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2004 DIGILAW 694 (PNJ)

Farukh v. State Of Haryana

2004-07-13

VIRENDER SINGH

body2004
Judgment Virender Singh, J. 1. Appellant Farukh moved an application for suspension of sentence on the ground that he is in custody since long and the appeal is not likely to be heard in near future. However, this appeal was set down for final hearing vide order dated 14.5.2004. 2. Prosecutrix in this case is the daughter of Mohd. Ishak PW-11. In view of the observations made by the Honble Apex Court in State of Karnataka v. Puttaraja, 2004(1) RCR(Criminal) 113 (SC), the name of the prosecutrix is not being disclosed. However, she will be referred to only as the prosecutrix in this case. 3. Appellant and his co-accused Aamin son of Budhi were booked in a case FIR No. 399 dated 21.8.1997, registered under Sections 452/376/34 IPC at Police Station, Sadar Ballabgarh. Aamin being juvenile at the time of occurrence, his case was segregated and was sent to the juvenile court for trial. Either side is not aware of the out-come of the said case. 4. The appellant has been charged under Section 452/32 IPC and Section 376 by the trial Court. He now stands convicted for the said charges vide impugned judgment of Additional Sessions Judge, Faridabad, dated 20/24.7.2001 and has been sentenced to undergo RI for 10 years under Section 376 IPC and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further undergo RI for six months. Under Section 452 IPC, he has been sentenced to undergo RI for two years and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo RI for two months. However, both the sentences were ordered to run concurrently. 5. The case of the prosecution runs thus :- Prosecutrix is the first informant in this case. She got her statement Ex. PG recorded with ASI Ravi Dutt PW-8 on 21.8.1997 alleging therein that she was residing with her parents in Binjopur. Her parents had gone out for labour work and she was alone in the house with her six years old brother. After finishing her household work, when she was going to her Baithak after keeping her six years old brother in her lap, two boys entered into the house. One was the present appellant and the second was Aamin (referred to juvenile court). After finishing her household work, when she was going to her Baithak after keeping her six years old brother in her lap, two boys entered into the house. One was the present appellant and the second was Aamin (referred to juvenile court). It is then alleged that the present appellant gave a slap to her brother and he was made to run away and then both of them pushed her in a room meant for fodder and other household items. The door was closed. It is then alleged that both of them put off her clothes and she was subjected to forcible sexual intercourse initially by the present appellant and then by Aamin. The allegation further is that her mouth was gagged. However, she could manage to raise alarm which attracted Manisha, who was staying in the neighbourhood. She pushed the door, which was opened and thereafter, the present appellant and his accomplice Aamin ran away from the spot. Then the case of the prosecutrix is that she went to the house of her fathers sister (Bua) in village Kuresipur and narrated all these facts to her Bua, namely, Hasina PW-13. The prsecutrix then went to the police station along with her father, Mohd. Ishak PW-11 and got her statement recorded, on the basis of which formal FIR Ex. PG was registered at police station Sadar Ballabgarh. 6 ASI Ravi Dutt PW-8 started the investigation of this case. He got the prosecutrix medico-legally examined at B.K. Hospital, Faridabad from Dr. Shashi Bala PW-4. Two parcels containing swab and clothes of the prosecutrix sealed with seal impression of SB (Dr. Shashi Bala) were also taken into possession vide recovery memo Ex. PB. ASI Ravi Dutt then went to the place of occurrence, prepared the site plan Ex. PF of the spot. He recorded the statement of certain witnesses and arrested the present appellant on 24.8.1997 along with his co-accused Aamin. Both of them were then got medico-legally examined from Dr. Subhash Bodwal PW-9. As advised by Dr. Shashi Bala, the ossification test of the prosecutrix was also done by Dr. S.P. Jayant PW-10, who gave his report Ex. PJ. To ascertain the age of the prosecutrix, the dental test was also done by Dr. Rattan Lal PW-12 who gave his report Ex. P- I/1. 7-8 After completion of the investigation, the present appellant was challaned. Shashi Bala, the ossification test of the prosecutrix was also done by Dr. S.P. Jayant PW-10, who gave his report Ex. PJ. To ascertain the age of the prosecutrix, the dental test was also done by Dr. Rattan Lal PW-12 who gave his report Ex. P- I/1. 