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2004 DIGILAW 320 (PNJ)

Umed Singh v. State of Haryana

2004-03-17

S.S.SARON

body2004
JUDGMENT S.S. Saron, J. - This is an appeal filed by the appellants against the judgment of conviction dated 23.7.1996 and order of sentence dated 26.7.1996. The appellant No. 1 has been convicted for the offence under Section 376 of the Indian Penal Code (Indian Penal Code "for short") and appellant No. 2 has been convicted for the offence under Section 201 Indian Penal Code vide order dated 23.7.1996. Appellant No. 1 has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/- and in default of payment of fine to further undergo rigorous imprisonment for two years for the offence punishable under Section 376 Indian Penal Code. Appellant No. 2 has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence punishable under Section 201 Indian Penal Code. 2. Shri Jitender Chauhan, Advocate, learned counsel for the appellants submits that appellant No. 1 was in custody since 29.4.1995 i.e. the date of registration of the FIR Ex. PA/2. Even after the orders of his conviction and sentence on 23.7.1996 and 26.7.1996 respectively, he was in custody and was granted bail to the satisfaction of the learned Chief Judicial Magistrate, Ambala by this Court vide order dated 4.10.2000. However, he could not arrange necessary sureties and, therefore, continued to remain in jail. Appellant No. 1 now has undergone the entire sentence of imprisonment and since been released. In the circumstances the learned counsel for the appellant states that he does not press the appeal of appellant No. 1 qua his conviction and sentence of imprisonment. He, however, prays for modification of the order of sentence of fine by dispensing with the payment of fine with respect to appellant No. 1. 3. Insofar as appellant No. 2 is concerned, it is contended that she is innocent and the conviction and sentence recorded against her is liable to be set aside. It is submitted that appellant No. 2 is now 70 years of age and even otherwise the only evidence against her is that of the statement of the prosecutrix (PW-1). 3. Insofar as appellant No. 2 is concerned, it is contended that she is innocent and the conviction and sentence recorded against her is liable to be set aside. It is submitted that appellant No. 2 is now 70 years of age and even otherwise the only evidence against her is that of the statement of the prosecutrix (PW-1). It is contended that insofar as the age of the prosecutrix at the time of occurrence is concerned, according to appearance recorded by the trial Court, the prosecutrix was aged about 5-6 years. Besides, as per the medical report she is less than 12 years and, therefore, her evidence cannot be relied upon insofar as appellant No. 2 is concerned. Even otherwise, it is contended that the allegation against appellant No. 2 that after the occurrence she washed the clothes and cleaned the place where blood had fallen, is an after-thought as the same does not find mention in the FIR (Ex. PA/2). 4. In response, Shri Sudhir Nehra, learned Assistant Advocate General, Haryana contends that the sentence of fine qua appellant No. 1 is not liable to be modified by dispensing with the payment of fine and appellant No. 2 is not liable to be acquitted as the evidence on record has been correctly appreciated by the learned trial Court, which calls for no interference. He further contended that she has indulged in the commission of the crime and her conviction and sentence is liable to be sustained. 5. I have given my thoughtful consideration to the respective contentions of learned counsel for the parties. It is appropriate to note that the FIR (Ex. PA/2) in the case was registered on the statement of Ramu (PW-2), the father of the prosecutrix on 29.4.1995. Ramu (PW-2) made a statement Ex. PA, which is to the effect that he did labour work and was having two sons and one daughter i.e. the prosecutrix (PW-1) aged 9 years. His wife had died five-six years ago. Nine months earlier to the registration of the case, he alongwith his children was living in a hut taken on rent by him from Gulbi Devi (appellant No. 2) at Gate No. 4, Panchkula. He could not come to his children because of rush or work and in his absence, Gulbi Devi (appellant No. 2) used to serve meals to his children. He could not come to his children because of rush or work and in his absence, Gulbi Devi (appellant No. 2) used to serve meals to his children. On the day of the occurrence at 7.30 A.M. when he came to his children at Gate No. 4, he came to know that Pappu @ Umed Singh (appellant No. 1), who is the son of Gulbi Devi (appellant No. 2) had committed rape on his daughter i.e. the prosecutrix (PW-1) three/four days ago. He took his daughter to a side and enquired from her with love and affection and she told him that Pappu uncle had committed rape on her around three/four days back after taking off her underwear against her wishes. She wanted to leave but he gagged her mouth with a cloth. Pappu (appellant No. 1) committed rape on his daughter (PW-1) forcibly and he had come to lodge the report. On the said statement Ex. PA, FIR Ex. PA/2 was registered at police station Panchkula. The police after investigating the case filed challan in terms of Section 173 of the Code of Criminal Procedure (Criminal Procedure Code "for short") in the Court of learned Chief