Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 567 (PNJ)

Sube Singh v. State Of Haryana

2009-03-24

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 12.08.1994, and the order of sentence dated 16.08.1994, rendered by the Court of Additional Sessions Judge, Rewari, vide which it convicted the accused (now appellant), for the offence, punishable under Section 376 of the Indian Penal Code (hereinafter called as the IPC only) and sentenced him, to undergo rigorous imprisonment for a period of four years, and to pay a fine of Rs. 2000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of six months. 2. The facts in brief are that on 31.08.1992, the prosecutrix (the name is not being mentioned in view of the pronouncement of the Apex Court), aged about 11 years, and her brother aged 9 years, were alone in the house, situated in village Chandan was, as her parents had gone to village Pandupol to attend the fair. At about 11.00 PM on 31.08.1992, Sube Singh, accused, Sarpanch of the village, entered their house. At that time, the prosecutrix and her brother Dinesh were sleeping in the verandah of the house. The accused put his hand on the mouth of the prosecutrix and lay over her. He removed her underwear (Kachi) and committed rape with her. The prosecutrix raised alarm. After committing the rape the accused had started running from the house when Dinesh brother of the prosecutrix, woke up and saw him going away. The parents of the prosecutrix returned on the next day i.e. 01.09.1992 at about 12.00 noon. On seeing her parents the prosecutrix started weeping. Upon this, Ram Ratti, mother of the prosecutrix asked her as to what was the matter. The prosecutrix narrated the aforesaid version to her. The prosecutrix showed blood stained mattress (Gadela), her underwear (Kachi) and also her body to Ram Ratti, mother of the prosecutrix, also made enquiries from Dinesh, her son to confirm the occurrence. Thereafter, Ram Ratti, and her husband told about the occurrence to the members o their community. The members of the community had been assuring them that they would call the Sarpanch and make enquiries from him. But no action was taken against him. The prosecutrix then told her mother that if they did not take any action, against the accused, she would end her life. The members of the community had been assuring them that they would call the Sarpanch and make enquiries from him. But no action was taken against him. The prosecutrix then told her mother that if they did not take any action, against the accused, she would end her life. Upon this, Ram Ratti complainant mother of the prosecutrix called her brother Ram Kumar from his village and told him about the occurrence. Thereafter, the complainant along with her brother and her daughter went to the Police Station, Jatusana and lodged the first information report. The prosecutrix was got medico-legal ly examined from Dr. Beta Satija, Civil Hospital, Rewari on the basis of application Ex. PB moved by the Police. The sealed vials and trouser(salwar) of the prosecutrix, duly sealed into separate parcels were taken into possession vide recovery memo, Ex. PO. Underwear, which was worn by the prosecutrix, at the time of occurrence, a piece of the blood stained mattress on which the prosecutrix was sleeping , at the time of occurrence and undervest (Banyan) of the accused, which he had left in the house of the prosecutrix at the time of running away, after the occurrence were taken into possession by the Investigating Officer. 2-A. Accused Sube Singh was arrested on 16.09.1992. He was got medico-legally examined. A sealed parcel of the clothes of the accused was handed over to the Police by the doctor which was taken into possession. Scaled site plan, Ex. PE, of the place of occurrence was got prepared by Ravinder Singh Yadav, Draftsman. An application Ex. PF was moved by the Police, to the Headmaster, Government Middle School, Chandanwass, for giving certificate the regarding the date of birth of the prosecutrix whereupon he made his endorsement Ex. PF/1, mentioning therein that according to the school record the date of birth of the prosecutrix was 5.5.1979. 2-B. All the articles were sent to the Forensic Science Laboratory for analysis. The Director, Forensic Science Laboratory, also sent report stating therein, that blood was detected on a piece of the mattress (Gudri). Human Semen on the underwear (Kachi)and trouser (salwar) of the prosecutrix as also on the underwear of the accused was detected. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Committing Court, the accused was supplied the copies of all the documents relied upon by the prosecution. Human Semen on the underwear (Kachi)and trouser (salwar) of the prosecutrix as also on the underwear of the accused was detected. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Committing Court, the accused was supplied the copies of all the documents relied upon by the prosecution. After the case was received by commitment in the Court of Sessions, charge under Section 376 of the Indian Penal code was framed against the accused to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. Bela Satija, (PW-1), Dr. Kamal Mehra, Medical Officer, Government Hospital, Rewari, (PW-2), Ravinder Singh, Draftsman, (PW-3), Partap Singh, (PW-4), Suresh Kumar, Constable, (PW-5), Ram Ratti, complainant, (PW-6), prosecutrix (PW-7), Dinesh, brother of the prosecutrix, (PW-8), Raghbir Singh, Sub-Inspector (PW-9), and Kuljeet Singh, Assistant Sub-Inspector, (PW-10). The Public Prosecutor for the State tendered into evidence, affidavits of Kailash Chand, Constable and Rajinder Singh, Head Constable, Ex.PG and Ex. PR respectively as also the report Ex. PS of the Forensic Science Laboratory. Thereafter, he closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C, was recorded, and he was put all the incriminating circumstances appearing against him in the prosecution evidence. He pleaded false implication. 