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Himachal Pradesh High Court · body

2011 DIGILAW 1235 (HP)

Tarsem Lal v. State of Himachal Pradesh

2011-03-11

SURINDER SINGH

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JUDGMENT SURINDER SINGH, J The appellant was convicted for the attempted rape and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/-, which on realisation is ordered to be paid to the victim as compensation. In default of payment of fine, the convict was further ordered to undergo imprisonment for a period of six months. The appellant was also given the benefit of Section 428 of the Code of Criminal Procedure. Feeling dissatisfied by the impugned judgment of conviction and sentence passed under Section 376 read with Section 511 of the Indian Penal Code, the present appeal has been filed. 2. In short, the prosecution story as emerges from the evidence on record can be stated thus. The prosecutrix was a minor school going child of seven years. She was a student of 2nd standard. On 9.7.2007, while returning from her school, the appellant hereinafter referred to as ‘the accused’, allured her to take some mangoes along with her from his room. She went inside the room, accused bolted the door. He put off his pant and also removed the trouser of the prosecutrix and laid upon her and tried to insert his genital organ in the private parts of the prosecutrix, but she cried of pain. On this, accused let her off and also gave a currency note of Rs. 5/- and told her not to disclose this fact to anyone lest she would be killed. 3. On reaching her house, prosecutrix narrated the entire story to her mother Pinki Devi (PW7). Her husband PW3 Ram Kishan was an Insurance Agent in the Insurance Company working outside his village. His wife informed him about the said incident. He returned in the evening around 6 p.m. Thereafter PW7 Pinki Devi and her husband accompanied by Amar Nath went to the house of the Ward Panch PW4 Sulochna Devi and made a complaint to her that the accused, servant of PW6 Jagdeep Kumar had attempted to commit rape on the prosecutrix. She suggested to approach Jagdeep Kumar aforesaid in the matter. Around 8 p.m., all of them reached in the house of Jagdeep Kumar. They made complaint to him that his servant i.e. the accused in the present case had attempted to commit rape on the prosecutrix. The accused was called in the presence of the aforesaid persons. She suggested to approach Jagdeep Kumar aforesaid in the matter. Around 8 p.m., all of them reached in the house of Jagdeep Kumar. They made complaint to him that his servant i.e. the accused in the present case had attempted to commit rape on the prosecutrix. The accused was called in the presence of the aforesaid persons. He admitted having committed the mistake and apologised by touching feet of all the persons present there. 4. PW7 Pinki Devi reported the matter to police in terms of FIR Ex.PW7/A. Police got the prosecutrix medically examined from PW9 Dr. Pushpa Bali. On her clinical examination, she found that the breast of the prosecutrix was undeveloped and her body did not contain mark any injury. Doctor observed that the labia majora and minora both were ill-developed. Pubic hair were absent, hymen was intact and no discharge or any bleeding was found in the pelvic region. Doctor did not overrule the possibility of the prosecutrix having been attempted to sexual assault and issued Medico Legal Certificate Ex.PW9/B. 5. The accused was arrested on 10.7.2007. He was also subjected to the medical examination by PW2 Dr, Ashish Sahni. He noticed the following three injuries on his person:- 1. “½ cm x 2 cm bruise, reddish brown in colour present on the right breast of the person near to sternum. 2. Irregular abrasion dot shaped on the left upper arm medial aspect. 3. 2-3 dot shaped abrasions on xiphisternum”. The probable duration of injuries was 12 to 48 hours and in the opinion of the doctor the aforesaid injuries could be caused due to finger nails. He issued MLC Ex.PW2/B with respect to the accused. 6. Police also prepared site plan of the place of alleged incident, recorded the statements of the witnesses and on the receipt of report of forensic examination Ex.PW9/A, challan was presented in the Court for the trial of the accused. 7. The accused was accordingly charge-sheeted, tried, convicted and sentenced for the aforesaid offences. 8. Shri Ashok Sharma, learned counsel for the accused/ appellant has forcefully argued that the instant case against the accused has been foisted on account of old enmity between the parties which stands admitted by PW7 the mother of the prosecutrix, PW4 Sulochna Devi, Ward Panch and PW6 Jagdeep Kumar. 8. Shri Ashok Sharma, learned counsel for the accused/ appellant has forcefully argued that the instant case against the accused has been foisted on account of old enmity between the parties which stands admitted by PW7 the mother of the prosecutrix, PW4 Sulochna Devi, Ward Panch and PW6 Jagdeep Kumar. He further ventilated that neither the semen stains nor any other evidence could be detected on the clothes or on her body as per the forensic examination. Thus, the appellant could not be connected with the offences charged. Shri Sharma also argued that in any case of conviction, the sentence imposed upon the accused appears to be quite excessive. 9. On the other hand, Shri A.K. Bansal, learned Additional Advocate General has supported the judgment of conviction and sentence of the accused. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully, meticulously and cautiously examined the evidence on record. 