Crl.Appeal No. 1492-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1492-SB of 2002 Date of decision: 30.9.2010 Jagdish … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.U.K.Agnihotri, Advocate, for the appellant. Mr.Paramjit Batta, Addl.AG, Haryana. … JORA SINGH, J. Jagdish son of Basant Lal directed this criminal appeal against the judgment of conviction dated 20.8.2002 and order of sentence dated 21.8.2002 passed by Additional Sessions Judge, Panchkula, in Sessions Case No. 75 dated 8.9.2000, arising out of FIR No.34 dated 20.4.2000 under Sections 366/363/376 IPC, PS Raipur Rani. By the said judgment, he was convicted under Section 376 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for two years. Co-accused Shammi was acquitted of the charge levelled against him. Against acquittal, no appeal by the State. Prosecution story, in brief, is that Rachna Ram, complainant, is the resident of Village Chota Tirlokpur and was working as agriculturist. There was a fair from 5.4.2000 in Mata Sharda Temple. People from outside had organized different bhandaras in the fair. There was a bhandara Crl.Appeal No. 1492-SB of 2002 2 organized by Seth Janak Raj of Mansa Mandi starting from 10.4.2000. In this bhandara, Shammi son of Bhola also came as a servant. His (Rachna Ram) daughter Sunita @ Mandi (for short `Prosecutrix No.1’), aged about 11-12 years, and another girl Rinki (for short `Prosecutrix No.2’) d/o Ram Kishan, aged about 11-12 years, also used to attend the bhandara and this bhandara was finished after two days. Seth Janak Raj came back to Mansa Mandi. About 6-7 days earlier, Hari @ Virender came to the house of Ram Kishan and stayed there till 16.4.2000. On 17.4.2000, complainant was present at his house. Fair of Mata Sharda was continuing, then he thought that Prosecutrix No.1 had gone to see the mela. At about 11.30 PM during night time, Prosecutrix No.2’s mother Promila came and informed him that Prosecutrix No.2 and Prosecutrix No.1 are missing. He had made an effort to trace both the girls in the village and at Mata Sharda Temple but failed to trace them. His wife told him that both the girls had gone in the forest to collect wood on 17.4.2000 and in the evening at 3.00/4.00 PM, Sohan Lal son of Gian Chand informed him that both the girls were seen near water tank at Khetpurali Road. To save his reputation, complainant was trying his level best to trace both the girls but they were not traceable. Complainant suspected that one boy out of Jagdish and Shammi has kidnapped both the girls. Rachna Ram met the police party near Bus Stand, Raipur Rani, where his statement (Ex.PS) was recorded. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Inspector Ishwar Singh along with party and complainant had gone to the spot. After inspecting the spot, recorded the statement of Promila under Section 161 Cr.P.C. An effort was made to apprehend the Crl.Appeal No. 1492-SB of 2002 3 accused, but accused could not be apprehended. On 25.4.2000, Jagdish was arrested from temple of Trilokpur. Shammi was arrested while present near `T’ point of Village Tirlokpur (Raipur Rani). On 23.4.2000, police party headed by ASI Dalel Singh along with Rachna Ram and Rinku was present near railway crossing, Mansa Mandi, then Prosecutrix No.1 and Prosecutrix No.2 were seen while coming from the side of railway station. They were identified by Rachna Ram and Rinku. Statements of both the prosecutrix were recorded under Section 161 Cr.P.C. Memo (Ex.PH) was prepared. Offence punishable under Section 376 IPC was added. Rough site plan (Ex.PI) with correct marginal notes was prepared. On the next day, both the prosecutrix pointed out the places where they were raped. They were produced before the doctor for medical examination at Civil Hospital, Raipur Rani. After medical examination, doctor had handed over sealed parcels. Same were taken into police possession vide memo (Ex.PN) and (Ex.PM). After completion of investigation, challan was presented in Court. Accused were charged under Sections 363/366/376 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Prosecutrix No.1 stated that on 10.4.2000, she along with her friend Prosecutrix No.2 had gone to attend the mela in Raipur