6. In his defence, the accused examined Krishan Kumar, DW1, Sheodan, DW2 and Kishna Ram, DW3. Thereafter, the accused closed the defence evidence. 7. After hearing the Public Prosecutor for the State the Counsel for the accused, and, on going through the evidence on record the trial Court, convicted and sentenced the accused as stated hereinbefore. 8. Feeling aggrieved against the judgment of conviction and the order of sentence, rendered by the trial Court the instant appeal was filed by the a appellant. 9. I have heard the learned Counsel for the parties and have gone through the evidence and record of the case carefully. 10. The Counsel for the appellant, at the very outset, submitted that the prosecution miserably failed to prove that the prosecutrix was aged about 11 years, at the time of alleged occurrence. He further submitted that reliance of the prosecution, on school admission record to prove that the date of birth of the prosecutrix, was mis-conceived. He further submitted that no evidentiary value could be attached to the entry of date of birth, made in the school record. He further submitted that reliance of the prosecution, on school admission record to prove that the date of birth of the prosecutrix, was mis-conceived. He further submitted that no evidentiary value could be attached to the entry of date of birth, made in the school record. The submission of the Counsel for the appellant in this regard, does not appear to be correct. Partap Singh, Headmaster, Government Middle School, Chandan was (P W-4) stated that an application Ex. PF was moved by the Police before him on 29.10.1992, asking him to give a certificate regarding the date of birth of the prosecutrix. It was further stated by him, that he had consulted the school record, and made his endorsement Ex.PF/1 to the effect that according to the same the date of birth of the prosecutrix was 5.5.1979. He in clear-cut terms stated that the entry in the admission register regarding the date of birth of the prosecutrix, was made on the basis of admission form, filled by the father or the guardian of the child. Even Dr. Bela Satija, Medical Officer. Government Hospital, Rewari, (PW-1), who medico-legally examined the prosecutrix, stated that, at the time of medico- legally examination the prosecutrix gave her age as 11 years. Ram Ratti, complainant, (PW-6), mother of the prosecutrix, also gave her age as 11 years and the age of her son Dinesh as 10 years. No cross-examination to challenge the statement of Ram Ratti, complainant, (PW-6) that the prosecutrix was aged 11 years was conducted by the accused. Even the prosecutrix as on 06.12.1993, when her statement was recorded, gave her age as 13 years. She also stated that at the time of occurrence, she was a student of 6th class. This fact was also not disputed during the course of cross-examination, by the Counsel for the accused. From the evidence on record it was thus proved a that the age of the prosecutrix at the time of occurrence was 11 years. She was, thus, minor, at the time of occurrence. In this view of the matter, the submission of the Counsel for the appellant being without merit must fail and the same stands rejected. 11. It was next submitted by the Counsel for the appellant that the prosecution failed to prove through the cogent, and convincing evidence that the accused committed rape with the prosecutrix on the night of 31.08.1992. In this view of the matter, the submission of the Counsel for the appellant being without merit must fail and the same stands rejected. 11. It was next submitted by the Counsel for the appellant that the prosecution failed to prove through the cogent, and convincing evidence that the accused committed rape with the prosecutrix on the night of 31.08.1992. The submission of the Counsel for the appellant in this regard, does not appear to be correct. The prosecutrix, when appeared as PW-7, in clear-cut- terms, stated that on 31.08.1992 her parents had gone to attend a fair at Pandupol in District Alwar (Rajasthan). She further deposed that she and her brother Dinesh were only in the house. At about 11.00 PM, when they were sleeping in the verandah of the house, Sube Singh, Sarpanch accused entered their house and put his hand on her mouth. He removed her underwear (kachi) and committed rape with her. She further stated that blood oozed out of her vagina. She raised alarm as a result whereof her brother Dinesh woke up and asked her what was the matter. She further stated that she felt ashamed and put on her underwear. It was further stated by her, that when her brother woke up, the accused was preparing to go. The statement of the prosecutrix, was duly corroborated by Dinesh her brother who appeared in the witness box as PW-8. He stated that when he woke up, Sube Singh, accused, was getting up from the body of the prosecutrix and went away. Further corroboration to the statement of the prosecutrix was furnished through the evidence of Ram Ratti, complainant, (PW-6) who stated that on 01.09.1992 at about 12.00 noon, when she alongwith her husband came back to the house on seeing them. The prosecutrix, started weeping. On enquiry, she (prosecutrix) told her that Sube Singh, Sarpanch, accused had entered their house and committed rape with her. She further stated that the prosecutrix also showed her underwear (Kachi), and mattress (Gudri), which were blood stained. She further stated that she also showed her body to her which bore injuries. The undervest (Banyan) of the accused, which he had left in the house of the prosecutrix, was also seen by Ram Ratti. She further