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2013 DIGILAW 1306 (PNJ)

Daljit Singh v. State of Punjab

2013-09-26

JITENDRA CHAUHAN

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Judgment Jitendra Chauhan, J. The present appeal is directed against the judgment of conviction and order of sentence dated 14.11.2011, passed by the Additional Sessions Judge, Ludhiana, whereby, under Sections 366 and 376 of the Indian Penal Code (hereinafter referred to as Rs. IPC') the appellant/accused was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5000/- or in default of payment of fine to further undergo RI for three months for the offence under Section 366 IPC. He has also been sentenced to undergo rigorous imprisonment for 07 years and to pay a fine of Rs. 5000/- or in default of payment of fine to further undergo RI for three months for the offence under Section 376 IPC. However, both the sentences had been ordered to run concurrently. The case of the prosecution as per judgment of the trial Court is as under:- “On 11.05.2010 SI Mittar along with other police officials was present in the area of Subhash Gate, Jagraon in connection of patrolling and nakabandi where prosecutrix got recorded her statement to him to the effect that she was studying in 9th class in Adarsh Kanya School, Lopon Shah Chowk, Jagraon. On 10.05.2010, at about 7.45 AM, she was going to the school in the school dress. When she reached in Lopon Shah Chowk, then her maternal uncle Daljit Singh son of Waryam Singh (appellant) was standing there on motorcycle Platina red colour. He called her and threatened her and forcibly took her with him on motorcycle. On the way when they were going on motorcycle, he was threatening her. He took her in Government Quarter in Canal Colony, Zira. They reached there at 10.00 AM. In the quarter, no one was present and her maternal uncle Daljit Singh laid her on the bed and forcibly removed her clothes and committed rape twice against her consent and despite her resistance. She raised raula but none came there in order to save her. On that day at about 12.15 AM, her father Sarwan Kumar and paternal uncle Arwan Kumar reached on Government quarter of her Massar while making search for her. On seeing them, Daljit Singh escaped from there after jumping over the wall. She narrated regarding the incident to her father and her uncle. They brought her at Jagraon. On that day at about 12.15 AM, her father Sarwan Kumar and paternal uncle Arwan Kumar reached on Government quarter of her Massar while making search for her. On seeing them, Daljit Singh escaped from there after jumping over the wall. She narrated regarding the incident to her father and her uncle. They brought her at Jagraon. At Jagraon, she narrated the story to her mother Suman Rani and paternal Aunt Prabha Devi. Her statement was recorded, which was signed by her. As offence under Sections 366A, 376 IPC was made out, as such ruqa was sent through HC Gurjant Singh to police station on the basis of which present FIR was recorded. Investigation was conducted by SI Hari Mittal. After reaching at Chowk Lopon Shah, spot was inspected. Rough site plan was prepared. Clothes, which prosecutrix was wearing at the time of going to school i.e. one shirt, one trouser and one under wear were produced by Suman Rani. Parcel was prepared sealed with seal bearing impression 'HM'. Sample seal was separately prepared. Parcel was taken into possession. On 12.05.2010, accused was arrested. Bed sheet was recovered. Parcel was prepared and sealed with seal bearing impression 'HM'. Motorcycle make Bajaj Platina was taken into police possession. On 12.05.2010, HC Manjinder Singh got the complainant medically examined and produced one container containing one swab and one letter before SI Hari Mittar, which were taken into police possession. Accused was got medically examined. Statements of witnesses were recorded. Swab was sent for examination to the laboratory. Report was received as per which spermatozoa was detected. After the conclusion of investigation, challan against accused was presented in the Court.” On commitment, the accused was charged under Sections 366A, 376 IPC, to which the accused/appellant pleaded not guilty and claimed trial. In support of the case of prosecution, it examined PW-1 prosecutrix; PW-2 Dr. Radha Goyal; PW-3 Sarwan Kumar; PW-4 Janak Sharma; PW-5 Manohar Lal; PW-6 Dr. Kishan Singh; PW-7 SI Hari Mittar; PW-8 Tarsem Lal; PW-9 HC Manjinder Singh; PW-10 Constable Narinderpal Singh, PW-11 Veena Kumari and PW-12 Shankar Singh. PW-1 Prosecutrix supported the whole story that on 10.05.2010 at about 7.30/7.45 AM she was going to school and when reached near Lopon Shah Chowk, Jagraon, accused/appellant, who is her uncle, met her and forcibly took her on motorcycle and committed rape upon her against her wish. PW-2 Dr. PW-1 Prosecutrix supported the whole story that on 10.05.2010 at about 7.30/7.45 AM she was going to school and when reached near Lopon Shah Chowk, Jagraon, accused/appellant, who is her uncle, met her and forcibly took her on motorcycle and committed rape upon her against her wish. PW-2 Dr. Radha Goyal testified about the medico legally examination of the prosecution. PW-3 Sarwan Kumar, father of the prosecutrix, testified the whole prosecution story. PW-4 Janak Sharma testified the sale letter of the motorcycle stands in the name of accused. PW-5 Manohar Lal proved the birth certificate of the prosecutrix. PW-6 Dr. Kishan Singh testified the medico legal examination of the accused. PW-7 SI Hari Mittar, Investigating Officer proved on record the investigation. PW-8 Tarsem Lal proved the rough site plan of the place of occurrence. PW-9 HC Manjinder Singh tendered his affidavit in evidence Ex.PQ. PW-10 Constable Narinderpal Singh testified about the two parcels and sample seal being deposited with FSL, Chandigarh. PW-11 Veena Kumari testified about the details mark card of middle standard of the prosecutrix. PW-12 Shankar Dass proved the record showing the allotment of quarter in the name of accused/appellant. The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and denied all allegations. He, however, did not lead any evidence in his