Crl. Appeal No. 442-SB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 442-SB of 2006 Date of Decision : August 25, 2011 Leela Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G. S. Lalli, Advocate for the appellant. Ms. Gagan Mohini, AAG, Punjab. * * * L. N. MITTAL, J. (Oral) : Accused Leela Singh has preferred the instant Criminal Appeal impugning judgment and order dated 07.02.2006 passed by learned Additional Sessions Judge (Ad hoc), Fast Track Court, Sangrur, thereby convicting the appellant under Sections 376 and 377 of the Indian Penal Code (in short – IPC) and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.3,000/- and in default thereof, to undergo further rigorous imprisonment for three months under Section 376 IPC and to undergo rigorous imprisonment for 05 years and to pay fine of Rs.3,000/- and in default thereof, to undergo further rigorous imprisonment for three Crl. Appeal No. 442-SB of 2006 2 months under Section 377 IPC, but both the sentences have been ordered to run concurrently. Prosecution case, in brief, is as under :- On 10.08.2005, in the evening, prosecutrix aged about 3½ years (name not being mentioned) – daughter's daughter of complainant Ajaib Singh was playing in the street in front of his house, while the complainant and his wife Raj Kaur were present in the house. House of accused Leela Singh is opposite the house of the complainant. At about 07:00 P.M., the complainant heard cries of the prosecutrix coming from the house of the accused. Thereupon, the complainant and his wife went to the house of the accused and found that the accused was committing rape on the prosecutrix. The complainant and his wife tried to apprehend the accused, but he fled away. The prosecutrix was taken to hospital at Moonak, from where she was sent to hospital at Lehra and then to Sangrur. Complainant made statement to the police regarding the occurrence on 11.08.2005 and thereupon, FIR was registered and investigated. The prosecutrix was medico-legally examined by Board of doctors comprising Dr.Sukhwinder Kaur and Dr.Suman Grewal. Statements of witnesses were recorded. Other investigation proceedings were conducted. The accused was arrested on 12.08.2005. He was also got medico-legally examined. On completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of the accused under Sections 376 and 377 IPC. Crl. Appeal No. 442-SB of 2006 3 Charge under Sections 376 and 377 IPC was framed against the accused, who pleaded not guilty and claimed trial. To prove its case, the prosecution examined ten witnesses. Dr.Sukhwinder Kaur (PW-1) stated that she along with Dr.Suman Grewal medico-legally examined the prosecutrix. Her maternal grandmother gave history of rape by the accused. The prosecutrix had changed her panty. The changed panty was having blood stains. There was no external injury on the body. However, on local examination, there was soreness/redness of vulva. Hymen had laceration at two places. There was also redness of vagina. The prosecutrix cried with pain during examination. There was also swelling and redness of anal sphincter. Dr. Jaspal Kaur (PW-2) stated that while on duty at Hospital at Lehra, the prosecutrix was brought there. She referred her to Civil Hospital, Sangrur for examination by panel of doctors. Dharminder Singh – Draftsman (PW-3) stated that he prepared scaled site plan of the place of occurrence. Dr. G. L. Goel (PW-4) stated that he medico-legally examined the accused Leela Singh and in his opinion, there was nothing to suggest that the accused was incapable of performing sexual intercourse. Bhupinderjit Kaur (PW-5) proved birth entry of the prosecutrix depicting her date of birth as 13.02.2002. Complainant Ajaib Singh (PW-6) and his wife Raj Kaur (PW- 8) broadly stated according to the prosecution version. Crl. Appeal No. 442-SB of 2006 4 Head Constable Randhir Singh (PW-7) and Head Constable Bikramjit Singh (PW-9) tendered their affidavits in evidence, being formal witnesses. ASI Bhupinder Singh (PW-10) stated about investigation of the case conducted by him. The accused, in his examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that complainant Ajaib Singh and his brother, in connivance with Ex-Sarpanch Surjit Singh, wanted to grab his house and have involved him in a false case. The accused also stated that his nephew and his family members were compelled to leave the house and the complainant party has forcibly taken possession of his house. In defence, the accused examined two witnesses. R. K. Singla (DW-1) is Inspector – Food and Supplies. He proved Ration Cards of Gurnam Singh and Teja Singh. Head Constable Chand Singh (DW-2) proved DDRs regarding departure and return of ASI Bhupinder Singh from the Police Station on 11.08.2005. Learned