Criminal Appeal No. 1524-SB of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 1524-SB of 2007 Date of Decision: 1.12.2011 Ravi Kumar ... Appellant Versus U.T. Chandigarh ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Hoshiar Singh Jaswal, Advocate for the appellant. Mr. Sarfraj Hussain, Additional Public Prosecutor, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The appellant was nominated as an accused in case FIR No. 79 dated 26.4.2006 registered at Police Station Sector 31, U.T. Chandigarh, under Sections 376, 506 and 306 read with Section 511 IPC. The Court of Additional Sessions Judge, Chandigarh, vide impugned judgment dated 1.5.2007, held the appellant guilty for the offence under Sections 376 and 506 IPC and vide a separate order of even date, sentenced him as under:- Sr. No. Sentence Under Section Sentence Awarded 1 376 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 10,000, in default whereof to further undergo rigorous imprisonment for a period of three years. Criminal Appeal No. 1524-SB of 2007 2 Sr. No. Sentence Under Section Sentence Awarded 2 506 IPC To undergo rigorous imprisonment for a period of six months. Both the sentences were ordered to run concurrently. Aggrieved against the impugned judgment of conviction and order of sentence, the present appeal has been filed. The prosecution case was set into motion on the statement Ex. PG made by the prosecutrix (name withheld to protect her identity). In her statement, she stated that she was residing with her parents in House No. 2109, Deep Complex, Hallomajra, U.T. Chandigarh, however, they are permanent residents of Meerut. She was residing in Chandigarh along with her parents for the last about 1½ years and for the last 1½ months in Deep Deep Complex, Hallomajra.. It was complained that her father Ravi Kumar was committing rape with her regularly for the last 4-5 months and on the night intervening 25/26.4.2006 at about 3.00 A.M. when her father was committing rape, her mother Saroj suddenly woke up and found him committing rape with the prosecutrix. Saroj Rani, mother of the prosecutrix, could not bear to see such an ugly scene and had set herself on fire by pouring kerosene oil. Ravi Kumar doused the fire and took Saroj Rani to the hospital. The accused threatened the prosecutrix that in case she disclosed the incident to anybody, she would be killed. On 26.4.2006, her uncle (fufa), husband of father's sister, arrived from Delhi to ask about welfare of her mother. Then the prosecutrix had disclosed the entire incident to him and came to the Police Station to lodge a report. It is stated that the appellant had committed rape upon the prosecutrix on numerous Criminal Appeal No. 1524-SB of 2007 3 occasions. The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted. The appellant was charged for the offence under Sections 376, 506 and 306 read with Section 511 IPC. The accused pleaded not guilty and claimed trial. The prosecutrix was radiologically examined by PW.1 Dr.Rajinder Pal Singh Bajwa, who opined that she was less than 12 years of age with two years margin on either side. The prosecutrix was medicolegally examined by PW.2 Dr.Rakhi Goyal. As per her medicolegal examination, no injury or bruise was found on internal or external parts of her body. PW.3 Dr. Sanjiv Kumar has stated that he had detected semen on salwar and kameez. However, no semen was detected on vaginal swab or nail clipping. However, a group of semen remained inconclusive. Saroj, mother of the prosecutrix and wife of the accused, appeared as PW.6. She has stated that her husband was a Rickshaw Puller. She had not supported the prosecution case and was declared hostile. She was confronted with her statement Ex.PE recorded under Section 161 Cr.P.C. She persisted that her husband had not committed any offence. The prosecutrix, when appeared in the Court as PW.7, had also not supported the prosecution case. She has only stated that when she woke up on 25.4.2006, she heard shrieks of her mother and saw her in flames. However, she has stated that nothing else had happened Criminal Appeal No. 1524-SB of 2007 4 before that incident. She was also declared as hostile and was cross- examined by the Public Prosecutor. She was confronted with her statement made to the police. She has further stated that she had made statement to the Magistrate that she was raped by her father on the asking of the police. She has further stated that the suggestion that she had made a voluntary statement before the Magistrate was also denied by her. PW.10 Mr. Atul Kumar Marya, who was then Judicial Magistrate Ist Class at Chandigarh, proved statement Ex.PF made by the prosecutrix before him under Section 164 Cr.P.C. This Court need not to notice, in detail, the evidence of the witnesses, who had participated and advanced investigation of the case. The trial Judge has convicted the appellant primarily relying upon the statement made under Section 164 Cr.P.C. by the prosecutrix before PW.10 Mr. Atul Marya, the then Judicial Magistrate Ist Class at Chandigarh. For recording conviction of the appellant, the trial Judge returned the following finding:- “26. Section 164 Cr.P.C. is a safeguard intended to preserve the truth in the course of an investigation and before inquiry and trial. To convert this safeguard as an argument to exclude the testimony of a witness whose version has been sought to be preserved would defeat the very object with the legislature intended to achieve. (Nisar Vs. State of Rajasthan 1963 RLW 462) I am in respectful submission to the judgment in the case of Criminal Appeal No. 1524-SB of 2007 5 Ram Phal but the distinguishing fact in the two cases is that it is not only statements 164 Cr.P.C. but we do have other pieces of evidence as well against the accused.” This Court has serious doubts regarding reliance placed by the trial Judge on the statement of the prosecutrix recorded under Section 164 Cr.P.C. Primarily, this Court is of the view that the statement recorded under Section 164 Cr.P.C. is to be treated as a previous statement and not a substantive piece of evidence. However, Mr.Hoshiar Singh Jaswal, Advocate, appearing for the appellant, has submitted that he will not join the issue assailing conviction of the appellant on the ground that as on today, he has already undergone an actual sentence of 5 years and 7 months out of 10 years' sentence awarded and, therefore, sentence be reduced to the period already undergone. I am unable to accept this contention taking into consideration the entire gamut of the case. According to learned counsel for the appellant, it has come in the evidence that the appellant was a Rickshaw Puller, a migrated labourer from Uttar Pradesh to Chandigarh to earn his livelihood. He has further submitted that it has also come in the evidence that there is nobody else than the appellant in the family to look after the prosecutrix, her mother and three other children. Mr. Sarfraj Hussain, Additional Public Prosecutor, has submitted that this is a case where, due to extreme poverty, the prosecutrix and her mother had not supported the prosecution case as they are dependent upon the appellant for their day-to-day survival. It is, Criminal Appeal No. 1524-SB of 2007 6 in this context, this Court should notice that the prosecutrix and her mother had turned hostile. Be that as it may, since learned counsel for the appellant is satisfied with the reduction of sentence of the appellant and there is no serious opposition thereto by learned counsel for the State, without going into the nitty-gritty and merits of the case, this Court is of the view that in the peculiar facts and circumstances of the case, reduction in sentence of the appellant is called for. In present case, the prosecution has failed to prove that the prosecutrix was less than twelve years of age, rather as per ossification test, age can vary with margin of two years on either side. Hence, the sentence of ten years rigorous imprisonment, awarded upon the appellant, for the offence under Section 376 IPC, is reduced to that of seven years rigorous imprisonment. However, sentence for the offence under Section 506 IPC, sentence of fine and default clause, shall remain intact. With the modifications in the sentence, awarded upon the appellant, the present appeal is disposed of. (Kanwaljit Singh Ahluwalia) Judge December 1, 2011 “DK”