Crl.Appeal No.135-SB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 135-SB of 2004 Date of Decision: February 25, 2010 Mata Badan ...........Appellant Versus State of UT Chandigarh ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: None for the appellant. Mr.Rajiv Sharma, Advocate for UT Chandigarh. ** Sabina, J. Accused Mata Badan had been sent for trial by the Police Station Sector 36 Chandigarh and the case was committed by Judicial Magistrate First Chandigarh vide its order dated 17.11.2000 under Section 376 of the Indian Penal Code (`IPC' for short) to the Court of Sessions. Accused was held guilty for an offence under Section 376 IPC by the Additional Sessions Judge, Chandigarh vide judgment dated 17.12.2003. Vide order of even date, the Additional Sessions Judge Chandigarh sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.500/-. Hence, the present appeal The brief facts of the case, as noticed by the Additional Sessions Judge in paras 2 to 4 of its judgment, are as under:- “2. Briefly stated the allegations of the prosecution are that on 7.7.2000 at about 5.30 p.m. complainant Sunil Kumar (PW1) had gone towards the bushes in Sector 43-A for answering the call of Crl.Appeal No.135-SB of 2004 2 nature. When he reached there he heard the crises of a child. He saw the accused rising from the ground holding his lungi. On a bed sheet spread on the grass prosecutrix Urmila (PW2) aged about six years was lying. She was weeping. She was wearing a frock only. The complainant caught hold of the accused and he was taking him towards the road. In the meantime, the accused tried to get himself released to make his escape good. Having seen them grappling many persons from the fish market were attracted there. They over came the accused and gave him beatings also. Urmila (PW2) on enquiry revealed that she had gone there to answer the call of nature. The accused having taken her behind the bushes and made her lie on the bed sheet spread on the ground started having sexual intercourse with her. Having felt pain she started crying which attracted the complainant and others. The accused and the prosecutrix were then hand over to the police party headed by Assistant Sub Inspector Azad Singh (PW15). He recorded the statement of the complainant as Ex.PA. Having made his endorsement Ex.PA/1 thereon he sent the same to the police station through Constable Lal Singh. In the police station Sub Inspector Janak Singh recorded the First Information Report Ex.PW/2 and made his endorsement Ex.PA/3 under Ex.PA/1. 3.After the case was registered as above the investigations were taken in hand. The accused was arrested there and then. Rough site plan Ex.PM reflecting the place of occurrence was drawn. The prosecutrix was got medicolegally examined. Dr.Nirlep Kaur Crl.Appeal No.135-SB of 2004 3 (PW10) who had medicolegally examined her found no mark of injury on labia majora. On separation of labia she found fresh bleeding from the lateral side of forchette. Small abrasion was seen on lateral side and the same was very painful. The swabs were taken from posterior forenette. The hymen was found intact. The medicolegal report Ex.PH was issued in this regard. The under wear belonging to the prosecutrix (Ex.P1) her vagina swabs stick (Ex.P2) were made into parcels and sealed there and then alongwith sample seal (Ex.P3). The prosecutrix was referred to Radiologist for determination of her age. Dr. Prem Chand (PW5) having examined her radiologically opined her radiological age to be seven years. He issued the report Ex.PD on the basis of skiagram Ex.PD/1. 4. The accused was also got medicolegally examined. Vide medicolegal report Ex.PR he was found capable of performing sexual intercourse. The parcels containing ExP1 and Ex.P2 referred to herein above were taken in possession by Investigation Officer Assistant Sub Inspector Azad Singh (PW15) vide recovery memo Ex.PK. The parna belonging to the accused and his lungi were also taken in possession vide recovery memo Ex.PB and Ex. PC respectively. Scaled site plan Ex.P3 was got prepared from Head Constable Yash Pal regarding the place of occurrence. Statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure were recorded and after completion of necessary investigations the challan was presented in the court for trial as envisaged under Section 173 of Crl.Appeal No.135-SB of 2004 4 the Code of Criminal Procedure” None has appeared on behalf of the appellant. Even on the last date, none had appeared on behalf of the appellant. I have gone through the record of the case carefully with the able assistance of the learned counsel for the Administration. In the present case, the prosecutrix aged seven years appeared in the witness box as PW2 and she supported the prosecution case with regard to rape committed on her person by the appellant. As per medical evidence, “ On separation of labia there was fresh bleeding from the lateral side of forchette, small abrasion seen on lateral side and was very painful.” Although Doctor opined that the hymen was intact yet the statement of the prosecutrix is duly corroborated by the medical evidence. Learned trial court in these circumstances rightly came to the conclusion that it was not a case of attempt to commit rape. Appellant was guilty of having committed the offence of rape in view of the medical evidence. Moreover as per the custody certificate placed on record by the learned counsel for the Administration, the appellant has already undergone the sentence and was released on 19.1.2009. No ground for interference is made out. Dismissed. (Sabina) Judge February 25 2010 arya