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2009 DIGILAW 724 (PNJ)

Mohinder Kumar v. State of U. T. Chandigarh

2009-04-18

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction and the order of sentence, dated 10.08.1994, rendered by the Court of Additional Sessions Judge, Chandigarh, vide which, it convicted the accused (now appellant), for the offence, punishable under Section 376 read with Section 511 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment for a period of 10 years, and to pay a fine of Rs. 5,000/-, in default thereof, to further undergo rigorous imprisonment for a period of one year. It was also directed that, in case of realization of fine, a sum of Rs. 4,000/-, be given as compensation, to the parents of the prosecutrix (name not being mentioned, in view of the pronouncement of the Apex Court). 2. The facts, in brief, are that on 12.07.1992, at about 8.00 PM, Sub Inspector Mohan Lal, alongwith H.C. Satish Kumar, and other Police officials, were present near scooter stand, Railway Station, in connection with patrolling, where Raj Dev, met the Police party, and gave statement PA, to Sub Inspector Mohan Lal, to the effect that, on 12.07.1992, at about 7.45 PM, when he was returning from Manimajra, towards his village Darwa, on foot, and crossed half of the jungle of Sefaida (eucalyptus) trees, he heard hue and cries of a child. He went near the place of occurrence, and found accused Mohinder Kumar, lying naked, on a minor girl and pressing her. Mohinder Kumar, accused, was seen committing rape, on the prosecutrix, who was crying with pain. It was further stated that he went to the accused, and lifted him, from the girl, to prevent him from further committing sexual assault. It was further stated that he enquired of the accused of his name and he disclosed the same as Mohinder Kumar. When the accused was lifted from the prosecutrix, he found the penis of the accused, in erected position, which got discharged. The semen dischared from the penis of the accused fell on the frock P1, of the prosecutrix, and pant P2 of the accused. The prosecutrix had sustained injuries, on her person, at the hands of the accused. When Raj Dev, tried to pacify the prosecutrix, the accused managed to escape. It was further stated that, on enquiry, the prosecutrix disclosed her name, and also her residence. The prosecutrix had sustained injuries, on her person, at the hands of the accused. When Raj Dev, tried to pacify the prosecutrix, the accused managed to escape. It was further stated that, on enquiry, the prosecutrix disclosed her name, and also her residence. Thereafter, the complainant, took the girl, with him, and went to Rajiv Colony, and after ascertaining about her residence, he handed over the custody of the prosecutrix, to her mother. After narrating the occurrence to the mother of the prosecutrix, he left for the Police Station, where Assistant Sub Inspector Mohan Lal, met him. The aforesaid statement PA, was reduced into writing, by the Sub Inspector, which was read-over and explained to the complainant, who signed the same, after admitting it as correct. The complainant also handed over the pant P2 of the accused, which was taken into possession, by the Investigating Officer, vide memo PW9/A, after converting the same, into a parcel, duly sealed with the seal bearing impression ML. The seal after use was handed over to Head Constable Satish Kumar, prosecution witness. After recording the statement, the Sub Inspector made endorsement PA/3, and sent the same to the Police Station, for registration of the case. On receipt of the statement PA, formal first information report PA/1, was recorded by Sub Inspector Sukhpal Singh Rana. Thereafter, Sub Inspector Mohan Lal, went, in search of the accused, to Mauli Jagran Colony. At that place, the Sub-Inspector, learnt that the prosecutrix had been taken to Post Graduate Institute of Medical Education and Research, Chandigarh. He went to Post Graduate Institute of Medical Education and Research, Chandigarh, and made written request PW18/A, to the doctor, regarding the fitness of the prosecutrix, to give statement, whereupon, the doctor gave opinion, that the prosecutrix was the minor child, and not in a position, to give statement. In the same request, he asked for the supply of medico-legal report of the prosecutrix, which was supplied to him. 3. On 13.07.1992, accused Mohinder Kumar, was arrested by the Sub Inspector and, on his personal search, memo PW18/D, was prepared, which was attested by Head Constable Satish Kumar, and signed by the accused. The underwear P3, of the accused, was obtained, which was sealed, in a