Crl. Appeal No.63-DB of 2000 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.63-DB of 2000 Date of Decision: 09.05.2008 Jai Pal ....Appellant. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. Swaraj Arora, Advocate for the appellant. Mr. Ravi Dutt Sharma, D.A.G., Haryana for the State. ... J.S. Khehar, J. Through the instant appeal the accused/appellant Jai Pal has impugned the judgement rendered by the Additional Sessions Judge, Jagadhri, in Sessions Case No.55 of 1999, decided on 7.1.2000, by which he has been held guilty and has been convicted of the offence under Section 376 of the Indian Penal Code, for having committed rape on his own minor daughter i.e. the complainant Rinki. The accused/appellant Jai Pal has also impugned the order dated 8.1.2000, whereby on account of his having been convicted under Section 376 of the Indian Penal Code, he has been sentenced to undergo imprisonment for life. The prosecution version of the incident is based on the Crl. Appeal No.63-DB of 2000 2 statement of the complainant Rinki PW3, a resident of village Changnoli, recorded on 17.7.1999 before the SI Des Raj PW12. According to the complainant Rinki PW3, her mother Palo Devi died about eight years before the complaint was made. Whereafter, the complainant Rinki PW3 was living with her father alongwith one sister and one brother. According to the assertions made in the complaint, both the sister and the brother of the complainant Rinki PW3, are younger to her. The father of the complainant Rinki PW3 i.e. the accused/appellant Jai Pal was employed as a servant with Hargobind Singh. The complainant Rinki PW3 herself was working as a maid servant in the house of Mohinder Singh. The younger sister of the complainant Rinki PW3 i.e. Renu, aged about 12 years, was stated to be working as a domestic servant in the house of Amar Singh, whereas, her only brother i.e. Amarjit aged 8/9 years was studying in the fifth class. According to the complainant Rinki PW3, her father i.e. the accused/appellant Jai Pal was habitual in taking liquor. About 5/6 months before the recording of the complaint, after cooking meals, the complainant Rinki PW3 went to sleep in the court-yard in front of the house. Her father returned to the house late in the night in a drunken condition. He caught hold of the complainant Rinki PW3 from her arm and took her into the “kotha”. After opening the string of her “salwar”, he removed her “salwar” forcibly, and committed intercourse with her, without her consent. He, thereafter, threatened to kill the complainant Rinki PW3, if she disclosed the matter to any one. After the first incident, the accused/appellant Jai Pal allegedly committed forcible rape on the complainant Rinki PW3 on several occasions. 5/6 days prior to the recording of the complaint, when the younger brother and sister of the complainant Rinki PW3, had gone out of Crl. Appeal No.63-DB of 2000 3 the house, the accused/appellant Jai Pal allegedly committed rape on the complainant Rinki PW3. The instant incident of rape was disclosed by the complainant Rinki PW3 to Daler Kaur i.e. the wife of Mohinder Singh in whose house she was engaged as a maid servant. The aforesaid Daler Kaur called the “tayi” (father's elder brother's wife) of the complainant Rinki PW3 i.e. Lila Devi, and narrated the entire sequence of facts to her. At that juncture, the complainant Rinki PW3 confirmed the factual position to her “tayi”. In her complaint, the complainant Rinki PW3 asserted that she was ashamed to narrate the aforesaid facts to any one, however, finding no alternative, she alongwith her “tayi” Lila Devi and “taya” (father's elder brother) Rameshwar, went to the police station to record the complaint. On the basis of the statement of Rinki PW3 recorded on 17.7.1999, a First Information Report bearing No.99 of 1999 was registered at Police Station, Bilaspur in district Yamunanagar, on 17.7.1999 at 7.30 PM. Having recorded the statement of the complainant Rinki PW3, SI Des Raj PW12 went to the place of occurrence and prepared the rough site plan Ex.PN. He also recorded the statement of Lila Devi i.e. the “tayi” of the complainant Rinki PW3, as well as, of her “taya” Rameshwar. SI Des Raj PW12 then sent the complainant Rinki PW3 to the Civil Hospital, Jagadhri, for medico-legal examination. Simultaneously, an application was moved by SI Des Raj PW12 to get recorded the statement of the complainant Rinki PW3, under Section 164 of the Code of Criminal Procedure. Ms. Neena Chaudhary, Additional Chief Judicial Magistrate, Jagadhri, recorded the statement of the complainant Rinki PW3, under Section 164 of the Code of Criminal Procedure. SI Des Raj PW12 then contacted Daler Kaur and recorded her statement. On 21.7.1997, SI Des Raj