Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1019 (PNJ)

Nanak Chand v. State Of Haryana

2004-09-08

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. This appeal has been filed against the judgment and order dated 17.9.1991 passed by the Additional Sessions Judge, Faridabad, whereby, the appellant has been convicted for the offences under Sections 342 and 354 Indian Penal Code (IPC for short). He has been sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500/- for the commission of the offence punishable under Section 342 IPC and in default of payment of fine, to undergo further imprisonment for six months. Besides, he has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- for the commission of the offence punishable under Section 354 IPC and in default of payment of fine, to undergo further imprisonment for six months. However, the substantive sentences were ordered to run concurrently with each other. 2. Case FIR No. 169 dated 9.4.1991 (Ex. PF) was registered at Police Station City Palwal on the statement of the prosecutrix for the offences under Section 376/511 and 342 IPC. It is alleged by the prosecutrix that she knew the appellant, who was residing in their neighbourhood. Some days earlier, she had gone to the house of the appellant to bring water from the tap. The appellant at that time caught hold of her and took her inside his `chhappar (hutment). He undressed her and after undressing himself, he lay naked on her. In the meanwhile, mother of the prosecutrix called her and on this the appellant opened the door of his `chhappar and ran away. The mother of the prosecutrix found her weeping and the prosecutrix told her the entire story. Her father had gone out for doing his daily work and when he came back, the prosecutrix told him about the incident. Thereafter, they went to the police station and lodged the report (Ex. PF). The investigation in the case was taken up by Ravi Datt, ASI (PW-8) and on the same day, he apprehended the accused. He inspected the site of the incident and prepared rough site-plan (Ex. PG). The prosecutrix was taken to the Civil Hospital, Palwal on 9.4.1991, where lady doctor i.e. Dr. Chandrika Malik, Medical Officer, General Hospital, Palwal (PW-2) examined her. The prosecutrix was also examined on 10.4.1991 by Dr. Kusum Chaudhary, Medical Superintendent, ESI Hospital, Ballabgarh (PW-1). 3. He inspected the site of the incident and prepared rough site-plan (Ex. PG). The prosecutrix was taken to the Civil Hospital, Palwal on 9.4.1991, where lady doctor i.e. Dr. Chandrika Malik, Medical Officer, General Hospital, Palwal (PW-2) examined her. The prosecutrix was also examined on 10.4.1991 by Dr. Kusum Chaudhary, Medical Superintendent, ESI Hospital, Ballabgarh (PW-1). 3. After completing the investigation the challan in terms of Section 173 Cr.P.C. was filed in the Court of the Illaqa Magistrate on 28.5.1991. The copy of the challan was supplied to the appellant and the learned Sub-Divisional Judicial Magistrate, Palwal vide his order dated 17.7.1991 committed the case to the Court of Sessions as facts of the case prima facie showed the commission of offences punishable under Section 342, 376/511 IPC, which were exclusively triable by the Court of Session. The learned Additional Sessions Judge, Faridabad, to whom, the case was assigned charged the appellant on 3.8.1991 for having committed an offence punishable under Section 342 and Section 376 read with Section 511 IPC. The appellant pleaded not guilty and claimed trial. 4. The prosecution in order to prove its case examined Dr. Kusum Chaudhary (PW-1), Dr. Chandrika Malik (PW-2), Sr. V.K. Aggarwal, Radiologist (PW-3), Dr. S.S. Singal (PW-4), Sumer Singh, Draftsman (PW-5), the prosecutrix (PW-6), Smt. Kamlesh wife of Deena Ram (PW-7) and Ravi Datt - Investigating Officer, Assistant Sub Inspector (PW-8). Sub-Inspector Prem Singh and Deena Ram, father of the prosecutrix were given up by the Public Prosecutor as unnecessary on 5.9.1991 and the prosecution evidence was closed on the same day. The statement of the appellant under Section 313 Cr.P.C. was recorded, in which he stated that he was innocent and that the father of the prosecutrix namely Deena Ram had quarrel with him and had threatened him to teach a lesson for quarrelling with him and for that reason the appellant had been falsely implicated. In defence, the appellant examined Smt. Krishna (DW-1), Brij Pal (DW-2), Bijender (DW-3) and closed his evidence. The learned Additional Sessions Judge, Faridabad after considering the evidence and material on record convicted and sentenced the appellant in the manner as already noticed above. The said order is assailed in this appeal. 5. Shri R.S. Sihota, learned counsel appearing of the appellant has contended that the learned trial Court has erred in convicting and sentencing the appellant. The learned Additional Sessions Judge, Faridabad after considering the evidence and material on record convicted and sentenced the appellant in the manner as already noticed above. The said order is assailed in this appeal. 