Crl.A. No.275-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.275-SB of 2000 DATE OF DECISION: July 7, 2011 RAMESH AND ANOTHER ...APPELLANTS VERSUS THE STATE OF HARYANA ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR.MANDEEP KAUSHIK, ADVOCATE FOR THE APPELLANTS. MR. CHANRAJIT SINGH BAKSHI, ADDL.A.G., HARYANA. M.JEYAPAUL, J.(ORAL) 1. Accused Ramesh, Seema, Sombir @ Somdutt and Vinod Kumar faced the trial before the Addl. Sessions Court, Narnaul, but the first accused Ramesh was convicted under Section 376 read with Section 511 IPC and was sentenced to undergo 3½ years R.I. and to pay a fine of `2000/- and in default of payment fine to undergo a further period of 6 months R.I. Accused Ramesh and Seema were convicted under Section 120-B of the IPC and were each sentenced to undergo 3½ years R.I. and to pay a fine of `1000/- and in default to undergo a further period of 3 months R.I. The convicted accused Ramesh and Seema have preferred the present appeal. 2. 2. The sum and substance of the case of the prosecution reads as follows. On 17.4.1999, at about 2.30 p.m. the prosecutrix (PW3) was coming back to her village after taking water from water tank of the village. Crl.A. No.275-SB of 2000 -2- Thereafter, accused Seema invited her to her house and took her to a room. Accused Seema tied her hands and legs with a piece of cloth and came out of the room. Accused Ramesh who was already sitting in the said room took the prosecutrix in his grip and attempted to commit rape on her. Reshma, sister of the mother of the prosecutrix and Lalli (PW4), mother of the prosecutrix came over there, opened the door and rescued prosecutrix from the house of accused Seema. The prosecutrix proceeded alongwith her uncle Karan Singh to the police station. On the way she met ASI Tara Chand and gave statement Ex.PD and set the law in motion. Dr.S.N.Sharma, PW1 conducted Ossification test and opined that the prosecutrix was 16 years -/+ 1 year. The accused was arrested and he was subjected to medico-legal examination by PW2 Dr.O.P. Saroha. He opined on examination that accused Ramesh was fit enough to have sexual intercourse. PW6 Dr.Suman Bishnoi, medico-legally examined prosecutrix and found two crossing scabbed abrasions measuring 6 cm. each over the left forearm and three linear and parallel scabbed abrasions on the right forearm measuring 6 cm. each. She had not found any other injury on the person of the prosecutrix PW3 including her private parts. Of course, there was some bleeding from her vagina, but the same was on account of her menstrual cycle. PW6 had returned a finding that the prosecutrix was not subjected to sexual intercourse. 3. The trial Court having based reliance on the evidence of the prosecutrix who was examined as PW3 and the evidence of her mother PW6 Lalli in the background of the medical evidence, returned a verdict of conviction as against those two accused as stated supra. Crl.A. No.275-SB of 2000 -3- 4. Learned counsel appearing for the appellants would submit that PW3 has completely given a go-by to her original version before PW12 ASI Tara Chand. Her evidence is found to be totally contradictory with that of her complaint. The material improvements she had made before the Court would go to belie the very case of the prosecution that there was an attempt to commit rape consequent upon the criminal conspiracy alleged to have been hatched between those two accused. Reshma, the sister of PW4 was not examined by the prosecuting agency. PW4 Lalli would not have witnessed the presence of accused Ramesh as she came only after Reshma arrived at the scene of occurrence and retrieved the prosecutrix. Referring to the evidence of PW6, learned counsel for the appellants would submit that there was virtually no attempt made by accused Ramesh, inasmuch as, no injury on the private parts of the prosecutrix was found. Therefore, it is his submission that the trial Court has misdirected itself and come to a wrong conclusion. 