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2005 DIGILAW 294 (PNJ)

Mubeen v. State Of Haryana

2005-02-22

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Appellant Mubeen s/o Islam (labourer) was charged under Section 376 of Indian Penal Code for allegedly committing rape upon the daughter of Sabbir on 10.4.2002. The prosecutrix in this case was of the age of 9 years. I am not describing her name as it has been observed by the Honble Supreme Court in State of Karnataka v. Puttaraja, 2004(1) RCR(Criminal) 113 (SC) that in the judgment, be it of Apex Court, High Court or Lower Court, the name of victim should not be indicated. I, therefore, have chosen to describe the prosecutrix as `victim in this judgment. 2. The appellant now stands convicted for the aforesaid charge vide impugned judgment of Ld. Additional Sessions Judge, Fast Track Court, Sonepat dated 25.11.2002 and has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 5,000/-; in default thereof to further undergo R.I. for a period of two months. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the instant appeal. 3. Sabbir (PW-13), the father of the prosecutrix made a statement Ex. P-D to SI Ram Avtar (PW-14) on 10.4.2002 stating therein that out of his four children, the prosecutrix (victim), who was aged 9 years, was the eldest one. She had gone from her house for fetching water at about 3.00 p.m. When she did not return to the house for long time, he along with his wife Noorjahan @ Seema (PW-12) and Birbal s/o Mithan Brahman was going towards Jatwara locality of Sonepat, located near Railway Track, in search of his daughter, he received an information that the present appellant was taking his daughter towards Jatwara locality. It is then alleged that at about 5.00 p.m. when they were going towards Sugar Mill situated in Jatwara locality in search of the daughter, they heard some cries. Then all the aforesaid persons rushed towards that particular place (Pathwara) and noticed that the appellant was raping his daughter, while lying on her. After seeing the father and the other persons, the appellant started running away but he was caught at the spot. He was given slaps and fist blows. Some persons from nearby places had also reached there. In the meantime, the appellant succeeded in getting himself released and fled away from the spot. After seeing the father and the other persons, the appellant started running away but he was caught at the spot. He was given slaps and fist blows. Some persons from nearby places had also reached there. In the meantime, the appellant succeeded in getting himself released and fled away from the spot. It is then alleged that Sabbir alongwith the victim went to the police station and made her statement (Ex. PD). Therefore, formal (Ex. PD/1) was recorded. The victim was medically examined on the same day by Dr. Mrs. Krishna Tehlan (PW-1). The clothes of the victim were also taken into possession. The Investigatng Officer visited the spot on 11.4.2000, prepared the rough site plan, recorded the statements of the witnesses. The appellant was arrested on the same day. He was medically examined by Dr. R.K. Kataria (PW-2). On completion of the investigation, the appellant was challaned in this case. As stated above, he has now suffered conviction. 4. I have heard Mr. Gorakh Nath, learned counsel for the appellant and Mr. D.S. Brar, A.A.G., Haryana. With their assistance, I have gone through the entire record. 5. The learned counsel for the appellant contends that taking the prosecution case to be true on its face, the offence of Section 376 IPC is not proved and it would at the most fall within the mischief of Section 376 IPC read with Section 511 IPC. The learned counsel then contends that as per the medical examination conducted by Dr. Krishna Tehlan (PW-10), the hymen of the prosecutrix was found intact. From this, he develops that may be that the victim had received some injuries on her person, the status of the hymen would indicate that the intercourse was not committed with her. So the charge of Section 376 IPC cannot be said to be legally proved. 6. Otherwise, in order to demolish the case of the prosecution in its totality, the learned counsel has submitted that Birbal, who was accompanying the father of the victim, right from the very beginning, did not support the case of the prosecution and was given up as having been won over. 6. Otherwise, in order to demolish the case of the prosecution in its totality, the learned counsel has submitted that Birbal, who was accompanying the father of the victim, right from the very beginning, did not support the case of the prosecution and was given up as having been won over. He was subsequently examined as one of the defence witnesses who has categorically stated that the appellant had not committed any bad act (rape) with the daughter of Shabir and the boy, who, in fact, had sexually assaulted the victim was caught by him and Shabir. He, however, had succeeded in getting himself released. The learned counsel submits that examination of Birbal as defence witness demolishes the case of the prosecution from its roots. 