parcel, with the seal, bearing impression ML, and taken into possession, vide recovery memo PW18/E. The Sub Inspector made request PW18/F to Dr. The underwear P3, of the accused, was obtained, which was sealed, in a parcel, with the seal, bearing impression ML, and taken into possession, vide recovery memo PW18/E. The Sub Inspector made request PW18/F to Dr. Deepak Bakshi, for the medical examination of the accused Mohinder Kumar. The case was partly investigated by Sub Inspector Rajesh Kumar, Police Station North, who took into possession, one frock of the prosecutrix P1, vide recovery memo PW16/A. Assistant Sub Inspector Mohan Lal, after visiting the spot, prepared the site plan PW18/C, with correct marginal notes. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 376 read with Section 511 of the Indian Penal Code, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case examined, as many is 18 witnesses. Sub Inspector Sukhpal Singh (PW1), recorded the formal first information report PA/1. 6. Constable Satvir Singh (PW2), took the samples to the office of the Chemical Laboratory, Patiala. 7. Constable Karamjit Singh (PW3), proved the copy of DDR PC. Sushil Kumar, Head Constable (PW4), produced his affidavit PD, regarding handing over the sealed sample to Constable Satbir Singh, for handing over the same, to the Chemical Laboratory, Patiala. 8. Dr. Parul Gupta (PW5), Dr. Yashbala (PW6), and Dr. Ajay Gupta (PW7), examined the prosecutrix. 9. Dr. Deepak Bakshi (PW8), examined the accused, on 13.07.1992, at 3.55 PM, and found the following : "The patient was averagely built, nourished adult male. Axillary and pubic hair well developed. Genitalia well developed, testicular sensation present. No mark of injury on genitalia or inner thighs. No blood or semen stains on clothes. No smegma on retraction of prepuce. No discharge on pressing the urethra." He proved MLR PW8/A, and opined, that there was nothing to suggest that the accused could not perform the sexual act. 10. Jaswant Singh, Head Draftsman (PW9), prepared the scaled plan PW9/A, at the instance of Rajdev, prosecution witness, with correct marginal notes. 11. No smegma on retraction of prepuce. No discharge on pressing the urethra." He proved MLR PW8/A, and opined, that there was nothing to suggest that the accused could not perform the sexual act. 10. Jaswant Singh, Head Draftsman (PW9), prepared the scaled plan PW9/A, at the instance of Rajdev, prosecution witness, with correct marginal notes. 11. Rajdev Yadav, complainant and eye-witness, was examined, as (PW10), the prosecutrix, was examined, as (PW11), and Veermati, mother of the prosecutrix, was examined as (PW12). 12. Head Constable Satish Kumar (PW13), was the attesting witness of the recovery memo PW9/A. 13. Dr. Gurpreet Singh (PW14), in the first instance, examined the prosecutrix. Dr. Harjit (PW15), also examined the prosecutrix. 14. Assistant Sub Inspector Rajesh Kumar (PW16), the Investigating Officer, partly investigated the case. 15. Dr. Ram Samujh (PW17), examined the prosecutrix, on 13.07.1992, at 8.20 AM. 16. Sub Inspector Mohan Lal (PW18), the Investigating Officer, who partly investigated the case, proved various documents. After tendering the report of the Chemical Examiner PX, into prosecution evidence, the Public Prosecutor, for the State, closed the same. 17. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he had dealing with the mother of the prosecutrix. It was further stated by him, that there was a dispute, in respect of settlement of account. It was further stated by him, that Rajdev, prosecution witness, gave him a slap and thereafter, he was falsely involved, in this case. It was further stated by him, that he was innocent. However, the accused, did not lead any evidence, in defence. 18. After hearing the Counsel for the parties and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 19. Feeling aggrieved, the instant appeal, was filed by the appellant. 20. