessions Judge, Karnal, vide judgment and order dated October 18, 1988, by filing the present appeal.
2. The case of the prosecution is that the appellant committed rape on Sunita prosecutrix, a girl of 7/8 years, on August 19, 1987 at about 2 P.M., while she was taking bath at the water tap situated outside the abadi deh of village Bhinswali, Tehsil & District Panipat, while her mother Smt. Bala Devi (P.W.3) went to cut grass in the fields nearby. On the cries being raised by the prosecutrix, her mother Smt. Bala Devi and Hakam Singh Sarpanch (P.W.5) were attracted to the spot. The accused was caught red handed while committing rape upon Sunita prosecutrix. The accused as well as the prosecutrix were taken to the Police Station, Panipat, for reporting the matter to the Police. A.S.I. Randhir Singh (P.W.9), however, met them on the way. Smt. Bala Devi then made her statement before A.S.I. Randhir Singh (Ex.PD), on the basis of which formal first information report was registered against the accused.
3. Both the accused as well as the prosecutrix were got medico-legally examined by the doctors of Civil Hospital, Panipat. Dr. R.K. Aneja (P.W.1), who had medically examined the accused Dharam Pal, found him fit to perform sexual intercourse. He was also found to have consumed liquor. His underwear, Pyjama, Kurta and Banian were found to be stained with blood. The doctor took a sample of his public hair. Swabs from the penis of the accused were also taken and sealed in two glass tubes. Samples of blood and urine of the accused were also taken and sealed in different packets. Dr. Rosy Aneja (P.W.8) had medico-legally examined the prosecutrix. This doctor found that there were multiple bloodstains over the thighs and both legs of the prosecutrix. There were multiple lacerations and tearing of soft tissues over the inner side of both libia minora and lateral vaginal wall. The posterior commissure was found torn and the anal sphincter was found badly torn interiorly. Fresh bleeding was present in the wounds. Dr. Rosy Aneja also took swabs from the Vagina and two slides were prepared and were sealed in a box. The knicker worn by the prosecutrix was found bloodstained and the same was also duly sealed in a packet.
4. Reports Exhibits PT and PU were received from the Forensic Science Laboratory, Madhuban. As per report Ex.PT, the samples of blood and urine taken from the accused were found containing ethyl alcohol in the strength of 11.5 and 34.5 mg per cent, respectively. Human blood of 'B' group was detected on the Knicker, Kurta, Pyjama and Banian and the bloodstained earth, which was lifted from the spot by A.S.I. Randhir Singh. Material on the underwear of the accused was found disintegrated.
5. The prosecutrix was radiologically examined by Dr. O.P. Gogia (P.W.7) and he submitted his report (Ex.PH) to the effect that the prosecutrix could be of any age between 6 to 8 years. During the investigation the school certificate (Ex.PS) of the prosecutrix was also taken into possession by A.S.I. Randhir Singh and as per the said certificate, the prosecutrix was born on December 4, 1980. Thus, she was found to be less than 7 years at the time of occurrence, according to the school certificate.
6. The accused was arrested, challaned, charge-sheeted and tried for the offence punishable under Section 376, Indian Penal Code.
7. Besides the other formal witnesses, the prosecution examined Dr. R.K. Aneja (P.W.1), Smt. Bala Devi (P.W.3), Sunita prosecutrix (P.W.4), Hukam Singh Sarpanch (P.W.5), Dr. Rosy Aneja (P.W.8) and A.S.I. Randhir Singh (P.W.), in support of its case. The reports (Exhibits PT and PU) of the Forensic Science Laboratory, Madhuban, were also tendered in evidence in support of the case of the prosecution.
8. The accused when examined under Section 313, Code of Criminal Procedure, denied the prosecution allegations and pleaded innocence and false implication. He also took the stand that on the day of occurrence, he was under the influence of liquor and sleeping in the house of the sister of his father. He further stated that P.W. Hukam Singh woke him up when he was drunk and in that condition he had abused him which resulted in an altercation between him and Hukam Singh. Thus, according to the accused, on account of this altercation, he was falsely implicated in this case. He, however, did not lead any evidence in his defence although he was given an opportunity for this purpose.
9. After examining the evidence brought on record and hearing the counsel for the parties, the learned Additional Sessions Judge, Karnal, convicted and sentenced the accused in the manner indicated above.
10. I have heard the learned counsel for the parties and have gone though the evidence brought on record.
11. Admittedly, in the present case the prosecutrix was a child of tender age of 7-8 years. Thus, the consent or no consent on the part of the prosecutrix is not an issue to be determined in the present case.
