IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. S-641-SB of 1998 Date of Decision : October 06, 2010 Raju ....Appellant Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Anurag Chopra, Advocate Mr. Raja Sharma, Assistant A.G., Haryana T.P.S. MANN, J. The appellant was tried for the offences under Sections 306 and 376 IPC. Vide judgment and order dated 23.7.1998, Additional Sessions Judge(VII), Faridabad convicted him for the offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.3,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. He was also convicted under Section 306 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,500/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. According to the prosecution, complainant Satbir submitted complaint Ex.PD to the police stating therein that Criminal Appeal No. S-641-SB of 1998 -2- on 27.6.1995 his sister, i.e. the prosecutrix was coming to the fields with food for his family. On the way, the accused, whose fields adjoined their fields, forcibly dragged the prosecutrix into the sugarcane field and committed rape upon her. On hearing her alarm, the complainant and his father reached there and saw that the prosecutrix was lying on the ground in a naked condition and the accused was committing rape upon her. They caught hold of the accused and took him to their tubewell. Thereafter, the complainant's father went to the village to call the villagers and the complainant was asked to supervise the accused but when his father left, the accused managed to escape. All of them came to the village. Panchayat was convened 3/4 times, which assured that it would award suitable punishment to the accused. Since the accused did not appear before the Panchayat, therefore, no settlement could be arrived at. Only his father appeared and begged to be excused. On 1.7.1995, the complainant, alongwith his parents, went to the fields and the prosecutrix was all alone at house. At about 10/11.00 a.m., when his mother returned to the house, she found that the prosecutrix had hung herself after tying a plastic cord around her neck. His mother raised alarm which attracted Chet Ram, Panch and Kishan, Sarpanch. They cut the cord and the prosecutrix was brought down. They found that the prosecutrix had already died. On the basis of the said complaint, formal FIR Ex. PD/1 was registered under Sections 306/376 IPC against the accused at Police Station Sadar, Palwal. Criminal Appeal No. S-641-SB of 1998 -3- After completion of the investigation and presentation of the challan, followed by its commitment to the Court of Sessions, the appellant was charged under Sections 306 and 376 IPC, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Dr. Jag Mohan Mittal, PW2 Hukam Singh, Patwari, PW3 Sumer Singh, Draftsman, PW4 Baldev Raj, Photographer, PW5 HC Ram Kumar, PW6 Jitender Kumar, PW7 Constable Jagdish Chand, PW8 Shiv Charan, PW9 Satbir, PW10 Siri Chand, PW11 Ranjit, PW12 ASI Mahender Singh, PW13 SI/SHO Sube Singh, PW14 Dr. Parmod Kumar and PW15 Dr.(Mrs.) Navneet Kiran. When examined under Section 313 Cr.P.C., the appellant pleaded innocence and false implication in the case. He examined DW1 Ramji Lal, DW2 Bhajan Lal Arya and DW3 Ram Kishan, Election Kanungo. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court held that there was sufficient material on record to connect the appellant with the commission of rape upon a minor girl of 13/14 years of age and by his act he created such circumstances which forced the prosecutrix to commit suicide and, accordingly, convicted and sentenced him, as mentioned above. Learned counsel for the appellant has submitted Criminal Appeal No. S-641-SB of 1998 -4- that the prosecution did not bring on record any cogent evidence to prove commission of offences punishable under Sections 376 and 306 IPC by the appellant. The delay of 4/5 days in lodging of the FIR has also not been explained. There was no evidence available on the record from which it could be said that the prosecutrix was minor at the time of the alleged occurrence. There is also absence of medical evidence from which it could be said that the prosecutrix was subjected to forcible sexual intercourse by the appellant. On the other hand, learned State counsel has vehemently opposed the pleas of the appellant and submitted that the prosecution has led sufficient evidence to prove the commission of offences under Sections 376 and 306 IPC by the appellant. I have heard learned counsel for the parties and perused the evidence brought on record by them. It is the prosecution case that the occurrence had taken place on 27.6.1995 when the prosecutrix was subject to sexual intercourse by the