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 21. The Counsel for the appellant, submitted that, no credible evidence was produced by the prosecution, to prove that, the accused made an attempt, to commit rape, with the prosecutrix, aged about three and a half years, but the trial Court, was wrong, in recording conviction, and awarding sentence to him. 21. The Counsel for the appellant, submitted that, no credible evidence was produced by the prosecution, to prove that, the accused made an attempt, to commit rape, with the prosecutrix, aged about three and a half years, but the trial Court, was wrong, in recording conviction, and awarding sentence to him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The prosecutrix, was examined, as PW11, after putting her preliminary questions, and after the trial Court, was satisfied about her capability, to depose, in the Court. She stated that she knew the accused. She further stated that he was a bad man. She further stated that he committed bad act with her. She further stated that, on the day, the accused committed bad act with her, she was wearing a frock P1. She further stated that the accused was committing bad act with her, after removing her frock, and she was crying. Rajdev Yadav, PW10, is the star witness of the prosecution, who witnessed the occurrence. According to him, on 12.07.1992, at about 7.45 PM, when he was returning from Manimajra, towards his village Darwa, on foot, and crossed half of the jungle of eucalyptus trees (Sefaida), he heard the alarm, and I hue and cries of a child. When he went near the place of occurrence, he found that the accused was lying naked, on the prosecutrix. It was further stated by him, that while lying naked on the prosecutrix, the accused, was pressing her. He further stated that the accused was committing rape with her. It was further stated by him, that since the prosecutrix was crying with pain, he went forward, and lifted the accused, from her, to prevent him, from further committing sexual assault or rape. It was further stated by him, that he enquired of the accused of his name and he disclosed the same as Mohinder Kumar. It was further stated by him, that when he lifted the accused, from the prosecutrix, his penis was in erected position, and he got discharged. It was further stated by him, that the semen which discharged,from the penis of the accused, fell on the frock of the prosecutrix and pant of the accused. He further stated that the prosecutrix had sustained a lot of injuries, on her person, at the hands of the accused. It was further stated by him, that the semen which discharged,from the penis of the accused, fell on the frock of the prosecutrix and pant of the accused. He further stated that the prosecutrix had sustained a lot of injuries, on her person, at the hands of the accused. It was further stated by him, that when he tried to help the prosecutrix and pacify her, the accused ran away. It was further stated by him, that when he asked the prosecutrix, as to where, she was residing, and she told him, that she was residing in Rajiv Colony. He further stated that he took the prosecutrix, with him, and went to Rajiv Colony, and after ascertaining about her residence, from her, and other persons, dropped her, in the costody of her mother. It was, on the basis of his statement exhibit PA, that the first information report, was registered. He also handed over the pant P2, of the accused, to the Investigating Officer, who took the same into possession, vide memo PW9/A, after converting the same into a parcel. The ocular version was duly corroborated by the medical evidence of Dr. Gurpreet Singh, PW14. He stated that the prosecutrix had suffered bruises on her face. He found whitish secretion present at the anal orifice. The anus of the prosecutrix was patulous and muscosal tears were visible, in the anterior portion of the anal canal. There was also whitish secretion present at the anal orifice. Corroboration to the ocular version was provided by Dr. Parul Gupta, Gynaecologist, PW5, who examined the prosecutrix, at 1.24 AM, on 13.07.1992, and noticed the following : "Child of 13.5 kg, undernourished, fully conscious, coherent but not answering any question. Pulse 92 per minute regular. Blood pressure 92/70 milimeter mercury. R.R. 24 per minute. No respiratory distress. Clothes stained with fecal matter. Nail marks (bruises) present on both cheeks. External Genitalia No vulvar bruising. Hymen appears intact (detailed examination not possible). Whitish secretions present at the introtial opening. No visible tears or bleeding. External genitalia :- normal looking (Detailed examination under G.A. - if required) Anal Orifice Esternal examination. No P/R done. To be done after collection of swabs. Muscosal tear on left anterior side. Slight whitish secretions present at anal orifice. Advise No active management required immediately. To collect vaginal and rectal swabs. No visible tears or bleeding. External genitalia :- normal looking (Detailed examination under G.A. - if required) Anal Orifice Esternal examination. No P/R done. To be done after collection of swabs. Muscosal tear on left anterior side. Slight whitish secretions present at anal orifice. Advise No active management required immediately. To collect vaginal and rectal swabs. She further opined that