5. Sh. Charanjit Singh Bakshi, Addl.A.G., Haryana would submit that the prosecutrix has stuck to her original stand that there was really an attempt made by accused Ramesh to rape her. PW3 might not have given a graphic account of the occurrence as her uncle was present and the FIR relating to the occurrence was given by PW3 only to a male ASI. Even otherwise, the prosecution could establish with the available evidence that there was a serious attempt made by accused Ramesh, consequent upon the criminal conspiracy committed by both the accused. The very fact that the prosecutrix had sustained some injury on her person would go to establish that she had to struggle hard from the clutches of the accused when there Crl.A. No.275-SB of 2000 -4- was an attempt to commit rape upon her. The evidence of Dr.Suman Bishnoi, PW6 may not indicate that there was a rape, but the entire evidence of PW6 would indicate that the prosecutrix in fact sustained injuries at the time of occurrence. Therefore, it is his submission that the trial Court has rightly returned a verdict of conviction as against these two accused. 6. The occurrence had taken place in a village when the prosecutrix PW3 had been coming back to her house after taking water in a vessel on her head. She used to call the husband of Seema as Uncle. No wonder, she had entered into the house of accused Seema on her invitation. PW3 has categorically deposed before the Court that accused Seema having taken PW3 into a room tied her and thereafter she had left PW3 in the domain of accused Ramesh. It is her further testimony that Ramesh in fact made a serious attempt to commit rape upon her. 7. As rightly pointed out by the learned Addl.A.G., Punjab, PW3 might not have come out with a graphic account of occurrence as she had been accompanied by her uncle and the whole story was unfolded to a male ASI. Even otherwise, she had stuck to the stand before the trial Court that the accused made an attempt to commit rape upon her after she was tied by accused Seema. 8. The evidence of PW4 Lalli, of course the mother of PW3, cannot also be brushed aside. As already pointed out, the occurrence has taken place in a village setting. PW4 had rushed to the scene of occurrence on hearing the wailing noise of her daughter. Her sister Reshma had also reached the place of occurrence and she was virtually in the process of retrieving the victim PW3. It is to be noted that PW3 has categorically Crl.A. No.275-SB of 2000 -5- stated that though her mother Lalli arrived at the scene of occurrence a little late, but the door was opened only after her arrival. No wonder, PW4 could also witness the presence of accused Ramesh and Seema. 9. The doctor who medico-legally examined the prosecutrix is not the competent authority to speak about the attempt that was made to commit rape upon the victim. Rape as such is a legal concept which could be decided only by the Court of law. It is the duty of the Doctor to give the various injuries found on the person of the victim prosecutrix. Ultimately, the Court will have to arrive at a conclusion based on the definition of Rape and attempted Rape whether rape or attempted rape was committed by the person concerned. 10. Of course, PW6 Dr.Suman Bishnoi would innocuously state that no rape was committed. It is not the case of the prosecution that rape as such was committed by accused Ramesh on prosecutrix. It is the case of the prosecution that attempt was made to commit rape on the victim. 11. Referring to Section 511 of the IPC, I find that any act that was committed in the course of the attempt to commit the offence would clamp the accused with the attempt of the offence concerned. 12. The Doctor's evidence would go to establish that the victim had in fact sustained injuries on her person. Those injuries would have been definitely sustained by her in her struggle to wriggle-out of the grip of accused Ramesh to commit rape on her. Had there been no attempt to rape her, accused Seema need not have tied PW3 with a piece of cloth and accused Ramesh need not have approached her in such a critical condition. 13. I find that the trial Court has rightly evaluated the materials on Crl.A. No.275-SB of 2000 -6- record and come to a decision that there was a conspiracy hatched by accused Ramesh and accused Seema and pursuant to which an attempt was made by accused Ramesh to commit rape upon the unfortunate victim PW3. No case has been made out to take a different decision by this Court. Therefore, the appeal fails and it stands dismissed. 14. The appellants are on bail. Their bail bond stands cancelled. They shall surrender before the trial Court within 15 days from the date of this judgement. In default thereof, the trial Court shall issue non-bailable warrants and send them to prison to undergo the unexpired portion of their respective sentence. July 7, 2011 (M.JEYAPAUL) Gulati JUDGE