Judicial Magistrate, Ambala on 23.6.1995, who vide his order dated 21.7.1995 committed the case to the Court of Session as the offence under Section 376/201 Indian Penal Code were exclusively triable by the said Court. The learned Additional Sessions Judge, to whom the case was assigned, charge-sheeted the appellant No. 2 on 9.8.1995, on the allegation that she on 26.4.1995 at 1.30 P.M., in the area of Gate No. 4, Panchkula knowing that the offence of rape on the Prosecutrix had been committed by her son, did create certain evidence of the offence to disappear by washing the clothes of the prosecutrix and by beating the prosecutrix not to tell any body with the intention of screening the accused Umed Singh (appellant No. 1) from legal punishment and thereby committed an offence punishable under Section 201 Indian Penal Code. It is appropriate to note that the complainant Ramu (PW-2) on 29.4.1995 also made a supplementary statement to the effect that in the morning when he had made a statement to the police, he had forgotten to intimate that his daughter had told him that Gulbi Devi (appellant No. 2) had beaten and threatened her that she should not speak about the incident to any one and had also washed her clothes. The said statement, however, has not been brought on record. In any case, during the trial of the case, the prosecutrix (PW-1) stated that appellant No. 1 had done a wrong act with her while she was sleeping and appellant No. 2 washed her clothes and stain of blood was also cleaned. Besides, she was asked not to tell the incident to any one. Ramu (PW-2), the father of the prosecutrix (PW-1) came after two-three days and the entire incident was narrated to him. In her cross-examination, she stated that her father also asked her to say that the accused had committed wrong act with her and that appellant No. 2 washed her clothes and cleaned blood stains and that she was taken to the doctor. Ramu (PW-2), who is the complainant in the case, while appearing in court does not make a reference to the subsequent statement, which he made to the police on the date of registration of the FIR on 29.4.1995. In the circumstances, the only evidence on record against appellant No. 2 is the statement of the prosecutrix (PW-1) who is a child witness. 6. The Honble Supreme Court in Ratansinh Dalsukbhai Nayak v. State of Gujarat, 2004(1) Supreme Court Cases 64 held that a child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not to be rejected per se, but, the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. The evidence of a child witness is not to be rejected per se, but, the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. It was observed that though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. 7. In Bhagwan Singh v. State of M.P., AIR 2003 Supreme Court 1088, it was held that evidence of a child witness is to be carefully evaluated because he is an easy prey to tutoring. Therefore, the Court always looks for adequate corroboration from another evidence to his testimony. 8. In the case in hand, as already noticed, there is only statement of the prosecutrix (PW-1) with regard to washing of the clothes. The possibility of the same being said only to inflate the version of the prosecution cannot be ruled out. As already noticed Ramu (PW-2), the father of the prosecutrix (PW- 1) had made a supplementary statement to the police regarding his daughter i.e. the prosecutrix (PW-1) informing him that appellant No. 2 had beaten her and had also washed her clothes. However, the said statement has not been brought on record. Besides, the prosecutrix (PW-1) stated that she was asked for her father to also state regarding the washing of her clothes. Therefore, keeping in view the tender age and state of mind of a child and also the fact that it has come on record that she was told by her father to depose in a particular manner, it would be unsafe in the facts and circumstances of this case to sustain the conviction of appellant No. 2 on the basis of the evidence of the prosecutrix (PW-1) only and the benefit of doubt is liable to be given to her regarding her involvement in the case. 9. Learned counsel for the appellants submits that appellant No. 1 has undergone the entire sentence of imprisonment during the pendency of the appeal. 9. Learned counsel for the appellants submits that appellant No. 1 has undergone the entire sentence of imprisonment during the pendency of the appeal. He further submits that appellants are so poor and they are living in Jhuggis. Besides, despite the fact that appellant No. 1 was granted bail on 4.10.2000, he could not arrange surety for his release, therefore, the payment of fine of Rs. 5000/- may be set aside. 10. I have given my thoughtful consideration to the said contention. Keeping in view the peculiar facts and circumstances and the fact that appellant No. 1 is very poor and he has undergone the entire period of sentence of rigorous imprisonment during the pendency of the appeal, it would be just and expedient that the sentence of fine is set aside. 11. Accordingly, the appeal is partly allowed and while maintaining the conviction and sentence of imprisonment of appellant No. 1, the fine imposed on him is set aside and appellant No. 2 is acquitted of the offence punishable under Section 201 Indian Penal Code attributed to her. The appeal is accordingly disposed of. Appeal partly allowed.