Crl. Appeal No.63-DB of 2000 4 PW12 arrested the accused/appellant Jai Pal and got him medico-legally examined from the Civil Hospital, Jagadhri. The investigating officer then procured the birth certificate of the complainant Rinki PW3 Ex.PC from the office of CMO, Yamunanagar. After sending the required parcels to the Forensic Science Laboratory, Madhuban, and after having completed the process of investigation and other police formalities, SI Des Raj PW12 prepared the investigation report under Section 173 of the Code of Criminal Procedure and submitted the challan in the Court of the Judicial Magistrate Ist Class, Jagadhri, on 14.8.1999. The Judicial Magistrate Ist Class, Jagadhri, by his order dated 25.8.1999 arrived at the prima-facie conclusion, that the investigation carried out by the police revealed the commission of the offence punishable under Sections 376 and 506 of the Indian Penal Code. The offence under Section 376 of the Indian Penal Code is, however, exclusively triable by the Court of Session. Accordingly, the Judicial Magistrate Ist Class, Jagadhri, by his order dated 25.8.1999 committed the case for trial to the Court of Session. The Additional Sessions Judge, Jagadhri, by his order dated 28.9.1999 charged the accused/appellant Jai Pal for having committed rape on Rinko Devi, his minor daughter, and thereby the offence punishable under Section 376 of the Indian Penal Code. The accused/appellant Jai Pal was then confronted with the charges levelled against him. He pleaded not guilty, and claimed trial. During the course of the trial, the prosecution produced a number of witnesses. The statements of the witnesses examined by the trial Court, are being summarised hereunder. The prosecution first of all, Crl. Appeal No.63-DB of 2000 5 examined Dr. Neenu Ohri, Gynecologist posted at the Civil Hospital, Yamunanagar, as PW1. Dr. Neenu Ohri PW1 asserted that she had conducted the medico-legal examination on the prosecutrix Rinki PW3 on 17.7.1999. Dr. Neenu Ohri PW1, inter-alia, stated as under:- “On 17.7.1999, I medico-legally examined Rinki d/o Jai Pal 17 years old female on police request after obtaining medio-legal consent. There was history of alleged rape by the father. Patient was fully conscious and her vitals were stable and her secondary sexual character were well developed. She had attained minarche two years back and her LMP was two months back and her PMC was 3 to 4/28 days regular. There was no injury mark or bruise on any part of the body. On local examination Labia, majora and minor healthy. Pubic hair were present but not metted. On P/S examination:- Hymen were found absent. There was no fresh tear or laceration in or around hyminal ring. On P/V examination:- was not tendered to touch. Vagina easily admitted two fingers. Utercus was antiverted and was of normal size. Fonix was clear. A swab was taken from cervicovaginal area and sent to FSL.” The statement of Sohan Lal, Statistical Assistant, office of the Civil Surgeon, Yamunanagar, was recorded as PW2. Sohan Lal PW2 produced the record in respect of the date of birth of the prosecutrix Rinki PW3 before the trial Court. According to Sohan Lal PW2, as well as, the record produced by him, the date of birth of the prosecutrix Rinki PW3 was 4.5.1983. The statement of the prosecutrix Rinki was recorded as PW3. Crl. Appeal No.63-DB of 2000 6 During the course of her statement before the trial Court, she reiterated the factual position as had been narrated by her when she had made her statement on the matter under reference to SI Des Raj PW12, on 17.7.1999. In her statement, the prosecutrix Rinki PW3 also expressly asserted that she had also made a similar statement Ex.PE. Statement at Ex.PE was recorded by the Additional Chief Judicial Magistrate, Jagadhri, on 18.7.1999. A perusal of Ex.PE reveals that the Additional Chief Judicial Magistrate, Jagadhri, had explained to the prosecutrix Rinki PW3, that she was not bound to make a statement, and that, if she made a statement then the same could be used as evidence. The Additional Chief Judicial Magistrate, Jagadhri, also recorded that the statement had been made by the prosecutrix Rinki PW3 voluntarily, and that, the same was read over to her and explained to her, and that, she admitted that the contents of her statement recorded under Section 164 of the Code of Criminal Procedure, were correct. It would be pertinent to mention, that even in her statement under Section 164 of the Code of Criminal Procedure i.e. Ex.PE, she had narrated exactly the same facts as she had disclosed to SI Des Raj PW12, on 17.7.1999. The statement of Lila Devi was recorded as PW4. It would be pertinent to mention, that Lila Devi PW4 is the wife of Rameshwar. Rameshwar is the elder brother of the