Criminal Appeal No.224-SB of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.224-SB of 1998 Date of Decision:08.01.2009 [ENTITY] Appellant Vs. [ENTITY] Respondent CORAM:- HON'BLE MR. JUSTICE [ENTITY] Present:- Ms. [ENTITY], Advocate for Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], AAG, Haryana. JUDGMENT
[ENTITY], J.
This appeal is directed against the judgment dated 8.1.1998/ order of sentence dated 10.1.1998 passed by the Court of learned Additional Sessions Judge, Rohtak whereby she convicted and sentenced the accused [ENTITY] to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of the same to further undergo rigorous imprisonment for six months under [SECTION] of [ACT].
As the prosecution story goes, on 1.3.1996, [ENTITY] PW made a statement before the Police that on 29.2.1996 she was away to work on road-side. There being no work for her, she returned home around 11:30 A.M. She found that the door of her house lay bolted from inside. Her son [ENTITY] was sitting outside on a cot. She knocked at the door but nobody opened the same for sufficient time. She managed to unbolt the same by putting her hand inside. On this [ENTITY] accused brother of her landlord [ENTITY] rushed out tying his pyjama. Her daughter (To prevent her social victimisation, her name is not being indicated in view of [PRECEDENT] Supreme Court. Hereinafter she will be referred as `the [ENTITY]') lay on the cot with her naked legs. On being asked, the [ENTITY] told her that the accused had taken off her salwar and was committing obscene acts with her. He had also given teeth bites on her cheeks. On her statement, the case under [SECTION] of [ACT] was registered. On completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate for commitment proceedings.
On commitment, the accused was charged under [SECTION] of [ACT] to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 [ENTITY] author of the FIR, PW2 [ENTITY], PW3 Constable [ENTITY], PW4 [ENTITY], PW5 Dr. [ENTITY], PW6 Dr. [ENTITY], PW7 Head Constable [ENTITY], PW8 Head Constable Shri [ENTITY], PW9 SI [ENTITY], PW10 Dr. [ENTITY], PW11 [ENTITY] ASI, PW12 [ENTITY] and closed its evidence by tendering the affidavit Ex.P.Q of Constable [ENTITY].
When examined under [SECTION] of [ACT], the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. As a theory of rival defence, he put forth that he had taken liquor and when he was passing from the street, children including (referring to [ENTITY]) started teasing him and he gave slaps to her as well as [ENTITY]. [ENTITY], mother of [ENTITY] came there and gave beatings to him. Later on, he was apprehended by the police. In his defence, he examined his nephew DW1 [ENTITY] son of [ENTITY].
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed earlier. Feeling aggrieved with his conviction/ sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Learned counsel for the appellant urged with full force that a careful study of [ENTITY]'s statement would reveal that indeed it is an outcome of tutorisation and that being so, it would be going too far to place implicit reliance thereupon. As regards, her mother [ENTITY] PW1, it emanates from her statement that when the drunkard accused was being teased by her daughter ([ENTITY]) and her son [ENTITY], he gave slaps on their faces on which [ENTITY] came to blows with him and to wreak vengeance, she falsely implicated him in this case.
To overcome these submissions, the learned State Counsel argued that the [ENTITY] as well as her mother [ENTITY] are in unison on the point that the accused had made an attempt to commit rape on the [ENTITY] and thus, the charged offence is fully established.
I have given a deep and thoughtful consideration to the rival contentions. To be in fairness to the learned counsel for the appellant, of course on reading the testimony of the [ENTITY] in between the lines, it spells out that she was tutored before she gave evidence in the Court, but at the same time it is not to be lost sight of the fact that she has stated in no uncertain terms that "he then opened his pyjama, pulled it down and started rubbing his penis on my vagina (actual words used by the girl are [ENTITY]). I had felt pain in my vagina." It is apt to be borne in mind that at the time of occurrence, the age of the [ENTITY] was in between 9 to 13 years as per the evidence tendered by Dr. [ENTITY], PW6. She by no stretch of speculation could be expected to depose in the Court even on being tutorised that in the course of the act being committed by the accused, she had felt pain in her vagina. As emanates from the evidence of PW10 Dr. [ENTITY], the human bite scar mark were found present on both sides of the face of the [ENTITY]. As surfaces in her cross-examination, the bites on the face of the victim were not artificial nor caused by any friendly hands. To crown it all, by no process of reasoning, it could be expected of the complainant party to create teeth bite marks on the cheeks of the [ENTITY] artificially. A mother or father would not ordinarily subscribe to a false story of sexual assault involving their own daughter and thereby putting at stake the reputation of the family and jeopardise the life of the daughter in view of [PRECEDENT].
Now a word about defence needs to be recorded. [ENTITY] DW1 has stated in a nutshell that on hearing a noise, he went to the street and found [ENTITY] (referring to the accused ) in drunkard position and the children of [ENTITY] PW were teasing him. He gave slaps on their faces. [ENTITY] had also come out. The accused and [ENTITY] exchanged slaps and he disengaged them. Admittedly, [ENTITY] is related to the accused. That being so, it was not difficult for the accused to procure his services. Thus, this defence witness might had come to the Court with an avowed purpose to depose in favour of the accused. As alleged, the accused and [ENTITY] PW came to blows in the street. If it was so, there could be no dearth as to the availability of independent witnesses. The bald testimony of [ENTITY] (sic.) cannot be relied upon safely. So, the defence version is rejected.
As a sequel of the above discussion, the impugned judgment of conviction is upheld. The order dated 2.3.2000 passed by this Court in [CASE NUMBER] in this appeal reveals that the appellant was admitted to bail on the ground that he has completed almost four years of his actual sentence. The doctrine of proportionality contemplates that the sentence must commensurate with the gravity of offence. In the case at hand, to my mind, the sentence inflicted by the learned trial Court is on the higher side. Thus taking into consideration the totality of the facts and circumstances of the case, the sentence is reduced to the one already undergone. With this modification in the order of sentence, this appeal fails and is dismissed.
January 08, 2009 ( [ENTITY] ) renu JUDGE Whether to be referred to the Reporter? No