7. The learned counsel has also pointed out certain discrepancies in the statement of the victim, her mother Noorjahan @ Seema and Sabbir and submits that the case of the prosecution is on a slippery footing. 8. On the basis of the aforesaid submissions, the learned counsel contends that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt for the charge under Section 376 IPC and he deserves acquittal or in the alternative, the main offence of Section 376 IPC may be diluted to one under Section 376 IPC read with Section 511 IPC. 9. On quantum of sentence, the learned counsel contends that the appellant has already undergone 4 years and 10 months by now. He was of the age of 28 years at the time of occurrence and in case, the main charge of Section 376 IPC is disapproved against him, he in that eventuality deserves a lenient view with regard to quantum of sentence. 10. Repudiating the submissions advanced on behalf of the appellant, the learned State counsel submits that the appellant has no escape in this case as the charge against him is proved to the hilt; that there is no reason to disbelieve the statements of the prosecutrix and even if some discrepancies have occurred in the statements of the main prosecution witnesses, that would not demolish the case of the prosecution at all; that from the medical evidence, the main charge of Section 376 IPC is proved in this case and it cannot be said that the appellant had just made an attempt to commit rape upon the victim. 11. 11. On the point of quantum of sentence, the learned State counsel submits that the case in hand is of a child rape and the petitioner who was of the age of 28 years at that stage, does not deserve any concession in this Court. 12. After hearing the learned counsel for either side and perusing the entire record very minutely, I am of the considered view that the prosecution has been able to prove its case against the appellant beyond any shadow of reasonable doubt and his conviction under Section 376 IPC recorded by the trial Court deserves to be upheld. My reasons for arriving at the said conclusion are as under : 13. The main attack on the prosecution case is with regard to the gravity of the offence. I have once again perused the statement of the prosecutrix in the light of the medical evidence on the file. It is the positive case of the prosecutrix that the appellant has committed sexual intercourse with her. She stated that at 3.00 p.m., she had gone to fetch water from the tap in street when she saw the appellant coming in the lane and enquired from her the way to Mohalla Jatwara, Sonepat. She then states that he requested her to accompany him to some distance so that he could reach his destination. She agreed to it and on the way, he forcibly took her to an isolated area in the kikkar trees and committed rape on her person. She then depicts the complete action. Dr. Mrs. Krishna Tehlan, who examined the victim on 10.4.2000 at 11.00 p.m., noticed that there were injury marks over her neck, thigh which were 8 cms inferior (interior ?) to anterior-superior iliac spine. On local examination, injury was also found posterior to hymen. Bleeding was also present. No doubt she has stated that hymen was intact but she has made it clear that injury of forchette extends upto posterior of margin of hymen. In her cross-examination, she makes it clear that the hymen was found intact for the reasons that there was a small passage for entry of penis and therefore, the injury was near the hymen. From the aforesaid medical evidence, perhaps there remains no doubt in my mind that the victim in this case has been subjected to sexual intercourse. In her cross-examination, she makes it clear that the hymen was found intact for the reasons that there was a small passage for entry of penis and therefore, the injury was near the hymen. From the aforesaid medical evidence, perhaps there remains no doubt in my mind that the victim in this case has been subjected to sexual intercourse. There was certainly an act of penetration of male organ though extensive damage is not done in this case to labia majora and labia minora. The bleeding was also present just posterior to hymen and taking all the factors into consideration, ultimately, doctor gave the opinion Ex. PH/1 to the effect that possibility of sexual intercourse with the victim cannot be ruled out. The aforesaid internal status of the private part of the victim speaks volumes of the fact that she has been subjected to sexual intercourse. In sequel to the aforesaid evidence, it can be safely said that rape has been committed. 14. I have very minutely re-examined the statements of the prosecutrix vis-a- vis the statements of her parents who have been examined as PW-12 and PW-13 respectively and do not find any intrinsic infirmity which would uproot the case of the prosecution. Minor discrepancies have to be ignored. 