accused/appellant Jai Pal. As such, Lila Devi PW4 is the “tayi” of the prosecutrix Rinki PW3. In her statement, Lila Devi PW4 affirmed that, the fact that rape was being committed on the prosecutrix Rinki PW3 was disclosed to her by Daler Kaur i.e. the wife of Mohinder Singh, in whose house the prosecutrix Rinki PW3 was engaged as a domestic servant. And, that the same facts were then disclosed by the prosecutrix Rinki PW3 to her (Lila Devi PW4). Lila Devi PW4 also stated Crl. Appeal No.63-DB of 2000 7 that she had taken the prosecutrix Rinki PW3 to the police station for lodging a report. The statement of Dr. D.P. Singh, Medical Officer, Civil Hospital, Jagadhri, was recorded as PW5. Dr. D.P. Singh PW5, asserted that he had conducted the medico-legal examination on the accused/appellant Jai Pal on 21.7.1999. He noticed at the time of conducting the medico-legal examination, that the accused/appellant Jai Pal was smelling of alcohol. He opined that the secondary sexual characters of the accused/appellant Jai Pal were well developed, and that, his phallus was normal. He also opined, that there was nothing to suggest that the accused/appellant Jai Pal could not perform sexual intercourse. The statement of MHC Joginder Singh was recorded as PW6. He tendered into evidence his affidavit Ex.PH. A perusal of his affidavit reveals that SI Des Raj PW12 had deposited the case property with him, which included one phial sealed with the seal of NK, containing a swab taken from the prosecutrix Rinki PW3, one phial containing hair, one sealed parcel of salwar (sealed with 5 seals of NK), one envelop containing report, and that he had deposited the same in the malkhana. The aforesaid parcels were then taken by Constable Madan Mohan the from the malkhana on 29.7.1999 so as to be deposited with the Forensic Science Laboratory, Madhuban. Having deposited the parcels in the Forensic Science Laboratory, Madhuban, Constable Madan Mohan handed over a slip thereof to MHC Joginder Singh PW6. The statement of Constable Madan Mohan was recorded as PW7. He tendered into evidence his affidavit Ex.PJ. A perusal of his affidavit reveals that on 29.7.1999, MHC Joginder Singh PW6 had handed over to him several parcels for being deposited at the Forensic Science Laboratory, Madhuban. He claimed to have deposited the aforesaid Crl. Appeal No.63-DB of 2000 8 samples and submitted a receipt thereof to the MHC Joginder Singh PW6. The statement of Tikka Ram was recorded as PW8. He deposed that he had taken the special report to the Ilaqa Magistrate and had handed over the same to the Ilaqa Magistrate at his residence at 8.45 PM. The statement of Mulakh Raj was recorded as PW9. While appearing as a prosecution witness, Mulakh Raj PW9 stated that he had prepared the scaled site plan Ex.PA on the pointing out of the prosecutrix Rinki PW3. The statement of Head Constable Balbir Singh was recorded as PW10. He affirmed that on 17.7.1999, whilst he was posted at Police Station, Bilaspur, he got the prosecutrix Rinki PW3 medico-legally examined at the Civil Hospital, Yamunanagar. The statement of ASI Ramesh Kumar was recorded as PW11. He stated that on 21.7.1997, he got the accused/appellant Jai Pal medico-legally examined at the Civil Hospital, Jagadhri. After recording the statements of the aforesaid prosecution witnesses, evidence of the prosecution was closed by order. The statement of the accused/appellant Jai Pal was then recorded under Section 313 of the Code of Criminal Procedure. The accused/appellant Jai Pal was confronted with the incriminating evidence appearing on the record of the case. The accused/appellant Jai Pal, in response thereto, denied the veracity of the prosecution evidence by asserting that the same was false and incorrect. In his defence, the accused/appellant Jai Pal, inter-alia, stated as hereunder:- “I am innocent. Since the death of my wife my daughter named Rinki was living with Daler Kaur wife of Mohinder Singh as a maid servant. She never lived with him. I was not having good relation with my brother. At the instance of Daler Kaur and my Crl. Appeal No.63-DB of 2000 9 brother Rameshwar, a false case has been foisted upon me.” The accused/appellant Jai Pal was then afforded an opportunity to lead evidence in his defence. The accused/appellant Jai Pal did not lead any evidence in his defence. Accordingly, evidence of the accused/appellant Jai Pal was closed on the basis of his statement, by order. The Additional Sessions Judge, Jagadhri delivered the judgement in Sessions Case No.55 of 1999, on 7.1.2000 He arrived at the conclusion that the prosecution had been able to establish the guilt of the accused/appellant Jai Pal for having committed rape on his minor daughter i.e. Rinki PW3, against her