Research › Search › Judgment

Punjab High Court · body

2007 DIGILAW 31 (PNJ)

Ram Ji Lal v. State Of Punjab

2007-01-11

T.P.S.MANN

body2007
Judgment T.P.S.Maan, J. 1. The present appeal has been filed against the judgment and order dated 6.6.2005 passed by Sessions Judge, Amritsar whereby the appellant was convicted under Section 376 IPC and sentenced to undergo RI for ten years and to pay a fine of Rs. 2,000/-. In default of payment of fine, the appellant was directed to undergo further RI for a period of one year. 2. On the night of 3.4.2004, the prosecutrix along with her mother and younger brother Anil went to sleep in one of the rooms of her house situated in Village Gallowali Kullian while her other younger brother Shanker and paternal uncle Amin Chand were sleeping in the other room. The father of the prosecutrix was away to village Naushehra where he had been working at a brick kiln. On 4.4.2004, at about 2.30 A.M. her brother, who was sleeping in the other room had some pain in his abdomen upon which her mother went there. After some time the accused came to her room where she was lying on one cot and while her brother Anil on another cot. The accused forcibly removed her salwar and committed sexual intercourse with her without her consent. An alarm was raised by her which attracted her mother to her room. The accused ran away from the spot. During day time, efforts were made by Sarpanch of the village for compromise but the same did not materialize. On 5.4.2004, the prosecutrix while accompanied by her father proceeded to the Police Station for lodging a report. On the way they came across Inspector Jagjit Singh on Dadupura Road in the limits of Majitha. He recorded her statement Ex.PA about occurrence upon which he made an endorsement Ex.PA/1 and sent the same to Police Station. Accordingly, FIR No. 70 dated 5.4.2004 was registered at Police Station Majitha at 10.15 A.M. under Section 376 IPC. 3. Inspector Jagjit Singh thereafter accompanied the complainant to the spot. He inspected the same and prepared a rough site plan Ex. PB. On 6.4.2004, he sent the prosecutrix to Civil Hospital, Amritsar for her medical examination. On 7.4.2004, the prosecutrix was radiologically examined by Dr. Poonam Ohri. During the course of investigation, the accused was arrested and he was also got medically examined from Dr. Sudesh Kumar. The report of Chemical Examiner was received as per which semen was found on the vaginal swabs. On 7.4.2004, the prosecutrix was radiologically examined by Dr. Poonam Ohri. During the course of investigation, the accused was arrested and he was also got medically examined from Dr. Sudesh Kumar. The report of Chemical Examiner was received as per which semen was found on the vaginal swabs. After completion of the investigation, final report was presented by the police under Section 173 Cr.P.C. The case was committed to the Court of Sessions on 20.8.2004. 4. After perusing the documents sent along with the police report and relied upon by the prosecution and hearing the Public Prosecutor for the State and the accused, the trial Court found sufficient grounds for presuming that the accused committed an offence under Section 376 IPC. He was, accordingly, charged to which he pleaded not guilty and claimed trial. At the trial of the case, the prosecution examined the prosecutrix as PW1 and her mother Sheela Devi as PW2. Inspector Jagjit Singh PW3, SI Kuldip Singh PW4, Constable Ranjodh Singh PW7 and Constable Joginder Singh PW9 deposed about the investigation part of the case. Dr. Poonam Ohri PW5 deposed about the ossification test conducted on the person of the prosecutrix as per which her age appeared to be between 17 to 19 years. Dr. Jaswinder PW6 stated about the medical examination of the prosecutrix. On the basis of the same, she opined that there was nothing to suggest that the prosecutrix could not have been subjected to sexual intercourse, Dr. Sudesh Kumar PW10 had medically examined the accused and found him capable of doing sexual intercourse. Rishi Ram, Draftsman was examined as PW8, who proved the scaled site plan of the place of occurrence. 5. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. The circumstances appearing against him were put to him so as to enable him to explain the same. He denied all those circumstances and pleaded false implication on account of an old enmity between his family and that of the prosecutrix as well as on account of suspicion. When called upon to lead evidence, the accused examined Sujinder Singh Lugani DW1, Neetu DW2 and Sh. Barkat Singh, Advocate DW3 in his defence. 6. He denied all those circumstances and pleaded false implication on account of an old enmity between his family and that of the prosecutrix as well as on account of suspicion. When called upon to lead evidence, the accused examined Sujinder Singh Lugani DW1, Neetu DW2 and Sh. Barkat Singh, Advocate DW3 in his defence. 