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2008 DIGILAW 1326 (PNJ)

Dharam Singh v. State Of Haryana

2008-08-06

K.C.PURI

body2008
Judgment K.C.Puri, J. 1. This appeal is directed against the judgment/order passed by Shri B..S. Rawat, the then Additional Sessions Judge, Sonepat, whereby the appellant has been convicted under Sections 363, 366 and 376 IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo further rigorous imprisonment for one month under Section 363 IPC; to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two months under Section 366 IPC and to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of two months under Section 376 IPC. All these sentences except for default in the payment of fine have been ordered to run concurrently. 2. Succinctly, the facts of the prosecution case are that prosecutrix PW- 3, daughter of Attar Singh, PW-7, aged 14 years, was studying in 8th class in Government Girls High School, Far- mana. On 15.7.1995, she left her house at 7-AM for going to the school. She was suffering from dysentery. She obtained sick leave from her class teacher at about 12 noon. When she came out of the school, she found Dharam Singh accused at the gate of the school. Dharam Singh told herthat her grand-father Risal Singh (PW-2) was collecting green fodder in the fields and he wanted to see her. After obtaining medicines from the hospital, the prosecutrix accompanied Dharam Singh accused to the fields on foot. After travelling for half an hour on foot, they reached the tu- bewell house of one Hari Singh situated in the revenue estate of village Nijampur Majra. When she did not find her grand-father in the fields, she inquired from Dharam Singh accused about her grand-father. Dharam Singh accused then took out a knife and told her that if she raised any further queries or tried to raise an alarm, she would be done to death. Dharam Singh kept her in the tubewell house during the night and raped her. She resisted his attempts and bit him and also inflicted injuries to him with her finger nails. Dharam Singh kept her in the tubewell house during the night and raped her. She resisted his attempts and bit him and also inflicted injuries to him with her finger nails. Next morning, a Maruti van came to the tubewell house. Dharam Singh made her to board the Maruti van. After she had boarded the Maruti Van, Dharam Singh placed a cloth on her mouth. She became unconscious by smelling the cloth. 3. The prosecution case further is that when the prosecutrix did not return to her house after school time, her family members searched for her. They were told by the girls who were studying in the same class with the prosecutrix that she had obtained sick leave and left the school at about 12 or 12.30 PM. Next day, the family members were told by Surta and Hukam Chand that they had seen Dharam Singh accused near the school on 15.7.1985 at noon time. Suspecting Dharam Singh, Risal Singh, grand-father of the prosecutrix lodged FIR No. 87 on 16.7.1995 under Sections 363, 366 IPC in Police Station Kharkhoda. 4. The prosecution has further alleged that when the prosecutrix regained consciousness, she found herself in a house at Rewari town. The accused stayed with her in that house for one day and thereafter took her to village Matanvas in Rajasthan. She stayed with him at village Matanvas. Thereafter, Dharam Singh accused took her at various places. On 23.9.1995, the accused was arrested from the platform of Railway Station, Sonepat along with the prosecutrix. 5. The investigation in the case was conducted and the accused was challaned. 6. Charge-sheet under Sections 363,366 and 376 IPC was framed against the accused to which he pleaded not guilty and claimed trial. 7. In order to prove its case, the prosecution examined PW-1 Daya Nand, Sub Inspector, PW-2 Risal Singh, PW-3 prosecutrix, PW4 Dr. K.L.Bansal, PW-5 Luxmi Devi, Sub Inspector, PW-6 ASI Ram Parkash, PW-7 Attar Singh, PW-8 Shri K.K. Bali, PW-9 Rajinder Kumar Patwari, PW-10 ASI Mehar Singh and PW-11 Dr. R.R. Mittal. 8. The accused was examined under Section 313 Cr.P.C. and the incriminating circumstances was put to him. He controverted the allegations and claimed that he had been falsely implicated in the case because Risal Singh, grand-father of the prosecutrix had borrowed Rs. R.R. Mittal. 8. The accused was examined under Section 313 Cr.P.C. and the incriminating circumstances was put to him. He controverted the allegations and claimed that he had been falsely implicated in the case because Risal Singh, grand-father of the prosecutrix had borrowed Rs. 24,000/- from him and when he demanded the re-payment of the money borrowed by Risal Singh from him, he (accused) was falsely implicated in the case. He was arrested by the police from the house of his brother Sat Narain situated at village Sameypur, Delhi State where he was doing business. He further stated that the prosecutrix is a girl of easy virtue and she eloped with one Randhir Singh, resident of village Makroli and was recovered from his custody from Delhi by her relatives. She again eloped with that Randhir Singh on 15.7.1985 and was recovered from Delhi on 22.9.1995. 9. The accused examined Jai Bhagwan as DW-1 in his defence. 10. The learned counsel for the appellant has submitted that there is a delay of one day in lodging the FIR. On this ground, the accused is entitled to acquittal. 11. I have considered the said submission but do not find any force in the same. 12. The family members of a minor girl think several times before informing the police regarding their missing girl. So, in the facts and circumstances of this case, it cannot be said that the delay in lodging the FIR is fatal. 13. Learned counsel for the appellant has further submitted that from the testimony of the doctor, it is revealed that there were no external marks of injuries on the person of the prosecutrix. However, according to the report of Forensic Science Laboratory, Exhibit PH, it is clear that no human semen was detected on the vaginal swabs and underwear of the prosecutrix. In these circumstances, the prosecution story that the appellant had been committing sexual intercourse with the prosecutrix for the last two months cannot be believed. 