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2007 DIGILAW 2066 (PNJ)

Dharampal v. State Of Haryana

2007-11-27

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. On 24.6.2003, Kantu daughter of Joginder was allured by the appellant on the pretext of giving her grapes which she had set out from her house to purchase. The appellant who is said to be a vegetable vendor, asked the prosecutrix to give a push to the cycle-rickshaw from where he was selling his wares and in this manner managed to take her away from the locality. He is said to have taken her to the fields and after violently subjugating the prosecutrix into submission, is said to have committed rape upon her. She was forcibly kept by the appellant in his company and was ultimately recovered on 2.7.2003 by the police which had acted on the complaint of her father. 2. A formal FIR was registered under the provisions of Sections 363/366A/326/511 IPC on 27.6.2003 since the complainant had brought the matter to the notice of the police on 25.6.2003, after he had returned from Sirsa, where he had gone to attend a marriage ceremony. 3. After completion of the necessary investigation, the challan under Sections 363/366A/326/511 IPC was submitted against the appellant and the trial Court which received the case after it was committed to it by CJM, Hisar, charged the appellant accordingly. 4. The prosecution in order to establish the charge against the appellant examined as many as 13 witnesses out of which the prosecutrix herself was examined as PW-6 while the medical testimony was provided by Dr. Anita Bansal-PW 12. Dalbir Singh PW-13 provided the necessary testimony to establish the age of the prosecutrix being the Principal of the School where the prosecutrix is said to have studied. 5. The appellant in his statement recorded under Section 313 Cr.P.C. pleaded false implication but no evidence was led by him in his defence. 6. The trial Court thereafter came to the conclusion that the appellant was guilty of having committed the offence under Sections 363/366A/376 IPC and convicted him accordingly. He was sentenced as follows :- Under Section 363 IPC to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo further RI for one month. Under Section 366A IPC to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-. In default of payment of fine to undergo further RI for 2 months. 500/-. In default of payment of fine, to undergo further RI for one month. Under Section 366A IPC to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-. In default of payment of fine to undergo further RI for 2 months. Under Section 376(F) IPC to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2,500/-. In default to undergo further RI for 3 months. All the substantive sentences were ordered to run concurrently. 7 The aforesaid conviction and sentence awarded to the appellant vide orders dated 9.8.2004 has resulted in the filing of the present appeal in which while assailing the findings recorded by the trial Court, learned counsel for the appellant contended, while making reference to the statement of the prosecutrix PW-6 and the medical testimony Dr. Anita Bansal-PW 12 that no offence under Section 376(F) IPC was made out against the appellant and at best his conviction can be sustained under the provisions of Sections 363/366 and 511 IPC. 8. On the other hand, learned counsel for the respondent submitted that the age of the prosecutrix was established to be nine and a half years and there was a clear case where her testimony could be relied upon and in view of the evidence on record, the appellant could not escape, the conviction and sentence on all counts as has been awarded by the learned trial Court. 9. I have heard the learned counsel for the parties and have perused the record. 10. Concededly the age of the prosecutrix was nine and a half years. There is also no ambiguity about the fact that the appellant had indeed enticed her away and had kept her in his company till the time she was recovered by the police. 11. In this view of the matter and in fact in cases of such kind, the testimony of the prosecutrix assumes great significate and as if it is found to be inspiring enough, the conviction can be based solely on such testimony. 12. A perusal of the statement of the prosecutrix reveals that she has given a forthright account of the manner in which she was allured by the appellant and taken away from her locality on the pretext of giving her grapes. Thereupon he is said to have made an attempt to ravage her. 12. A perusal of the statement of the prosecutrix reveals that she has given a forthright account of the manner in which she was allured by the appellant and taken away from her locality on the pretext of giving her grapes. Thereupon he is said to have made an attempt to ravage her. The innocence of the prosecutrix has held her back from making any improvement in the version and she steadfastly stuck to her testimony by stating as follows :- "The accused removed my salwar from both the legs and kept aside. The accused has also removed his pant. He slapped me and also threatened to give fist blow if I shout. The accused tried to commit rape upon me. The accused kept me over night in the fields." 13. Her testimony when viewed, in the backdrop of the testimony of Dr. Anita Bansal, PW-12 clearly indicates that the offence of rape was not completed by the appellant and in all probability only an attempt had been made by him. Dr. Anita Bansal, PW-12 has observed in her report as follows :- "No external mark of injury seen over the external genitalia. A small abrasion was present over the forchet which bleeds on touch. Hymen was torn and inflamed. No fresh bleeding was present. Vagina was admitting one finger with difficulty. Vaginal swab was taken and handed over to police. She gave history of taken bath and change of clothes." 14. In this view of the matter, the appellant cannot escape from the liability of having committed an act which attracts the provisions of Section 511 IPC. Section 511 IPC is extracted here as under :- "511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. In this view of the matter, the appellant cannot escape from the liability of having committed an act which attracts the provisions of Section 511 IPC. Section 511 IPC is extracted here as under :- "511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. - Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished [with imprisonment of any discription provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both." 15. Having regard to the aforesaid, it becomes amply clear that the appellant cannot be held guilty under the provisions of Section 376(f) but on other counts such as 363/366/511 IPC, he is indeed guilty. 16. Consequently, keeping in view the provisions of Section 511 IPC, I deem it appropriate to tone down the sentence of the appellant by holding that the appellant is guilty of having committed an offence under Sections 363/366/511 IPC and accordingly he is sentenced to undergo RI for a period of 7 years under Section 511 IPC. The sentence awarded to the appellant under the provisions of Sections 363/366 IPC shall, however, be maintained. With the aforesaid observations and modification in sentence, the appeal stands disposed of.