12. The primary argument advanced by the learned counsel for the appellant was that no injury was found on the penis of the accused. In support of his argument he was placed reliance on the case reported as Rahim Beg v. The State of U.P., 1972 Crl.L.J. 1260, and contended that the absence of injuries on the male organ of the accused clearly shows that the accused had not committed sexual intercourse with the prosecutrix, as otherwise he must have suffered external injuries on his penis.
13. In Rahim Beg's case there was no direct evidence against the accused as the prosecutrix after having been subjected to rape had been done to death. The case rested solely on the circumstantial evidence and extra-judicial confession. The evidence adduced by the prosecution was found to be incredible and while rejecting that evidence, the Hon'ble Supreme Court had observed that the absence of external injuries on the male organ of the accused also pointed to his innocence. It was never observed by their Lordships of the Supreme Court that presence of injuries on the penis of the accused was a must if the prosecutrix was a virgin of tender age. However, in the present case the prosecution has adduced direct evidence against the accused in the form of testimonies of Smt. Bala Devi, mother of the prosecutrix (P.W.3), Sunita prosecutrix (P.W.4) and Hukam Singh Sarpanch (P.W.5). Smt. Bala Devi (P.W.3) has supported the prosecution case by stating that she had left her daughter Sunita on the day of occurrence for taking her bath at the water tap and she herself had gone to cut the grass in the nearby fields. When she heard the cries of a child, she immediately rushed to the spot. Hukam Singh Sarpanch (P.W.5) was also attracted to the spot. Both of them had seen the accused committing sexual intercourse with the prosecutrix. To the same effect is the statement of Hukam Singh Sarpanch. The accused was apprehended at the spot. Sunita prosecutrix (P.W.4) has also stated that when she was taking her bath at the water tap, the accused took her to the fields of Jawar of Jai Singh and there he did bad things with her. It has also come in her statement that the accused had put off her clothes before doing the bad things and as a result of the same blood had started oozing out from her vagina.
14. The aforesaid statements of the eye-witnesses as well as of the prosecutrix find corroboration from the medico-legal report (Ex.PK) prepared by lady Dr. Rosy Aneja (P.W.8). In this report the doctor found multiple bloodstains over the thighs legs of the prosecutrix. Multiple lacerations and tearing of soft tissues over inner side of both libia minora and lateral vaginal wall were also found by the doctor. It was also found by the doctor that the posterior commissure was torn and the anal sphincter was partly torn interiorly. Fresh bleeding was also noticed in these wounds. The prosecution story further finds corroboration from the reports of Forensic Science Laboratory, Madhuban, which are Ex.PT and PU. As per report Ex.PU human blood was detected on the knicker worn by Sunita prosecutrix and also on the Kurta, pyjama and banian worn by the accused. Human blood was also detected in the earth lifted from the spot. The blood was found to be of 'B' group as per report Ex.PT.
15. Unlike the prosecution evidence, the plea taken by the accused that he was found present in the house of the sister of his father does not appeal to reason at all. According to him, at that time he was in drunken condition and he had raised an altercation with P.W.5 Hukam Singh Sarpanch and on account of these altercations he was falsely implicated in this case. The defence taken by the accused is totally unreliable. No person will like to come forward with such type of wild allegations against any body as the reputation and honour of the prosecutrix herself and that of her family members are at stake. The allegations of the prosecution witnesses are not wild allegations at all. The said allegations have amply been corroborated by the medical evidence. Not only the human blood was found on the knicker worn by the prosecutrix, but the same blood was also found on the pyjama, kurta and banian, which were worn by the accused himself. He could not explain how the human blood had come on the clothes worn by him.
16. In the light of the above discussion, I am of the view that the prosecution has been able to bring home the guilt against the accused by adducing cogent evidence on record. I do not find any infirmity in the well-reasoned judgment passed by the learned Additional Sessions Judge, Karnal, vide which the appellant has been convicted for the offence under Section 376, Indian Penal Code. I uphold the same and maintain the conviction of the appellant under Section 376, Indian Penal Code.
17. However, I find that the sentence imposed on the appellant is on the higher side. The appellant was a youngman of 22 years at the time of the occurrence. The occurrence had taken place more than 15 years ago. I am of the view that a lenient view is required to be taken in so far as the sentence part is concerned. Taking a lenient view, I reduce the sentence imposed on the appellant from 10 years to undergo rigorous imprisonment for 7 years. However, the sentence of fine with its default clause is maintained.
18. Except for the modification in the quantum of sentence, as indicated above, the appeal fails and is dismissed. The appellant is on bail. His bail bonds stand cancelled and he be taken into custody forthwith to undergo the unexpired period of his sentence.