7-8 After completion of the investigation, the present appellant was challaned. As stated above, he was charged under Section 452/34 IPC and Section 376 IPC. The prosecution in order to bring home guilt to the present appellant has produced the following witnesses :- PW-1 Ved Pal, who tendered his affidavit Ex. PA to prove the link evidence as the swab and clothes taken by the concerned doctor were deposited with him by ASI Ravi Dutt. PW-2 is Krishan Kumar constable, who is an attesting witness of recovery memo Ex. PB vide which the police has taken into possession two parcels containing swab and salwar of the prosecutrix. PW-3 Idrish, Sarpanch of village Binjopur, was declared hostile as he did not support the case of the prosecution. He was confronted with his previous statement by the learned State counsel, as during investigation, his evidence was to the effect that a panchayat was convened in the village about this incident. PW-4 Dr. Shashi Bala, Medical Officer of B.K. Hospital, Faridabad, who on 21.8.1977 at 6.00 P.M. had examined the prosecutrix in this case. At that time, the prosecutrix had disclosed her age as 14 years. She observed as under :- "Breasts were well developed, axillary and pubic hairs were well developed, there were no marks of violence. On examination of external genitalia, hymen margins were having small old tear on left side anteriorly and right side posteriorly. Vagina admitted one finger loose. Uterus were ante-verted and normal in size. Adnexa was not clear." 9. The MLR prepared by Dr. Shashi Bala is Ex. PD. PW-5 Rajender Singh constable is again a witness of link evidence as he has tendered his affidavit Ex. PE and he deposited the case property in the FSL, Madhuban. PW-6 is Ashok Kumar, Draftsman, who prepared scaled plan of the place of occurrence, Ex. PF. PW-7 is Satya Narain SI/SHO, who prepared the final report under Section 173 of the Code of Criminal Procedure. PW-8 is Ravi Dutt ASI. He is the investigating officer of this case. PE and he deposited the case property in the FSL, Madhuban. PW-6 is Ashok Kumar, Draftsman, who prepared scaled plan of the place of occurrence, Ex. PF. PW-7 is Satya Narain SI/SHO, who prepared the final report under Section 173 of the Code of Criminal Procedure. PW-8 is Ravi Dutt ASI. He is the investigating officer of this case. The investigation conducted by him is already detailed by me in the preceding paras of this judgment. PW-9 is Dr. Subhash Bodwal, who had medico-legally examined the present appellant on 24.8.1997 and observed that there was nothing to suggest that he was incapable of performing the act of sexual intercourse. The MLR prepared by him is Ex. PH. PW-10 Dr. S.P. Jayant has given his report Ex. PJ (ossification test report) observing that the age of the prosecutrix was between 15 to 17 years. PW-11 Mohd. Ishak is the father of the prosecutrix. He, when stepped into the witness box, has categorically stated that on 17.8.1997 at 6.00 P.M. when he returned to his house after his work, he found his wife weeping and when he enquired from her, she did not disclose any reason to him and then he went to the house of his brother-in-law (wifes brother). Manisha, her sister, then told him that around 12.00 Noon, the prosecutrix was kidnapped by the present appellant. It is then stated by him that he had been searching her daughter, but with no result and next day also be had been searching her, but with no success and then he disclosed this incident to the Sarpanch of the village, who had assured him of some help in tracing the prosecutrix. He then stated that after two days, the prosecutrix was recovered from the house of his younger sister in village Puresipur. He then stated that thereafter, the Sarpanch convened a panchayat to settle the matter, but the present appellant did not turn up and thereafter, the matter was reported to the police. The explanation given by this witness is that their family is the only family in the village as they are Khati by occupation and there is no other Khati family in the village. PW-12 is Dr. Rattan Lal, Retired District Dental Officer, B.K. Hospital, Faridabad. He also examined the prosecutrix from dental point of view and gave his report Ex. PI/1. PW-12 is Dr. Rattan Lal, Retired District Dental Officer, B.K. Hospital, Faridabad. He also examined the prosecutrix from dental point of view and gave his report Ex. PI/1. As per his opinion, the age of the prosecutrix was more than 12 years and less than 17 years. PW-13 is Hasina (Bua of the prosecutrix), to whom the prosecutrix had disclosed about this incident. She has categorically stated that the prosecutrix had come to her and disclosed to her that she was subjected to sexual intercourse forcibly by the present appellant. She further stated that she thereafter disclosed this fact to her brother also (Mohd. Ishak). PW-14 is the prosecutrix herself. When she stepped into the witness box, she disclosed her age as 17 years. She has reiterated as to what was stated by her in her initial statement Ex. PG, which is the basis of the recording of formal FIR. 10. PW Manisha was given up by the prosecution as having been won over by the accused. Report of the FSL Ex. PK was also tendered. 11. The appellant has pleaded false implication. The suggestion given to the father of the prosecutrix is that in the panchayat, he had admitted that the appellant was falsely involved in this case and he had rather undertaken to get the case cancelled against him. The other suggestion given is that his daughter (prosecutrix) had elopped with some other boy and to avoid humiliation, the appellant has been implicated in this case. The suggestion given to the prosecutrix is that she had run away with some other person of her choice and the said boy could not be traced and ultimately, in order to save humiliation, the present appellant has been falsely implicated in this case. 12. After appreciation of the entire evidence, the trial Court convicted and sentenced the appellant as indicated above. Hence, this appeal. 