Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1272 (PNJ)

Satish v. State of Haryana

2013-09-19

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. 1. This judgment shall dispose of two CRA Nos. S-2393-SB of 2011, filed by appellant Satish and S-159-SB of 2012, filed by appellant Ramesh, against the judgment/order dated 24/27.8.2011, whereby the learned Additional Sessions Judge (Fast Track Court), Hisar convicted and sentenced the appellants Satish and Ramesh, under sections 363/366/34 IPC and 376(2)(g) of the Indian Penal Code. Under Section 376(2)(g), they were sentenced to undergo R.I. often years and to pay a fine of Rs. 2000/- each; in default of payment of fine, to further undergo RI for three months; under section 366 IPC, they were convicted and sentenced for a period of four years and to pay a fine of Rs.1000/- each and in default of payment of fine, to further undergo R.I. for one month and under section 363 IPC, they were convicted and sentenced to undergo R.I. for three years and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo R.I. for one month. All the sentences were ordered to run concurrently. In brief, the case of the prosecution is that on 19.8.2009, complainant Baljeet Singh filed a complaint with Incharge, Police Post, Azad Nagar that his daughter, aged 16 years (hereinafter referred to as the prosecutrix), a student of Girls Senior Secondary School, Gangwa, was taken away on 12.8.2009, by Satish Kumar son of Roshan Lal, after enticing her. On 19.8.2009, the complainant came to know that his daughter had been residing in village Kuleri. On the complaint of Baljeet Singh, a case under sections 363/366 IPC was registered against appellant-Satish. On 21.8.2009, the prosecutrix made a statement under section 164 Cr.P.C. before the learned ACJM, Hisar that on 12.8.2009, Salochna wife of Satish Kumar had called her to her house, where Satish raped her and his wife Salochna stayed outside the room. This act was repeated many times, but due to the fear, she did not narrate it to anybody. Ramesh also committed rape upon her. She further narrated that one day, when she was going to her school, Ramesh and Satish took her to the village. Satish committed rape upon her. Ramesh took her to Agroha Hospital, where Ramesh committed rape upon her. 2. During the investigation, Satish and Ramesh were arrested. After completion of necessary investigation, challan was prepared and presented before the Court. She further narrated that one day, when she was going to her school, Ramesh and Satish took her to the village. Satish committed rape upon her. Ramesh took her to Agroha Hospital, where Ramesh committed rape upon her. 2. During the investigation, Satish and Ramesh were arrested. After completion of necessary investigation, challan was prepared and presented before the Court. The accused were charge-sheeted under sections 363/366/376(2)(g) IPC read with section 34IPC, to which they pleaded not guilty and claimed trial. After the statement of prosecutrix, Salochna was charge-sheeted under section 114/109 IPC, to which she pleaded not guilty and claimed trial. 3. In order to prove its case, the prosecution examined, PW 1 the prosecutrix; PW 2 ASI Mahabir Singh, PW 3 ASI Ratan Singh, PW 4 Subash Chander, PW 5 SI Hari Ram, PW 6 Dr. Dalel Singh, PW 7 EHC Satish Kumar, PW 8 Baljeet Singh, PW 9 Dr. Anjuli Aggarwal, PW 10 Minakshi, PW 11 ASI Gurmeet Singh, PW 12 Jagmal Singh and PW 13 and closed its case. 4. In their statements recorded under section 313 of the Code, the appellants denied all the allegation. In defence, the accused examined DW 1 Puran Singh, DW 2 Raj Bala, DW 3 Anoop, DW 4 Darshna, DW 5 Chander Kanta, DW 6 Ram Chander, DW 7 Dr. Pratima Gupta and DW 8 Durga Wadhwa was examined. 5. After going through the evidence and hearing the counsel for the parties, the learned Additional Sessions Judge (Fast Track Court), Hisar convicted and sentenced the accused-appellants as indicated in para. No. 1 above Salochna, wife of Satish was acquitted vide order date 24.8.2011, by the learned trial Court, as the prosecution failed to prove its case against Salochna. 6. Aggrieved against the judgment of conviction and sentence, the appellants-Satish and Ramesh have preferred the present appeals, which were admitted by this court on 26.09.2011 (appeal filed by Satish) and on 18.1.2012, (appeal filed by Ramesh) and recovery of fine was stayed during the pendency of this appeal. Neither the State nor the complainant assailed the judgment of acquittal of Salochana. 7-8. Learned counsel for the appellants submits that the appellants have been falsely implicated in the case, and in fact no rape was committed by them. He argued that prosecutrix was major at the time of alleged commission of offence. Neither the State nor the complainant assailed the judgment of acquittal of Salochana. 