Crl.Appeal No.108-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 10.5.2011 (I) Crl.Appeal No.108-SB of 2001 Rajesh ... Appellant versus State of Haryana ... Respondent (II) Crl.Revision No.760 of 2001 Satpal ... Petitioner versus Rajesh and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Deepinder Singh and Mr.Anhul Singh, Advocates, for the appellant. Mr.Raja Sharma, AAG, Haryana. Mr.P.L.Verma, Advocate, for the petitioner in Crl.Rev.No.760 of 2001. ... JORA SINGH, J. This is an appeal by Rajesh to challenge the judgment of conviction dated 18.1.2001 and order of sentence dated 20.1.2001 rendered by Special Judge, Gurgaon, in Sessions Case No. 50 of 17.9.1997/1999, arising out of FIR No. 147 dated 12.5.1997 under Section 376 IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short `the Act'), PS Pataudi, District Gurgaon. By the said judgment, he was convicted under Section 376(2)(f) IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 2 months. Crl. Revision No.760 of 2001 was preferred by Satpal, Crl.Appeal No.108-SB of 2001 2 complainant, for enhancement of sentence. Prosecution story, in brief, is that on 12.5.1997, there was a function in the temple of Village Chhawan. Prosecutrix, aged about 5 years, daughter of Satpal, complainant, had gone to the temple. When she was taking water from the tap at about 11.00 AM, then accused came there. Prosecutrix was taken away by the accused by promising to offer her sweets. Prosecutrix was brought to a pit, where her salwar was removed and was made to lay in the pit. Accused had raped the prosecutrix against her wish. Occurrence was witnessed by Om Parkash, who brought the prosecutrix from the place of occurrence to her house. Prosecutrix disclosed about the incident to her parents. She was bleeding from her private parts. Satpal, complainant, along with prosecutrix had gone to P.S. Pataudi, and in view of the statement of Satpal, formal FIR was recorded. Prosecutrix was produced before the doctor and was medico legally examined. IO had gone to the spot and after inspecting the spot, had prepared rough site plan with correct marginal notes. IO also received parcel from the doctor and the same was taken into police possession vide separate memo attested by the witnesses. Statements of the witnesses were recorded. Accused was arrested on 14.5.1997 and was produced before the doctor. He was medico legally examined. Clothes worn by the accused were taken into police possession vide separate memo attested by the witnesses. Prosecutrix was again medico legally examined by the Board of Doctors on 19.5.1997. Swabs were sent to FSL, Madhuban. After completion of investigation, challan was presented in Court. Crl.Appeal No.108-SB of 2001 3 Accused was charged under Section 376(2)(F) IPC and Section 3(xii) of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Om Parkash did not support the prosecution story. He was declared hostile and was cross-examined by learned PP for the State. PW2 Dr. Ramesh Kumar had medico legally examined the accused and found him fit to perform sexual intercourse. PW3 Sharwan Kumar, Draftsman, stated that he has prepared scaled site plan (Ex.PC). PW4 HC Sobha Ram and PW5 Constable Rishal Singh tendered their affidavits, Ex.PD and Ex.PE, respectively. PW6 Dr.S.K.Sharma stated that he was the member of Board of Doctors and on 19.5.1997, prosecutrix was medico legally examined. Board observed as under:- “There was history of sexual assault. First medico legal examination was done on 12.5.1997. Examination report did not reveal anything except congestion of vaginal orifice. Swabs had been taken for forensic purposes. On examination, child was found to be conscious, uncooperative and was crying and resented examination. There was no sign of secondary sexual characters. There was no external mark of injury. Examination of the genitals reveals that both the labia was approximated. There was no external mark of injury on separating the labia majora. Labia minors were found to be pink. Area Crl.Appeal No.108-SB of 2001 4 around vaginal orifice did not reveal any congestion, bleeding or injury. There was no evidence of fresh or recent bleeding. In our opinion, there was nothing indicative of fresh or recent sexual activity. However, since the examination was done after about eight days, it was not possible to exclude any sexual activity. Swabs were not taken for the reason that it was considered to serve no purpose at that stage.” PW7 SI Shakuntla stated that as per order of DC, Gurgoan, prosecutrix was produced before CMO, Civil Hospital, Gurgaon. Application (Ex.PF/2) was presented to constitute a Board of Doctors for examination of the prosecutrix. PW8 Dr. Rekha Yadav stated that on 12.5.1997, she has medico legally examined the prosecutrix and observed as under:- “General examination; The patient was conscious. BP was 110/70 MM Hg., pulse 88 per minute. Small baby. Secondary sex characters were not developed. Breast, pubic and axillary hair were developed. There was no external mark of injury over any part of the body. Examination of genital area There was no external mark of injury over valva. human was intact. Congestion around the vaginal orifice was present. No bleeding was present. There was no injury over these parts. Crl.Appeal No.108-SB of 2001 5 Opinion was kept pending, subject to report from Chemical Analysis of FSL, Madhuban, Karnal.” As per report of Chemical Examiner (Ex.PH), there was congestion around the orifice. Possibility of sexual assault cannot be ruled out. PW9 Satpal is the complainant and has reiterated his stand before the police. PW10 is the prosecutrix and on oath stated that she