13. I have heard Mr. R.S. Rai, learned counsel for the appellant and Mr. Sanjiv Sheokand, learned Assistant Advocate General, Haryana. With their assistance, I have gone through the entire record. 14. Mr. Rai contends that the prosecutrix was above the age of 16 years on the date of alleged occurrence. He further contends that the prosecution has not brought any cogent evidence with regard to date of birth and even the father of the prosecutrix has not disclosed the age of her daughter. 14. Mr. Rai contends that the prosecutrix was above the age of 16 years on the date of alleged occurrence. He further contends that the prosecution has not brought any cogent evidence with regard to date of birth and even the father of the prosecutrix has not disclosed the age of her daughter. He then contends that ossification test reflects the age of prosecutrix between 15 to 17 years whereas the dental report indicates her age to be more than 12 years and less than 17 years. Mr. Rai further contends that in the absence of any certificate issued from the office of Registrar, Births and Deaths or even from the Chowkidar, it cannot be said that the prosecutrix was less than 16 years on the date of occurrence. Thus, in this eventuality the age of the prosecutrix should be considered as above 16 tears. 15. The learned counsel then submits that there is considerable delay in lodging the FIR with the police which is not explained by the complainant side. This fact alone is enough to doubt the prosecution case. According to the learned counsel, this delay factor strengthens the plea of the appellant. 16. The learned counsel further contends that even otherwise, the case of the prosecution is suffering from many infirmities and the medical evidence adduced by the prosecution demolishes the case of the prosecution in its entirety. In this regard, my attention has been drawn to the statement of Dr. Shashi Bala PW-4 who has stated that there was no mark of violence on the body of the prosecutrix. From this, the learned counsel wants to develop that in fact nothing had happened with the prosecutrix as alleged by her and that she has falsely implicated the present appellant and his co-accused. The learned counsel has also pointed out certain discrepancies in the statement of prosecutrix and submits that even the FSL report does not corroborate the version of the prosecutrix. In this regard my attention has also been drawn to the cross-examination of prosecutrix where she has stated that she was not made to wash her private parts till examined by the doctor. 17. Relying heavily on the aforesaid submissions, the learned counsel submits that the case of the prosecution is not free from doubt and as such the present appellant deserve acquittal. 18. 17. Relying heavily on the aforesaid submissions, the learned counsel submits that the case of the prosecution is not free from doubt and as such the present appellant deserve acquittal. 18. In the alternative, the learned counsel makes a prayer for reduction in the quantum of sentence on the ground that the appellant was of the age of 18/19 years on the date of occurrence; he remained on bail during the trial and that by now he has also undergone three years of his actual substantive sentence as he is in custody from the date of his conviction. 19. Opposing the arguments of Mr. Rai, learned State counsel contends that there cannot be any reason with the prosecutrix or even with her parents to falsely implicate the present appellant; that the statement of the prosecutrix does not suffer from any basic infirmity so as to extend any benefit of doubt to the present appellant. He then contends very fairly that even if the age of the prosecutrix is said to be more than 16 years, still it cannot be said that the prosecutrix was a consenting party to the wolfish act of two persons, who allegedly entered the Baithak of the prosecutrix after taking advantage of the absence of her parents and thereafter, she was forcibly subjected to sexual intercourse by both of them and the presumption as envisaged under Section 114-A of the Indian Evidence Act would be attracted straightaway in the present case. He, thus, submits that the present appellant has no escape from the commission of offence for which he has been charged and as such, the conviction as recorded by the trial Court deserves to be upheld. 20. Arguing on the point of quantum of sentence as well, learned State counsel submits that the appellant does not deserve any leniency in this regard may be that he was of the age of 18 years at the time of alleged offence. 