Crl. Appeal No. 406-SB of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 406-SB of 2001 Date of decision. 02.12.2010 Beer Singh alias Popat alias Bhairu s/o Mahavir Rajput, r/o village Mundia, District Rewari. .......Appellant Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Jaivir Yadav, Advocate with Mr. Tapan Kumar, Advocate for the appellant. Mr. Sukhwinder Singh Nara, Sr. DAG, Haryana, for the respondent-State. **** M. Jeyapaul, J. The accused-appellant, who was charged for offence under Section 376 read with Section 511 of the Indian Penal Code was convicted for offence under Section 354 of the Indian Penal Code and was sentenced to undergo one year and six months rigorous imprisonment and to pay a fine of Rs.2000/- and in default to undergo further rigorous imprisonment for a period of six months, has preferred by the present appeal. Crl. Appeal No. 406-SB of 2001 --2-- 2. The case of the prosecution as unfolded by the witnesses examined on its side is as follows:- (a) On 20.07.1997 at about 12.30 P.M. The prosecutrix aged 9 years had gone to public tap situated outside the Firni of village for washing her clothes. She was also accompanied by her paternal aunt Roshni, PW-6, who returned home leaving behind the prosecutrix. (b) The accused came over there and suddenly lifted the prosecutrix and put her in the nearby tank. He removed her salwar and with bad intention he started kissing her on the cheeks. He also started moving his hands at the private part of the prosecutrix. The prosecutrix started crying. PW-6 returned to the place of occurrence. On seeing PW-6, the accused ran away from the scene of occurrence. The prosecutrix, PW-5 and Roshni, PW-6 described the incident to Rajpal, the father of the prosecutrix, who lodged a complaint, which was registered by the Investigating Officer, PW-7. (c) Dr. Nawal Kishore, Medical Officer, PW-1 examined the prosecutrix. She found small abrasions over the nose and left leg. Though the prosecutrix complained that she had some injuries on her chest, PW-1 found that there was no tenderness or abrasions present on the chest. Crl. Appeal No. 406-SB of 2001 --3-- (d) PW-8, the Headmistress of the Primary School, Moondi issued a certificate verifying the date of birth entered in the school records. The prosecutrix, PW-5 was born on 10.01.1989 as per the school records. (e) Krishan, Assistant Sub Inspector, PW-7 having completed investigation, filed final report under Section 376 read with Section 511 of the Indian Penal Code against the accused. 3. On the side of the defence one Om Parkash was examined as DW-1. He is a shopkeeper having a shop nearby the scene of occurrence. He has deposed on behalf of the accused that no such occurrence as spoken to by PW-5 and PW- 6 took place nearby the tank situated close by his shop. 4. DW-2 Dr. M.M. Bhojak has deposed that he examined the accused on 07.08.1997. The accused was suffering from acute transient psychotic disorder. He also noted that the accused had the symptom of remaining aloof. The prescription slip given by DW-2 was marked as D-1 and the patient record, which was marked as D-2. 5. The trial Court having heavily relied upon the evidence of the prosecutrix, who was examined as PW-5 in this case, in the background of the evidence of her paternal aunt Crl. Appeal No. 406-SB of 2001 --4-- PW-6 and the medical evidence, recorded conviction under Section 354 of the Indian Penal Code and sentenced the accused as stated supra. 6. The learned Counsel appearing for the appellant would submit that there had been a material contradiction in the evidence of the prosecutrix. Referring to the evidence of DW-2 the doctor who examined the accused, he would submit that the defence could establish that the accused was afflicted with psychotic disorder. It is his further submission that the occurrence would not have taken place in the presence of PW-6. The trial Court has placed reliance upon the contradictory version of PW-5 and convicted the accused, it is submitted. 7. The learned Senior Deputy Advocate General, appearing for the respondent-State would submit that the evidence of the prosecutrix aged 9 years at the time of occurrence established the case of the prosecution that criminal force was used with an intention to outrage the modesty of the prosecutrix. The discrepancy found in the evidence of PW-5 would not cut the very root of the prosecution. Even assuming for the sake of arguments that PW-6 would not have witnessed the occurrence, no corroboration is required for the evidence of the prosecutrix. Crl. Appeal No. 406-SB of 2001 --5-- It is his further submission that DW-2 may speak about the mental illness of the accused, but his evidence would not establish that the accused was afflicted with mental illness at the time when the occurrence took place. It is his further submission that the trial Court has rightly convicted the accused for the offence under Section 354 of the Indian Penal Code. 8. The evidence of the Headmistress examined as PW-8 based on the school records maintained by her would establish that the prosecutrix was just 9 years old at the time when the occurrence took place. There is no reason for a 9 years old girl to foist a false case against the accused. No motive also has been established against the prosecutrix to come forward with a false story to rope in the accused. 9. PW-5 would state that her paternal aunt on arriving at the scene of occurrence inquired about the culprit. PW-6 would also admit during the course of deposition that on seeing her arriving at the scene of occurrence, the accused ran away. As rightly pointed out by the learned Counsel appearing for the appellant, PW-6 in the aforesaid circumstances of this case would not have actually witnessed the occurrence. But the fact remains that the accused was seen running from the scene of occurrence on witnessing the arrival of PW-6. Crl. Appeal No. 406-SB of 2001 --6-- 10. PW-5 has deposed cogently that the accused having emerged at the scene of occurrence all of a sudden lifted her and put her in the nearby tank and removed her salwar and with bad intention started kissing her on the cheeks. 11. PW-1 Dr. Nawal Kishore, Medical Officer, who examined the prosecutrix, has deposed that two abrasions were found on the nose and left leg of the prosecutrix. The aforesaid evidence of PW-5 and PW-1 would go to show that the accused used criminal force to the prosecutrix with an intention to outrage her modesty. 