Rani. Jagdish was the friend of Prosecutrix No.2. Jagdish gave Rs.350/- to Prosecutrix No.2. Jagdish was also with them when they had gone to attend the mela. Jagdish and Prosecutrix No.2 forcibly abducted her in a car. She was taken to different places. For about 4-5 days, she remained with Crl.Appeal No. 1492-SB of 2002 4 Jagdish and Prosecutrix No.2. Police met them at some place. Police brought them to Raipur Rani. After that, she was declared hostile and was cross examined by learned PP for the State and learned defence counsel. PW2 Prosecutrix No.2 on oath stated that she along with Prosecutrix No.1 had gone to attend the mela in Raipur Rani. Shammi and Jagdish met them there. Shammi purchased one mala for her and another mala and ring for Prosecutrix No.1. Accused had requested them to meet them at the time of jagrata in village Trilokpur. Jagdish had raped her, whereas Shammi had raped Prosecutrix No.1. Shammi gave Rs.300/- to Prosecutrix No.1. Shammi and Jagdish had taken away her and Prosecutrix No.1 in a car firstly to Panipat and then to Mansa. They were kept for 4-5 days and during that period, she was raped by Jagdish while Prosecutrix No.1 was raped by Shammi. PW3 Makhan Singh, Patwari, prepared scaled site plan (Ex.PB) with correct marginal notes. PW4 Dr. Deepali Aggarwal on 24.4.2000 had medico legally examined Prosecutrix No.1 and Prosecutrix No.2 in view of applications by police (Ex.PC) and (Ex.PD). Ex.PE is the carbon copy of MLR of Prosecutrix No.2. On examination of Prosecutrix No.2, doctor observed as under:- “On local examination, it was found that external genetalia are developed, pubic hair are scanty, valva, labia minora and majora are normal, no mark of external injury on buttocks, thighs, labia minora. Her LMP is 19.4.2000. Hymen is torn and admits two fingers.” Crl.Appeal No. 1492-SB of 2002 5 Ex.PF is the carbon copy of MLR of Prosecutrix No.1 and doctor observed as under:- “On local examination, it was found that external genetalia are developed, menarchae has not occurred, valva, labia minora and majora are normal, pubic hair are present, no mark of injury seen on thigh, buttocks, labia minora. Hymen is torn and admits one finger.” As per report of FSL (Ex.PG), Prosecutrix No.1 and Prosecutrix No.2 were subjected to sexual intercourse. PW5 ASI Dalel Singh stated that on 23.4.2000, police party along with Rachna Ram and Rinku was present near railway crossing, Mansa Mandi, then noticed Prosecutrix No.1 and Prosecutrix No.2 while coming from the side of railway station. They were identified by Rachna Ram and Rinku. Statements of Prosecutrix No.1 and Prosecutrix No.2 were recorded under Section 161 Cr.P.C. They were produced before the doctor for medical examination. PW6 Constable Bakhshish Kumar and PW7 HC Ramesh Kumar tendered their affidavits (Ex.PQ) and (Ex.PR), respectively. PW8 Rachna Ram, complainant, stated that Prosecutrix No.1 was his daughter. She was 10/11 years’ old. She had gone to attend mela of Mata Sharda Devi. Again said that his daughter had gone to the fields to collect fire wood but failed to return. When he came back on 17.4.2000, then came to know that his daughter was missing. Prosecutrix No.2 was the friend of his daughter. Promila was the mother of Prosecutrix No.2. Promila informed him that her daughter had gone to collect fire wood but failed to return. Both the girls were searched in the mela but they were not Crl.Appeal No. 1492-SB of 2002 6 traceable. He came to know from the son of Gian Chand that both the girls were taken away by some persons in a car. Intimation was given to the police. Girls were seen near railway track when they were present with the police party near railway crossing, Mansa. Entire incident was brought to his notice. His supplementary statement was also recorded. PW9 HC Balwant Singh on receipt of ruqa (Ex.PS) had recorded formal FIR (Ex.PR). PW10 Inspector Ishwar Singh had also partly investigated the case. After close of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that he belonged to Village Sukhatal, District Oriyya, and came to this side to seek employment. His cousin Mohan Lal was working at Dera of Baba Bangali at Village Trilokpur. He came in the month of