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2004 DIGILAW 749 (PNJ)

Suresh Kumar v. State of Haryana

2004-07-22

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - By this judgment, I shall be disposing of Criminal Appeal No. 668-SB of 1995 (Suresh Kumar v. State of Haryana) and Criminal Appeal No. 686-SB of 1995 (Prem Singh v. State of Haryana) as both the appeals arise out of the same impugned judgment of learned Additional Sessions Judge, Hisar dated 6.10.1995 whereby Prem Singh and Suresh Kumar appellants have been convicted and sentenced as under : Prem Singh appellant U/S 363 Indian Penal Code RI for 3 years and to pay a fine of Rs. 500/-, in default to suffer further RI for one month. U/S 366 Indian Penal Code RI for 5 years and to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer further RI for two months. U/S 376 Indian Penal Code RI for ten years and to pay a fine of Rs. 1,000/-, in default to suffer further RI for two months. However, all the substantive sentences have been ordered to run concurrently. Suresh Kumar U/S 376 Indian Penal Code RI for ten years and to pay a fine of Rs. 1,000/-, in default to suffer further RI for two months. 2. In view of the observations made by the Honble Apex Court in State of Karnataka v. Puttaraja, 2004(1) RCR(Cri.) 113 (SC), the name of the prosecutrix is not being disclosed. However, hereinafter she shall be referred to as prosecutrix. 3. The prosecutrix is daughter of Punam Chand PW-13/the complainant. He alleges that on 23.5.1994, his daughter had gone to her school at 6.30 AM and did not return in the evening. Search was made for her by him and the other members of the family. He came to know that his daughter had been kidnapped by the present two appellants because they were also missing from their respective houses. Since the whereabouts of his daughter could not be known for two days, he lodged the report with the police on 25.4.1994. On his statement (Ex.PG) recorded by SI Mange Ram (PW-15), formal FIR Ex.PH was registered. SI Mange Ram started searching for the appellants and the prosecutrix. On 26.5.1994, when he was present with Punam Chand, Ram Sarup and other police officials at Bus Stand Jind, the prosecutrix and Prem Singh appellant were spotted in a bus. They were brought down from the bus. Statement of the prosecutrix was recorded. SI Mange Ram started searching for the appellants and the prosecutrix. On 26.5.1994, when he was present with Punam Chand, Ram Sarup and other police officials at Bus Stand Jind, the prosecutrix and Prem Singh appellant were spotted in a bus. They were brought down from the bus. Statement of the prosecutrix was recorded. Prem Singh appellant was arrested. Both of them were got medico-legally examined. The clothes of the prosecutrix were taken into possession vide recovery memo. Ex.PN. Suresh appellant was also arrested. On 27.5.1994, statement of the prosecutrix (Ex.PM) was recorded by Sh. Anil Kumar Panwar, Sub Divisional Judicial Magistrate, Hansi (PW-12) on the police request. The school certificate (Ex.PK) of the prosecutrix was produced by her father, which was also taken into possession. Photostat copy of the entry in the book of the Chowkidar (Ex.PR) was also taken into possession. The scooter on which the prosecutrix was allegedly kidnapped, was also taken into possession. The site-plan (Ex.PD) of the place of alleged rape was also prepared on the pointing out of the prosecutrix. After completion of investigation, both the appellants were challaned. 4. In order to substantiate the allegations against the appellants, the prosecution has examined as many as 15 witnesses. The germane material witnesses shall be discussed at the appropriate stage. 5. The stand taken by the appellants in their statements under Section 313 Criminal Procedure Code was that they were innocent and have been falsely involved in this case. In their defence, they have produced Dr. T.R. Garg (DW1), who had conducted the radiological examination of the prosecutrix in order to determine her age. 6. I have heard Mr. Baldev Singh, learned Senior Advocate for the appellants assisted by Mr. Arshvinder Singh and Mr. Bijender Dhankar, AAG, Haryana. With their assistance, I have perused the entire evidence on record minutely. 7. Learned counsel for the appellants contends that the prosecutrix has not brought any cogent evidence to show that the prosecutrix was less than 16 years of age on the date of occurrence. He pointed out that when examined as PW11, the prosecutrix has described her date of birth as 11.2.1980, whereas Smt. Pushpa Devi (PW-8), who is the Head Teacheress of Government Primary School, Bir Farm, Hansi has deposed that the prosecutrix had studied in that school upto 5th standard and that her date of birth as recorded in the school register is 5.3.1981. The learned counsel then contends that at the time of medico-legal examination of the prosecutrix, Dr. Urmil Dhattarwal (PW-1) had advised her ossification test for the purpose of determining her age and the said test was done by Dr. T.R. Garg, but the prosecution has intentionally withheld the report of radiological examination, which was ultimately proved by the appellants by producing the said doctor in their defence as DW-1. According to the said report, the age of the prosecutrix was between 15 to 16-1/2 years and if a margin of two years is extended, her age comes around 18 years. From this, the learned counsel wants to develop that to all intents and purposes, the prosecutrix was of the age of 18 years at the time of alleged occurrence. 