appellant. The matter was brought to the notice of the Panchayat which summoned the appellant, who did not appear although the Panchayat was held 3/4 times. On 1.7.1995 when the prosecutrix was all alone in the house as her brother and parents were away to their fields, the prosecutrix committed suicide by hanging herself from the ceiling with the help of a plastic Criminal Appeal No. S-641-SB of 1998 -5- cord. On the same day, complainant Satbir submitted complaint Ex.PD before ASI Mahender Singh at 3.30 p.m., on the basis of which FIR Ex.PD/1 came to be registered at Police Station Sadar Palwal on 1.7.1995 at 4.00 p.m. Special report was, thereafter, sent to the Ilaqa Magistrate. As per the medical evidence the cause of death was asphyxia as a result of hanging. The probable time that elapsed between injury and death was within minutes and between death and post-mortem was about 24 hours. Thus, there was no delay in lodging of the FIR after the commission of suicide by the prosecutrix. There was some delay in reporting the matter to the police after the commission of rape by the appellant but in view of the fact that the matter was reported to the Panchayat which summoned the appellant and his father, pursuant to which the appellant did not appear although called 3/4 times and only his father appeared and begged to be excused that the matter could not be reported to the police. Even DW1 Ramji Lal and DW2 Bhajan Lal Arya, who were examined by the appellant in his defence admitted that the Panchayat was convened regarding the matter of the appellant. Thus, the delay in lodging of the FIR has been satisfactorily explained. There is sufficient evidence available on the record to connect the appellant with the commission of crime. Complainant-Satbir, who had submitted application Ex.PD, on the basis of which FIR Ex.PD/2 was registered, had stepped into the witness-box as PW9 and deposed that Criminal Appeal No. S-641-SB of 1998 -6- on 27.6.1995, he and his father were working in the fields and his sister, i.e. the prosecutrix was coming to the fields to serve lunch to them. However, on the way, the appellant, whose fields adjoined their fields, forcibly dragged the prosecutrix into his field and committed rape upon her. The alarm raised by the prosecutrix attracted complainant- Satbir and his father, who saw that the prosecutrix was lying on the ground and the appellant committing rape upon her. The complainant caught hold of the appellant and took him to his tube-well. He was made to sit in the Kotha whereas the complainant’s father went to the village to call the villagers. When the father of the complainant left, the appellant managed to escape from the spot. A Panchayat was, thereafter, convened in the village which assured that suitable punishment would be awarded to the appellant. However, the appellant did not appear before the Panchayat. His father did appear but begged to be excused. As the appellant did not appear, the matter could not be amicably settled for four days. On 1.7.1995, he alongwith his parents, went to the fields whereas the prosecutrix who was 13/14 years of age stayed behind. At about 10/11.00 a.m., when the mother of the complainant returned home, she found that the prosecutrix had hanged herself with the help of a plastic cord. The alarm raised by the mother of the complainant attracted Chet Ram and Kishan, members of the Panchayat. According to the complainant, since the appellant had committed rape upon his sister, she felt insulted and she committed suicide. Criminal Appeal No. S-641-SB of 1998 -7- To the same effect was the testimony of PW10 Siri Chand, father of the prosecutrix. Both PW9 Satbir and PW10 Siri Chand were natural witnesses as they were working in their fields on 27.6.1995 when the prosecutrix was dragged by the appellant into his fields and subjected to rape by him. Both of them had witnessed the occurrence after they were attracted on hearing the alarm raised by the prosecutrix. The defence could not bring any material on the record from which it could be said that the prosecution version is unreliable or improbable. Both of them had no reason to falsely implicate the appellant. Even otherwise, no one would come up with a false version of commission of rape upon his sister/daughter and, that too, when the prosecutrix is 13/14 years' old. While appearing as PW14 Dr. Parmod Kumar testified that he alongwith other doctors conducted post- mortem on the dead-body of the prosecutrix, whose age was 14 years. According to him, the cause of death was asphyxia as a result of hanging. He further deposed that in the opinion of the Board the possibility of sexual intercourse could not