5. Shri R.S. Sihota, learned counsel appearing of the appellant has contended that the learned trial Court has erred in convicting and sentencing the appellant. In fact, the defence taken by the appellant that he had been falsely implicated is liable to be accepted. It is contended that the defence witnesses Smt. Krishna (DW-1), Brij Pal (DW-2) and Bijender (DW-3) had stated that there was a dispute regarding rent between the landlord, namely Brij Pal (DW-2) and Deena Ram, i.e. the father of the prosecutrix. The appellant is the nephew of Brij Pal (DW-2) and he along with Deena Ram were the co-tenants of Brij Pal (DW-2). This stand regarding dispute of payment of rent between Brij Pal (DW-2) and Deena Ram and consequent false implication in the case, according to the learned counsel, was liable to be accepted. He has further contended that in such like rent disputes, chances of false implication cannot be ruled out and, therefore, the appellant is entitled to be given the benefit of doubt. In any case, it is contended that the appellant has undergone about 10 months imprisonment, inasmuch as he was arrested on 9.4.1991 and his bail bonds were accepted on 25.6.1991 and, thereafter, he was convicted on 17.9.1991 and was granted bail by this Court on 6.5.1992. Therefore, it is contended that the sentence is liable to be reduced to that already undergone taking into consideration the long lapse of time in hearing the appeal. Even otherwise, it is contended that the sentence already undergone would be commensurate with the offence alleged to have been committed. 6. In response, Shri Sudhir Nehra, AAG, Haryana learned counsel appearing for the State has contended that the defence set up by the appellant is an after- thought and that the appellant in his statement under Section 313 Cr.P.C. did not take the stand that there was dispute regarding arrears of rent for the last 4/5 months prior to the occurrence. In the circumstances, it is contended that the stand taken by the appellant does not inspire confidence. In the circumstances, it is contended that the stand taken by the appellant does not inspire confidence. It is further contended that keeping in view the nature of crime the sentence imposed is just and adequate and same is not liable to be reduced to that already undergone. 7. I have given by thoughtful consideration to the respective contentions of the learned counsel for the parties and have gone through the record. It is appropriate to note that the prosecutrix (PW-6), who stated that she was 10 years old, was examined by the learned trail Court by putting some questions to her and after satisfying itself that she knew the difference between truth and falsehood and she would given rational answers to the questions put to her, examined her as a witness. The prosecutrix had supported her case as made in the FIR (Ex. PF). She was subjected to lengthy cross-examination and nothing favourable could be gathered for the accused from her cross- examination. The prosecutrix (PW-6) states that she was 10 years of age. She had reiterated her version as given in the FIR (Ex. PF). She has stated that the appellant caught hold of her while she was nearing the tap and took her inside his `chhappar. The appellant after undressing her and undressing himself lay naked on her. The age of the prosecutrix in the ossification report (Ex. PC) has recorded her radiological age and between 14 years and 14-1/2 years. Dr. V.K. Aggarwal, Radiologist, B.K. Hospital, Faridabad (PW-3) has proved the report Ex. PC. In his cross-examination, it is stated by him that ossification test is not a certain test to determine the age of a person and there can be margin of two years on either side. Dr. Chandrika Malik, Medical Officer, General Hospital, Palwal (PW-2) examined the prosecutrix and from her examination, it appears that the prosecutrix was not co-operative and, therefore, examination of the hymen was not possible and vaginal swabs could not be taken. In her cross-examination, the doctor said that she did not find any positive sign of recent sexual intercourse on the body of the child (prosecutrix). Dr. Kusum Chaudhary, Medical Superintendent, ESI Hospital, Ballabgarh (PW-1) also stated that there was no mark of external injury on any part of the body of the prosecutrix. In her cross-examination, the doctor said that she did not find any positive sign of recent sexual intercourse on the body of the child (prosecutrix). Dr. Kusum Chaudhary, Medical Superintendent, ESI Hospital, Ballabgarh (PW-1) also stated that there was no mark of external injury on any part of the body of the prosecutrix. Her sex characteristics were not developed and on the examination of her private parts, she did not find any injury on the same. No discharge was present and hymen was intact. No mark of stain was found on the `salwar. Besides, there was no mark of injury at entroitus, which admitted only tip of little finger. She gave her report (Ex. PA). 