21-22. After hearing the learned counsel for both the sides and rescanning the entire evidence minutely, I am of the considered view that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt. My reasoning is set out as under :- Admittedly, in this case, the prosecution has not produced any birth entry reflecting the age of the prosecutrix. My reasoning is set out as under :- Admittedly, in this case, the prosecution has not produced any birth entry reflecting the age of the prosecutrix. No evidence has been brought even from the register of the chowkidar to prove the age of the prosecutrix. Mohd. Ishak PW-11, the father of the prosecutrix, has not taken pains to disclose the age of his daughter. The prosecution, thus, relies upon the statement of the prosecutrix, who disclosed her age as 14 years when examined by Dr. Shashi Bala PW-4 after the incident and 17 years when examined before the trial Court on 27.2.2001. Besides this, the prosecution relies upon the report Ex PJ, which indicates the age of the prosecutrix between 15 years to 17 years and the dental report Ex. PI/1 indicating her to be more than 12 years and less than 17 years. There cannot be any dispute that there may be variance of two years on either side in the age and the ossification test cannot be considered to be surest test with regard to determining the age. So can be the position about the report which is based on dental examination. In the instant case also, the margin given by Dr. Rattan Lal PW-12 is of five years. The report indicates that the prosecutrix was certainly of the age of more than 12 years and the outer age as opined by the doctor is 17 years. Let us examine the evidence of Dr. Shashi Bala PW-4 in this regard, who had examined the prosecutrix immediately after the occurrence. According to this witness, the breasts of the prosecutrix were full developed. Axillary and pubic hairs were well developed. No doubt, the age given by the prosecutrix was disclosed as 14 years at that time, but as the doctor was not sure about the age, she asked for radiological examination. The date of examination of the prosecutrix in the court is 27.2.2001. At that time, she disclosed her age as 17 years. In cross-examination, the prosecutrix states that she was born in Madanpur Khadar and she even does not know her date of birth, month or year of her birth. She categorically states that she does not know whether her parents know about he date of birth or not. At that time, she disclosed her age as 17 years. In cross-examination, the prosecutrix states that she was born in Madanpur Khadar and she even does not know her date of birth, month or year of her birth. She categorically states that she does not know whether her parents know about he date of birth or not. 23 From the aforesaid evidence adduced by the prosecution with regard to the date of birth, it can be said that no concrete evidence has been brought on record to prove that the prosecutrix was certainly of the age of less than 16 years on the date of occurrence i.e. 17.8.1997. Even the trial Court has not observed that the age will be important only when a case of consent is made out. Since there is no documentary evidence produced by the prosecution and the ossification test indicates age of the prosecutrix between 15 years to 17 years allowing the margin of two years, I do not feel hesitant in holding that the prosecutrix was of the age of more than 16 years on the date of occurrence. 24. I shall now be examining the case of the prosecution with regard to the other arguments advanced by Mr. Rai so far as actual occurrence is concerned. 25. I have perused the entire evidence of prosecutrix. She has categorically stated on oath that the present appellant and his co-accused had pushed her in a room meant for keeping the fodder and after putting off her clothes, she was subjected to forcible sexual intercourse, first by the present appellant and then by his accomplice, Aamin. I have also seen the statement of Dr. Shashi Bala PW-4 in this regard. No doubt, she stated that the prosecutrix was habitual to sexual intercourse prior to her date of examination, but this cannot be a ground to come to the conclusion that she could be a consenting party to whole of the affair. I have also seen report Ex. PK of the FSL in this regard. No semen was found in the swab or clothes of the prosecutrix. This by itself again would not be a ground to disbelieve the prosecution story as the incident is of 17.8.1997, whereas the prosecutrix was examined on 21.8.1997. I have also seen report Ex. PK of the FSL in this regard. No semen was found in the swab or clothes of the prosecutrix. This by itself again would not be a ground to disbelieve the prosecution story as the incident is of 17.8.1997, whereas the prosecutrix was examined on 21.8.1997. Some weakness has crept in the statement of the prosecutrix, as she has stated that she was made not to take bath of her private part till she was medico-legally examined, but this weakness again would be of no consequence so far constituting an offence of rape as only penetration is sufficient. When the statement of prosecutrix is appreciated in its entirety, in my view, it does not suffer from any basic infirmity so far as the present occurrence is concerned. 26. There is some delay in lodging the FIR in this case. But in a case of sexual assault, delay in lodging of FIR usually occurs because of the reluctance of the prosecutrix and her family members to go to the police station and complain about the incident which concerns the reputation of the prosecutrix and other members of the family. It is only after giving a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging of the FIR in respect of offence of rape, it cannot be said to be fatal to the prosecution. In the instant case, the delay is duly explained by the father of the prosecutrix and in my considered view, the explanation is absolutely natural in the facts and circumstances of the case. In State of Punjab v. Gurmit Singh, 1996(1) RCR(Crl.) 533 (SC) : AIR 1996 SC 1393, the Honble Apex Court has observed that a girl, in a traditional bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society. No self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. 