January, 2000, to Village Tirlokpur. His cousin requested Swamiji of the Dera to get some employment somewhere for him (appellant). During his stay at Tirlokpur, he was residing with his cousin Mohan Lal and was attending daily chores at Dera Baba Bangali. Residents of Village Tirlokpur including ladies used to take potable water from Dera Baba Bangali, where he was residing along with Mohan Lal in the Dharamshala. Mohan Lal after persuading Swamiji told him to go to Maiserkhana, Durga Mandir, situated in District Bathinda. He had gone to Maiserkhana in the month of March, 2000. From 1.4.2000, he was employed on daily wage basis at Maiserkhana, where he worked in Durga Mandir. On 22.4.2000, he came to his cousin to see him and to look Crl.Appeal No. 1492-SB of 2002 7 for a job for him in or around Tirlokpur. His cousin told him to stay for 2-3 days so that he shall explore the possibility of employment in that area. He was arrested in this totally false and concocted case. He has no concern with the present case. He was arrested in the present case on 25.4.2000. Prosecutrix No.1 and Prosecutrix No.2 were not known to him. In defence, DW1 Tika Ram appeared and stated that Jagdish was working with him as a labourer at Shri Durga Mandir. He worked in the Mandir as a labourer from 2.4.2000 to 20.4.2000. He never absented from his work during this period. After the work was finished on 20.4.2000, then Jagdish had left the job. Ex.D1 is the copy of entries of attendance register. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned counsel for the appellant argued that statement of Prosecutrix No.1 is contrary to the statement of Prosecutrix No.2. As per evidence on the file, one of the accused namely Shammi was acquitted, whereas appellant was convicted. Son of Gian Chand had seen Prosecutrix No.2 with the appellant, but he was not examined. One Balbir was also in the same bus along with Prosecutrix No.2 and the appellant, but he was also not examined for the reasons best known to the prosecution. For about 4-5 days, Prosecutrix No.2 remained with the appellant at different stations, but no alarm. Number of persons had met Prosecutrix No.2 but no complaint to any one against the appellant. Father, mother or brother of Prosecutrix No.2 Crl.Appeal No. 1492-SB of 2002 8 were not produced to state as to whether Prosecutrix No.2 was missing from the house and was raped by the appellant. Prosecutrix No.2 was more than 16 years’ old. No certificate was produced regarding age. Prosecutrix No.2 was not produced before the doctor for ossification test. When no objection by Prosecutrix No.2 while staying with the appellant, then the only presumption which could be drawn is that she was the consenting party. No question of rape or abduction. Learned State counsel argued that Prosecutrix No.2 was 13 years’ old. Consent of Prosecutrix No.2 is immaterial. Prosecutrix No.2 when appeared in Court, then stated that she was 13 years’ old. No suggestion was given to Prosecutrix No.2 that she was more than 16 years of age. Doctor had medico legally examined Prosecutrix No.2 and as per MLR (Ex.PE), age of Prosecutrix No.2 was 13 years. No question to the doctor that Prosecutrix No.2 was more than 16 years’ old. Rachna Ram appeared as PW8. Again no question to him that Prosecutrix No.2 was not 13 years’ old. In fact, she was more than 16 years of age. Appellant when examined under Section 313 Cr.P.C., then did not state a word regarding age of Prosecutrix No.2. No defence was led that Prosecutrix No.2 was more than 16 years’ old. Nothing on the file that Prosecutrix No.2 was not illiterate. When Prosecutrix No.2 was illiterate, then no question of production of certificate issued by the school. If appellant was sure that Prosecutrix No.2 was more than 16 years’ old, then he could move application requesting the Court to order for ossification test. Report of the doctor was to the effect that Prosecutrix No.2 was raped. Report of FSL (Ex.PG) shows that human semen was detected on the underwear and salwar of Prosecutrix No.2. Before present occurrence, Prosecutrix No.2 was not Crl.Appeal No. 1492-SB of 2002 9 inimical towards the appellant. So, there was no idea to name the