15. Much has been said about Birbal, who according to the prosecution case, was throughout with the parents of the victim and has now been given up as having been won over. But in my considered view, his statement as one of the defence witnesses would not advance the case of the defence even by an inch. In his substantive statement, Birbal states that after the appellant was arrested, he was called by the police to identify him and he told the police officers that the appellant was not the boy, who, in fact, had committed the rape on the victim. If this all was true, the parents of the appellant or anyone from side of the appellant should have raised hue and cry by knocking at the door of the high officers but the same is not done. This shows that in fact, Birbal who was initially joined by the father of the victim, has now chosen to help out the appellant, may be for certain extraneous reasons. This shows that in fact, Birbal who was initially joined by the father of the victim, has now chosen to help out the appellant, may be for certain extraneous reasons. This appears to be the reason that he was given up by the prosecution as having been won over by the accused. In my view, his statement merits dismissal. 16. I have also gone through the statements of Sunil Dalal (DW-2) and the same is also not at all convincing. The defence projected by the appellant as emerges is that he has been falsely implicated in this case and when he was in jail, the victim and her parents had written letters to him in jail and to his advocate also mentioning that they had deposed before the Court under threat and pressure by the police, but no such letter has been produced in defence. The suggestion given to the father of the victim is that the prosecutrix had received injuries on her private part due to a fall on a sharp object and falsely implicated the appellant, in my view, the defence hangs on a very (sic) thread. The complainant side has no enmity at all for which the parents of the victim would project their daughter in order to falsely implicate the appellant in case he was actually not there and someone else of the village had assaulted her. 17. On the basis of the aforesaid discussion, the net result which now surfaces is that the prosecution has been able to bring home guilt to the appellant beyond any shadow of reasonable doubt and as such the conviction under Section 376 IPC already suffered by him is hereby confirmed. Quantum of Sentence : 18. Admittedly the victim was of the age of 9 years on the day of occurrence i.e. 10.4.2002 and the appellant was of the age of 28 years. The appellant, when heard on quantum of sentence by the trial Court, does not disclose as to whether he was married or not. Since he was of the age of 28 years at that time, I presume that he must have got married by then. 19. The appellant, when heard on quantum of sentence by the trial Court, does not disclose as to whether he was married or not. Since he was of the age of 28 years at that time, I presume that he must have got married by then. 19. Imposition of proper punishment is the manner in which the Court responds to the societys cry for justice against criminal, it is so observed by the Honble Apex Court in Dhananjay Chaterjee v. State of West Bengal, 1994(1) RCR(Crl.) 429 (SC) : 1994(2) SCC Crl. 358. In Ravji v. State of Rajasthan, 1996(2) SCC Page 175, it is observed by the Honble Supreme Court that it is nature of the gravity of crime but not criminal, which is judged for consideration of appropriate punishment in a criminal trial. In State of Karnataka v. Puttarajas case (supra), their Lrdships of Honble Supreme Court have observed that a rapist not only causes physical injuries but also leaves a scar on the most cherished possession of a woman i.e. dignity, chastity, honour and reputation. 20. The cases of sexual crime have to be seen with utmost sensitivity. Such type of cases are to be dealt with very stern punishment especially when someone has played with the life of a child. In State of Rajasthan v. Om Parkash, 2002(2) RCR(Crl.) Page 764 (SC), Honble Supreme Court has not shown any sympathy in reduction of the sentence observing that the accused played with the life of a child. In the said case, the girl was of the age of 8 years and that of the accused was of 21 years. 21. In another very recent judgment of this Court rendered in Malkiat Singh v. State of Punjab, 2005(1) RCR(Crl.) 792 (P&H) the life imprisonment as awarded by the trial Court is confirmed in a child rape case (Criminal Appeal 455-DB of 1996 decided on 22.11.2004). 22. Respectfully following the view of the Honble Supreme Court, in my considered view, the case of the appellant does not warrant even least sympathy from this Court with regard to the quantum of sentence as his conduct is revolting to the judicial conscience. He turns out to be a wolf. Consequently, the sentence awarded by the trial Court (i.e. R.I. of 10 years) is also confirmed. The appeal, in hand, thus, fails on all the counts.