had gone to the temple and was taking water from water tap. Accused came there and she was taken away by him to a pit. He promised to supply some eatables. In the pit, her salwar was removed. Accused fell on her. There was bleeding from her private parts. Om Parkash brought her to her house. Her mother was present in the house, but her father was not present in the house. When her father came, then entire incident was brought to his notice. PW11 SI Manjit Singh is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that murder case was registered against Bhim Gwaria and others and in that murder case, his grand father Narain Singh was the prosecution witness. He was helping the complainant party. Bhim Gwaria in collusion with the complainant party got this false case registered. Complainant had the knowledge that he will get Rs.25,000/- from Welfare Board to fight this case. Opportunity was given to lead defence but no defence was led. After hearing learned PP for the State, learned defence counsel Crl.Appeal No.108-SB of 2001 6 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, learned counsel for the petitioner-complainant and have gone through the evidence on file. Learned defence counsel for the appellant argued that as per story, prosecutrix was raped against her wish by the appellant on 12.5.1997 at about 11.00 AM. Occurrence was witnessed by PW1 Om Parkash but he did not support the story. Complainant is not the eye witness. Prosecutrix appeared as PW10 and stated that when she was in the temple, then appellant came and took her away and in the pit, she was raped against her wish. According to the prosecutrix, blood was oozing from her private parts. On the same day, i.e., 12.5.1997, PW8 Dr. Rekha Yadav had medico legally examined the prosecutrix and stated that there was no external mark of injury over any part of the body. Human semen was not detected. There was no bleeding. Only congestion around the vaginal orifice was present. Later on, prosecutrix was medico legally examined by the Board of Doctors on 19.5.1997. PW6 Dr. S.K.Sharma was one of the members of Board of Doctors. He also stated that there was no external mark of injury. There was no indication of fresh or recent sexual activity. In cross-examination, doctor admitted that there was no laceration including private parts. So, there cannot be bleeding from vagina recently or recent past. As per MLRs, there was no bleeding in her vagina. Clothes worn by the prosecutrix along with swabs were sent to the laboratory. Ex.PH is the report of the laboratory. Semen was not detected. Argued that if the appellant had raped the prosecutrix, aged about 5 years, in a pit, then external injuries were Crl.Appeal No.108-SB of 2001 7 expected to be on the person of the prosecutrix. If occurrence was witnessed by PW1 Om Parkash, then he should have supported the story and if appellant had raped the prosecutrix, then semen should have been detected by the laboratory. Only blood was noticed on the salwar and swabs but blood can be due to some other reason. Doctor admitted that traces of blood on the swabs could be while taking the swabs. If the prosecutrix was profusely bleeding after rape, then blood should have been noticed by the doctor at the time of MLR but there was no blood, no external mark of injury and no human semen was detected. Evidence rather shows that there was only attempt to rape. Appellant is in custody for the last 2 years, 10 months and 19 days and is ready to compensate the complainant party in case of conviction under Sections 376/511 IPC. Learned State counsel and learned counsel for the petitioner- complainant argued that before the present occurrence, complainant party had no enmity with the appellant. There was no idea to implicate the appellant when reputation of 5 years' old girl was at stake. Clothes worn by the prosecutrix and swabs were sent to laboratory and as per report of laboratory, blood was noticed. Mere penetration was sufficient to convict the appellant under Section 376 IPC. According to story, prosecutrix was raped against her wish, whereas allegation of the appellant was that he was falsely implicated at the instance of Bhim Gwaria, against whom murder case was registered and in the murder case, his grand father was one of the prosecution witnesses. Now question is whether prosecution story inspires confidence or defence version seems to be more probable. PW1 Om Parkash is the eye witness but he did not support the Crl.Appeal No.108-SB of 2001 8 story. As per statement under Section 161 Cr.P.C., Om Parkash had noticed the appellant while raping the prosecutrix and from the place of occurrence, prosecutrix was brought to her house. Affidavit (Ex.PB) of Om Parkash is on the file. Affidavit also shows that occurrence was witnessed by him but as PW1, Om Parkash did not support the story. PW9 Satpal is the father of prosecutrix and stated that prosecutrix was brought to his house by Om Parkash. At that time, prosecutrix was bleeding from her private parts. He along with prosecutrix had gone to police station and after lodging report with the police, prosecutrix was produced before the doctor and was medico legally examined. Satpal is not the eye witness. He had simply reported the matter to the police but one thing is clear from the statement of Satpal that when the prosecutrix was brought to his house, then at that time, there was bleeding from the private parts of the prosecutrix. On the same day, i.e., 12.5.1997 after lodging report with the police, prosecutrix was produced before the doctor. Prosecutrix was medico legally examined by PW8 Dr. Rekha Yadav. According to the doctor, there