muscosal tears on left anterior side and slight whitish secretions present at the anal orifice, in the present case, could be the result of attempted sodomy on the prosecutrix. She produced the M.L.R. PE, which was prepared by her. Still further corroboration was provided through the statement of Dr. Yashbala, Managing Director (Gynae), PW6, who examined the prosecutrix, under general anesthesia, at 1.40 PM, and recorded her findings, on the admission file PD, which are described, as under : No vulval injury/excoriation. Whitish scanty discharge seen above hymen. The said discharge was sent for culture examination in the microbiology department of PGI and the report regarding that is (Ex. PG). Vaginal swabs were already taken and sent by the doctor of Pediatric,for medico-legal purposes. Dr. S.S. Dass, Resident Department of Gynae, has recorded the note at my instance on PG." She further opined that if there was very little penetration of penis, in the vagina, the hymen could remain intact. Dr. Ajay Gupta, PW7, also provided corroboration to the ocular version, who examined the prosecutrix, on her arrival, in the Post Graduate Institute of Medical Education and Research, Chandigarh, and found the following injuries, on her person : (i) Red bruise 1.5 cm x 1.25 cm present over left cheek 2 cm below lateral margin (angle) of left eye. (ii) Multiple abrasion with clotted oozed blood of different shapes and directions and of the size varying 0.5 x 0.10 cms to 0.8 x 0.10 cros in an area of 2.5 cm x 2 cm. On left side of the face, 1 cm below the injuries No. 1 and 2 cm lateral and above the left angle of mouth. (iii) Multiple abrasions (linear) with clotted oozed blood of different shape and directions and of the size varying 0.5 x 0.10 to 0.8 x 0.10 cms in an area of 3 cm x 1.5 cm. On right cheek 2.5 cm lateral to right angle of mouth and 5 cm above and medial to right angle of jaw. (iii) Multiple abrasions (linear) with clotted oozed blood of different shape and directions and of the size varying 0.5 x 0.10 to 0.8 x 0.10 cms in an area of 3 cm x 1.5 cm. On right cheek 2.5 cm lateral to right angle of mouth and 5 cm above and medial to right angle of jaw. Still further corroboration was provided through exhibit PX, report of the Chemical Examiner, Government of Punjab, to whom, the frock, vaginal swab, rectal swab, slides of vaginal swab (smears), and slides of rectal swab (smears), of the prosecutrix, and underwear of the accused were sent. According to this report, semen was found on the underwear of the accused and frock of the prosecutrix. There was, no reason, on the part of Rajdev Yadav, PW10, to depose falsely. He had no ill-will, grudge, or enmity, against the accused, to make a false statement. Whatever he saw, he deposed to, in the Court. Even the prosecutrix, a child, aged about three and a half years, at the time of the occurrence, could not, by any stretch of imagination, be said to be having any enmity or grudge, against the accused. She correctly identified the accused, in the Court, and stated that, he committed bad act with her. She being a child, could be said to be a simpleton. She was not mentally developed, to such an extent, as she could clearly define the act, as attempt to rape, made by the accused. However, as dated above, she in clear- cut terms stated, that the accused committed bad act, by undressing himself. Injuries, on the person of the prosecutrix, clearly revealed that force was used by the accused, in making an attempt to commit rape with her, Dr. Parul Gupta, PW5, also gave the opinion, that injuries, suffered by the prosecutrix, on her cheeks, could be the result of person, using force, while attempting to rape. Dr. Yashbala, PW6, stated that, even if, there was very little penetration of penis, in the vagina, the hymen could remain intact. Dr. Ajay Gupta, PW7, stated that the present injuries, on the person of the prosecutrix, definitely depicted the use of force by the accused, while attempting to commit rape. Dr. Yashbala, PW6, stated that, even if, there was very little penetration of penis, in the vagina, the hymen could remain intact. Dr. Ajay Gupta, PW7, stated that the present injuries, on the person of the prosecutrix, definitely depicted the use of force by the accused, while attempting to commit rape. He further opined, that the possibility of injuries, caused on the person of the prosecutrix, by forceful kissing, on the cheeks, or using the hands out of passion, by the accused, could not be ruled out. He further gave the opinion, that the injuries, on the person of the prosecutrix, could also be caused, as a result of struggle, by her, while trying to save herself, from the clutches of the accused, at the time of sexual assault. The trial Court, was, thus, right in coming to the conclusion, that the evidence of Rajdev Yadav, and the prosecutrix, duly corroborated by the medical evidence, and the report of the Chemical Examiner, being cogent, convincing, and reliable, was sufficient to record conviction, and award sentence. This Court, after reappraisal and reappreciation of the evidence, also comes to the same conclusion. The findings of the trial Court, in this regard, being correct, are affirmed. 