be ruled out. In giving such an opinion, he relied upon the report Ex.PH of the Forensic Science Laboratory as per which human semen was detected on the vaginal and uterine swabs. Similar opinion was also given by PW15 Dr. Navneet Kiran. However as regards the statement made by PW15 Dr. Navneet Kiran during her cross-examination that the presence of semen in Criminal Appeal No. S-641-SB of 1998 -8- the swabs could be there only if the sexual intercourse was committed within last three days prior to her death, it is just an opinion and not conclusive proof of the commission of rape only three days prior to her death. Therefore, no benefit can be extended to the appellant on account of some discrepancy regarding the day on which the appellant had committed forcible intercourse with the prosecutrix. Even otherwise, the medical evidence fully corroborated the testimony of PW9 Satbir and PW10 Siri Chand that the prosecutrix was subjected to forcible sexual intercourse by the appellant and the prosecutrix thereafter committed suicide by hanging herself. As regards the age of the prosecutrix on the day of the occurrence, reference may be made to the post- mortem report Ex.PL where her age was mentioned as 14 years. While appearing as PW10, Siri Chand, father of the prosecutrix, testified that she was 13/14 years of age. The defence made an attempt to show that the prosecutrix was major on the date of the occurrence by producing DW3 Ram Kishan, Election Kanungo, who, however, only mentioned about the age of the complainant and his father Siri Chand as well as the age of his brother Chunni Lal. In his cross-examination, he admitted that there was no entry regarding the prosecutrix in the voters' list and if that was so, natural inference is that the prosecutrix was not old enough to be even registered as a voter. Therefore, she was a minor on the date of occurence. Criminal Appeal No. S-641-SB of 1998 -9- Coming to the commission of offence under Section 306 IPC, it would be appropriate to refer to the testimonies of PW8 Shiv Charan and PW11 Ranjit. Shiv Charan deposed that at about 10/11.00 a.m. when he was working as a labourer at the house of Tara Sarpanch, he heard the alarm raised by the mother of the prosecutrix. Accordingly, he reached the house of the appellant and saw that the prosecutrix was hanging herself with a rope. He cut that rope and brought down the prosecutrix who had already died by then. Similarly, Ranjit testified that a Panchayat was convened as the appellant was alleged to have committed rape upon the prosecutrix. The appellant did not attend the proceedings of the Panchayat, only his father appeared and apologized on behalf of him. The Panchayat was convened 3/4 times but no decision could be arrived at. The prosecutrix then committed suicide out of shame and insult due to the incident of rape. Further PW9 Satbir and PW10 Siri Chand also testified that since the appellant had committed rape upon the prosecutrix, therefore, she committed suicide due to insult. The statements of the aforementioned witnesses, thus, impel the Court to hold that the prosecutrix had committed suicide on account of the act of the appellant in committing rape upon her as a result of which she felt insulted and ashamed. Coming to the plea of the appellant that he was falsely implicated at the instance of Des Raj, a relative of Criminal Appeal No. S-641-SB of 1998 -10- the complainant, there is testimony of DW1 Ramji Lal, who, however, did not support the case of the appellant despite the fact that he was closely related to him. Rather, he supported the prosecution version when he admitted that Panchayat was held regarding the commission of rape by the appellant. Last of all, it is submitted on behalf of the appellant that the appellant is facing the agony of criminal prosecution for the last more than 15 years. He has already undergone an actual sentence of about five years out of the sentence of ten years imposed upon him. Therefore, his remaining sentence of imprisonment be set aside. From the record it stands established that the prosecutrix was a minor and was subjected to forcible sexual intercourse by the appellant. On account of insult and shame, which she suffered on account of the said act, the prosecutrix was left with no other option but to end her life. Therefore, the sentences of imprisonment imposed upon the appellant under Sections 376 and 306 IPC do not call for any reduction. In view of the above, there is no merit in the appeal, which is, accordingly, dismissed. ( T.P.S. MANN ) October 06, 2010 JUDGE satish Satish Kumar 2014.04.26 11:59 I attest to the accuracy and integrity of this document Chandigarh