11. The statement of the prosecutrix in the instant case regarding the incident is self explicit and comprehensive. The identification of the accused is not disputed. Prosecutrix was a child of seven years at the time of alleged incident. She testified that at the relevant time, she was a student of second class, while returning from the school, accused met him in the way and he allured her to take mangoes kept inside his room. After entering into the room, the accused bolted the door, put off his pant and untied her trouser (Suthnu) and laid upon her, put his private part in her private part. She felt pain and started crying, upon which the accused let her off and gave a currency note of Rs.5/- and told not to disclose this fact to anyone, otherwise, she would be killed. On reaching her house, she narrated the entire incident to her mother. She further stated that she was got medically examined by the doctor. In her cross-examination, nothing material could be extracted. She denied that there had been a quarrel between her parents and the accused. She was confronted with her statement recorded by the police with respect to threat as alleged to have been given by the accused to her, but the same was not found mentioned. There is absolutely no cross-examination about the incident in question. Her statement had been corroborated by PW7 Pinki Devi her mother. 12. She was confronted with her statement recorded by the police with respect to threat as alleged to have been given by the accused to her, but the same was not found mentioned. There is absolutely no cross-examination about the incident in question. Her statement had been corroborated by PW7 Pinki Devi her mother. 12. The vivid count of the incident given by the prosecutrix which was not assailed in her cross-examination and spoken to her mother was spelt out by her (PW7) during the trial of the case. She also stated that she alongwith Ward Panch PW4 Sulochna Devi, Shri Amar Nath and other persons had gone to the house PW6 Jagdeep Kumar the employer of the accused and complained about the matter. The accused was present there. He confessed his guilt and apologised by touching their feet. Thereafter the Ward Panch aforesaid advised her to report the matter to the police as it being beyond the jurisdiction of the Panchayat. Thereafter, she went to the Police Station and lodged the FIR Ex.PW7/A. 13. Significantly, extra judicial confession made in the presence of the aforesaid witnesses has also not been challenged in the statement of prosecution witnesses. PW4 Sulochana Devi, Ward Panch particularly corroborates the above confession and apology tendered by the accused with respect to the aforesaid incident. 14. PW3 Ram Kishan, the father of the prosecutrix and PW9 Dr. Pushpa Bali have also lent corroboration to the case to a great extent. But, the injuries found on the body of accused could not be linked with the incident by the prosecution, but the fact remains that the prosecution has been able to prove the offence of attempted rape charged against the accused beyond reasonable doubt. The statement of the prosecutrix though a child witness stands corroborated in material particulars by her parents, PW4 Sulochna Devi Ward Panch and PW6 Jagdeep Kumar, the employer of the respondent, coupled with the extra judicial confession made by the accused before them. Therefore, the conviction of the accused for the offences aforesaid cannot be faulted with. 15. Insofar as the sentence is concerned, learned counsel for the accused has argued that at the time of alleged incident, accused was aged about 30 years. He was arrested on 10.7.2007 in this case and is a first offender. It is also submitted that the appellant is a married person having two minor children. 15. Insofar as the sentence is concerned, learned counsel for the accused has argued that at the time of alleged incident, accused was aged about 30 years. He was arrested on 10.7.2007 in this case and is a first offender. It is also submitted that the appellant is a married person having two minor children. Besides this, he works as a labourer and has been prosecuted in this case as also the conviction passed by the learned trial Court has deprived him off from the earning and to support the family. 16. The only question that now remains is as regards the sentence. Of course, the appellant, is a matured person. He behaved with the prosecutrix in a shockingly indecent manner and the magnitude of the offence cannot be over emphasized in the factual background of this case, but for the prayer for leniency made by the learned counsel for the appellant, I would not have countenanced to reduce the sentence, but in my opinion, the special circumstances which exist for considering the leniency are:- (i) The appellant after the alleged incident lost his job. (ii) The family of the appellant having two minor children have been left without any maintenance; (iii) The accused/appellant must have suffered great humiliation in the society. (iv) The appellant has two minor children to provide them good education. (v) The prospectus of the appellant for getting employment with some other person has considerably reduced; and (vi) For all these years from the time of his arrest in this case, he is languishing in jail and must have realised that his misdeed has landed him in jail. 17. Taking into account the cumulative effect of these circumstances and over all view of the matter, I am of the opinion, that the ends of justice will be satisfied if the substantive sentence imposed by the learned trial Court for the offence under Section 376 read with Section 511 of the Indian Penal Code is reduced from five years to three and half years (3 ½). The sentence of fine and the default clause will of course remain undisturbed. Ordered accordingly. Subject to the modification in sentence, the appeal stands dismissed. 18. The learned trial Court is hereby directed to send the amended jail warrants indicating the reduction in substantive sentence to the Superintendent, Jail concerned, in conformity with the judgment passed by this Court. 19. The sentence of fine and the default clause will of course remain undisturbed. Ordered accordingly. Subject to the modification in sentence, the appeal stands dismissed. 18. The learned trial Court is hereby directed to send the amended jail warrants indicating the reduction in substantive sentence to the Superintendent, Jail concerned, in conformity with the judgment passed by this Court. 19. The appeal stands disposed of. Send down the records of the trial court forthwith.