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2003 DIGILAW 1547 (PNJ)

Harchanda v. State of Haryana

2003-11-12

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. - This appeal has been instituted by Harchanda against judgment dated 12.11.1990, passed by the learned Sessions Judge, Gurgaon, whereby he was found guilty and convicted under Section 376, Indian Penal Code and vide order dated 14.11.1990, sentenced to undergo R.I. for 7 years and fine of Rs. 1000/-; in default of payment of fine, he was further sentence to undergo R.I. for six months. 2. Briefly stated, the facts are that PW6 Rajwati aged about 10-1/2 years daughter of PW7 Prithi Singh returned to her house from her school situate at village Indri at 1.00 P.M. on 11.12.1989. Her mother Dulari asked her to go to the fields for plucking Bathuwa. She along with Kamla, her cousin daughter of Ram Chander went to the field of Hira Jat situate near the water works towards East of the village. The appellant who was irrigating the field nearby came there and caught hold of PW6 Rjawati and dragged her in his mustard field. He removed her underwear, lifted her legs and after removing his underwear tried to insert his penis into her vagina after applying saliva as lubricant to it. However, PW6 Rajwati and Kamla raised hue and cry to which Hukam Singh son of Khiali alias Chittar was attracted. On seeing him, the appellant left PW6 Rajwati and fled away. Hukam Singh escorted Rajwati and Kamla to the house of PW7 Pirthi Singh. 3. After reaching the house PW6 Rajwati narrated the occurrence to her parents. Her father then narrated the occurrence to the village men and then went to Police Station Sohana in the company of Rajwati and lodged report Ex.PM with PW10 ASI Chhote Lal who made his endorsement on it and accordingly, the formal FIR Ex.PM/1 was recorded. The ASI also recorded the statement of PW6 Rajwati and sent her for medical examination. PW2 Dr. Sadhna Yadav medico-legally examined her and gave medico-legal report Ex.PC. The ASI took into possession a sealed parcel and a copy of the medico-legal report delivered to him by Constable Murari Lal on 12.12.1989 vide memo Ex.PO. 4. ASI Chhote Lal inspected the spot and prepared rough site plan with correct marginal notes. He also got prepared site plan Ex.PR from PW3 Harish Kumar Patwari. He also obtained a certificate from her school regarding age of Rajwati. 4. ASI Chhote Lal inspected the spot and prepared rough site plan with correct marginal notes. He also got prepared site plan Ex.PR from PW3 Harish Kumar Patwari. He also obtained a certificate from her school regarding age of Rajwati. After completion of the investigation, challan was put up in the Court of Judicial Magistrate Ist Class, Gurgaon, under Section 376/511, Indian Penal Code, who in turn, vide his order dated 25.4.1990, committed the case to the Court of Sessions. 5. Having made out a prima facie case, the appellant was charged under Section 376, Indian Penal Code to which he pleaded not guilty and claimed trial. 6. In order to prove the allegations, the prosecution examined 10 witnesses. 7. After close of the prosecution evidence, statement of the appellant was recorded under Section 313, Criminal Procedure Code wherein he denied the prosecution allegations and pleaded false implication. 8. In defence, he tendered copy of the judgment Ex.DC and closed the defence evidence on 9.11.1990. 9. After hearing the learned P.P. and the learned defence counsel, the appellant was found guilty and convicted under Section 376, Indian Penal Code vide judgment dated 12.11.1990 by the learned Sessions Judge, Gurgaon and sentenced vide order dated 14.11.1990, as stated in the earlier part of the judgment. 10. Aggrieved by the said judgment and order, the accused has filed the present appeal. 11. I have heard Mr. Gautam Datt, learned counsel for the appellant, Mr. Sudhir Nehra, learned AAG Haryana and carefully gone through the file. 12. PW2 Dr. Sadhna Yadav initially medico-legally examined PW6 Rajwati on 11.12.1989 at 11.55 P.M. and found that there was no mark of external injury over her body. There was also no mark of injury on her breast. She further found that there was no blood stain present over her thighs and there was also no bleeding present over her vagina. The doctor further stated that the hymen was not intact but there was no bleeding or injury. She proved Ex.PG carbon copy of the medico-legal report. After looking into the report of the Chemical Examiner Ex.PE, she opined that Rajwati was not subjected to sexual intercourse because no semen was found on the underwear of the prosecutrix as well as on the vaginal swabs which were taken from her vagina at the time of her medical examination. 13. After looking into the report of the Chemical Examiner Ex.PE, she opined that Rajwati was not subjected to sexual intercourse because no semen was found on the underwear of the prosecutrix as well as on the vaginal swabs which were taken from her vagina at the time of her medical examination. 13. However, father of the prosecutrix was not satisfied and the prosecutrix was again examined by PW8 Dr. Pushpa Bishnoi on 13.12.1989. She found that hymen was lacerated but no bleeding was present and further there was tenderness and she was not able to pass one finger into her vagina. She proved Ex.PP the correct carbon copy of the medico-legal report. 14. On 11.12.1989 PW2 Dr. Sadhna Yadav had not found any redness or tenderness and no bleeding was present. Of course, she had stated that hymen was not intact. There could be rupture in the hymen due to a variety of reasons and it is not necessary that hymen is ruptured only by penetration of penis. 15. PW6 Rajwati stated that on 11.12.1989 she had gone to pluck Bathuwa from the fields of Hira father of the appellant. The appellant was found present there. He called her and when she went to him, then he took her into his lap and took her to the mustard field. She further stated that she started weeping. Then the appellant applied saliva on her private parts after removing her underwear and also removing his own underwear, the appellant tried to insert his penis into her private part. As she was weeping, the appellant then gagged her mouth with his hand. In the meantime her great paternal uncle Hukam Singh came from the side of the field and on his arrival the appellant ran away. Hukam Singh took her and Kamla to the house. 16. PW7 Pirthi Singh stated that on 11.12.1989 her daughter Rajwati told him that she had been sexually assaulted by the appellant. He was confronted with portion A to A of his police statement Ex.PM wherein it was stated by him that Rajwati told him that the appellant has tried to commit rape upon her. Thus, at best it is a case of attempt to commit rape and not of rape itself. As stated earlier, hymen could be ruptured by a variety of other reasons and not only by penetration of penis into the vagina. Thus, at best it is a case of attempt to commit rape and not of rape itself. As stated earlier, hymen could be ruptured by a variety of other reasons and not only by penetration of penis into the vagina. The report Ex.PE of the Chemical Examiner shows that the prosecutrix was not subjected to sexual intercourse. The police after investigation has also sent a case for attempted rape i.e. under Section 376 read with Section 511, Indian Penal Code. There is no evidence that blood was found on her private parts or on her clothes. Thus, I hold that it is a case of attempted rape and find the appellant guilty under Section 376 read with section 511, Indian Penal Code and sentence him to undergo R.I. for three years and fine of Rs. 500/-; in default of payment of fine, he will further suffer one months R.I. With this modification in the sentence, this appeal is dismissed. Appeal dismissed.