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2007 DIGILAW 1012 (PNJ)

Amrik Singh Alias Kala v. State Of Punjab

2007-04-28

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. Accused-appellant Amrik Singh (hereinafter referred to as the accused) faced trial for committing rape on the prosecutrix (name not disclosed), a child of five years of age, on 4.3.2001. Consequently, the accused was convicted by the learned Additional Sessions Judge, Gurdaspur vide its judgment dated 27.2.2003, and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 5000/-. In default of payment of fine to further undergo rigorous imprisonment for six months. 2. The allegations as per statement Ex.PA made by Mohinder Singh @ Gola son of Pritam Singh, before SHO Bachittar Singh, are that on 4.3.2001, his son Jagga and the prosecutrix were playing in the street. After some time, on coming to know that the accused had taken both the children to the fields while alluring them with biscuits. He along with Bhupinder Singh, member Panchayat went towards the fields. When they reached near the wheat field, they saw accused committing rape upon the prosecutrix. On seeing them, he fled away from the spot. Blood was oozing from the private part of the prosecutrix. 3. On the aforesaid statement Ex.PA, SHO Bachittar Singh made his endorsement Ex.PA/A, on the basis of which formal FIR Ex.PA/1 was registered by MHC Iqbal Singh against the accused. He visited the spot; inspected the spot of occurrence; prepared the rough site plan Ex.PH; recorded statements of the witnesses; got the prosecutrix medico-legally examined; and on completion of the investigation, challan against the accused was presented in the Court. 4. Consequently, charge under Section 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial. 5. In order to seek conviction against the accused, the prosecution examined Dr. Jagjiwan Lal (PW1), who examined the prosecutrix regarding her age and opined that she was 5-6 years of age at the time of occurrence. Prosecution further examined Constable Baldev Raj (PW2), Mohinder Singh complainant (PW3), MHC Iqbal Singh (PW4), Constable Lakhbir Singh (PW5), Constable Kamaljit Singh (PW6), Bhupinder Singh Member Panchayat (PW7), ASI Gurnam Singh (PW8), Dr. Artinder Kaur Dhillon (PW9), Prosecutrix (PW10), SI/SHO Bachittar Singh Investigating Officer of this case and Dr. Gagan Sukhuja (PW12) who medico- legally examined Amrik Singh accused and opined vide his report Ex.PK that there was nothing to suggest that he was incapable of doing sexual intercourse. Artinder Kaur Dhillon (PW9), Prosecutrix (PW10), SI/SHO Bachittar Singh Investigating Officer of this case and Dr. Gagan Sukhuja (PW12) who medico- legally examined Amrik Singh accused and opined vide his report Ex.PK that there was nothing to suggest that he was incapable of doing sexual intercourse. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in this case. Despite opportunity afforded to the accused, he did not lead any evidence in defence. 6. Ultimately, the trial ended in conviction. Hence, this appeal. 7. I have heard Mr. Sandeep Verma, learned counsel for the appellant, Mr. A.S. Jatana, learned Additional Advocate General, Punjab and scanned the records of this case with their able assistance. 8. Dr. Jagjiwan Lal (PW1) while x-raying the prosecutrix to determine her age opined vide his report Ex.PW1/A that the prosecutrix was only 5-6 years of age. This factum of age also duly stands corroborated by Mohinder Singh complainant (PW3) and Bhupinder Singh (PW7) member Panchayat of the village. That apart, the prosecutrix herself appeared in the witness box as PW-10 and was examined as a child witness. Nevertheless, it has not been challenged by the accused in any manner that she is a child of prone age. To prove the factum of rape, the prosecution examined Prosecutrix (PW10) and her testimony stands corroborated by Mohinder Singh (PW3) and Bhupinder Singh (PW7) member Panchayat, who were already on the search of the girl child and they had come to know that the accused had allured her to the fields. On coming to know about the aforesaid fact, they rushed to the fields and caught hold the accused red handed. All the three witnesses are quite consistent on all material particulars. Notwithstanding the fact that the prosecutrix being a child witness could not be placed reliance but her testimony stands corroborated not only by Mohinder Singh (PW3) and Bhupinder Singh (PW7), but also by the medical evidence. Even if, the evidence of the prosecutrix is excluded, even then Mohinder Singh (PW3) and Bhupinder Singh (PW7) having witnessed the occurrence consistently stated that when they went to the field in search of the child, they heard the cries of the child and when they reached near, they saw the accused committing rape upon the prosecutrix. Blood was oozing out of the vagina of the prosecutrix. 9. Blood was oozing out of the vagina of the prosecutrix. 