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2003 DIGILAW 1471 (PNJ)

Pawan Kumar v. State of Haryana

2003-10-22

NIRMAL SINGH

body2003
JUDGMENT Nirmal Singh, J. - This is an appeal against the judgment and order dated 16.7.1991 passed by the Additional Sessions Judge, Hissar whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 500/- under Section 376 read with Section 511 Indian Penal Code. The appellant was further sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 200/- under Section 292 Indian Penal Code. The appellant was further sentenced to undergo rigorous imprisonment for a period of 1-1/2 years and to pay fine of Rs. 300/-. In default of payment of fine, the appellant has to undergo rigorous imprisonment for one year. 2. The prosecution story, in brief, is that the appellant alongwith his mother and brother was living in a rented house. On 16.8.1990 PW-1 Suman was playing in front of her house at Krishan Nagar, Hissar. The appellant was having an obscene book Ex. P-1 with him. He called Suman PW-1 and handed over the said book to her saying that she should read the book. Thereafter the appellant took Suman to the first floor of the house in the kitchen. The kitchen was deserted one. Thereafter the appellant asked Suman that he would give her Rs. 2/- and asked her to come inside the kitchen. On allurement given by the appellant, the prosecutrix Suman went inside the kitchen. The appellant closed the doors and showed obscene photographs to Suman and asked her to have the obscene acts with him and also promised to pay Rs. 2/- to her. Thereafter, the appellant made Suman to lie on the floor and put off her under wear. The appellant also put off his pant and underwear and tried to commit rape upon the prosecutrix - Suman. Suman started weeping. On hearing her cries, the mother of the prosecutrix Smt. Savitri and Ram Kumar reached at the spot. On seeing them, the appellant ran away from the spot and left the book Exh. P-1. Suman was taken to the hospital. The doctor was not available at that time. She was examined on the next day. On the complaint lodged by Savitri Ex.PA, the case against the appellant was registered. After completion of the investigation, challan was presented before the illaqa magistrate as the case was exclusively triable by the Court of Session. P-1. Suman was taken to the hospital. The doctor was not available at that time. She was examined on the next day. On the complaint lodged by Savitri Ex.PA, the case against the appellant was registered. After completion of the investigation, challan was presented before the illaqa magistrate as the case was exclusively triable by the Court of Session. The case was committed to the court of Session. On commitment, the case was entrusted to Additional Sessions Judge, Hissar for trial. 3. From a perusal of the documents relied upon by the prosecution and hearing the learned counsel for the appellant, a prima facie case under Section 376 read with Section 511, 292 and 293 Indian Penal Code was made out against the appellant to which he placed not guilty and claimed trial. 4. To prove its case the prosecution has examined Suman @ Baby as PW-1, Smt. Savitri as PW-2, Constable Satyavan as PW-3, ASI Ishwar Singh as PW-4, Dr. Mrs. Suman Menon as PW-5, HC Udai Ram as PW-6, Shamsher Singh as PW-7, Dr. Aditya Kumar as PW-8, Inspector Ganeshi Lal as PW-9 and closed its evidence. 5. When the appellant was examined under Section 313 Criminal Procedure Code, the denied simplicitor and pleaded false implication in this case because there was a dispute between his mother and mother of the prosecutrix. The appellant was called to lead evidence in defence but the did not adduce any evidence. 6. After hearing the Public Prosecutor, learned counsel for the appellant and perusing the record, the learned Additional Sessions Judge convicted and sentenced the appellant as stated in paragraph-1 of the judgment. 7. Shri B.S. Walia, learned counsel for the appellant assailed the judgment of the learned trial court on the ground that the learned trial Court has not appreciated the evidence on record in right perspective. He contended that there was a delay in lodging the FIR. He contended that the FIR was not recorded at 7.00 P.M. as alleged by the prosecution, but it was recorded ante-time and ante-dated. He also contended that if the FIR was lodged on the same day at 7.00 P.M. then the Investigator must have recorded the statement of the prosecutrix on the same date and her medical must have been got conducted on the said date. He submitted that statement of prosecutrix Suman was recorded after due diligence and consultation. He also contended that if the FIR was lodged on the same day at 7.00 P.M. then the Investigator must have recorded the statement of the prosecutrix on the same date and her medical must have been got conducted on the said date. He submitted that statement of prosecutrix Suman was recorded after due diligence and consultation. He further submitted that the appellant has been falsely implicated because there was an alteration between the mother of the prosecutrix and mother of the appellant. 8. I have given my thoughtful consideration to the submissions made by the counsel for the appellant and have perused the record. 