Punjab-Haryana High Court
Fakira vs State Of Haryana on 19 August, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.50-SB of 2002
Date of decision: August 19, 2010
Fakira
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. B.S. Saroha, Advocate for the appellant.
Mr. J.S. Rattu, DAG, Haryana for the respondent.
A.N. Jindal, J
On the intervening night of 22/23.3.1999, at about 2.00 a.m.
when the prosecutrix (name not disclosed) aged less than 16 years resident
of village Kharak Kalan, Police Station, Sadar, Bhiwani after awaking came
out for urinating, the accused picked her up, raped her and thereafter took
her in the brick kiln of Inderbhan, raped her there, however, he was spotted
by the complainant and the prosecutrix was got recovered. Consequently,
he was prosecuted, tried, convicted and sentenced to undergo rigorous
imprisonment for six months under Section 342 IPC; rigorous imprisonment
for five years and to pay fine of Rs.500/- under Section 366 IPC; rigorous
imprisonment for three years and to pay fine of Rs.500/- under Section 363
IPC; and rigorous imprisonment for seven years and to pay fine of Rs.500/-
under Section 376 IPC.
On 25.3.1999, the prosecutrix after having been freed from the
clutches of the accused made a complaint to the police stating that she had
three brothers and sisters. She has been studying in 5th standard in a village
school. She had gone to village Katesra where her parents were working at
brick kiln, but due to annual examination to be held on 23.3.1999, she came
on 22.3.1999 to stay with her grand father Risal Singh. During the mid
night i.e. on 23.3.1999 at about 2.00 a.m. she woke up and went in the street
to urinate. The accused Fakira @ Boss picked her up, took her in a baithak
(sitting room) of his house and raped her. She raised hue and cry which
attracted the mother of the accused, who rebuked him and told him to take
Criminal Appeal No.50-SB of 2002 -2-
***
the prosecutrix away from the house. Then, he took the prosecutrix at the brick kiln of Inderbhan and kept her in a hut. He himself went away during day, but at 10.00 p.m. in the night, he came back and started joking with the prosecutrix. However, on getting clue of the accused her grand father Risal Singh, Ganpat, Amrit, Vedu Ram, member of Panchayat and other persons of her village arrived at the brick kiln and took her and Fakira out of the hut. However, during this process, huge crowd was collected and they started pelting stones over them. While getting benefit of this crowd and darkness, Fakira fled away. On the aforesaid statement made by the prosecutrix a case was registered against the accused on 25.3.1999, but the accused having suffered injuries was admitted in the General Hospital, Bhiwani from where he was arrested on 26.3.1999. Statement of the prosecutrix under Section 164 Cr.P.C. was also recorded by the Judicial Magistrate Ist Class, Bhiwani. On 17.4.1999 the site plan was prepared and then on 7.6.1999, the prosecutrix was radiologically examined in order to ascertain her age, besides other documents were collected in order to support the age of the prosecutrix. Statements of the witnesses were recorded. On completion of the investigation, a report under Section 173 Cr.P.C. was presented in the court.
The accused was charged under Sections 342/365/366/376 IPC to which he pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Dr. (Mrs.) Meena Barwar (PW1), Dr. N.C. Gauba (PW2), Dr. Hari Singh (PW3), C. Suresh Kumar (PW4), C. Virshakti Singh (PW5), ASI Jagdish Singh (PW6), J.S.Sidhu, Judicial Magistrate Ist Class (PW7), Ved @ Vedu (PW8), Prosecutrix (PW9), HC Mahender Singh (PW10), HC Hari Om (PW11), ASI Chhotu Ram (PW12), Risal Singh (PW13), SI Balwan Singh (PW14), SI Om Parkash (PW15), Head Teacher (Retd.) Ram Singh (PW16) and other unnecessary witnesses were given up.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case.
In defence, he examined Dr. N.C. Gauba (DW1) and Ram Kumar (DW2).
Criminal Appeal No.50-SB of 2002 -3-*** The trial ended in conviction.
Arguments heard. Record perused.
