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2004 DIGILAW 397 (PNJ)

Kala @ Kala Ram v. State of Haryana

2004-03-31

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Kala alias Kala Ram alias Kala Singh, son of Modan Singh alias Modan Ram stands convicted under Section 376 Indian Penal Code read with Section 511 Indian Penal Code vide judgment dated 17/18-5-1996 passed by the learned Additional Sessions Judge, Hisar and has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default of payment of which to suffer further RI for six months. Aggrieved by the judgment of his conviction and sentence, he has preferred this appeal. 2. I have chosen to describe the prosecutrix in this case as victim in the light of a very recent judgment rendered by Honble Apex Court in State of Karnataka v. Puttaraja, 2004(1) RCR(Crl.) 113 (SC), in which their Lordships have observed that the name of the victim should not be indicated in the judgment. 3. The case of the prosecution as emerges from the report dated 7.5.1993 of Shankar Lal son of Pat Ram, father of the prosecutrix runs thus : 4. On 21.4.1993, he had gone to Fatehabad to purchase house-hold goods; his wife Ram Piari alongwith his eldest daughter Kalo had gone to the field of one Kehar Singh to harvest the wheat crop. Around 1-00 PM, Kala appellant came to his house to take scissors; at that time the victim, who is his youngest daughter, was all alone in the house; the appellant demanded scissors and the victim went inside the bring the same, the appellant followed her and came inside the room; the closed the room from inside and put the victim under threat; thereafter he took off her salwar; she started weeping; in the meantime her elder sister Pammi (PW-5) happened to come there; she knocked the door; in the meantime, the appellant ran away; the incident was narrated to wife of the complainant, who went to the Sarpanch, but the latter got the matter compromised; on the same day, the complainant came to his house but nothing was narrated to him. 5. 5. It is further alleged that on 22.4.1993 mother of the appellant picked up quarrel with daughter of the complainant and Mohindro, wife of real brother of the complainant, who had gone to take water at the tube-well and then the complainant came to know about this occurrence; father of the appellant had also instigated the appellant and his brother Bagga, who had caused injuries to the complainant on 22.4.1993 itself; the panchayat had also tried to intervene but to no effect. Ultimately the present case was registered on 7.5.1993. 6. The appellant was medico-legally examined on 3.8.1993 by Dr. N. Chakarvarti (PW1), who opined that he was capable of performing sexual intercourse. 7. After completion of investigation, he was challaned. He was charged under section 376 Indian Penal Code read with Section 511 Indian Penal Code. After examining the entire evidence, he was convicted and sentenced by the trial Court, as already indicated above. 8. I have heard Mr. Jitender Sharma, learned counsel for the appellant and Mr. Sanjiv Sheokand, Assistant Advocate General, Haryana at length. With their assistance, I have gone through the entire evidence minutely. 9. Mr. Sharma vehemently contends that the present appellant has been falsely involved in this case at the instance of Shanker, father of the victim, the complainant, in connivance with the police after a lapse of 17 days as the occurrence is of 21.4.1993, whereas the report was made on 7.5.1993 and that the explanation given for the delay is not plausible and this fact in itself is enough to throw out the case of the prosecution. 10. The learned counsel further contends that even the victim has been medically examined on 3.8.1993 and her examination does not indicate that any attempt was ever made to commit rape upon her. The learned counsel then contends that the statement of the victim is otherwise stumbling on all the material aspects and it appears that she has been tutored by her parents to level wild allegations against the present appellant as many improvements have been made by her in the case and this makes her an unreliable witness. He prays that the appellant thus deserves acquittal. In support of his contentions, the learned counsel has placed reliance upon the decision rendered in Balwan v. The State of Haryana, 1994(2) RCR(Crl.) 359 (P&H). 11. He prays that the appellant thus deserves acquittal. In support of his contentions, the learned counsel has placed reliance upon the decision rendered in Balwan v. The State of Haryana, 1994(2) RCR(Crl.) 359 (P&H). 11. In the alternative, the learned counsel for the appellant prays for reduction in sentence on the grounds that at the time of alleged occurrence, the appellant was less than 21 years of age and was unmarried, whereas by now he has got married and is having minor children that the victim who was of the age of about 10 years (although shown as 7/8 years) at that time, must have been settled by now; that sending the appellant to jail once again after a lapse of about ten years would ruin not only his future but would shatter his well settled family also. The learned counsel states at bar that as per the trial Court record, the appellant remained in custody for a total period of eight months during trial as he had absented himself at two occasions and got the bail subsequently. He has also remained in for about one month after his conviction. 