9. From the facts and circumstances of the case, it appears that there was no delay in lodging the FIR. Rather the FIR was lodged promptly. The occurrence has taken place at 5.30 p.m. Savitri, mother of the prosecutrix has stated before the Investigator that on hearing the crises of her daughter Suman, she alongwith Ram Kumar went to the spot. On seeing them the appellant ran away from the spot leaving behind the book Exh.P-1. Savitri has given the explanation that on the same day, Suman prosecutrix was taken to the hospital. At that time the doctor was not available and Suman was medically examined on the next day. 10. The explanation given by Savitri, mother of the prosecutrix is probable. The FIR has been registered two hours after the occurrence. If the medical examination of the prosecutrix was conducted on the next day as the doctor was not available, then on this ground the case of the prosecution does not become doubtful. 11. The other contention raised by the counsel for the appellant is that no implicit reliance can be placed on the evidence of Suman PW-1, as she was 9 years at the time of occurrence. He submitted that there are chances of tutoring her. He contended that the eye witness to the occurrence was mother of Suman and there are material contradictions in the statement of Suman, PW1 and Savitri PW-2. He further contended that if the occurrence has taken place as alleged by the prosecution, then such like discrepancies are not likely to come in the statements of prosecution witnesses. He submitted that appellant has been falsely implicated as there was an altercation between the mother of the prosecutrix and the mother of the appellant. 12. He further contended that if the occurrence has taken place as alleged by the prosecution, then such like discrepancies are not likely to come in the statements of prosecution witnesses. He submitted that appellant has been falsely implicated as there was an altercation between the mother of the prosecutrix and the mother of the appellant. 12. I have considered these submissions of the learned counsel for the appellant but find the same without any basis. 13. In Baby Kandayanathil v. Stat of Kerala, AIR 1993 Supreme Court 2275, the Apex Court has observed that when a child witness gives answers fearlessly, intelligently and boldly and gives minute details of the occurrence and withstood the cross-examination, the credibility of a such child witnesses cannot be discarded on the ground of being a child. In para 4, the Apex Court has held as under :- "The learned trial Judge has put preliminary questions to each of the witnesses and satisfying that they were answering questions intelligently without any fear whatsoever, proceeded to record the evidence. In the chief examination, each of the witnesses has given all the details of the occurrence. There has been a searching cross-examination and the witnesses withstood the same. We have also gone through the evidence and we do not see any reason to doubt their evidence. They are the most natural witnesses who had been present in the house at the night time. Both the courts have accepted their evidence and we see no ground to interfere. There are no merits in this appeal and the same is dismissed. The appellant who is on bail shall surrender and serve out the sentence and the bail bond stands cancelled. 14. In Panchhi and others v. State of U.P., AIR 1998 Supreme Court 2726, in para 11, their lordships of the Apex Court have held as under :- "Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW-1 being a child witness. According to the learned counsel, evidence of a child witness would always stands irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. According to the learned counsel, evidence of a child witness would always stands irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring." 15. Similar view has been taken in Suryanarayana v. State of Karnataka, AIR 2001 Supreme Court 482 and State of Maharashtra v. Bharat Fakira Dhiwar, 2002(1) RCR (Criminal) 768. 16. In the instant case, prosecutrix-Suman was 9 years old. She has faced the cross-examination fearlessly and boldly and has given the minute details of the occurrence. She has no motive to falsely implicate the appellant. Therefore, her version could not be discarded simply on the ground that she was a child at the time of occurrence. 17. Learned counsel for the appellant assailed the evidence of Suman PW1 and her mother Savitri, PW2 on the ground that mother of the appellant had an altercation with Savitri. 18. There is no evidence on record that mother of the appellant and the mother of Suman prosecutrix had an altercation prior to the occurrence. Furthermore, no mother would like to allege false allegations of rape on a person just to take the revenge on minor issue like an altercation etc. and to put the honour of her family at a stake and to diminish the repute of her unmarried minor daughter. 19. The evidence of prosecutrix Suman and her mother Savitri is consistent on all the material points with regard to date, time, place and manner in which the occurrenced has taken place. 