12. It is submitted by the learned Counsel appearing for the appellant that PW-1, the doctor who examined the prosecutrix, admitted during the course of cross examination that the said injuries found on the prosecutrix would have been caused on account of fall on the road while running. 13. It is to be noted that in the chief examination PW-1 has stated that such injuries would have been caused by a blunt weapon within a period of four days. The testimony of PW-1 would go to show that the doctor was not sure as to the cause of the said injuries found on the person of the prosecutrix. Crl. Appeal No. 406-SB of 2001 --7-- 14. Though PW-5 has not described as to how she sustained injuries, she has deposed before the Court that the accused lifted her and put her in the tank. He had also forcibly started kissing her on the cheeks and removed her salwar. The 9 year girl might not have in a position to articulate as to how she sustained injuries. But the above facts and circumstances spoken to by her during the course of deposition would go to show that there was every possibility for the prosecutrix to sustain such injuries. 15. It is true that the prosecutrix has not stated originally when she was examined by the Investigating Officer on 24.07.1997 that the accused moved his hand on her body. Subsequently on 19.11.1997 when she was examined to record her further statement she had made some reference with respect to such an act of the accused. Such an improved version that the accused moved his hands on her body cannot be believed by the Court of law. Of course, she has also deposed before the Court that the accused moved his hand on the private parts of the prosecutrix also. But as it has not been found in the statement before the Investigating Officer such a version cannot be safely relied upon by the Court. Crl. Appeal No. 406-SB of 2001 --8-- 16. The learned Counsel appearing for the appellant would submit that the prosecutrix would not have gone to the scene of occurrence for the purpose of washing her clothes as it was raining as per the version of PW-5. In a village setting, it cannot be ruled out the possibility of the village people going for washing the clothes during the course of drizzling of rain. 17. The 9 year old girl in her own way has stated that within 5/10 minutes, her paternal aunt arrived at the scene of occurrence. PW-6 might have arrived at the scene of occurrence little latter but such a version of the prosecutrix would not weaken the case of the prosecution. 18. Of course PW-5 also has stated that the accused kept her for about one hour. The accused would not have kept the prosecutrix for one hour for two reasons. Firstly the occurrence had taken place in a village setting at about 12.30 PM. Therefore no one could have engaged a person for about one hour in a location like the place of occurrence. Secondly the prosecutrix could be retrieved even before she was subjected to further obnoxious activities by the accused. Therefore, the exaggeration found in the version of the prosecutrix that the accused kept her for about one hour, cannot be given much weight. Crl. Appeal No. 406-SB of 2001 --9-- 19. In view of the above facts and circumstances, I find that the sole evidence of the prosecutrix could be a basis for recording conviction of the accused under Section 354 of the Indian Penal Code. 20. It is true that the prosecutrix has deposed during the course of evidence that the accused used to be called as a mental person. A few days before the trial took place, the mother of the accused was beaten up by the accused, she has further deposed. It is quite common in the village to call a person as 'mental' when he is found to be an eccentric. Therefore the aforesaid version of the prosecutrix would not go to establish that the accused was suffering from acute transient psychotic disorder. 21. Of course the accused was examined by DW- 2, Dr. M.M. Bhojak, on 07.08.1997. He has deposed in the background of the prescription, Ex.D1 and the patient's record Ex.D2 that the accused was suffering from acute transient psychotic disorder. The accused had got himself admitted only on 07.08.1997 and was discharged on 08.08.1997. It appears that he himself narrated to the doctor who examined him that he was afflicted with mental illness about 20 days back. An attempt has been made by the accused to wriggle out of the complicity of this criminal case by projecting that he had been afflicted with mental illness at that time when the occurrence took place. Crl. Appeal No. 406-SB of 2001 --10-- 22. The defence version that the accused was suffering from mental disorder on the date of occurrence was not at all established. Even when he was examined on 07.08.1997 the accused was found afflicted with only transient psychotic disorder. The word 'transient' is used to describe a situation that last only for a short duration or describe a situation that is constantly changing. A person with transient nature of mental disorder cannot be said to have a mental disorder on a permanent basis. Therefore, the aforesaid certificate Ex.D2 produced by the accused and the evidence of DW-2 would not save the accused from the culpability of the offence under Section 354 of the Indian Penal Code. 23. In view of the above facts and circumstances, I find that the trial Court has rightly convicted the accused for offence punishable under Section 354 of the Indian Penal Code. But coming to the sentence imposed by the judgment of the trial Court, I find that the occurrence had taken place in the year 1997 and the accused has been facing the criminal proceedings for the last 13 years. Therefore imposition of lesser sentence would meet the ends of justice. Crl. Appeal No. 406-SB of 2001 --11-- 24. In view of the above, confirming the verdict of conviction passed by the trial Court, the sentence imposed on the accused is modified and the accused is sentenced to undergo six months rigorous imprisonment. The fine amount imposed by the trial Court is sustained. 25. With the aforesaid modification, the appeal stands dismissed. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith. 02.12.2010 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/ No )