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2003 DIGILAW 964 (PNJ)

Sanjay v. State of Haryana

2003-07-16

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This appeal has been filed by the accused appellant against the judgment and order dated 28/30.5.1992, passed by the Additional Sessions Judge, convicting the accused appellant under Section 376 Indian Penal Code and sentencing him to undergo RI for 7 years and to pay fine of Rs. 3000/- and in default of payment of fine to undergo further RI for six months and further directing that the fine of Rs. 3000/-, if realised shall be paid to the prosecutrix Rajwanti. 2. As per the case of the prosecution on 20.8.1990, at about 6 p.m., Rajwanti prosecutrix aged about 10-12 years was guarding the guava trees as her father had taken the guava garden on contract when in the meanwhile accused Sanjay came there and caught hold of her by her arm and took her inside his sugarcane fields and there he opened the string of her salwar and put her on the ground and thereafter after removing his pajama, he inserted his organ inside her vagina and while doing so he had placed his hand on her mouth to prevent her from shouting and in this manner he committed rape on her. As a result of the sexual intercourse committed by the accused upon her forcibly, she started bleeding profusely from her vagina and also became unconscious. On regaining consciousness, she came to her house and narrated the entire occurrence to her mother Smt. Bimla and her father Ram Kumar and they convened a Panchayat but of no avail. Thereafter, on 22.8.1990, Rajwanti prosecutrix accompanied by her parents lodged the report with the police which was duly signed by Rajwanti, who was a student of second class. Thereafter, the Investigating Officer got Rajwanti medico-legally examined. The case was investigated by the police. After completion of investigation the challan was submitted against the accused. The accused was charged for the offence under Section 376 Indian Penal Code. Thereafter the prosecution examined its witnesses. Statement of the accused under Section 313 Criminal Procedure Code was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. He stated that he had been implicated on account of previous enmity, inasmuch as his father had land dispute with Hazari and Ram Kumar and on that account he had been falsely implicated in this case. He stated that he had been implicated on account of previous enmity, inasmuch as his father had land dispute with Hazari and Ram Kumar and on that account he had been falsely implicated in this case. He examined DW-1 Dr. Mrs. Asha Arora and DW-2 Ram Niwas, Sarpanch. 3. After hearing both sides and after perusing the record, learned trial Court convicted and sentenced the accused appellant as stated above. Aggrieved against the same, accused appellant Sanjay filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. At the start of the arguments, learned counsel appearing for the accused appellant produced before me two affidavits of Ram Kumar and Smt. Bimla (parents of the prosecutrix). In the said affidavits, it was alleged that Sanjay accused was convicted and sentenced in the case under Section 376 Indian Penal Code and that the complainant of the said case namely Rajwanti had since been married and that she was residing happily in her house and that the misunderstanding which had cropped in on account of said case under Section 376 Indian Penal Code had since been removed and that they do not want that accused Sanjay should go to jail or should undergo sentence. It was alleged that their family and family of accused Sanjay were living in the village happily and they have no dispute. 6. In my opinion, these affidavits would be of no relevance, especially when these affidavits are of the parents of the prosecutrix and not of the prosecutrix herself. In any case, offence under Section 376 is not compoundable. 7. Learned counsel for the appellant submitted before me that the accused namely Sanjay has been falsely implicated in this case. However, I find no force in this submission of the learned counsel for the appellant. PW-9 Dr. Vibha Dua had medico-legally examined Rajwanti, prosecutrix on 22.8.1990. According to her, the patient had not yet developed secondary sexual characters i.e. axillary hair, pubic hair and breasts were not developed. She did not find any external injury mark. However, on medical examination, she found fresh bleeding present in slight amount. She found that the hymen was ruptured and posterior commissure was bleeding. According to her, the patient had not yet developed secondary sexual characters i.e. axillary hair, pubic hair and breasts were not developed. She did not find any external injury mark. However, on medical examination, she found fresh bleeding present in slight amount. She found that the hymen was ruptured and posterior commissure was bleeding. On police application, Ex.PL dated 3.9.1990, she gave opinion Ex.PM that on medical examination when the patient was under anesthesia, vaginal tear was present which was repaired and, therefore, the possibility of rape could not be ruled out. She deposed that on 23.8.1990, when the patient was admitted in the General Hospital, she was examined under anesthesia and the local examination was done. Slight oozing from posterior commissure was present. Hymen was torn. Left vaginal fornix tear extending posteriorly into posterior fornix 3 cm in length and 0.5 cm. deep was present. Bleeding from tear was present and stritching of tear was done. According to her the patient remained under treatment till 28.8.1990 when she was discharged. PW-6, Rajwanti, categorically stated that the accused had caught hold of her hand and took her to the sugercane field where he opened the string of her salwar and committed illicit intercourse with her against her consent and she became unconscious and the accused ran away and after sometime she regained consciousness and at that time her private parts were bleeding and she saw blood coming out whereupon she came to her house and narrated the occurrence to her mother and that on the third day of the occurrence they went to the police station and she reported the matter to the police. PW-7 Ram Kumar, corroborated the testimony of prosecutrix that on coming to her house, his daughter Rajwanti had told him about the occurrence whereby the accused had forcibly committed sexual intercourse with her. PW-8 Smt. Bimla, mother of the prosecutrix had also supported her that on coming to her house she had told the entire occurrence to her parents. 8. PW-1 Dr. L.C. Jindal, Dental Surgeon had examined Rajwanti on 23.8.1990 and had given the report Ex.PA that the patient was less than 12 years of age. PW-2 Dr. S.S. Wadhwa, Radiologist had radiologically examined Rajwanti on 23.8.1990 and had given the report Ex.PB to the effect that Rajwanti was aged between 10 to 12 years. 9. 8. PW-1 Dr. L.C. Jindal, Dental Surgeon had examined Rajwanti on 23.8.1990 and had given the report Ex.PA that the patient was less than 12 years of age. PW-2 Dr. S.S. Wadhwa, Radiologist had radiologically examined Rajwanti on 23.8.1990 and had given the report Ex.PB to the effect that Rajwanti was aged between 10 to 12 years. 9. From the entire evidence led by the prosecution, in my opinion, it stands fully proved on the record that the accused had committed sexual intercourse with Rajwanti forcibly and against her wishes, resulting in injuries on her private parts. The age of the prosecutrix is proved to be between 10 to 12 years. In this manner, the accused had committed heinous crime by committing sexual intercourse with her forcibly. The learned trial court had rightly held the accused guilty in this case and no fault could be found with the same. The defence version put forth by the accused that he had been falsely implicated in this case on account of land dispute, in my opinion, cannot be accepted especially when the prosecutrix had fully supported the case of the prosecution about the manner in which the accused had committed sexual intercourse with her. The statement of DW-1 Dr. Asha Arora that Rajwanti was examined by her on 21.8.1990 and she was bleeding from inside and that she had told her parents that the patient had a rape history, in my opinion, would be of no help to the accused in this regard. Similarly, the statement of DW-2 Ram Niwas, Sarpanch that no Panchayat was held in connection with the allegation of rape upon Rajwanti, in my opinion, would be neither here nor there and in my opinion, learned Trial Court had rightly not place reliance on the testimony of these witnesses. 10. In view of my detailed discussion above, finding no merit in this appeal, the same is hereby dismissed. Appeal dismissed.