The prosecutrix while appearing in the witness box as PW9 has reiterated the prosecution version stating that on 23.3.1999, at about 2.30/3.00 a.m. when she woke up to observe the call of nature, the accused picked her up, took her to his house, raped her there and then took her to the brick kiln of Inderbhan from where she was got freed by her grand father Risal Singh. Her testimony stands corroborated by Risal Singh (PW13) who has stated that on day at about 2.30/3.00 a.m. he found the prosecutrix missing from the house, he called Ganpat and Amrit and set for searching the prosecutrix but she could not be traced. He further deposed that on 24.3.1999, in the evening, while coming to know that she was confined by the accused in the hut near the brick kiln of Inderbhan, they went there at 10.00 or 10.30 p.m. and the fact stood confirmed as Fakira was found confining the prosecutrix in the said hut. He has further reiterated that he had given slaps to Fakira @ Boss but in the mean time, several persons had gathered at the brick kiln and started the pelting stones on the search party, as such, taking the benefit of the said fight Fakira fled away from the spot. He has further disclosed that after he brought the prosecutrix to his house and in the morning he took the prosecutrix to the police station where she got recorded her statement, on the basis of which FIR was registered. She was got medically examined. Both the witnesses have withstood the test of cross examination and nothing fruitful could be elicited despite lengthy cross examination conducted upon them.
Dr. (Mrs.) Meena Barwar (PW1) who had medically examined the prosecutrix opined that possibility of sexual intercourse with the prosecutrix could not be ruled out. Dr. Hari Singh (PW3) who had medically examined the accused on 26.3.1999 with regard to his fitness to commit sexual intercourse observed that there was nothing to suggest that he was incapable to perform intercourse. Story set up by Risal Singh and the prosecutrix further stand corroborated by the testimony of Dr. N.C. Gauba (PW2) of General Hospital, Bhiwnai where the accused after fleeing from the brick kiln had got himself admitted on the next day i.e. 25.3.1999. Dr. N.C. Gauba (DW1) who had medically examined him on 25.3.1999 Criminal Appeal No.50-SB of 2002 -4- *** observed the following injuries on his person :-
i) A contusion of size 1 x 1 cm on right lateral malleolus, redish in colour, x-ray right ankle ortho surgeon's opinion advised.
ii) An abrasion of size 1 cm x ½ cm on right knee red scab present.
Iii) A contusion of size 1 x 1 cm on left leg middle part, redish in colour. Left ankle is swollen, x-ray left leg with ankle and ortho Surgeon's opinion was advised.
iv) Swelling present over front of neck. Complaining of pain in the neck.
v) A contusion of size 3 cms x 1 cm on left shoulder joint redish in colour. Ortho Surgeon's opinion was advised.
vi) An abrasion of size 1 cm x 2 cms on left arm. Redish scab was present.
vii) A contusion of size ½ cm x ½ cm present on left hand little finger, redish in colour, x-ray and Ortho Surgeon's opinion was advised.
The injuries on the person of the accused confirm the prosecution version and the testimony of Risal Singh that in the process of release of the prosecutrix from the clutches of the accused, the labourers on the brick kiln had come and due to misunderstanding they attacked them, in that process, the accused Fakira might have suffered the injuries on his person as the same is evident from the aforesaid MLR. In such like factual position, the defence as narrated by Ram Kumar (DW2) that in fact there was a dispute of wages between the labourers of brick kiln of village Katesra and the labourers of brick kiln of village Sarsa Mor and in that scuffle Fakira had suffered injuries at the hands of the complainant party stands falsified and the story set up by the prosecutrix stands affirmed and is established beyond doubt that the prosecutrix was picked up by the accused from her house, taken away at his house; raped and thereafter she was shifted to a hut near Inder Bhan Brick Kiln from where she was got Criminal Appeal No.50-SB of 2002 -5- *** released.