14. I have carefully considered the said submission but do not find any force in the same. 15. This aspect of the case has been elaborately dealt with by the learned trial Court. The trial Court has discussed this point and has held that absence of human semen on the vaginal swabs can be for different reasons like use of condom etc. 15. This aspect of the case has been elaborately dealt with by the learned trial Court. The trial Court has discussed this point and has held that absence of human semen on the vaginal swabs can be for different reasons like use of condom etc. during sexual intercourse as the accused is a mature person. 16. It is further submitted that the prosecutrix has made improvements on the points of giving threats to her life and committing rape while she was lying unconscious. 17. I have carefully considered the said submission but do not find any force in the same. 18. Even if these two improved portions are excluded from evidence, still the ingredients of offences under Sections 363, 366 and 376 IPC are made out against the accused. The accused disappeared on the same day when the prosecutrix was found missing. As per prosecution story, the accused and the prosecutrix lived together for two months and thereafter the prosecutrix was found in the company of the accused after two months. The testimony of prosecutrix that she has been subjected to repeated rape at the hands of the accused under threat inspires confidence. Even if it is assumed that the prosecutrix was a consenting party, in that case also, the accused cannot taken any benefit as the prosecutrix was less than 16 years of age at the time of commission of offence. 19. It is further submitted that the accused has examined DW-1 Jai Bhagwan. The daughter of this witness is married to Rajbir son of Risala, complainant. This witness has categorically stated that the prosecutrix is a girl of loose character and had eloped with Randhir Singh twice. He being near relative of complainant, his testimony cannot be ignored lightly. 20. I have carefully considered the said submission but do not find any force in the same. 21. In the cross-examination, this witness has admitted that his daughter was residing with him for the past 4/5 months. Obviously, there seem to be some strained relations and, on that count, he has come forward in favour of the accused. So, his testimony has been rightly discarded by the learned trial Court. 22. The accused has not cross-examined the witnesses to prove the fact that he was not found in the company of the prosecutrix. Obviously, there seem to be some strained relations and, on that count, he has come forward in favour of the accused. So, his testimony has been rightly discarded by the learned trial Court. 22. The accused has not cross-examined the witnesses to prove the fact that he was not found in the company of the prosecutrix. So, in these circumstances, the argument of counsel for the appellant, in this regard, is without any substance. 23. The learned trial Court has rightly held that a person of 43 years sleeping with the. girl of 15 years cannot restrain himself without sexual intercourse. 24. The learned counsel for the appellant has further submitted that the age of the prosecutrix was more than 16 years. It is submitted that the trial Court itself has held that she was a consenting party. According to the testimony of the complainant, she was aged about 22 years. So, no offence is made out against the accused. 25. I have carefully considered thesaid submission but do not find any force in the same. 26. School certificate has been produced on the file and from the same, it is revealed that the prosecutrix was 15 years of age at the time of commission of offence. She was a student of 8th class. Even, the birth certificate shows that she was less than 16 years of age. So this documentary evidence clinches the issue regarding the age of prosecutrix. So, I have no-hesitation in confirming the finding of the learned trial Court that the prosecutrix was below 16 years of age at the time of commission of offence. The consent of prosecutrix below 16 years is immaterial. 27. Lastly, the learned counsel for the appellant has submitted that in case the Court is not inclined to accept the above-noted submissions made by him, in that case, the sentence be reduced to the one already undergone by the appellant by giving special reasons for reducing the sentence. 28. It has further been submitted that even the trial Court has held that the prosecutrix was a consenting party. So, in these circumstances, the sentence of the appellant may be reduced to the one already undergone by him. 29. I have carefully considered the said submission but do not find any force in the same. 30. 28. It has further been submitted that even the trial Court has held that the prosecutrix was a consenting party. So, in these circumstances, the sentence of the appellant may be reduced to the one already undergone by him. 29. I have carefully considered the said submission but do not find any force in the same. 30. The accused/appellant has ravished a young girl of 15 years to satisfy his lust for sexual intercourse. No special reason is made out for reducing the sentence. It is very difficult for a victim of rape to remain in the Indian society. The Society people gaze at her and treat her an untouchable girl. The Parliament in its wisdom has rightly prescribed minimum punishment. So, no ground is made out for reducing the sentence. 31. In view of the above discussion, the appeal is without any merit and the same stands dismissed. 32. The accused is on bail. He be taken into custody forthwith to serve the remaining part of his sentence. 33. A copy of this judgment be sent to the trial Court for strict compliance.