12. After appreciating the entire evidence, I am of the view that the conviction as recorded by the trial Court deserves to be maintained. 13. No doubt there is delay of 17 days in lodging the First Information Report, but the same is duly explained by Shanker, father of the victim (PW7), after re-scanning his entire evidence minutely, I do not find any infirmity in this regard. Even otherwise, delay in such type of cases is immaterial as in such situations, reputation of the family is at stake. The argument advanced by the learned counsel on this count is thus repelled. 14. Now reverting to the main issue as to whether the appellant had attempted to commit rape with the victim or not so as to bring the case within the four corners of Section 376 read with Section 511 Indian Penal Code. In this regard statement of the victim is very relevant. A perusal of her statement shows that the appellant after entering in the room made her to lie on the floor, he removed her salwar and thereafter his trousers. She has categorically stated that the appellant tried to do bad act with her. She further gives the manner in detail. In this regard statement of the victim is very relevant. A perusal of her statement shows that the appellant after entering in the room made her to lie on the floor, he removed her salwar and thereafter his trousers. She has categorically stated that the appellant tried to do bad act with her. She further gives the manner in detail. Pammi (PW5) corroborated the version saying that when she warned the appellant to come out of the room or she would call her uncle to the spot, he put on his trousers and left the spot after opening the door. 15. No doubt, the victim was got medically examined on 3.8.1993, and no injury was found on her person, but this fact cannot belie her version and taking it in its entirety, I am of the view that the charge under Section 376 read with Section 511 Indian Penal Code against the appellant is proved to the hilt. Consequently, his conviction is upheld. 16. So far as quantum of sentence is concerned, in my view the appellant deserves a lenient view. In State of Haryana v. Prem Chand, 1997 Supreme Court Cases (Criminal) 1176, their Lordships of the Apex Court have confirmed the order of the trial Court in which benefit under Probation of Offenders Act was extended to the accused convicted under Section 376 read with Section 511 Indian Penal Code. The accused was of the age of less than 21 years and the prosecutrix was of the age of 16 years. 17. As stated and not disputed by the State counsel, the appellant was of the age of 21 years. It is otherwise evident from the charge-sheet. Maybe that the prosecution evidence is not very clear about the age of the victim, but it cannot be denied that she was of tender age at the time of occurrence. No doubt, it has been authoritatively held by the Honble Apex Court that the cases of sexual crime against women are to be seen with utmost sensitivity and to be dealt with sternly. But at the same time, it is to be kept in mind that the sentencing process can be tempered with mercy where it so warrants. The appellant in the present case has since settled down in life after getting married and has become reformed. Likewise the victim might also have by now been comfortably placed in life. But at the same time, it is to be kept in mind that the sentencing process can be tempered with mercy where it so warrants. The appellant in the present case has since settled down in life after getting married and has become reformed. Likewise the victim might also have by now been comfortably placed in life. Therefore, under these circumstances, no useful purpose will be served by sending the appellant to jail after the lapse of ten years. The wounds healed up by times are likely to be re-opened much against the wishes of the concerned families. Furthermore, any whispering campaign by gossip peddlers may not raise its ugly head to dislodge the families concerned. The appellant at the same time has also undergone a reasonable period of his substantive sentence, as stated. In Karamjit Singh v. State (Delhi Admn.), 2001(9) Supreme Court Cases 161, their Lordships have observed as under : "Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the Court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should to be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided again within the permissible limits of law." 18. Taking support from the proposition of law laid down in both the aforesaid decisions i.e. State of Haryana v. Prem and Karamjit Singh v. State (Delhi Admn.) (supra), in my view, in the instant case also, the ends of justice would be adequately met if the sentence awarded to the appellant by the learned trial Court is reduced to the period already undergone (about eight months). Order accordingly. With the modification in the quantum of sentence as indicated above, the present appeal stands dismissed. Appeal dismissed.