8. The next argument raised by the learned counsel is that the story as projected by the prosecutrix appears to be most improbable on the face of it. He has taken me through the statement of the prosecutrix and contends that it has come in her statement that she had been roaming about with the appellants on a scooter and even in a bus and that inspite of that she did not raise any hue and cry, so as to attract anyone, which indicates that she was a consenting party to his elopement and was not enticed by any of the appellants. Consequently, the charge under Sections 363/366 Indian Penal Code qua Prem Singh also stands demolished. 9. The learned counsel then attacking the main allegation of rape contends that the story of rape is again a concocted version as the prosecutrix in her statement recorded by SI Mange Ram on 26.5.1994 does not utter even a single word about the commission of rape upon her by the appellants and thus the story of rape was introduced on the following day when her statement Ex.PM was recorded under Section 164 Criminal Procedure Code by the Judicial Magistrate. This, according to the learned counsel, indicates that the prosecutrix was tutored to come out with a false version of rape in order to involve the appellants. He further contends that the medical evidence also demolished the allegation of rape. He has drawn my attention to the statement of Dr. This, according to the learned counsel, indicates that the prosecutrix was tutored to come out with a false version of rape in order to involve the appellants. He further contends that the medical evidence also demolished the allegation of rape. He has drawn my attention to the statement of Dr. Urmil Dhattarwal (PW1), where she was stated that on 27.5.1994 on police request she had opined that the hymen of the prosecutrix was intact and the possibility of intercourse could not be ruled out. The learned counsel then submits that simply on the basis of the report of Chemical Examiner showing detection of human semen on salwar and posterior vaginal swab, it cannot be said that both the appellants had committed sexual intercourse with her. The learned counsel further submits that there is no injury external or internal on the person of the prosecutrix. From all this, the learned counsel develops that the offence of rape is not proved convincingly and this would at the most attract Section 376 read with Section 511 Indian Penal Code. The learned counsel relies upon State of Haryana v. Matru alias Ved Parkash, 1996(1) RCR (Crl.) 718 (P&H). 10. Relying heavily on the aforesaid submissions, the learned counsel for the appellants contends that the prosecution has not been able to prove its case against any of the appellants beyond shadow of reasonable doubt and as such they deserve acquittal. 11. In the alternative, the learned counsel prays for reduction in the quantum of sentence and submitted that so far as Suresh appellant is concerned, he has already undergone more than five years of his actual substantive sentence, whereas Prem Singh appellant has also undergone a considerable period of his substantive sentence viz. 9-10 months. 12. Repudiating the submissions made on behalf of the appellants, Mr. Dhanker, the learned State counsel submits that the prosecutrix was of the age of 13-14 years at the time of the occurrence and cogent evidence has been led by the prosecution in this regard. 9-10 months. 12. Repudiating the submissions made on behalf of the appellants, Mr. Dhanker, the learned State counsel submits that the prosecutrix was of the age of 13-14 years at the time of the occurrence and cogent evidence has been led by the prosecution in this regard. He then contends that the statement of the prosecutrix does not suffer from any basic infirmity so as to extend any benefit of doubt to the present appellants and even if she had not disclosed the factum of commission of rape on the day when she was apprehended, it cannot be said to be an infirmity in the case of the prosecution with regard to charge of rape as on the very next day, the prosecutrix had categorically stated before the Sub Divisional Judicial Magistrate that both the appellants had taken her on one side and committed rape with her one by one. According to the learned counsel, there is no reason to disbelieve this statement. He then contends that if the statement of the prosecutrix is read in totality, there remains no doubt that both the appellants had kidnapped her from the school and thereafter committed rape on her. The conviction as recorded by the learned trial Court qua both the appellants for all the charges deserves to be maintained, the learned State counsel so contends. 13. Arguing on the quantum of sentence, the learned State counsel submits that the appellants do not deserve any leniency in this regard as they joined hands in committing rape upon a young girl of hardly 13-14 years. 