defence. After hearing the State counsel, the Counsel for the accused, and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore. Feeling aggrieved, against the judgment of conviction delivered by the trial Court, the instant appeal was filed by the accused/appellant which was admitted on 06.02.2012. Learned counsel for the appellant argued that the prosecutrix was allegedly picked up from the market place, while she was on the way to school. Though, it is asserted that she refused to accompany him but she did not raise any alarm. She was allegedly lifted from Jagraon and taken to Zira which is at a distance of about 100 kms. The prosecutrix did not resist to the act of accused, while he allegedly picked up the prosecutrix and traveled a long distance of about 100 kms without any protest version. It is further argued that the ocular version and the medical evidence does not corroborate, and the same advances the case of the prosecution. The learned counsel refers to the statement of PW-2, Dr. It is further argued that the ocular version and the medical evidence does not corroborate, and the same advances the case of the prosecution. The learned counsel refers to the statement of PW-2, Dr. Radha Goyal, the Medical Officer, wherein she has stated that hymen was intact; no bleeding pervaginum, no discharge from pervaginum. Therefore, the learned counsel contends that in fact, no rape as alleged by the prosecution has taken place in the instant case. Lastly, it is argued that the appellant/accused has undergone substantial part of the sentence i.e. 3½ years out of substantive sentence of 07 years. The appellant was 25 years of age at the time of registration of FIR, so a lenient view may be adopted by the Court. On the other hand, the learned State counsel submits that the victim in the instant case is a minor school going girl of 14½ years. The place of occurrence and all other circumstances confirming the rape are fully established. PW-2 Dr. Radha Goyal, has clarified that rupture of hymen is not always associated in the case of rape. Learned State counsel placed reliance on the judgment of Hon'ble Supreme Court in Radhakrishna Nagesh Vs. State of Andhra Pradesh (SC), wherein it has categorically stated that rupture of hymen is not a to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 376 IPC. This Court has scrutinized the lower Court record carefully with the able assistance of the counsel. Admittedly, the prosecutrix was 14½ years of age at the time of alleged occurrence and as per opinion of PW-2 Dr. Radha Goyal, redness and tenderness on the perennial area was present. As per Section 375 IPC even a partial penetration is sufficient to make out an offence of rape. The explanation attached to Section 375 IPC clearly states that a penetration is sufficient to prove sexual intercourse. In the explanation, no degree of penetration has been defined. Radha Goyal, redness and tenderness on the perennial area was present. As per Section 375 IPC even a partial penetration is sufficient to make out an offence of rape. The explanation attached to Section 375 IPC clearly states that a penetration is sufficient to prove sexual intercourse. In the explanation, no degree of penetration has been defined. It has been observed in various judgments that even partial or slightest penetration of male organ within the labia majora or the vulva or pudendum with or without any emission of semen or even an attempt of penetration into the private parts of victim would be sufficient for the purpose of attracting the liability under Section 376 IPC. This view has been supported in the judgment rendered in Rajendra Datta Zarekar Vs. State of Goa 2008 (1) RCR (Criminal) 229 (SC) in reproduction part of para No.14, which reads as under:- “We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads thus:- Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.” Even in cross examination of doctor who medico legally examined the prosecutrix has stated that there was redness and tenderness on the perennial area and during cross examination it was stated that it is not possible in all cases that hymen must rupture. Whether the rape has occurred or not is a legal conclusion, not a medical one.” Even in cross examination of doctor who medico legally examined the prosecutrix has stated that there was redness and tenderness on the perennial area and during cross examination it was stated that it is not possible in all cases that hymen must rupture. Report of chemical examiner Ex.PC reveals that spermatozoa was detected on the vaginal swabs which were collected by PW-2 Dr. Radha Goyal and the same were sent to chemical examination. The appellant is a married person. He is a relative of the prosecutrix. The appellant had access to the prosecutrix and was on visiting terms with her family. There was no previous enmity or dispute for which the prosecutrix would falsely implicate the appellant/accused in the present case. The fact that prosecutrix was recovered from the house which stands in the name of the appellant as per allotment order Ex.PW12/A coupled with testimonies of the prosecutrix and father go to establish the guilt of the appellant beyond any reasonable shadow of doubt. The arguments that the prosecutrix voluntarily accompanied the appellant/accused is of no consequence, in view of the under age of the prosecutrix as against the appellant/accused who was a mature, married and being a relative had access to her. The medical evidence fully supports the case of the prosecution. In Vijay @ Chinee Vs. State of Madhya Pradesh judgments today 2010 (7) SC 576, after discussing the entire case law held as under:- “thus the law that emerges on the issue is to the effect that statement of prosecutrix, if formed to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix” In this case, the statement of the prosecutrix is trustworthy and reliable and reliance can be placed on it. Keeping in view the age of the prosecutrix, the Court does not find any merit in the argument that no alarm was raised. The prosecutrix is minor. She was known to the appellant. Therefore, no case for interference in the well reasoned judgment of the trial Court is made out.