stated that the prosecutrix also showed her underwear (Kachi), and mattress (Gudri), which were blood stained. She further stated that she also showed her body to her which bore injuries. The undervest (Banyan) of the accused, which he had left in the house of the prosecutrix, was also seen by Ram Ratti. It was further stated by her that she also asked her son Dinesh, who told her that after hearing the cries of the prosecutrix he woke up, and found Sube Singh accused getting up from the prosecutrixs cot and running away outside the house. Still further corroboration to the ocular evidence was provided through the evidence of Dr. Bela Satija, Medical Officer, Government Hospital, Rewari, (PW-1), who stated that on medical examination, she found the hymen intact but posteriorly hymen was red and inflamed. She further stated that in her opinion, the possibility of rape could not be ruled out. She also took the swabs from the vagina of the prosecutrix. She also stated that according to the medical jurisprudence, it was not necessary that due to the commission of rape, the hymen must be ruptured or other injuries must be/ there on the vagina. The other injuries on the person of the prosecutrix, might not have been found, as she was medico-legally examined after about 11 days of the occurrence, when the FIR was got registered by her mother. Even otherwise, non-appearance of the injuries on other parts of the body of the prosecutrix, did not in any way go to prove that no rape had been comm itted with the prosecutrix. Not only this even further corroboration was provided through Ex. PS, report of the Forensic Science Laboratory. According to the report, blood was detected, on a piece of the mattress (gudri), human semen and the blood were detected on the underwear (Kachi) of the prosecutrix. Human semen was detected on the trouser (Salwar) of the prosecutrix. Human semen was also detected on the underwear of the accused. On serological analysis of blood, the same was found to be of human origin. Even the undervest (Banyan) of the accused was found in the house of the prosecutrix, which he left there, while running away. This also proved the presence of the accused in the house of the prosecutrix, at the time of occurrence. On serological analysis of blood, the same was found to be of human origin. Even the undervest (Banyan) of the accused was found in the house of the prosecutrix, which he left there, while running away. This also proved the presence of the accused in the house of the prosecutrix, at the time of occurrence. There was no reason on the part of the prosecutrix, aged about 11 years, her brother Dinesh, aged about 10 years, and Ram Ratti, complainant mother of the prosecutrix, to depose falsely. They had will grudge or enmity against the accused to falsely implicate him in the instant case. Even the parents of the prosecutrix, being poor persons belonging to a labour class, could not raise allegation of rape of their daughter against the accused, who being the Sarpanch of the village, could be said to be a very influential person. From the afore-discussed evidence, the prosecution was able to prove beyond a reasonable doubt that the accused committed rape with the prosecutrix. The submission of the Counsel for the appellant being without merit must fail and the same stands rejected. 12. The Counsel for the appellant however, placed reliance on Radhu v. State of Madhya Pradesh, 2007(4) RCR(Criminal) 158:2007(5) RAJ 118 (SC), to contend that the evidence produced by the prosecution, being not trust-worthy, the accused was entitled to acquittal. The facts of the aforesaid case are clearly distinguishable, from the facts of the instant case. In that case the prosecutrix told her mother that the accused raped her for the whole night. But in the cross-examination, the prosecutrix stated that the accused committed bad act by inserting his penis twice and she remained unconscious throughout the night. The medical evidence showed that the hymen of the prosecutrix was ruptured, but the rupture was old. The doctor could not give opinion, whether any rape was committed. There were no injuries, on her private parts. It was under these circumstances that the benefit of doubt was given to the appellant by the Apex Court. In the instant case, the prosecutrix did not state, in her statement, that accused committed rape with her throughout the night. However, She stated that at about 11.00 PM on the night of 31.08.1992, Sube Singh, Sarpanch, accused, entered the house and committed rape with her. In the instant case, the prosecutrix did not state, in her statement, that accused committed rape with her throughout the night. However, She stated that at about 11.00 PM on the night of 31.08.1992, Sube Singh, Sarpanch, accused, entered the house and committed rape with her. When she and her brother Dinesh were sleeping, in the verandah of the house, and her parents had gone somewhere in Rajasthan to see a fair. Dr. Bela Satija, Medical Officer, Government Hospital, Rewari, (PW-1), in clear-cut terms, stated that it was not necessary that on account of rape", hymen must be ruptured or other injuries must be there on the vagina. When the prosecutrix showed her body to her mother on 01.09.1992, when she alongwith her husband returned to the village, she was having injuries on her person. She was medico-legally examined after 11 days of the occurrence. The injuries, which she received on her body must have healed, during those days. Even otherwise, the accused put his hand on the mouth of the prosecutrix, and committed rape with her. No help therefore, can be drawn from the aforesaid case. The submission of the Counsel for the appellant being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that there was unexplained