appellant. Prosecutrix No.2 was unmarried. In case of rape, complainant thinks twice before lodging report because reputation of unmarried girl was at stake. First submission of learned counsel for the appellant was that statement of Prosecutrix No.1 is contrary to the statement of Prosecutrix No.2. Prosecutrix No.1 while appearing in Court, then did not support the story. When on the basis of same evidence, second accused was acquitted, then appellant should also be acquitted of the charge levelled against him. After going through the evidence on the file, I am of the opinion that submission of learned counsel for the appellant is not correct one. According to the story, Prosecutrix No.1 and Prosecutrix No.2 were taken away by two persons, namely, Jagdish and Shammi. Shammi had raped Prosecutrix No.1, whereas appellant had raped Prosecutrix No.2. Prosecutrix No.1 when appeared in court, then failed to support the prosecution story but she has not stated a word that Prosecutrix No.2 was not raped by the appellant. No question was put to Prosecutrix No.1 that during stay for 4-5 days at different stations, Prosecutrix No.2 was not raped by the appellant. Prosecutrix No.2 when appeared in Court, then categorically stated that she along with her friend Prosecutrix No.1 was taken away by the appellant and Shammi. Shammi had raped Prosecutrix No.1, whereas appellant had raped her. Shammi was acquitted of the charge levelled against him when Prosecutrix No.1 did not support the story. So, in view of the statement of Prosecutrix No.1, appellant is not to be acquitted when Prosecutrix No.2 has categorically supported the story. Crl.Appeal No. 1492-SB of 2002 10 Police party headed by ASI Dalel Singh was present near Railway Crossing, Mansa, when Prosecutrix No.1 and Prosecutrix No.2 were noticed while coming from the side of railway station. Rachna Ram and Rinku were with the police party. Both the girls were identified by them. Prosecutrix No.1 and Prosecutrix No.2 were taken into custody and their statements were recorded under Section 161 Cr.P.C. They were produced before the doctor for examination. Dr. Deepali Aggarwal had medico legally examined Prosecutrix No.2 on 24.4.2000 and categorically stated that Prosecutrix No.2 was subjected to sexual intercourse. No suggestion was given to the doctor that Prosecutrix No.2 was not raped or she was habitual to sexual intercourse or age of Prosecutrix No.2 was more than 16 years. Ex.PG is the report of FSL. As per report (Ex.PG), human semen was detected on the underwear and salwar of Prosecutrix No.2. So, medical evidence corroborates the version of Prosecutrix No.2. Next allegation of learned counsel for the appellant was that Prosecutrix No.2 was more than 16 years’ old. Prosecutrix No.2 remained with the appellant for about 4-5 days. There was no hue and cry. Number of persons had met Prosecutrix No.2 but no complaint to anyone. Prosecutrix No.2 was the consenting party. So, no question of rape. But after going through the evidence on the file, I am not in agreement with the submission of learned counsel for the appellant. Prosecutrix No.2 while appearing in Court, then stated that she was 13 years’ old. No suggestion was given to Prosecutrix No.2 that she was not 13 years’ old. In fact, she was more than 16 years’ old. Prosecutrix No.2 was medico legally examined and at the time of examination, Prosecutrix No.2 had disclosed Crl.Appeal No. 1492-SB of 2002 11 her age as 13 years. No suggestion was given to the doctor that Prosecutrix No.2 was more than 16 years’ old. Rachna Ram, complainant, appeared as PW8. He had stated about the age of Prosecutrix No.2, but no question to Rachna Ram that Prosecutrix No.2 was not 13 years’ old. In fact, she was more than 16 years’ old. Prosecutrix No.2 was illiterate. So, no question to produce certificate of any school. Appellant when examined under Section 313 Cr.P.C., then did not state a word that Prosecutrix No.2 was more than 16 years’ old. No defence was led regarding age of Prosecutrix No.2. Prosecutrix No.2 when appeared in Court, then in examination-in-chief stated that she was 13 years’ old, but no question to her that she was not 13 years’ old. In fact, she was more than 16 