Criminal Appeal No. 722-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 722-SB of 2001 Date of decision : November 08, 2011 Mahinder Singh ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Divya Sharma, Advocate as Amicus-curiae for the appellant Mr. Hari Om Sharma, Advocate, for the appellant Mr. Kartar Singh, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) Accused Mahinder Singh by filing the instant criminal appeal has assailed his conviction and sentence recorded by learned Additional Sessions Judge, Sirsa vide judgment and order dated 4.6.2001 thereby convicting the accused-appellant under section 354 IPC and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs 1000/- and in default thereof, to undergo further rigorous imprisonment for Criminal Appeal No. 722-SB of 2001 -2- one month. Prosecution case is that on 10.10.1997 at about 9/9.30 PM, accused went to the house of the prosecutrix and asked her mother Ugam Kanwar to send the prosecutrix to his house because he had to go to watch Ram Lila to Rania and his mother would remain alone in the house. Accordingly, the prosecutrix was sent with the accused. However, mother of the accused did not permit the accused to go to see Ram Lila. Accordingly, the accused was taking the prosecutrix back to her house. On the way, however, the accused pressed mouth of the prosecutrix with his turban and took her in a room of vacant house of Krishan. The accused threatened the prosecutrix to kill her if she raised alarm. The prosecutrix got intimidated. The accused removed the clothes of the prosecutrix and also removed his own clothes and then caught hold of the prosecutrix in order to commit sexual intercourse with her. However, in the meantime, voice of mother of the prosecutrix was heard from the street. The accused then caught the prosecutrix in his grip strongly. However, on seeing mother of the prosecutrix coming towards the room, the accused fled away. The prosecutrix was taken by her mother to her house. There were efforts for compromise between the parties but when the efforts failed, the matter was reported to the police. On statement of prosecutrix, FIR was registered under section 376 read with section 511 IPC and section 506 IPC. The case was investigated. Statements of the witnesses were recorded. Rough site plan of the place of occurrence was prepared. The accused was arrested on Criminal Appeal No. 722-SB of 2001 -3- 15.10.1997 and was got medico legally examined. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under section 376 read with section 511 and section 506 IPC. Charge under section 376 read with section 511 IPC was framed against accused who pleaded not guilty and claimed trial. In support of its case, the prosecution examined seven witnesses. Dr. Chetan Dass, PW1 stated that he medico-legally examined the accused and there was nothing to suggest that he was not capable of committing sexual intercourse. Krishna Kumari, Headmistress, PW2 stated from admission register of the school that date of birth of the prosecutrix was 3.5.1985. She proved necessary certificate regarding the same. HC Jugti Ram, PW3 tendered his affidavit in evidence being formal witness. Constable Subhash Chander, PW4 stated that he prepared scaled site plan of the place of occurrence. Prosecutrix as PW5 and her mother Ugam Kanwar, PW6 have broadly stated according to the prosecution version. ASI Satbir Singh, PW7 stated about investigation of the case conducted by him. The accused in his statement under section 313 Cr.P.C. denied Criminal Appeal No. 722-SB of 2001 -4- all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that Om Parkash uncle of the prosecutrix had set on fire his wife and three children and Babu Lal another uncle of the prosecutrix had set his wife on fire. The accused alleged that his father Kanshi Ram was witness in those two cases against Om Parkash and Babu Lal uncles of the prosecutrix and for this reason, he has been falsely implicated in this case. No evidence was led by the accused in his defence. Learned Additional Sessions Judge vide impugned judgment dated 4.6.2001 held the accused guilty of the offence under section 354 IPC and convicted him accordingly instead of offence under section 376 read with section 511 IPC, and by order of even date, imposed sentence on the convict as already mentioned hereinbefore. Feeling dissatisfied, the convict has filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. On behalf of the appellant, it was argued that there has been delay of three days in lodging FIR and no person who allegedly attended Panchayat for effecting compromise between the parties has been examined as witness to explain the said delay. It was also contended that the material prosecution witnesses i.e. prosecutrix and her mother have made improvements in their statements made in court over their statements made to the police. It was pointed out that in the court, they stated that after the Criminal Appeal No. 722-SB of 2001 -5- occurrence, prosecutrix was taken to the house of the accused where she was again threatened, but it had not been so stated by these witnesses to the police. It was also argued that there was enmity between the parties because father of the accused-appellant was witness in cases against uncles of the prosecutrix and also brother and uncle of the prosecutrix are facing trial for causing hurt to the accused and therefore, there was no occasion for the prosecutrix being sent by her mother with the accused to his house. It was also argued that being Ram Lila days, the street would not be deserted and therefore, the prosecution version is improbable. It was also canvassed that house of the prosecutrix is also near the place of occurrence and other family members of the prosecutrix were present in the house and for this reason also, the prosecution version is improbable. It was next argued that prosecutrix was not medico-legally examined. Prayer for reduction in sentence was also made. On the other hand, learned State counsel contended that delay in lodging the FIR has been explained and prosecution evidence is credible. It was submitted that there has been no material improvement in