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2013 DIGILAW 77 (PNJ)

Ajay v. State of Haryana

2013-01-28

JITENDRA CHAUHAN

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JUDGMENT Jitendra Chauhan, J. 1. The present appeal has been filed against the judgment/order dated 24.11.2009, whereby the learned Sessions Judge, Karnal, convicted and sentenced the accused-appellant for a period of seven years and to a pay fine of Rs.7000/-; in default of payment of fine, to have further undergo RI for one year, under Section 376 read with Section 511 of the Indian Penal Code. 2. The facts necessary for adjudication of the matter as narrated in para 1 of the impugned judgment are as under:- “ On 19.6.2008 at about 9.15 PM; Seema PW10, aged about 30 years, mother of the prosecutrix, (aged about 4 years, who has been examined as PW11), alongwith Sanjay Kumar PW12, younger brother of her husband, met ASI Jodha Ram PW14, near “Ghora Chowk' Karnal, where she got her statement Ex.PC recorded. It is to the effect that she is mother of two daughters, aged about six years and four years respectively. Prosecutrix is her younger daughter. On that day, at about 7.30/8.00 P.M., she had sent the prosecutrix to a shop in the adjoining street, for bringing some household articles; but when she did not return for some time, she then herself went out to search her; when she was passing in front of the house of the accused, she heard cries of her daughter whereupon she looked into the 'baithak' of the accused, and saw that the naked accused, was lying on her daughter on a 'sofa' and her daughter was crying. She immediately entered the house and started abusing the accused, whereupon the accused after wearing his underwear tried to ran away. She tried to catch hold him, but the accused gave her a push and went out in the street. She called the persons in the street, who caught hold the accused and on being apprised that the accused had committed rape on her daughter, they gave him beating. Meanwhile Sanjay Kumar PW12, younger brother of her husband, also reached there and he also alongwith others thrashed the accused. Her daughter was bleeding. She made her to wear the panty, which was earlier removed by the accused and now when she was goint to the police, the police met them there at that place; hence this report. 3. After completing all the formalities, the challan was presented in the Court. Her daughter was bleeding. She made her to wear the panty, which was earlier removed by the accused and now when she was goint to the police, the police met them there at that place; hence this report. 3. After completing all the formalities, the challan was presented in the Court. The accused -appellant was charged for the commission of offence punishable under Section 376 of IPC, to which, he did not plead guilty and claimed trial. 4. In order to substantiate the charge, the prosecution has examined as many as twelve witnesses, which are as under:- PW1 Dr.Seema, Medical Officer, GH Karnal, who proved the MLR Ex.PA/1 of the prosecutrix. PW2 ASI Surinder Kumar, who registered the FIR Ex.PC/1 on receipt of ruqa Ex.PC. PW3 HC Veer Shakti Singh, who proved the scaled site plan Ex.PD. PW4 SI Rajwanti, who got the prosecutrix to the doctor for medico legally examination. PW5 C.Bijender Singh, who delivered the special report to the Magistrate. PW6 HC Raj Kumar, photographer, who proved photographs Ex.P4 to Ex.P7. PW7 ASI Sukhbir Singh, and PW8 EHC Balwant Singh, formal witnesses, tendered their affidavits Ex.PF and PG, regarding custody and safe transit of the case property to FSL Madhuban. PW9 C.Pawan Kumar, who proved his attestation upon Ex.PH, Ex.P8, P9, Ex.P1, P10. PW10 Seema, mother of the prosecutrix, author of FIR. PW11 Prosecutrix. PW12, Sanjay Kumar, uncle of the prosecutrix. PW13, Dr. Mej Pal, who proved the MLR of the accused. PW14, ASI Jodha Ram, Investigating Officer. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant stoutly denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. In defence, he examined Sudershan Kumar, Municipal Councilor as DW1 and Mimal Singh as DW2, mother of the accused. 6. Before the trial court, the arguments raised by the learned defence counsel were that there are material contradictions in the statements of the prosecution; no injury was found on the private parts of the prosecutrix. 7. After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court rejected the pleas raised by the counsel for the accused and convicted and sentenced the accused-accused-appellant, as noticed at the outset. 8. The present appeal was admitted on 31.3.2010 by this Court. 9. 7. After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court rejected the pleas raised by the counsel for the accused and convicted and sentenced the accused-accused-appellant, as noticed at the outset. 8. The present appeal was admitted on 31.3.2010 by this Court. 