years’ old. So in view of statement of Prosecutrix No.2, coupled with the report of the doctor, I am of the opinion that Prosecutrix No.2 was 13 years’ old. Evidence shows that Prosecutrix No.2 remained with the appellant for about 4-5 days at different stations. Prosecutrix No.2 was raped by the appellant. No allegation of Prosecutrix No.2 that appellant was armed and threatened to eliminate her, so out of fear, she did not raise an alarm. Prosecutrix No.2 travelled from one station to another but no complaint to any authority at any stage. But Prosecutrix No.2 was 13 years’ old, so consent of Prosecutrix No.2 is immaterial. Keeping in view the age of Prosecutrix No.2, no question of consensual sexual intercourse. No case of appellant that he was having relation with Prosecutrix No.2 and Prosecutrix No.2 was the consenting party. Trial Court has rightly opined that Prosecutrix No.2 was less than 16 years’ old and was raped against her wish by the appellant. Crl.Appeal No. 1492-SB of 2002 12 As per evidence, son of Gian Chand had seen Prosecutrix No.2 in the company of the appellant but he was not examined. Balbir was also in the same bus when Prosecutrix No.2 was travelling with the appellant. He was also not examined. Father, mother or brother of Prosecutrix No.2 were also not examined but due to non-appearance of son of Gian Chand, Balbir, father, mother or brother of Prosecutrix No.2, story is not to be ignored because Balbir, father, mother or brother of Prosecutrix No.2 were not the eye witnesses. Son of Gian Chand had simply seen Prosecutrix No.2 in the company of the appellant. When Prosecutrix No.2 while appearing in Court stated on oath that she was raped against her wish by the appellant, then statement of Sohan Lal son of Gian Chand is not material. In case, Sohan Lal would have appeared in Court, then he was expected to state that on 17.4.2000, he had seen Prosecutrix No.2 in the company of the appellant. Father, mother or brother of Prosecutrix No.2 were not the eye witnesses. In case, they would have appeared in Court, then they were expected to state that Prosecutrix No.2 was missing from the house w.e.f. 17.4.2000. They cannot state that Prosecutrix No.2 was not raped by the appellant or was raped. Due to non-appearance of father, mother or brother of Prosecutrix No.2 or Balbir, statement of Prosecutrix No.2 is not to be ignored. Before present occurrence, complainant party was not inimical towards the appellant. Prosecutrix No.2 was unmarried. In case of rape, complainant party thinks twice before lodging report with the police, particularly when reputation of unmarried girl is at stake. If appellant was to be named, then it was very easy for the complainant party to state that some house-hold articles were stolen by the appellant or appellant gave Crl.Appeal No. 1492-SB of 2002 13 beatings to Rinku or Rachna Ram. No question of implicating the appellant by levelling allegation of rape. In defence, Tika Ram was examined but his statement is without any evidentiary value. He had simply stated that appellant was employed as a labourer in Shri Durga Mandir at Maiserkhana. Attendance register was brought but attendance register is without any evidentiary value because during day time, appellant was working in the Mandir as a labourer. During night time, he was at liberty to visit anywhere. In cross- examination, Tika Ram admitted that there were no signatures against the entries of register regarding presence of labourers. Register produced by Tika Ram could be prepared at any time because regarding payment of salary, no receipt. Register was not checked by any authority. Suppose, appellant was working as labourer in Shri Durga Mandir, then question is whether he had not raped Prosecutrix No.2. Tika Ram has not stated a word that Prosecutrix No.2 was not raped by the appellant. So, defence version is an after thought. No other submission was put forward. In the light of above discussion, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld. Appeal without merit is dismissed. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Panchkula, to issue re-arrest warrants to undergo the remaining period of sentence. 30.9.2010 (JORA SINGH ) pk JUDGE