will. He, accordingly, convicted the accused Jai Pal under Section 376 of the Indian Penal Code. On the following day i.e. on 8.1.2000, the accused/appellant Jai Pal was heard on the question of sentence. Thereafter, the Additional Sessions Judge, Jagadhri, by his order dated 8.1.2000 concluded that the factual position that the accused/appellant Jai Pal had subjected his minor daughter to illegal sexual intercourse repeatedly, opined that he did not deserve any mercy. The accused/appellant Jai Pal was, accordingly, sentenced to undergo imprisonment for life for the commission of the offence punishable,under Section 376 of the Indian Penal Code. A perusal of the judgement rendered by the Additional Sessions Judge, Jagadhri, as well as, the evidence produced on the record of the trial Court by the prosecution reveal that the trial Court while recording the guilt of the accused/appellant Jai Pal, placed reliance on ocular evidence, as well as, on expert evidence. In so far as, ocular evidence is concerned, reliance was placed on the statement of the prosecutrix Rinki PW3, and on the statement of her “tayi” Lila Devi PW4. For expert medical evidence, Crl. Appeal No.63-DB of 2000 10 reliance was placed on the statements of Dr. Neenu Ohri PW1 and Dr. D.P. Singh PW5. Reliance was also placed on the date of birth certificate Ex.PC produced on the record of the case by Sohan Lal PW2, to record the conclusion that the prosecutrix Rinki PW3 was less than 18 years on the date of occurrence. In order to assail the findings recorded by the trial Court, and in order to establish that the evidence produced by the prosecution is not creditworthy, learned counsel for the accused/appellant Jai Pal has raised a number of pleas. Learned counsel for the accused/appellant Jai Pal has also vehemently contended that there is no credible evidence on the record of the case to establish the guilt of the accused/appellant Jai Pal in respect of the charges levelled against him. Each of the pleas raised by the accused/appellant Jai Pal is being dealt with in the succeeding paragraphs. The first contention of the learned counsel for the accused/appellant Jai Pal is to the effect that there is neither any independent oral evidence to establish the guilt of the accused/appellant Jai Pal for having committed rape on his daughter Rinki PW3, nor there is any expert evidence to establish the commission of such a crime at his hands. In this behalf, it is pointed out that the report of the Forensic Science Laboratory, available on the record of the case reveals that semen could not be detected on the vaginal swab, pubic hair, salwar, ladies shirt, brasier and “kachha”, belonging to the prosecutrix Rinki PW3, and as such, the instant case should be treated as a case of no evidence. We have considered the first contention advanced by the learned counsel for the accused/appellant Jai Pal. While examining the totality of the facts and circumstances of this case, it is apparent that the Crl. Appeal No.63-DB of 2000 11 first occasion on which the prosecutrix Rinki PW3 disclosed the fact that her father i.e. the accused/appellant Jai Pal was committing rape on her, was to Daler Kaur in whose house the prosecutrix Rinki PW3 was engaged as a domestic servant. Keeping in view the fact that the prosecutrix Rinki PW3 had lost her mother eight years prior to the occurrence, it is obvious that Daler Kaur could possibly be the only person with whom she was interacting for a long time on a day to day basis. Being a woman, we have no doubt that the prosecutrix Rinki PW3 must have disclosed her predicament, in so far as the behaviour of her father i.e. the accused/appellant Jai Pal, is concerned, to Daler Kaur. The same fact was then disclosed by the prosecutrix Rinki PW3 to her “tayi” Lila Devi PW4. For the third time, the fact that the accused/appellant Jai Pal had been committing rape on the prosecutrix Rinki PW3, was disclosed by her when she was sent for medico-legal examination to Dr. Neenu Ohri PW1, on 17.7.1999. This is evident from the fact that in the statement of Dr. Neenu Ohri PW1, she expressly stated that the prosecutrix Rinki PW3 had been brought to her with “...history of alleged rape by her father...” The prosecutrix Rinki PW3 appeared before Ms. Neena Chaudhary, Additional Chief Judicial Magistrate, Jagadhri, on 18.7.1999 and reiterated the aforesaid factual position after she was cautioned of the consequences thereof. Yet again, when the prosecutrix Rinki appeared before the trial Court on 2.12.1999 as PW3, she expressed the same factual position during the course of her testimony before the trial Court, in the face of her father. It is necessary to expressly notice that the prosecutrix Rinki PW3 was not subjected to any