14-15. After hearing the rival contentions of both sides and rescanning the entire evidence minutely, I am of the considered view that the prosecution has been able to bring home guilt to both the appellants to the hilt. My reasoning is set down as under :- Much has been said on age of the prosecutrix by learned counsel for the appellants. No doubt, when the prosecutrix stepped into the witness box, she stated her date of birth as 11-12-1980. The oral statement of the prosecutrix loses its effect in the light of the statement of Smt. Pushpa Devi, Head Teacheress, who has categorically deposed that the date of birth of the prosecutrix in the school record is 5.3.1981. Ex.PK is the certificate in this regard. The oral statement of the prosecutrix loses its effect in the light of the statement of Smt. Pushpa Devi, Head Teacheress, who has categorically deposed that the date of birth of the prosecutrix in the school record is 5.3.1981. Ex.PK is the certificate in this regard. No doubt, she has stated that she had brought the application which was made at the time of admission of the prosecutrix but that fact by itself would not make much difference. The certificate Ex.PK has been issued by a Government Official in the discharge of his official duty and there is no reason to disbelieve the same on account of presumption attached to it under Section 35 read with Section 114(e) of the Indian Evidence Act. Baldev Singh Malik, Statistical Assistant, General Hospital, Adampur (PW-10) has deposed that the birth register of police station City Hansi for the year 1980-81 was not available in the record of Chief Medical Officer, Hisar. Although no entry regarding date of birth of the prosecutrix from the office of Registrar Births and Deaths has been produced in this case yet the school record produced in this case clearly indicates that her age was less than 16 years on the date of occurrence. In Umesh Chandra v. State of Rajasthan, 1982 SCC (Crl.) 36, their Lordships of the Honble Apex Court have held that the entries in the school register and admission forms regarding the date of birth constitute good proof of age and where these entries are ante-litem mortem, there was no reason to disbelieve them. In the instant case, it is not disputed that the certificate Ex.PK relates to the prosecutrix. There is no suggestion from the side of the appellants to the contrary. The fact remains that the prosecutrix was got admitted in the school on 2.4.1987 when her date of birth was recorded as 5.3.1981 as is evident from the statement of Smt. Pushpa Devi, Head Teacheress (PW-8). A stray statement given by the prosecutrix, who was hardly of the age of 14 years, takes us no where. Even otherwise, she states that she was born in 1980. The occurrence is of May, 1994. In that eventuality also, she can be considered to be less than 16 years of age at the time of occurrence. A stray statement given by the prosecutrix, who was hardly of the age of 14 years, takes us no where. Even otherwise, she states that she was born in 1980. The occurrence is of May, 1994. In that eventuality also, she can be considered to be less than 16 years of age at the time of occurrence. No doubt, as per ossification test, her age was between 15 to 16-1/2 years, but in my considered view, there is no reason to disbelieve the school certificate Ex.PK. In Bhoop Ram v. State of Uttar Pradesh, 1989 SCC(Crl.) 486, the Honble Apex Court has reiterated that the entries in the school certificate cannot be rejected on the basis of surmises that usually parents understate the age of their children at the time of admission to school. In other authoritative judgments, the Honble Apex Court has also held that the evidence of the doctor regarding age as occurs in the ossification test can be said to be an opinion based on estimate and there can be every possibility of error creeping into the said opinion. 16. The aforesaid discussion leads me to an unequivocal and irresistible conclusion that the prosecutrix was less than 16 years of age on the date of occurrence. 17. At the same time, I also do not find any infirmity in so far as the basic case set up by the prosecutrix is concerned. No doubt, when examined by SI Mange Ram on 26.5.1994, she does not state about the commission of rape upon her by the appellants, yet the factum of rape has been stated by her in her statement Ex.PM recorded by Sh. Anil Kumar Panwar, Sub-Divisional Judicial Magistrate (PW-12) on 27.5.1994. During cross-examination, she has been confronted with her previous statement Ex.DA recorded on 26.5.1994 in this regard. I have seen the statement Ex.PM minutely, wherein she had categorically stated that both the appellants had taken her behind the bushes where they had put her under threat and forcibly committed rape upon her. In vernacular, it reads thus : "Veh mujhe jhund ke peechhe le gaye. Vahan par in dono ne mere saath ulta kaam kiya." (A pertinent question was put to the prosecutrix by the trial Judge as to what does she mean by ulta kaam and she replied as under : "Inhone mere saath blatkar kiya". 18. In vernacular, it reads thus : "Veh mujhe jhund ke peechhe le gaye. Vahan par in dono ne mere saath ulta kaam kiya." (A pertinent question was put to the prosecutrix by the trial Judge as to what does she mean by ulta kaam and she replied as under : "Inhone mere saath blatkar kiya". 