9. Learned counsel for the appellant submits that the learned trial Court has committed a grave error while convicting and sentencing the appellant. She submits that there are material discrepancies in the statements of the prosecution witness, which have been ignored by the learned trial Court. As per medical evidence, neither any fresh injury nor any tenderness on the private parts of the prosecution were found. She further submits that no human semen was found on the vaginal swab slides. Lastly, she argues that the appellant is the sole bread earner and having two minor children and old parents and he has undergone 4½ years of imprisonment and therefore, keeping in view the said facts, a lenient view may be taken and reduced the sentence. In support of her contentions, she relies upon Mohinder Kumar vs. State of UT, Chandigarh 2009(3) RCR (Crl.) 447 and Tarsem Lal vs. State of Himachal Pradesh 2011 (5) RCR (Crl.) 293. 10. On the other hand, the learned counsel appearing for the respondent-State submits that the prosecution case being fully proved beyond reasonable doubt, the learned trial Court has rightly convicted and sentenced the appellant. 11. I have heard the learned counsel for the parties and perused the record carefully. 12. It is admitted fact that the prosecutrix is minor of 3/4 years of age. Mother of the prosecutrix Seema PW10 in her statement has deposed as under:- “Thereafter when I was going to the house of my husband's sister in Gali No.1 to see my daughter (name withheld), I heard the cries of my daughter in the way. I stopped a while. Again I heard cries of my daughter. The same were coming from the house of accused. I peeped through the window of the house by removing the curtain a bit. I saw that accused lying naked on my daughter on a sofa.” She further deposed that “on hearing my cries my brother in law Sanjay reached there. He gave slaps to the accused. The same were coming from the house of accused. I peeped through the window of the house by removing the curtain a bit. I saw that accused lying naked on my daughter on a sofa.” She further deposed that “on hearing my cries my brother in law Sanjay reached there. He gave slaps to the accused. Meanwhile, other persons also gathered there.” She further deposed that I alongwith my brother in law and bleeding daughter went to the police. She further deposed that there was blood on the sofa and underneath the sofa. Pillow of the sofa was also blood stained.” The same corroborated by Sanjay Kumar. The accused- appellant was caught red handed by the complainant and Sanjay Kumar. Dr.Seema, who conducted the MLR on the person of the prosecutrix has opined that hymen was intact and possibility of sexual assault in this case cannot be ruled out. As per the the averment made in the affidavit of Dr.Mej Pal, Medical Officer, General Hospital, Karnal, that there was bleeding from the penis and laceration from the prepuce. Moreover, he was found naked when he was caught hold. The prosecutrix was also found naked. Therefore, in the considered opinion of this Court, the appellant had made an attempt to commit rape upon the prosecutrix, who was minor at the time of occurrence. 13. The accused was also found capable of performing intercourse by Dr. Mej Pal, who conducted the MLR on the accused-appellant. The trial Court having relied upon the evidence on record has come to the conclusion that the accused made an attempt to commit rape on the prosecutrix aged 3/4 years. He was caught red handed by PW10 Smt.Seema Devi, mother of the prosecutrix. The accused-appellant was thrashed by the crowd and uncle of the prosecutrix when he tried to run away. There is no evidence with regard to the false implication. The accused has not made anything with regard to any previous enmity with the complainant. In the light of the very categoric statements of P.W. 10 as corroborated by P.W. 13 and in the light of the fact that no cause for false implication has been pointed out by the accused, the present appeal is dismissed. 14. The injuries caused to the victim at this tender age shall remain embedded in her psyche throughout the life. 14. The injuries caused to the victim at this tender age shall remain embedded in her psyche throughout the life. At this stage, it is difficult to appreciate the effect the intensity and the manner of the injuries caused would manifest in the years to come. The injuries caused to the victim are grave in nature and their adversial affect on the growth and development, particularly emotional and psychological, cannot be quantified at all. In certain cases, the affect /repercussion travels to next generation as well. The loss and injuries suffered by the victim and her family weigh for higher as compared to the rights of the appellant and difficulties suffered by him. 15. The Hon'ble Supreme Court in State of A.P. vs. Bedem Sundara Rao AIR 1996 SC 530 has held as under:- “In recent years, we have noticed that crime against women are on the rise. These crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's crime for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane.” 16. In the circumstances, the authorities cited by the learned counsel for the appellant in similar circumstances wherein a lenient view was taken and sentence was reduced does not convince the conscience of this Court to take a lenient view for reducing the sentence by considering the age of the prosecutrix. 17. In view of the above, this Court finds no infirmity or illegality in the judgment delivered by the learned trial Court. As such, the present appeal is dismissed.