6. Learned counsel for the appellant submitted that though the alleged occurrence had taken place on 4.4.2004 at about 2.30 A.M., yet the FIR was registered on 5.4.2004 at 10.15 P.M. This long delay was used by the prosecution to falsely implicate the appellant. Further that the trial Court after going through the evidence brought by the prosecution came to a conclusion that the prosecutrix was more than 21 years of age. She had no injury on her person. In fact, the circumstances do suggest that there was no struggle on the part of the prosecutrix to the assault being committed upon her. It was, thus, a case where it could be easily inferred that the prosecutrix was a consenting party. It was also submitted that the testimonies of the prosecutrix examined as PW1 and her mother Sheela Devi as PW2 are contrary inter se and no implicit reliance could be placed upon them so as to return a finding of guilt against the appellant. Accordingly, it was prayed hat the conviction and sentence of the appellant be set aside and he be acquitted of the charge against him. 7. Learned State counsel while opposing the prayer of the appellant submitted that the testimony of the prosecutrix was corroborated by her mother Sheela Devi PW2. Further that the medical evidence as well as the report of the Chemical Examiner sufficiently supported the prosecution case. The delay in the lodging of the FIR had been satisfactorily explained. The prosecutrix was medico-legally examined on 6.4.2004 at 5.45 P.M. i.e. after more than 60 hours of the occurrence. At that point of time the injuries received by the prosecutrix during the occurrence would have disappeared on account of passage of time. 8. I have heard the arguments advanced by learned counsel for the parties and gone through the records of the case. The occurrence in question had taken place on 4.4.2004 at 2.30A.M. in the house of the prosecutrix situated in village Gallowali Kullian. 8. I have heard the arguments advanced by learned counsel for the parties and gone through the records of the case. The occurrence in question had taken place on 4.4.2004 at 2.30A.M. in the house of the prosecutrix situated in village Gallowali Kullian. After break of the dawn, when the matter was informed to other villagers, an effort was made by Sarpanch of the village so that the matter could be settled without seeking the intervention of the police or the law enforcing agencies. However, those efforts did not materialise. Further, it had come in the evidence that the father of the prosecutrix was away to village Naushehra where he had been working at a brick kiln. In such a situation, the prosecutrix and her mother would think twice before proceeding towards the police for lodging the report. In fact, the prosecutrix while appearing as PW1 clearly stated in her examination-in-chief that the Sarpanch of the village kept on making efforts for a compromise but it did not bear any fruit. The said Sarpanch obtained her signatures on blank paper. However, according to the prosecutrix, she never entered into a compromise with the accused or any other person. Finally when her father came, she accompanied him to go to the Police Station for lodging a report when they came across Inspector Jagjit Singh PW3 on Dadupura Road in the limits of Majitha where her statement Ex. PA was recorded at 10.00 P.M. on 5.4.2004. The said statement was thereafter sent to Police Station Majitha where formal FIR Ex.PA/2 was registered 15 minutes later. As such there is sufficient explanation for the delay caused in the lodging of the FIR. 9. After the recording of statement Ex.PA given by the prosecutrix, Inspector Jagjit Singh accompanied her and her father to their village Gallowali Kullian and after inspecting the spot, prepared rough site plan Ex.PB. He recorded the statements of Sheela Devi and the (sic) of the village. On 6.4.2004, he sent the prosecutrix for her medical examination to Civil Hospital, Amritsar through ASI Mohinder Pal and one lady Constable along with an application Ex.PC. Dr. Jaswinder PW6 conducted the medical examination on 6.4.2004 at 5.45 P.M. An opinion was given on the basis of clinical examination that there was nothing suggestive that prosecutrix could not be subjected to sexual intercourse. Dr. Jaswinder PW6 conducted the medical examination on 6.4.2004 at 5.45 P.M. An opinion was given on the basis of clinical examination that there was nothing suggestive that prosecutrix could not be subjected to sexual intercourse. As per the testimony of the prosecutrix, the accused came to her room at about 2.30 A.M. and committed forcible sexual intercourse with her. During her cross-examination she stated that first of all the accused removed her salwar. She tried to prevent him from doing so. The accused thereafter pulled her breasts also. She again tried to prevent him. She started crying when the accused began molesting her. Her mother entered the room after 4/5 minutes of her raising cries. Under these circumstances it was but normal for the prosecutrix to receive some injuries on her person during the incident in question. However, she was medically examined on 6.4.2004 at 5.45 P.M. By that time a period of more than 60 hours had elapsed. Any such injury received by her during the incident in question would have disappeared with passage of time. Thus, the absence of any injury on the person of the prosecutrix at the time of her medical examination would not imply that she was a consenting party. 