18. She has also stated in her statement Ex.PM that blood started oozing out and her clothes got smeared with blood but the appellants had got her clothes washed. The learned counsel for the appellants has also made an attempt to demolish the case of the prosecutrix in the light of the medical evidence where no bleeding per vagina was noticed by the lady Dr. Urmil Dhattarwal. However, the medical evidence and the report of the Forensic Science Laboratory establish that the rape has been committed upon her. On the basis of condition of hymen, Dr. Urmil Dhattarwal (PW1) had initially stated that the possibility of the intercourse could not be ruled out, but at the same time it has come in her evidence that confirmatory report would be given after perusing the Chemical Examiners report of posterior vaginal swab. After perusing the said report, she found that human semen on salwar and posterior vaginal swab showed that intercourse had taken place. Non-detection of blood on the clothes would be of no consequence as for constituting the offence of rape as only penetration is sufficient. No doubt, there is no injury noted by the doctor on the person of the prosecutrix, yet this fact again would not demolish the statement of the prosecutrix. Absence of injury on the person of prosecutrix is not necessarily an evidence of falsity of allegation as held in State of Rajasthan v. N.K.-The Accused, 2000(2) RCR(Crl.) 471 (SC). In the light of the evidence discussed above, there is nothing to disbelieve the statement of the prosecutrix made before the Sub-Divisional Judicial Magistrate on 27.5.1994. 19. Another clinching factor is that within just only a span of one day she comes out with factum of rape committed on her. She was examined by the doctor on 26.5.1994 and by that time the doctor had not given any inclination regarding rape and waited for the report of Forensic Science Laboratory, which reached subsequently after many days. 19. Another clinching factor is that within just only a span of one day she comes out with factum of rape committed on her. She was examined by the doctor on 26.5.1994 and by that time the doctor had not given any inclination regarding rape and waited for the report of Forensic Science Laboratory, which reached subsequently after many days. There was no time with the complainant side to coin a story of rape in the short period of 24 hours. This rather indicates that even if in Ex.DA the initial statement recorded by SI Mange Ram, the factum of rape has not been brought forward by the prosecutrix, this would not be taken as a circumstance to throw out the case of the prosecution in its entirety so far as charge of Section 376 Indian Penal Code is concerned. At the same time, it can be very well comprehend that the prosecutrix, who was just a child of 13-14 years, could not describe the entire incident to the police or even to her father when she was apprehended with Prem Singh appellant at the bus stand. She could be perturbed also at that time. The prosecutrix might have disclosed everything to her father subsequently and thereafter the Investigating Officer took her to the Sub-Divisional Judicial Magistrate for getting recorded her statement under Section 164 Criminal Procedure Code This probably appears to be the reason that the factum of rape could not appear in the initial statement Ex.DA. The judgment cited by the learned counsel for the appellants in State of Haryana v. Matru alias Ved Parkashs case (supra) is distinguishable on facts and does not come to the rescue of the appellants at all. 20. It is a 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 the father of 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 sufferings of the woman and her family involved. 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 sufferings of the woman and her family involved. The victim would feel extremely embarrassed 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. 21. As a sequel to the aforesaid discussion, I am of the view that the prosecution has been able to bring home the guilt to the appellants beyond any shadow of doubt by producing convincing evidence. As such, the conviction suffered by them for all the three charges deserves to be upheld. It is ordered accordingly. 22. So far as quantum of sentence is concerned, no doubt, one of the appellants has undergone five years of his substantive sentence by now and the other has also remained in (custody) for a considerable period. Both the appellants were about 20 years of age at the time of occurrence. But in my view, the appellants do not deserve any reduction in sentence as they have played with the life of an innocent child. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : AIR 1996 Supreme Court 1393, their Lordships of the Apex Court have observed as under :- "Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity." 23. In State of Rajasthan v. Om Parkash, 2002(2) RCR(Crl.) 764 (SC), the accused was of the age of 21 years and had committed the offence of rape on a girl of eight years. The occurrence was 13 years old. No sympathy was shown towards reduction of sentence. In the backdrop of the peculiar facts of the present case in which a girl of hardly 13-14 years has fallen prey at the hands of the appellants, they do not even deserve least sympathy with regard to quantum of sentence. Consequently, the sentence as awarded by the learned trial Court is also upheld. 24. No other point has been urged before me by either side. 25. To sum up the net result is that both the appeals, viz. Criminal Appeal No. 668-SB of 1995 (Suresh Kumar v. State of Haryana) and Criminal Appeal No. 686-SB of 1995 (Prem Singh v. State of Haryana) stand dismissed on all counts. 26. The appellants are on bail. They shall now surrender to custody to suffer the remaining part of their substantive sentence. Appeals dismissed.