the statements of the prosecutrix and her mother in the court over their previous statements given to the police. Prayer for reduction in sentence was also opposed. I have carefully considered the rival contentions. Both the prosecutrix and her mother have broadly stated according to the prosecution version. Their statements could not be Criminal Appeal No. 722-SB of 2001 -6- impeached in their lengthy cross-examination. They had no reason to implicate the accused in false case or to depose falsely against him. Defence version on this aspect would be dealt with hereinafter. Statements of the prosecutrix and her mother inspire confidence. The prosecutrix was aged less than 12½ years at the time of occurrence. False case of this nature was not likely to be launched because it would affect the whole future life of the young prosecutrix and also affect the prestige and honour of her family. As regards alleged enmity of the accused with the family of the prosecutrix, there is not even an iota of evidence on record to substantiate the defence version in this regard. The prosecutrix admitted that her brother and uncle are facing trial for causing hurt to the accused. However, it was not put to the prosecutrix in her cross-examination that occurrence relating to the said case had taken place prior or subsequent to the instant case. There is also no material on record to depict that father of the accused had appeared as witness in cases against uncles of the prosecutrix. Documentary evidence regarding all these cases could be available but has not been produced in defence. It is, therefore, manifest that the defence version in this regard is completely unreliable and untenable. This conclusion is further fortified from the trend of cross- examination of the prosecutrix. She stated in cross-examination that on the day of occurrence, the accused and Satbir brother of the prosecutrix had cut a tree from the house of the prosecutrix and they remained busy throughout Criminal Appeal No. 722-SB of 2001 -7- the day upto 5.00 or 6.00 PM. It would depict that relations between families of the accused and the prosecutrix were cordial on the day of occurrence. This circumstance further falsifies the aforesaid defence version. As regards alleged improvements in the statements of the prosecutrix and her mother, they have not made any material improvements in their statements in the court over their statements made to the police. They have stuck to the core of the prosecution case. Some variations or clarifications or further details of the occurrence would not make the variations as improvements or contradictions. There has been no improvement or contradiction going to the root of the case. As regards the contention that street would not have been deserted on account of Ram Lila days, no such inference can be drawn because in rural areas, after 9.30 PM in second week of October, street would not have been crowded. Here it has to be noticed that Ram Lila was not being staged in village Ottu, the village of the prosecutrix and the accused. On the other hand, the accused had to go to another town Rania to see Ram Lila, but was not allowed to go there by his mother. Since Ram Lila was not being staged in the village of occurrence, the street was likely to be deserted at the time of occurrence. Consequently, the prosecution version cannot be said to be improbable. The fact that house of the prosecutrix was not far away from the place of occurrence and her other family members were present in the house would also not make the version Criminal Appeal No. 722-SB of 2001 -8- of the prosecution improbable. Prosecutrix stated that occurrence took place in a room of vacant house of Krishan. She also stated that residential house of Krishan adjoins the said vacant house and thereafter there is house of the prosecutrix and next house is that of uncle of the prosecutrix. The prosecution version cannot be said to be intrinsically or inherently improbable on this ground in the absence of any material on record. The prosecutrix was not required to be medico-legally examined because she had not suffered any injury in the occurrence. In any event, lapse of Investigating Officer by omitting to get the prosecutrix medico-legally examined cannot be said to be fatal to the prosecution case. It has no material bearing on the prosecution version. For the reasons aforesaid, I find that the prosecution evidence is cogent and credible and inspires confidence and is, therefore, sufficient to prove guilt of the accused beyond reasonable doubt for offence under section 354 IPC. Conviction of the appellant is well founded and is supported by cogent reasons. Accordingly, impugned judgment of conviction is upheld. As regards quantum of sentence, the occurrence of course took place 14 years ago. However, this by itself is not a sufficient ground for reduction in sentence keeping in view the facts and circumstances of the case. The accused was aged about 25 years at the time of occurrence whereas the prosecutrix was aged about 12½ years only at the time of occurrence. The accused tried to ravish the prosecutrix sexually. Accused Criminal Appeal No. 722-SB of 2001 -9- had gone far heard in the process. He had removed the clothes of the prosecutrix and had also removed his own clothes. He also took the prosecutrix in his grip in order to satisfy his lust. However, it was sheer luck of the prosecutrix that her mother happened to come in the street and consequently the accused fled away. It is not a case where the accused tried to outrage the modesty of the prosecutrix by simply touching her or fondling her. Acts of the accused bordered on attempt to rape. Consequently, sentence of imprisonment for six months, besides fine of Rs 1000/-, as imposed by the trial court cannot be said to be excessive keeping in view the acts of the accused. Consequently, prayer for reduction in sentence also cannot be accepted. As a necessary consequence of the discussion aforesaid, I find no merit in the instant criminal appeal which is accordingly dismissed. The accused-appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. ( L.N. Mittal ) November 08, 2011 Judge 'dalbir'