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2003 DIGILAW 1044 (PNJ)

Kishan Lal v. State of Haryana

2003-07-30

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. - This Criminal Appeal has been instituted by Kishan Lal son of Jagnu against judgment dated 6.3.1996 and order dated 8.3.1996 whereby he was found guilty and convicted under Section 376 read with Section 51 Indian Penal Code and sentenced to undergo RI for 5 years and fine of Rs. 500/-, in default of payment of fine, he was further sentenced to undergo RI for 3 months. 2. Briefly stated, the facts are that PW.10-Smt. Bimla was married in village Dhamtan Sahib with Pale Ram. She had one daughter Sunita and son Rajbir from the said wedlock. The age of Sunita was about 7 years and that of Rajbir was about 6 years at the time of occurrence. PW.10-Smt. Bimla and her husband Pale Ram were labourers and the husband used to work as Palledar in grain market, Dhamtan Sahib. 3. In the month of May, 1995, at the time of harvesting of wheat crop, PW.10-Smt. Bimla was away to the fields to collect wheat corns, while her husband had gone to work as Palledar. PW.9-Sunita and her brother Rajbir were at the house. In the evening, when PW-10-Smt. Bimla returned to the house, then PW.9-Sunita told her by weeping that when she was playing in the street in front of the house of the appellant, he took her inside his house and gave her money and then committed foul acts i.e. which a husband does with his wife. He committed intercourse with her and when she started crying, he left her and ran away. A Panchayat of brother hood was called but the appellant did not appear before the Panchayat. Therefore, on the next day of the occurrence, PW.10-Smt. Bimla accompanied by her husband and Sunita proceeded to the police station but a police party met them at the bus stand, Dhamtan where Smt. Bimla-PW.10 made statement Ex.PC which was thumb-marked by her after admitting the same to be correct. PW.9-Sunita was taken to the Government Hospital, Narwanan where she was medico-legally examined by a lady doctor. Sunita was wearing a salwar Ex.P1 at the time of occurrence and that salwar was taken by a nurse at the time of medical examination and was later on handed over to the police which was sealed. PW.9-Sunita was taken to the Government Hospital, Narwanan where she was medico-legally examined by a lady doctor. Sunita was wearing a salwar Ex.P1 at the time of occurrence and that salwar was taken by a nurse at the time of medical examination and was later on handed over to the police which was sealed. Satpal, ASI produced MLR Ex.PF, 2 parcels; one containing salwar and other swab of Sunita and the same were taken into possession, vide memo. Ex. PG by PW.11-Badan Singh, ASI. PW.11- Badan Singh, ASI prepared rough site plan Ex.PK of the place of occurrence with correct marginal notes. The appellant was arrested on 6.5.1995 and was got medico-legally examined and was found fit to perform sexual intercourse, vide M.L.R. Ex.PG. 4. After completion of the investigation, challan was put up in the trial Court, who, in turn, committed the case to the Court of Sessions. 5. Having made out a prima facie case, the appellant was charged under Section 376/511 Indian Penal Code to which he pleaded not guilty and claimed trial. 6. In order to prove the allegations, the prosecution examined 11 witnesses. Pale Ram was given up as unnecessary and the prosecution evidence was closed on 7.2.1996. 7. After the close of the prosecution evidence, statement of the appellant under Section 313 Criminal Procedure Code was recorded wherein he denied the allegations of the prosecution and pleaded false implication. 8. After hearing learned PP for the State and the defence counsel, Additional Sessions Judge (II), Jind, vide his judgment dated 6.3.1996 found the appellant guilty and convicted him under Section 376/511 Indian Penal Code and sentence him, vide his order dated 8.3.1996, as stated in the earlier part of the judgment. 9. Aggrieved by the said judgment and order, the accused has filed the present appeal. 10. I have heard Shri Bikram Chaudhary, Shri Sudhir Nehra, AAG, Haryana and carefully gone through the record of the case. 11. PW.9-Sunita aged about seven and half years, stated that it was a harvesting season last year in summer season and she was playing in front of the house of the appellant. She next stated that the appellant was related to her as her grand father in remote relationship and his wife was alive. 11. PW.9-Sunita aged about seven and half years, stated that it was a harvesting season last year in summer season and she was playing in front of the house of the appellant. She next stated that the appellant was related to her as her grand father in remote relationship and his wife was alive. She further stated that her mother was away to the fields on that day while her father was away to Mandi in connection with his livelihood. She also stated that she and her younger brother Rajbir were at the house and when she was playing, then the appellant called her inside his house and made her lie on the cot and removed her salwar by opening its string. She further stated that the appellant was wearing Dhoti and he removed his Dhoti and became naked and told her that he would give her money and then slept on her. She next stated that the appellant touched his private part with her female organ and tried to penetrate but she started crying with pain and then he ran away and blood had come from her vagina and her hands had become red with blood because she had touched her private part out of pain. She further stated that after the occurrence, she returned to the house alongwith her brother Rajbir and narrated the whole occurrence to her mother who had returned to the house in the evening. 12. In cross-examination she stated that the appellant did not give her money as assured by him. She further stated that the appellant kept laying upon her for a long time and he put his male organ in her female organ and further the appellant had discharged upon her organ. 13. PW.10-Smt. Bimla has supported the version as told by PW.9-Sunita. In cross-examination, she stated that she had washed away salwar Ex.P1 of her daughter as she was not aware of the legal formalities. PW.6-Dr. Shashi Singla medico-legally examined Ms. Sunita, aged about 7 years, on 5.5.1995 at 1.30 pm. She stated that no injury was seen on the private parts of her body particularly thigh, vagina, face, back and hymen was intact. She next stated that no bleeding was seen on vulva and further swab was taken from vulva. 14. According to F.S.L. report Ex. PN, no blood or semen was detected on salwar or vaginal swab. She stated that no injury was seen on the private parts of her body particularly thigh, vagina, face, back and hymen was intact. She next stated that no bleeding was seen on vulva and further swab was taken from vulva. 14. According to F.S.L. report Ex. PN, no blood or semen was detected on salwar or vaginal swab. Thus, the statement of PW.9-Sunita that blood had come out from her vagina and even her hands were full of blood is not proved from the medical evidence. In fact, her vagina did not bleed. According to the medical evidence, no injuries had been seen on her vagina, face, thigh and even hymen was intact. The lady doctor, who medico-legally examined PW.9- Sunita, also did not state that the wall of the vagina was red. Thus, there was no penetration. It appears that before the appellant could penetrate, he had discharged and no attempt was made to penetrate by the appellant to put his male organ in the female organ of PW.9-Sunita. Hence, at best, to my opinion, offence under Section 354 Indian Penal Code is made out. Therefore, the appellant is found guilty and convicted under Section 354 Indian Penal Code. 15. It is stated in the judgment of the trial Court that the appellant remained in custody from 6.5.1995 to 8.6.1995 during investigation and further he remained in custody w.e.f. 6.3.1996 onwards. The appellant was allowed bail, vide order dated 28.5.1997 and he must have furnished bail bonds thereafter. Thus, he remained in custody for 1 year, 2 months and 22 days and for one month during investigation. Thus, in all, he remained in custody for about 16 months. 16. Keeping in view that the occurrence is of September, 1995 and already 8 years have elapsed and during all this period, the appellant has been suffering agony of the trial, I take a lenient view and sentence the appellant to RI for 15 months and fine of Rs. 500/-. It is stated in the order dated 8.3.1996 by Additional Sessions Judge (II), Jind that fine has already been paid. 17. With the above modification in the sentence, the appeal is dismissed. Appeal dismissed.