was no external injury on the person of the prosecutrix. There was no bleeding. Doctor simply stated that congestion around the vaginal orifice was noticed. So, possibility of sexual assault cannot be ruled out. Doctor did not state specifically that the prosecutrix was raped. When the complainant party was not satisfied with the MLR, then matter was brought to the notice of DC, Gurgaon. As per order of the DC, Board of Doctors was constituted. Ultimately on 19.5.1997, prosecutrix was medico legally examined by the Board of Doctors. PW6 Dr. S.K.Sharma was one of the members of Board of Doctors and stated that Crl.Appeal No.108-SB of 2001 9 there was no external injury on the person of the prosecutrix. No indication of fresh or recent sexual activity. There was congestion of vaginal orifice but no external injury. So, with these findings, there cannot be bleeding from vagina recently or recent past. Doctor categorically stated that there was no blood in her vagina as per MLRs. Doctor further stated that when prosecutrix of 5 years' old is raped by an adult male resulting into bleeding from her vagina, then there would be expectation of laceration in her genitals. Prosecutrix while appearing as PW10, then stated that she was taken away by the appellant with promise to supply eatables. In the pit, after removing her salwar, appellant fell on her. Then there was bleeding from her private parts. If there was bleeding from her private parts, then doctor should have noticed that there was bleeding from her private parts. But Dr. Rekha Yadav stated that at the time of examination on 12.5.1997, i.e., immediately after the occurrence, there was no bleeding from the private parts of prosecutrix. Prosecutrix was also medico legally examined by the Board of Doctors but Board of Doctors did not notice any mark of external injury. Board of Doctors also opined that there was no bleeding. At the time of medico legal examination, swabs were taken and sent to the laboratory. Report of laboratory is to the effect that human semen was not detected. Only blood was noticed in case of salwar and swabs. Doctor stated that while taking swabs, then possibility of blood on swabs cannot be ruled out. Human blood was noticed but blood can be due to cut on any part of the body. If the prosecutrix was raped by the appellant, then blood was expected to be noticed by the doctor. In case of Crl.Appeal No.108-SB of 2001 10 swabs, laboratory was to report about the presence of human semen. Immediately after the occurrence, prosecutrix was medico legally examined. There was no external injury. Bleeding was not found from the private parts. As per report of laboratory, human semen was also not detected. Occurrence was in the month of May, 1997. Statement of the prosecutrix under Section 161 Cr.P.C. was not recorded immediately. Statement of the prosecutrix was recorded after about 16 months as per order of the High Court. As discussed earlier, if appellant had raped the prosecutrix and prosecutrix had informed the complainant about the incident, then statement of the prosecutrix should have been recorded by the IO on the same day or after medico legal examination. If due to some unavoidable circumstances, IO was not in a position to record statement of the prosecutrix on the same day or on the next day, then after a week or month, statement of the prosecutrix should have been recorded. Prosecutrix in cross-examination admitted that she had narrated the occurrence to her father's counsel about 10 times. Her father took her to the house of his counsel twice. She was produced before the doctor several times. Police had recorded her statement after two years. On the day of occurrence, she did not disclose the incident to the police. In 2009(1) RCR (Crl.) 969, Arjun Singh vs. State of HP, Hon'ble Supreme Court held that Medical Officer stated that rape had not been committed and sexual intercourse had not taken place. Then offence punishable under Section 376 IPC not established but attempt to rape established. In the present case also, Dr. Rekha Yadav or Dr. S.K.Sharma, who had medico legally examined the prosecutrix, did not state specifically Crl.Appeal No.108-SB of 2001 11 that the prosecutrix was raped. Doctors rather stated that there was no external injury. No bleeding. Only congestion around the vaginal orifice was noticed. In view of the report of laboratory, no sexual activity (penetration) had taken place in this case. That is why, PW1 Om Parkash, who claimed to be the eye witness, did not support the story by saying that appellant was seen while raping the prosecutrix. All this shows that appellant had simply attempted to rape the prosecutrix. Actually, there was no rape. Conviction of the appellant is altered from Section 376 IPC to Section 376 read with Section 511 IPC. Appellant belongs to poor family. He was 23 years' old at the time of occurrence. As per custody certificate, appellant has already undergone 2 years, 10 months and 19 days. In Arjun Singh's case (supra), appellant was directed to undergo RI for 3 years under Section 511 IPC. Keeping in view the facts of this case, appellant is directed to undergo imprisonment already undergone (2 years, 10 months and 19 days) under Section 376 read with Section 511 IPC. Appellant is also directed to deposit Rs.50,000/- as fine before the trial Court within two months, payable to the prosecutrix as compensation through her father, namely, Satpal. For the reasons recorded above, Crl.Appeal No.108-SB of 2001 and Crl.Revision No.760 of 2001 without merit are dismissed with modification on the point of conviction and sentence. 10.5.2011 ( JORA SINGH ) pk JUDGE