22. It was next submitted by the Counsel for the appellant, that the appellant was falsely implicated, in the instant case, as he was having a dispute with the mother of the prosecutrix, over some money. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, the accused, took up a plea, in his statement, under Section 313 of the Code of Criminal Procedure, that he had dealing with the mother of the prosecutrix. He also stated that there was dispute, in respect to the settlement of account. He further stated that Rajdev Yadav, prosecution witness, gave him a slap and thereafter, he was falsely involved. In this case, no evidence, was produced by the accused, to prove this plea. Such a false plea was taken up by the accused, just with a view to wriggle out of the clutches of law. Even otherwise, it could not be imagined, that a mother would stake the honour of her child of three and a half years, by levelling false allegations of making an attempt to rape, on her by the accused. Such a false plea was taken up by the accused, just with a view to wriggle out of the clutches of law. Even otherwise, it could not be imagined, that a mother would stake the honour of her child of three and a half years, by levelling false allegations of making an attempt to rape, on her by the accused. Such an afterthought plea, was taken up by the accused, just for the sake of it. There is nothing, on the record, that there was any enmity, between the accused, and the mother of the prosecutrix. As such, the question of his false implication, did not at all arise. Even otherwise, in the face of the cogent, convincing, and reliable evidence, produced by the prosecution, such a plea of false implication, raised by the accused, falls to the ground. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 23. Last of all, the Counsel for the appellant submitted that the appellant has been facing the protracted criminal proceedings since 12.07.1992, the date of registration of the case, against him, i.e,. for a period of more than 16 years, and the sentence awarded, to him, being excessive and harsh, be reduced suitably. The submission of the Counsel for the appellant, in this regard, appears to be correct. No doubt, the accused made an attempt to commit rape with an innocent child. He, thus, committed a heinous crime. Stern punishment was required to be awarded to him. Minimum punishment provided for the offence of commission of rape is seven years. In the instant case, as stated above, there was only an attempt, to commit rape. Under these circumstances, substantive sentence of 10 years, awarded by the trial Court, to the accused, appears to be excessive and harsh. The same deserves to be suitably reduced. The submission of the Counsel for the appellant, in this regard, is accepted. To this extent, the judgement of the trial Court, deserves to be modified. 24. For the reasons recorded above, the appeal is partly accepted. The judgement of conviction, recorded by the trial Court, is upheld. The order of substantive sentence, is modified, in the manner, that the appellant is sentenced to undergo rigorous imprisonment for a period of 07 years, instead of rigorous imprisonment for a period of 10 years. 24. For the reasons recorded above, the appeal is partly accepted. The judgement of conviction, recorded by the trial Court, is upheld. The order of substantive sentence, is modified, in the manner, that the appellant is sentenced to undergo rigorous imprisonment for a period of 07 years, instead of rigorous imprisonment for a period of 10 years. The order awarding sentence of fine, and sentence awarded, in default thereof, as also regarding payment of compensation, if the fine is realized, shall, however, remain intact. The Chief Judicial Magistrate, shall comply with the judgement promptly, in accordance with the provisions of law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit the compliance report, within a period of 02 months. 25. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 26. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. Order accordingly.