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2007 DIGILAW 883 (PNJ)

Pappu Alias Om Parkash v. State Of Haryana

2007-04-18

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. The appellant has filed the present appeal against the conviction and sentence awarded to him by the Additional Sessions Judge, Ambala dated 27.1.1995. 2. The appellant was convicted and sentenced under Section 376 of Indian Penal Code to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5000/-. He was further sentenced to undergo imprisonment for a period of two years in default of payment of fine. On 4.4.1994, the prosecutrix aged eight years and a student of third class, went out at about 3 p.m. after attending to her mother, who was unwell. She did not return for a long period upon which her mother Smt. Devkali went outside and called out her name. Thereafter, Smt. Devkali saw Kumari Suman, the prosecutrix coming from the roof of the house of Ramjas, father of the accused through staircase, weeping. Her mother noticed that she was bleeding from her vagina, Kumari Suman disclosed to her mother that accused-appellant Pappu had taken her to the roof under the pretext of playing and committed rape upon her by pressing her mouth. Thereafter, Devkali went to the house of Ramjas where accused Pappu was standing but he fled away on seeing her. Report was lodged with the police and investigation was conducted and challan under Section 173 Cr.P.C. was presented against the accused-appellant. The appellant was charged for having committed an offence under Section 376 IPC. The prosecution examined a number of witnesses to establish the guilt of the appellant. 3. Accused-appellant in his statement under Section 313 of the Code of Criminal Procedure, denied the allegations and pleaded innocence. He stated that the prosecutrix and her parents had been using their latrine and he asked them not to use it and a day prior to the occurrence, he had abused and slapped Kumari Suman upon which she had made a complaint to her parents and thereupon, mother of prosecutrix Suman had come to his house and gave beatings and scolded him, then he had told mother of Suman that he would report the mater to the police and on account of this, he has been falsely implicated. It was further pleaded that Suman had received injuries by fall on the branches of a Shehtoot tree. 4. It was further pleaded that Suman had received injuries by fall on the branches of a Shehtoot tree. 4. In defence, the appellant examined DW1 Jagdish Ram, who deposed that there are number of houses at the place of occurrence and one toilet is made for three houses. He also disclosed that there are four latrines for a cluster of 12 houses and that it was normal for one occupants of three houses to use one common latrine. He further deposed that at about 7 a.m. while he was standing in front of his house, he had heard noise from the house of Ramjas and upon reaching there, he noticed that a minor girl wanted to use the toilet of Ramjas but the accused was preventing her and had given 2-3 slap blows to her upon which the girl had gone back to her house weeping. He had also deposed that accused is a matriculate and testified that accused-appellant bears a good moral character. 5. The trial Court on appraisal of the evidence before it, came to the conclusion that appellant was guilty of having committed an offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment for a period of 10 years. 6. Aggrieved by the aforesaid sentence and conviction awarded to him, the appellant has come up by way of an appeal. At the outset, learned counsel for the appellant contended that the appellant was a juvenile on the date of commission of the offence and benefit of Juvenile Justice Act, 1986 should have been afforded to him and since the same has not been done, the entire trial is vitiated. Reliance was placed upon a judgment in Gopinath Ghosh v. State of West Bengal, 1984(1) RCR 444 to contend that the plea of an accused being a Juvenile can be raised at any stage and once such a plea is raised then Court is under an obligation to get the matter investigated in the light of this fact and determine as to whether the accused is a juvenile or not. 7. On the basis of this, it is pleaded that the matter be remitted back to the trial Court to determine the question as to whether appellant was a juvenile on the date of commission of the offence. 8. 7. On the basis of this, it is pleaded that the matter be remitted back to the trial Court to determine the question as to whether appellant was a juvenile on the date of commission of the offence. 8. On merits, it was pleaded that the plea of false implication was there and the medical testimony did not reveal the presence of any semen which belies the prosecution version of rape. Lastly, it was contended that the appellant being of young age at the time of commission of offence, would be fairly advanced in age now and keeping in view the totality of the circumstances, a lenient view be taken and the appellant be saved from undergoing the remaining sentence by reducing the sentence appropriately. 9. The aforesaid contentious of the learned counsel for the appellant were strongly refuted by the learned counsel for the respondent-State who contended that the factum of appellant being a juvenile is belied from the school leaving certificate which he produced at the time of pronouncement on the question of sentence according to which his date of birth was 1.2.1978. Implying thereby his age was 1 years and 2 months at the time of commission of offence and if provisions of Juvenile Justice Act, 1986 (as it existed then) are also taken into consideration, a juvenile would mean any person, who has not attained the age of 16 years. That apart, it was contended that a minor girl of eight years has been subjected to rape and therefore, the appellant does not deserve any leniency and the sentence awarded by the trial Court, is just and adequate. 10. I have heard learned counsel for the parties and perused the record. Dr. (Mrs.) Alaknanda, who appeared as PW1, examined the prosecutrix on 4.4.1994 at about 9.10 p.m. and observed as follows : "The vulva was cedematous and swollen. Labia majora was swollen and reddened. Labia Minora was cedematous and reddened. Vulval opening was cedematous and reddened. Hymen was torn completely. No hyman tags were seen. Bleeding was present. Blood satiny watery discharge was also present. Vaginal opening admitted tip of little finger with difficulty. Tenderness was present on examination." 11. In her testimony as PW1, she stated that the act of sexual intercourse could not be ruled out. The report of Forensic Science Laboratory is Ex. PC/1. No hyman tags were seen. Bleeding was present. Blood satiny watery discharge was also present. Vaginal opening admitted tip of little finger with difficulty. Tenderness was present on examination." 11. In her testimony as PW1, she stated that the act of sexual intercourse could not be ruled out. The report of Forensic Science Laboratory is Ex. PC/1. The presence of blood stains were detected from the clothes and the under garments of the prosecutrix as also on the under garments, shirt and banian of the accused. However, no semen was detected either on the vaginal swabs or on the trouser of the appellant. The Serologist opined that blood on the underwear and the banian of the accused was human blood. The argument of the learned counsel for the appellant that in the absence of semen stains, conviction of the accused on the charge that rape had been committed, was erroneous, is misconceived. Section 375 of Indian Penal Code defines the offence of rape, which is reproduced below : "Section 375 IPC : Rape : A man is said to commit "Rape" who, except in the cases 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 or any person in whom she is interested in fear of death or of hurt. 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. Fifthly : 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 16 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. Sixthly : with or without her consent when she is under 16 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. It is clear that any penetration is sufficient to complete the offence, it is not necessary that sexual act is completed. The prosecutrix is eight years of age. The trial Court before examining her as PW7, tested her intellect, maturity and ability to answer the questions. After finding her sensible enough to answer the questions, she was examined wherein she has completely supported the version of the prosecution. 12. The prosecutrix even though of eight years of age yet her testimony is inspiring. She has no reason to implicate the appellant falsely. Her testimony coupled with the medical testimony clearly reveals that she has been the victim of the horrendous lust of the appellant. There is no escape from the conclusion that the appellant has committed the offence and consequently, there is no hesitation to hold that the conviction and sentence awarded by the trial Court is perfectly in order. There is thus, no reason to interfere in the appeal. The same is dismissed. Even though learned counsel for the appellant has made strenuous appeal for reduction of sentence keeping it view the fact that the appellant would be well advanced in age but I am not inclined to accept the same keeping in view the dastardly act of the appellant, who has ravished a young innocent girl of 8 years by subjecting her to his carnal desires. Accordingly, the sentence and conviction awarded by the trial Court is maintained.