cross-examination. It is, therefore, essential to conclude that the veracity of the statement made by the prosecutrix Rinki while Crl. Appeal No.63-DB of 2000 12 appearing as PW3 before the trial Court, was not contested by the accused/appellant Jai Pal. Lila Devi i.e. the “tayi” of the prosecutrix Rinki PW3 appeared before the trial Court as PW4. She also corroborated the factual position narrated by the prosecutrix Rinki PW3 in respect of the disclosure made by Rinki PW3 to Daler Kaur in whose house she was engaged as a domestic servant, but also, to Lila Devi PW4 herself. Again, Lila Devi PW4 was not subjected to any cross-examination at the hands of the accused/appellant Jai Pal. It is, therefore, apparent that the accused/appellant Jai Pal did not contest the statement of Lila Devi PW4 as was recorded before the trial Court. In view of the repeated assertions made by the prosecutrix Rinki PW3 against her own father, we have no doubt, whatsoever, about the truth and veracity of her testimony, specially when neither the prosecutrix Rinki PW3 nor Lila Devi PW4 was subjected to any cross-examination or suggestion at the hands of the accused/appellant Jai Pal. In view of the facts noticed hereinabove, we are satisfied that there was sufficient evidence available on the record of the case to establish the guilt of the accused/appellant Jai Pal for having committed rape on the prosecutrix Rinki PW3. The second contention of the learned counsel for the accused/appellant Jai Pal was based on the defence adopted by the accused/appellant Jai Pal while recording his statement under Section 313 of the Code of Criminal Procedure. The specific statement relied upon by the learned counsel for the accused/appellant Jai Pal in order to substantiate the instant contention, has been extracted in an earlier part of this order. A perusal whereof reveals that the accused/appellant Jai Pal not only asserted his innocence, but also, asserted that after the death of his wife, his daughter Crl. Appeal No.63-DB of 2000 13 Rinki PW3 was living with Daler Kaur wife of Mohinder Singh, as a maid servant and not with him. As such, it was sought to be suggested that it was not possible for him to commit rape on his daughter Rinki. So as to wriggle out of the statement of Lila Devi PW4 i.e. the wife of the elder brother of the accused/appellant Jai Pal, it was alleged by the accused/appellant Jai Pal while recording his statement under Section 313 of the Code of Criminal Procedure, that he was not having good relations with his brother, and as such, his brother Rameshwar foisted a false case against him in connivance with Lila Devi PW4. Having considered the second contention advanced by the learned counsel for the accused/appellant Jai Pal, we are of the view that the same is clearly misconceived. In the first instance, it would be pertinent to mention, that facts asserted by an accused while recording his statement under Section 313 of the Code of Criminal Procedure, cannot be accepted to have been proved unless cogent evidence is led by the accused in his defence to establish the same. Inspite of the aforesaid, it is apparent that the factual position narrated by the accused/appellant Jai Pal in his defence while recording his statement under Section 313 of the Code of Criminal Procedure, is wholly false and incorrect. As per the statement made by the accused/appellant Jai Pal, his daughter Rinki PW3, was living with Daler Kaur as a maid servant after the death of his wife. It is not a matter of dispute, that the wife of the accused/appellant Jai Pal had died eight years prior to the occurrence under reference. Thus viewed, it is apparent that the wife of the accused/appellant Jai Pal died somewhere in the year 1991. Since the prosecutrix Rinki PW3 was born in the year 1983, it is apparent that she was just about eight years old when her mother had died. There Crl. Appeal No.63-DB of 2000 14 was, therefore, no question of her being engaged as a domestic servant in the house of Daler Kaur after the death of the wife of the accused/appellant Jai Pal. In view of the fact, that we have accepted the testimony of the prosecutrix Rinki PW3, as well as, that of Lila Devi PW4 as truthful, we find absolutely no reason to accept the instant submission advanced at the hands of the learned counsel for the accused/appellant Jai Pal. Accordingly, the instant plea raised at the hands of the learned counsel for the accused/appellant Jai Pal is disposed of as being misconceived. The third contention of the learned counsel for the accused/appellant Jai Pal was to the effect that the prosecutrix Rinki PW3 is stated to be used to sexual intercourse as is apparent from the medico-legal examination conducted by Dr. Neenu Ohri PW1. In this behalf, it