The other important question to be determined is with regard to the age of the prosecutrix. She was studying in 5th standard. The school leaving certificate Ex.PP pertaining to the prosecutrix as proved by Ram Singh (PW16) reveals her date of birth as 14.6.1988. Ram Singh (PW16) has testified that the said certificate was issued and it pertains to the prosecutrix and she was studying in 5th standard at that time in their school. Besides, there is a corroborative evidence in the shape of ossification test conducted on the person of the prosecutrix by Dr. N.C. Gauba (PW2). According to him, from the radiological test, the prosecutrix was found to be between 14- ½ to 15 years. He has proved the report Ex.PB/1, x-ray films Ex.PB/2 to Ex.PB/7. That apart, the other supporting evidence is that of Risal Singh (PW13) grand father and the prosecutrix (PW9). To the contrary, no evidence has been led by the accused in order to rebut this piece of documentary evidence supported by the other evidence. In these circumstances, the school leaving certificate corroborated by the other ample evidence, in the absence of any rebuttal from the accused side would be treated as good piece of evidence to determine the age.
As regards the contention raised by the learned counsel for the appellant regarding the infirmities in the testimonies of prosecutrix (PW9) and Risal Singh (PW13), it may be observed that human memory is fallible and such minor discrepancies are bound to occur in the testimonies of the truthful witnesses with the passage of time. The occurrence in this case took place on 24.3.1999 and statement of Risal Singh (PW13) was recorded in the court on 21.8.2001 i.e. after a gap of about 2- ½ years. Further more, the discrepancies in the testimonies of the witnesses are minor in nature and do not effect the substratum of the case. The prosecutrix having withstood the test of cross examination is found to be reliable, in such situation, to ask for corroboration to her testimony would be an insult to the injury.
The contention raised by the learned counsel for the appellant that on account of the rivalry between the labourers of Brick Kiln Katesra and Sarsa Ghoghada, the accused was falsely implicated in the case, does not weigh with the mind of the court. Admittedly, Risal Singh (PW13) grand father of the prosecutrix was working as labourer at the Brick Kiln Criminal Appeal No.50-SB of 2002 -6- *** situated at village Katesra and the accused was working as labourer at Brick Kiln Sarsa Ghoghade. Perusal of the testimony of the prosecutrix (PW9) reveals that the accused after committing rape on her in his house took her away to Brick Kiln of Inder Bhan situated at village Sarsa Ghoghada where she was locked in the hut. This fact further finds corroboration from the complaint Ex.PF wherein the prosecutrix has categorically stated that on hearing her noise at the time of commission of rape, mother of the accused reached there and told the accused to take the prosecutrix away from the house and thereafter at about 5.00 a.m. on 24.3.1999, the accused took her to the brick-kiln of Inder Bhan. Risal Singh (PW13) has categorically deposed that during the course of the search of prosecutrix, he came to know that her grand daughter was confined in the hut near brick-kiln of Inder Bhan and thereafter he along with several persons had gone to the brick kiln of Inder Bhan where the accused and the prosecutrix were found in the hut near the said brick kiln.
Thus, as an upshot of the above discussion, this court is of the definite opinion that the accused picked up the prosecutrix who was less than 15 yeas of age at that time from her house at wee hours of the night from the lawful guardianship of her grand father, raped her and she was got freed with the intervention of Risal Singh her grand father and many other people. As such, the offence for which he has been charged stands proved.
Faced with the situation, learned counsel for the appellant has submitted that the accused has already undergone about four years of the substantive sentence and prayed for taking some lenient view on the quantum of sentence.
Having pondered over the argument, it may be observed that the occurrence took place way back in the year 1999 and the accused has already suffered a lot on account of the protracted proceedings pending against him since then. He has already undergone about four years of the substantive sentence. Thus, keeping in view the longevity of the trial, I deem it a fit case where some leniency could be shown to the accused.
Resultantly, while dismissing the appeal, the sentence is modified which is reduced to six years under Section 376 IPC without alteration in the sentence of fine. However, the sentence awarded against Criminal Appeal No.50-SB of 2002 -7- *** him qua other offences, shall remain intact.
Copy of the judgment be sent to the Chief Judicial Magistrate, Bhiwani for compliance.
August 19, 2010 (A.N. Jindal) deepak Judge