20. Learned counsel for the appellants only pointed out that PW1 Suman has deposed in her statement that her mother and the mother of the appellant had an altercation, but PW-2 Savitri in her statement has deposed that she and Ram Kumar tried to find out that appellant after the occurrence. Neither the appellant nor his mother was traceable and they have gone to the house of other relatives of the appellant. Except this, there was no other discrepancy which has been point out by the learned counsel for the appellant. Neither the appellant nor his mother was traceable and they have gone to the house of other relatives of the appellant. Except this, there was no other discrepancy which has been point out by the learned counsel for the appellant. Such like discrepancies are likely to come in the evidence of truthful witnesses because human memory is not photographic memory. As it has been observed above, the prosecutrix Suman and her mother Savitri have no motive to falsely implicate the appellant. 21. The learned trial Court has rightly appreciated the evidence of prosecutrix Suman and Savitri PW-1 and PW-2 respectively and has rightly observed that there are minor contradictions in their statement. The learned trial Court has rightly observed that human memory also fades away after the lapse of time and simply because there is variation of about 1 or 1-1/2 hours in telling the time of particular event in telling the same can not be considered to be such a material fact to throw out the entire prosecution case. In State of Punjab v. Gurmit Singh, 1996(1) RCR 533 SC, the Apex Court in para 21 has held as under :- "Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or no concern for her honour. It is sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim a rapist dangraders (degrades ?) the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution without seeking corroboration of her statement in material particulars. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution without seeking corroboration of her statement in material particulars. If for some reason the Courts finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short to corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 22. The case of the prosecution is that as per Suman - prosecutrix, on the day of occurrence, she was playing in the street. Toni called her and handed over a book to her and asked her to read that book. She was taken to first floor in a kitchen, which was not in use. The appellant showed the photographs of the obscene book to Suman and asked her to have obscene act with him and he would give Rs. 2/- to her. 23. At the hearing, the attention of the learned counsel for the appellant is drawn towards obscene book Ex.P-1. It was pointed out to him whether the prosecutrix or her mother would purchase such a book. 24. He very fairly conceded that such book would not be purchased by the prosecutrix and her mother. 25. In the book Exh. P-1 there are photographs in compromising position. The act of the appellant that he has given obscene book to the minor comes under the ambit of Section 292 Indian Penal Code. 26. It has been proved by PW-2 Savitri on the record that the appellant has made an attempt to commit rape on Suman prosecutrix aged about 9/10 years. The learned trial Court, therefore, has rightly convicted the appellant under Section 376 read with Section 511 and 292, 293 Indian Penal Code. 27. Lastly, the learned counsel for the appellant submitted that at the time of occurrence, the appellant was 19 years old. The case was registered on 16.8.1990. The learned trial Court, therefore, has rightly convicted the appellant under Section 376 read with Section 511 and 292, 293 Indian Penal Code. 27. Lastly, the learned counsel for the appellant submitted that at the time of occurrence, the appellant was 19 years old. The case was registered on 16.8.1990. He has suffered both mentally and financially and he has, therefore, prayed that some reduction in the sentence may be made. 28. I have considered the submission made by the counsel for the appellant but find the same without any merit. The awarding of sentence is a vary sensitive part. The sentence is to be awarded taking into consideration the facts and circumstances of each case and the discretion given to the Court is to be exercise judiciously. The learned trial Court has awarded rigorous imprisonment for five years and fine of Rs. 500/- to the appellant. The sentence awarded to the appellant can not be considered as excessive one as the age of the prosecutrix at the time do the occurrence was 9/10 years. Suman prosecutrix was not able to understand about sex despite that the appellant tried to rubbish her by giving an allurement that he will give Rs. 2/-. The appellant also showed obscene book to a girl of such tender age. The act of the appellant does not deserve any leniency and, therefore, no ground is made out warranting interference in the discretion used by the learned trial Court while awarding sentence. Therefore, the conviction and sentence awarded by the learned trial Court is confirmed. 29. For the reasons mentioned above, there is no merit in this appeal and the same is dismissed. The appellant is on bail. His bail bond and surety bonds stand cancelled. He be taken into custody to undergo the remaining part of his sentence. Appeal dismissed.