27. No self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. 27. It is also well known fact and well recognized by judicial pronouncements that in our Indian Society, any such occurrence of rape casts a stigma on the woman and her family members. So, in our society it is highly improbable that any father or any girl or woman would make false imputation that she has been raped. An unmarried girl is always aware that it would be difficult to find a suitable match from the respectable family, once the allegation of rape has been publicised. Wild allegations of rape cannot be raised just for nothing. They inevitably lead to mental torture and suffering of the woman and her family involved. The victim would feel extremely embrassed or ashamed on account of up-bringing in a traditional bound society where by and large sex is a taboo. It is also clear by now on the basis of authoritative judgments that the testimony of the prosecutrix in a rape case carries considerable weight and there is no rule that her testimony cannot be acted upon without corroboration in material particulars. Even if no injury on the person of the prosecutrix is found, it cannot be said that the prosecutrix was a consenting party. 28. In State of Rajasthan v. N.K., 2000(2) RCR (Criminal) 471 (SC), three Judges Bench of the Honble Apex Court has held that absence of injury on the person of the prosecutrix is not necessarily an evidence of falsity of allegation or evidence of consent. In the said case, the prosecutrix had just crossed 16 years and the accused was an able-bodied young man and full of energy. The accused over-powered and committed rape despite resistance by the prosecutrix. In that eventuality, their Lordships have held that the absence of marks of external injuries on the person of prosecutrix cannot be adopted as formula for inferring consent of the prosecutrix that she was a willing party as it depends on the facts of each case. It was further observed in the aforesaid case that a father would not ordinarily subscribe to false story of sexual assault involving his own daughter and thereby putting at stake the reputation of his family and jeopardising the married life of his daughter. 29. It was further observed in the aforesaid case that a father would not ordinarily subscribe to false story of sexual assault involving his own daughter and thereby putting at stake the reputation of his family and jeopardising the married life of his daughter. 29. A peculiar feature of the instant case is that the prosecutrix when appeared in the witness box in year 2001, she by that time had got married as is clear from her statement recorded on oath. By that time, she was married to one Iqbal and was residing at village Samauddinpur (UP). Without caring for the un-called for rumours the prosecutrix has taken a bold step to depose against the appellant, that too, with the approval of her husband. This fact by itself speaks volumes of the truth in her statement. Even otherwise, under Section 114-A of the Indian Evidence Act, the court shall presume that she did not consent when the victim in this regard makes a statement before the court. (Prem alias Ballu v. State of Haryana, 2003(1) RCR (Criminal) 237 (P&H) refers). 30. As a sequel to the aforesaid discussion, I am of the considered view that the prosecution has been able to bring home the guilt to the present appellant beyond any shadow of doubt and as such, the conviction earned by him for all the charges deserves to be maintained. It is ordered accordingly. 31. I have considered the case of the appellant with regard to sentence part as well. He has been sentenced to 10 years RI under Section 376 IPC and two years RI under Section 452 IPC. The minimum punishment awarded under the statute for an offence of gang rape is 10 years RI and the same may be life as well. No doubt, the appellant has not been technically charged under Section 376(2)(g) IPC, but virtually it amounts to gang rape. According to the proviso clause, the court for special reasons can impose a sentence of imprisonment for a term of less than 10 years. The appellant was of the age of 18/19 years at the time of alleged offence. The prosecutrix, who was hardly of the age of 16 years or above, has fallen prey at the sexual lust of the present appellant and his co-accused Aamin. The appellant was of the age of 18/19 years at the time of alleged offence. The prosecutrix, who was hardly of the age of 16 years or above, has fallen prey at the sexual lust of the present appellant and his co-accused Aamin. Though, the appellant is in custody since the date of his conviction i.e. 20.7.2001 and has otherwise also faced the ordeal of long trial of seven years by now yet in the backdrop of the peculiar facts of the present case, there is no mitigating circumstance in his favour and I am of the considered view that the appellant does not deserve even the least sympathy with regard to the quantum of sentence. Consequently, the sentence as awarded by the trial Court is also up-held. 32. To sum up, the net result is that the present appeal is dismissed on all counts.