8. The evidence of the defence witnesses, namely Smt. Krishna (DW-1), Brij Pal (DW-2) and Bijender (DW-3) does not in any manner suggest that the incident had not taken place. Even if it is taken that there was some dispute between the co-tenants and the appellant was relative of the landlord, the same does not in any manner rule out the possibility of incident not having taken place. This is more so when the prosecutrix had named the accused and there was no reason for her to falsely implicate the appellant. The statement of the prosecutrix (PW-6) does inspire confidence and it is not acceptable that a young girl of her age would depose falsely merely because of some alleged dispute between the landlord and her father Deena Ram who was the tenant and on the asking of her father would implicate the appellant who is the nephew of the landlord Brij Pal (DW-2). Besides, there is the statement of Smt. Kamlesh (PW-7), the mother of the prosecutrix (PW-6), who reached the place of occurrence while she was looking for her daughter and on seeing her the appellant ran away and she found that her daughter was weeping while lying naked on the cot in the `chhappar of the appellant. The prosecutrix told her that the appellant had gagged her mouth and had dragged her forcibly inside his `chhappar. She also told her mother that the appellant had called her inside his `chhappar, but she did not respond to his call and only thereafter, he gagged her mouth and dragged her inside the `chhappar. The prosecutrix told her that the appellant had gagged her mouth and had dragged her forcibly inside his `chhappar. She also told her mother that the appellant had called her inside his `chhappar, but she did not respond to his call and only thereafter, he gagged her mouth and dragged her inside the `chhappar. Smt. Kamlesh (PW-7) was also cross-examined but nothing could be gathered from her which in any manner could show the innocence of the appellant. ASI Ravi Datt (PW-8) who investigated the case and prepared rough site-plan and arrested the appellant as well as got the prosecutrix medically examined, also supported the case of the prosecution. 9. From the aforesaid medical evidence and the statement of the prosecutrix, in my view, the trial Court rightly did not convict the appellant for the offence under Section 376 read with Section 511 IPC and rightly found him guilty for the offences under Sections 342 and 354 IPC. Therefore, there is no ground to interfere with the order acquitting the appellant for the offence as recorded by the learned trial Court, for which the appellant has been found guilty. 10. As regards, the quantum of sentence as has already been noticed, the appellant has been sentenced to undergo two years rigorous imprisonment and to pay fine of Rs. 500/- for the offence punishable under Section 354 IPC and rigorous imprisonment for one year and fine of Rs. 500/- for the offence punishable under Section 342 IPC. Two years is the maximum imprisonment provided for the offence punishable under Section 354 IPC and the maximum imprisonment provided for offence punishable under Section 342 IPC is imprisonment for one year or fine which may extend upto Rs. 1,000/- or with both. The occurrence, as already noticed, is of 9.4.1991 and the appeal in this Court has been pending for a considerable time. The appellant himself has undergone about ten months of the sentence i.e. from 9.4.1991 to 25.6.1991 and, thereafter, from 17.9.1991 to 6.5.1992. Besides, the appellant is a labourer. In his statement recorded on 17.9.1991 before the learned Trial Court, the appellant stated that this was his first offence and he was the sole earning member of his family. His parents were aged. Besides, the appellant is a labourer. In his statement recorded on 17.9.1991 before the learned Trial Court, the appellant stated that this was his first offence and he was the sole earning member of his family. His parents were aged. It may also be noticed that the maximum sentence of imprisonment provided for in respect of the offences under Sections 354 and 342 IPC has been imposed by the learned Trial Court. In the circumstances, in my view, ends of justice would be met if the sentence of imprisonment already suffered is reduced to that already undergone. However, at the same time, the amount of fine is liable to be enhanced. The amount of fine is enhanced from Rs. 500/- to Rs. 5,000/- and in default of payment of fine, the appellant shall suffer six months imprisonment. The appellant should deposit the amount of fine in the Court of Chief Judicial Magistrate, Faridabad within four months from the receipt of the certified copy of the order and on deposit of the fine, the same shall be disbursed by the Chief Judicial Magistrate, Faridabad to the prosecutrix (PW- 6). 11. With the modification in the quantum of sentence of imprisonment and fine, the appeal stands disposed of.