delay of 11 days, in lodging the first information report, which indicated that the possibility of false implication of the accused, concoction of story, and introduction of false witnesses, could not be ruled out. No doubt, there was delay of 11 days, in lodging the first information report. However, it may be stated here that the delay in lodging the report was explained as would be discussed hereinafter. On the night of 31.08.1992, at about 11.00 PM, the rape was committed with the prosecutrix by the accused as her parents were not there and only her brother aged about 10 years was there. On the next day when her parents came back to the house she immediately narrated the entire occurrence to her mother. Her mother also told the father of the prosecutrix, about the occurrence. The parents of the prosecutrix met the members their community. They being poor persons, belonging to labour class, in the first instance, brought to the notice of the members of their community, as to what happened with the prosecutrix. Her mother also told the father of the prosecutrix, about the occurrence. The parents of the prosecutrix met the members their community. They being poor persons, belonging to labour class, in the first instance, brought to the notice of the members of their community, as to what happened with the prosecutrix. The members of their community, assured them that they would make enquiries from the accused and thereafter action will be taken. Ultimately, the members of their community, did not take any action, against the accused. Since the parents of the prosecutrix, being the poor persons must have thought a number of times, before lodging the report, they were reluctant to lodge the report against the accused, who is an influential and powerful person. However, the prosecutrix told them, in clear-cut terms, that in case the first information report, was not lodged, against the accused, she would end her life. It was under these circumstances left with no alternative, that the parents of the prosecutrix, lodged the report. In these circumstances, delay occurred in lodging the first information report. In sex related cases, delay in lodging the report is hardly of any significance. Since the delay, in lodging the report in the instant case, stands explained, it could not be said that the accused was falsely implicated. The submission of the Counsel for the appellant being without merit must fail and the same stands. 14. It was next submitted by the Counsel for the appellant, that the alleged occurrence took place on 31.08.1992 and a period of 16 years has already lapsed since then. He further submitted that the appellant has been facing the protracted criminal proceedings for the last more than 16 years, and lenient view be taken, by reducing the sentence to the period already undergone. The submission of the Counsel for the appellant in this regard, does not appear to be correct. The mere fact that the appellant has been facing the protracted criminal proceedings for the last more than 16 years, in itself, cannot be said to be sufficient to reduce his sentence. The accused committed a very heinous offence. He acted like a beast by committing rape with a minor girl of 11 years by taking the benefit of her young age and weak physique as he knew that she was unable to resist him. The accused committed a very heinous offence. He acted like a beast by committing rape with a minor girl of 11 years by taking the benefit of her young age and weak physique as he knew that she was unable to resist him. The prosecutrix was just like a daughter of the accused, who was aged about 40 years, at the time of crime.He not only violated the body of the prosecutrix, but also caused a permanent mental scar. I Undue sympathy to impose inadequate, sentence, would do more harm to the justice system to undermine the public confidence, in the efficacy of law and the society could no longer endure under such serious threats. It is therefore, the duty of every Court to award proper sentence, having regard to the nature of offence and the manner in which it was executed or committed. The trial Court has already awarded less than the minimum sentence provided, by resorting to the proviso and placing reliance on Mohan Singh alias Munshi v. State of Haryana, 1989(2) Recent Criminal Reports 434 (P&H) and Rajbir v. State of Haryana, 1990(1) CCJ165 (P&H). The appellant has already been dealt with, very leniently in the matter of sentence, by the trial Court. No ground is made out for further reduction in the sentence. The submission of the Counsel for the appellant being without merit must fail and the same stands rejected. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court are based on the correct appreciation of evidence and law on the point. The same do not warrant any interference, and are liable to be upheld. 17. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 12.08.1994, and the order of sentence dated 16.08.1994, are upheld. If the appellant is on bail his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Rewari, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C, and compliance report be sent within two months. 18. If the appellant is on bail his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Rewari, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C, and compliance report be sent within two months. 18. The District & Sessions Judge, Rewari, is also directed to ensure that the directions referred to above are complied within the timeframe and the compliance report is sent immediately thereafter, to this Court. 19. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received within the time frame, the matter shall be put up within 10 days, after the expiry of the stipulated time, for further action.