9. Now coming to the medical evidence, Dr. Artinder Kaur Dhillon, Civil Hospital, Gurdaspur conducted medico-legal examination of the prosecutrix on 5.3.2001 and gave her report which reads as under :- "General physical examination: Patient was conscious, cooperative, well oriented. Her pulse rate was 110 per minute, good volume regular. Breasts nipple land aureola were normal. No scratch mark or injury on rest cheeks, forearms, lower lips and abdomen. Local examination : Labia majora was normal. Labia minora reddish pink in colour. Multiple abrasion marks were present on pubic pinkish mucosa seen. A small 0.5 cm tear was present in hymen at posterior fourchette. Two swabs taken one from outside hymen from posterior fourchette. One swab taken from vagina and was sent for chemical examination. Patient was referred to Radiological department for determination of age. Following things were handed over to the police :- 1. Container containing under-garments of patient and shirt, stripped white and blue 2. Container containing two test tubes with swabs taken from outside hymen and one from vagina. 3. Carbon copy of MLR. 4. Carbon copy of FIR. 5. Attested specimen seal. 10. She proved copy of the MLR Ex.PE. On receipt of the report of the Chemical Examiner Ex.PF, she opined that possibility of rape with prosecutrix cannot be ruled out. The FIR in this case is very prompt. The accused was also got medico-legally examined and he was found to be fit to do sexual intercourse. The reports made by the Chemical Examiner Ex.PX and Ex.PY also lend sufficient support to the prosecution case. 11. The plea as set up by the accused that the male organ was found free from any injury, therefore, no inference could be drawn that penetration took place, as such no offence under Section 376 IPC is made out. 12. Having given my thoughtful consideration to this contention, I do not find any merit in the same. It is well settled by now that the full penetration of the male organ into a narrow vagina of the prosecutrix aged 5-6 years of age was not necessary for completion of rape. 12. Having given my thoughtful consideration to this contention, I do not find any merit in the same. It is well settled by now that the full penetration of the male organ into a narrow vagina of the prosecutrix aged 5-6 years of age was not necessary for completion of rape. The injuries on the private part of the prosecutrix and the fact that the blood was oozing out of the vagina are indicative of the fact that full penetration may not have taken place but partial penetration could not be denied. Reliance, if any, can be made to the judgment delivered in case Dalbir v. State of Haryana, 2002(3) RCR(Criminal) 330 : 2002 Crl. L.J. 3960 (P&H), wherein it was observed as under:- "16. Suffice it to say, it may not have been complete penetration of the male organ into the narrow vagina of Pinki, who was only 5/6 years of age. If there had been serious efforts by the accused at penetrating his penis into the narrow vagina of Pinki, there would have been injury on his penis. Absence of injury on his penis suggests that there may not have been full penetration but only partial penetration into the narrow vagina of Pinki. Rape is defined in Section 375 IPC, as under :- "375-Rape : A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions - First - Against her will. Secondly - Without her consent. Thirdly - With her consent, when her consent has been obtained by putting her on any person in whom she is interested in fear of death or of. Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifth - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under sixteen years of age. Sixthly - With or without her consent, when she is under sixteen years of age. Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. 17. It was held by Honble Supreme Court in Madan Gopal Kakkad v. Naval Dubey, 1992(3) RCR(Criminal) 461 : 1992(2) Criminal Court Judgments 545 : (1992 AIR SCW 1480) that penetration, however, slight is sufficient for constituting the offence of rape. 18. For Constituting the offence of rape, it is not necessary that there should be full penetration of the male organ into the vagina. 19. It was held in Rahul Pundalik Birahade v. State of Maharashtra, 2002(2) RCR(Crl.) 344 (Bombay) that slight penetration of penis into the vagina is sufficient to complete the offence of rape. It is not necessary that there should be complete penetration of penis, emission of semen and rupture of hymen. 20. In this case, it was not an attempt at rape but rape on Pinki a girl aged 5/6 years as if there had been no penetration of penis of the accused into the narrow vagina of Pinki, there would have been no injury on the vagina of Pinki." 13. In this case also, though no injury was detected on the private part of the accused but injuries were found in the vagina of the prosecutrix, but also recovered blood stained clothes which he was wearing at the time of incident. Witnesses categorically stated that they had spotted the accused while committing the rape. As such, for completion of the offence under Section 376 IPC full penetration of the male organ in the vagina of the prosecutrix was not necessary and the injury on the private part of the accused was also immaterial. It is not the case where interested witnesses have been examined. Bhupinder Singh (PW7) is the Member Panchayat of the village who had no animus against the accused to depose against him. Since they had come to know that the accused had allured the child and took her away in the fields, therefore, their presence at the spot cannot be said to be unnatural. No other argument has been advanced in order to assail the prosecution version. Since they had come to know that the accused had allured the child and took her away in the fields, therefore, their presence at the spot cannot be said to be unnatural. No other argument has been advanced in order to assail the prosecution version. In view of the aforesaid reasons, I do not find any merit in the appeal and the same is hereby dismissed.