10. It was pleaded on behalf of the appellant that no such incident could have occurred in the room where the prosecutrix was lying as admittedly her brother Anil was also sleeping on the adjoining cot. However, it has come in the evidence that the said younger brother of the prosecutrix, namely, Anil was only eight years of age. His presence in the room would not have deterred the accused in sexually assaulting the prosecutrix. 11. The statement of the prosecutrix as PW1 is not at all contradicted by her mother as PW2, at least on material aspects of the case. Mere fact that as per the prosecutrix there was one room in the house is no ground to discredit the prosecution case as it has come in the evidence that in another room of the house, the paternal uncle of the prosecutrix was sleeping and so also the other younger brother of the prosecutrix, namely, Shanker. Mere fact that as per the prosecutrix there was one room in the house is no ground to discredit the prosecution case as it has come in the evidence that in another room of the house, the paternal uncle of the prosecutrix was sleeping and so also the other younger brother of the prosecutrix, namely, Shanker. Though Sheela Devi PW2 did state in her cross-examination that younger brother of her husband was not present in the house whereas the prosecutrix stated that he was sleeping in the other room, yet no question was asked from PW2 about the fact as to how many younger brothers her husband had. Moreover, this is a minor contradiction which could not be used for creating any doubt regarding the truthfulness of the prosecution version. Both the prosecutrix and her mother have made cogent and convincing statements, which could be relied upon so as to return a finding of guilt against the appellant. 12. The medical evidence was also a pointer to the fact that the prosecutrix was subjected to sexual intercourse. Two vaginal swabs were taken by the doctor at that time of the medical examination of the prosecutrix. These were sent to the Chemical Examiner, who found the presence of semen on them. This fact lends independent corroboration to the truthfulness of the prosecution case. 13. A half-hearted attempt was made on behalf of the appellant that the prosecutrix and her mother had gone to a typist where the prosecutrix informed Sujinder Singh Lugani DW1 that a compromise had been effected between the parties and affidavits to that effect were executed. Further that Barkat Singh, Advocate, who appeared as DW3 stated that he had attested the affidavit of the prosecutrix as also that of her mother. He entered the two affidavits in his register at serial No. 1358 and 1359 respectively. 14. To my mind, these affidavits instead of helping accused, corroborate the prosecution version as in both these affidavits it was stated that the prosecutrix was subjected to forcible sexual intercourse. It cannot be believed that the prosecutrix would not know the identity of the person who raped her. At the very first opportunity when the prosecutrix came across Inspector Jagjit Singh, she divulged the name of the present appellant as the accused responsible for committing forcible sexual intercourse with her. 15. It cannot be believed that the prosecutrix would not know the identity of the person who raped her. At the very first opportunity when the prosecutrix came across Inspector Jagjit Singh, she divulged the name of the present appellant as the accused responsible for committing forcible sexual intercourse with her. 15. In view of the above, the prosecution has been able to establish its case against the appellant for having committed the offence punishable under Section 376 IPC. 16. Coming to the question of sentence, it may be seen that the incident had taken place on 4.4.2004. The appellant was arrested on 16.4.2004. Since that day, the appellant is behind the bars. He has, thus, undergone substantive sentence of more than two years and eight months. The appellant was 23 years of age at the time of the incident. In para 15 of the impugned judgment, the trial Court held the prosecutrix to be 21 years of age. Keeping in view the aforementioned circumstances, it would be appropriate to reduce the sentence of imprisonment imposed upon the appellant by the trial Court from ten years to seven years. Accordingly, the present appeal is disposed of by maintaining the conviction of the appellant under Section 376 IPC. However, the sentence of RI for ten years imposed upon the appellant by the trial Court for said offence is reduced to RI for seven years. The amount of fine imposed by the trial Court upon the appellant, along with default clause, is maintained.