7-8. Learned counsel for the appellants submits that the appellants have been falsely implicated in the case, and in fact no rape was committed by them. He argued that prosecutrix was major at the time of alleged commission of offence. He further submits that the school certificate produced on record, cannot be relied upon. He further argued that no ossification test to determine the age of the prosecutrix was conducted. Learned counsel asserted that no injury marks were noticed in the MLR which goes to show that the prosecutrix was a consenting party. He further submitted that the prosecutrix did not run away from the spot nor raised any voice. She traveled from one place to the other with the appellants of her own will. He argued that there are material discrepancies in the statements made by the prosecutrix before the police and in the Court. He further argued that the clothes were sent for chemical analysis and no semens were found on the clothes of the prosecutrix. Even doctor has not given any definite opinion about the commission of offence. In support of his submissions, he placed reliance on Alamelu and another v. State Rep. By Inspector of Police, 2011 (1) RCR Cri. 498, Balwan Singh v. The State of Haryana, 2010 (3) RCR (Cri.) 734. 9. On the other hand, learned State counsel prays for the dismissal of the appeals and states-that the prosecutrix was minor at the time of commission of offence. He refers to the Ex. P-20, school certificate, in which date of birth of prosecutrix has been given as 10.7.1993 and on the day of occurrence, she was 16 years, 1 month and 2 days. He further states that the discrepancies, if any, in the statement of the prosecutrix and her father are minor in nature and deserve to be ignored. He refers to Section 114-A of the Evidence Act and states that where the prosecutrix before the court states that she did not consent, the court shall presume it. 10. I have heard the learned counsel for the parties and perused the record with their able assistance. 11. He refers to Section 114-A of the Evidence Act and states that where the prosecutrix before the court states that she did not consent, the court shall presume it. 10. I have heard the learned counsel for the parties and perused the record with their able assistance. 11. A perusal of statement of prosecutrix shows that she gave the same version before the police and in the court that on 12.8.2009; when she was going to school, she was kidnapped by Satish and Ramesh and both the accused committed rape upon her turn by turn. She was kept in village Kuleri for 8 days i.e. from 12.8.2009 to 20.8.2009 and the offence was repeatedly committed. Baljeet Singh, father of the prosecutrix made a complaint before the police on 12.8.2009 that his daughter was enticed by accused Satish and the accused had taken her to some unknown place. Police made a search for the prosecutrix and on 20.8.2009, the prosecutrix alongwith the accused was recovered from village Kuleri. This witness was duly cross-examined by the defence, but no discrepancy was found in his statement. From the evidence on record, it is proved that on 12.8.2009, the prosecutrix was kidnapped by Satish and Ramesh and kept at village Kuleri for 8 days by them and that she was repeatedly subjected to commission of offence by the appellants without her consent. The plea of consent was not raised by the accused before the learned trial court. In paras. 41 and 42 of the judgment of learned Additional Sessions Judge, Fast Track Court), it was observed as under:- 41. Prosecutrix has appeared into witness box as PW 1 and has stated that accused Satish and Ramesh both committed rape with her. By statement of PW 1 prosecutrix Suman and PW 8 Baljeet Singh, who is father of the prosecutrix, it is proved before the court that accused Ramesh kidnapped the prosecutrix on 12.8.2009 and she was kept at village Kuleri. On 20.8.2009, prosecutrix was recovered from village Kuleri alongwith accused Satish. By statement of PW 1 prosecutrix Suman and PW 8 Baljeet Singh, who is father of the prosecutrix, it is proved before the court that accused Ramesh kidnapped the prosecutrix on 12.8.2009 and she was kept at village Kuleri. On 20.8.2009, prosecutrix was recovered from village Kuleri alongwith accused Satish. In the present case, learned defence counsel has also taken in alternative the plea that there was consent of prosecutrix Suman, so, on that ground accused are entitled to acquittal but this contention of learned defence counsel is not tenable because accused have not taken the plea of consent and they have taken the plea that they have been falsely implicated in the present case. So, at the stage of arguments plea of consent can not be taken by the accused. Ex. P8 is MLR of accused Satish and Ex. P10 is MLR of accused Ramesh and according to which doctor has opined that there is nothing to suggest that they cannot perform sexual intercourse. 42. The contention of the learned defence counsel that on the clothes of the prosecutrix and accused no semen was detected, as per the FSL report which also proves that no rape was committed but the contention of learned defence counsel is not tenable because if semen is not detected on the clothes of accused and prosecutrix, from the same, the court cannot draw the inference that rape was not committed upon the prosecutrix. Prosecutrix in her statement Ex. P1, which was recorded by Magistrate under Section 164 Cr.P.C. and in her statement which she has given before the court has repeated the same version that she has been raped by both the accused. I have gone through the statement of prosecution witnesses and there is no such major contradictions, on the ground of which benefit of doubt can be given to accused. 12. The sole testimony of a rape victim is credible for conviction of accused without need for any further corroboration. This proposition has been settled by Hon'ble Apex Court in several decisions. In State of Haryana v. Basti Ram, 2013(2) RAJ. (RAJ.) 647 : 2013(2) MLJ (Crl) 866, in para. 29, it has been held as under: 29. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this Court in several decisions. In State of Haryana v. Basti Ram, 2013(2) RAJ. (RAJ.) 647 : 2013(2) MLJ (Crl) 866, in para. 29, it has been held as under: 29. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this Court in several decisions. A detailed discussion on this subject is to be found in Vijay @ Chinee v. State of Madhya Pradesh, 2010 (3) R.C.R. (Criminal) 794 : 2010 (4) Recent Apex Judgments (R.A.J.) 330 : (2010) 8 SCC 191 . After discussing the entire case law, this Court concluded in paragraph 14 of the Report as follows: Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. 13. In the instant case also, there are no material contradictions in the statement of the prosecutrix or her father. The Ld. Trial Court has rightly held that the offence was committed by the appellants. 14. Now to deal with the age of the prosecutrix. PW 10 Minakshi, a teacher from Government Girls Middle School, Gangwa has brought the original (summoned) record. As per admission register, the date of birth of the prosecutrix was 10.7.1993. At serial No. 491, the name of prosecutrix alongwith date of birth, father/mother name, address was mentioned in the register. The prosecution has relied upon the evidence produced by this witness to come to the conclusion that the prosecutrix was 16 years, 1 month and 2 days old as on 12.8.2009, the date of occurrence. So, it is proved that the prosecutrix was above 16 years on the date of commission of offence. 15. Learned State counsel has referred to Section 114-A of the Indian Evidence Act to suggest that the plea of consent is to be proved by the accused. Section 114-A of the Indian Evidence Act reads as under: 114-A. Presumption as to absence of consent in certain prosecutions for rape. 15. Learned State counsel has referred to Section 114-A of the Indian Evidence Act to suggest that the plea of consent is to be proved by the accused. Section 114-A of the Indian Evidence Act reads as under: 114-A. Presumption as to absence of consent in certain prosecutions for rape. In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) of clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether, it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent). 16. In the instant case, provisions of section 114-A of the Indian Evidence Act were attracted and no attempt had been made by the appellants to rebut the presumption. Similar proposition was dealt with in Mohan Lal and Anr. v. State of Punjab, 2013 (2) RCR (Cri.) 793 and Hon'ble the Apex Court, in paras. 20 and 21, observed as under:- 20. The issue in respect of applicability of Section 114-A of the Evidence Act has been considered by this Court in Raju and Ors. v. State of Madhya Pradesh reported in 2009 (1) R.C.R. (Cri.) 310 : 2009 (1) RAJ. (R.A.J.) 49 : (2008) 15 SCC 133, and while deciding the said case, reliance has been placed on the judgment in Ranjit Hazarika v. State of Assam, (1998)8 SCC 635 , wherein this Court has held as under:- ....Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence or a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The court while appreciating the evidence or a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is ever more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding.... 21. In view of the above, we are of the considered opinion that it was a fit case where the provisions of Section 114A of the Evidence Act are attracted and no attempt had ever been made by any of the appellants or other accused to rebut the presumption. In such a case, we do not see any reason to interfere with the finding of fact recorded by the courts below. 17. In the case in hand, since the prosecutrix was 16 years of age, the question that she had gone with the appellants of her own accord and stayed with them for 8 days is meaningless The prosecutrix was categorically deposed before the Magistrate as well as during trial that she was taken away by the appellants and kept at village Kuleri for 8 days and was raped by them. 18. There is no reason to doubt the statement made by the prosecutrix. In these circumstances, the learned trial court after appreciating the entire evidence on record has rightly sentenced and convicted the appellants under sections 363/366 and 376(2)(g) IPC. This Court finds no infirmity or illegality in the judgment and order of conviction and sentence passed by the Court below. So far as the sentence part is concerned, the age of the prosecutrix is half of the age of the accused-appellants. Such like accused are polluting the whole society atmosphere. No leniency is to be shown to these wolves in the guise of lambs. The incidents of raping minor girls are increasing day by day. So far as the sentence part is concerned, the age of the prosecutrix is half of the age of the accused-appellants. Such like accused are polluting the whole society atmosphere. No leniency is to be shown to these wolves in the guise of lambs. The incidents of raping minor girls are increasing day by day. If the situation is controlled, by giving stringent punishment, only then the daughters of nation can be saved. It is not a case even to reduce the sentence what to talk of giving clean chit to the appellants. The most unfortunate thing is that the accused Satish resides in front of the house of the prosecutrix. Accordingly, the appeals are dismissed. Appeal dismissed.