Additional Sessions Judge (Ad hoc), Fast Track Court, Sangrur, vide impugned judgment and order, convicted and sentenced the accused as already noticed herein before. Feeling aggrieved, the convict has preferred the instant appeal. Crl. Appeal No. 442-SB of 2006 5 I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant vehemently contended that according to Dr.Sukhwinder Kaur (PW-1), there was no external injury on the person of the prosecutrix, whereas Raj Kaur (PW-8) stated that there were abrasions on the knee of the prosecutrix. It was also submitted that Dr.Sukhwinder Kaur (PW-1) stated in cross-examination that possibility of laceration of hymen due to wetting by the child cannot be ruled out and the laceration could be result of scratches by the child herself and if the child has worm-infestation, then anal swelling can be due to itch. On its basis, it was argued that both the offences under Sections 376 and 377 IPC are not proved. It was canvassed that medical evidence is inconsistent with ocular evidence, and therefore, the accused deserves benefit of doubt. Reliance in support of this contention has been placed on a Division Bench judgment of this Court in the case of Naresh vs. State of Haryana reported as 2005 (2) R.C.R. (Criminal) 450. It was also argued that the complainant party wanted to grab the house of the accused and with this motive, the accused has been falsely implicated in this case and after the accused was arrested, possession of his house has been forcibly taken by the complainant party. It was also submitted that the accused was residing with his nephew Teja Singh and the latter's family members, and therefore, no such occurrence could take place in the presence of said family members. It was also argued that the Sarpanch, to whom the occurrence was narrated, has not been Crl. Appeal No. 442-SB of 2006 6 examined as witness. It was also submitted that there are contradictions in the statements of the complainant and his wife. Counsel for the appellant also cited judgment of this Court namely Balwan Singh vs. The State of Haryana reported as 1994 (2) R. C. R. (Criminal) 359 regarding veracity of testimony of child witness. On the other hand, learned State counsel contended that all the prosecution witnesses have supported the prosecution case. It was pointed out that statements of the complainant and his wife are corroborated by the medical evidence on record. It was also submitted that blood stains were found on the panty of the prosecutrix, although the panty had even been changed. I have carefully considered the rival contentions. Statements of complainant and his wife are credible. Their veracity could not be impeached in their lengthy cross-examination. There is no reason why they would implicate the accused in a false case and why they would depose falsely against him. On the other hand, they would not like to stake the reputation and entire future life of their young grand- daughter aged 3½ years only by lodging false case of such a nature. Statements of complainant and his wife are corroborated by medical evidence. On medico-legal examination, soreness/redness of vulva and redness of vagina was found. There were also lacerations of hymen at two places. These findings of panel of doctors on medico-legal examination of the prosecutrix prove that she was subjected to sexual intercourse. There Crl. Appeal No. 442-SB of 2006 7 was also swelling and redness of anal sphincter demonstrating carnal intercourse as well. Medical evidence is fully consistent with the ocular evidence and corroborates the prosecution version. The contention that medical evidence is inconsistent with the ocular evidence cannot be accepted. Only alternative possibilities were suggested to the doctor. However, mere existence of alternative possibilities does not militate against the prosecution version. Even in cross-examination, Dr.Sukhwinder Kaur did not state anything inconsistent with the prosecution version. Moreover, mere abstract alternative possibility cannot be fatal to the prosecution case. In re-examination, Dr.Sukhwinder Kaur stated that she did not observe any anal disease nor any history of bed wettings or itching was given at the time of medico-legal examination. Consequently, it cannot be said that laceration of hymen was due to bed wetting by the child. Moreover, there was also soreness/redness of vulva and redness of vagina in addition to laceration of hymen at two places. It was not even suggested to Dr.Sukhwinder Kaur that even soreness/redness of vulva and redness of vagina could be due to bed wetting by the child, in addition to laceration of hymen. Similarly, there was no worm infestation of the child, as stated by Dr.Sukhwinder Kaur in further cross-examination, nor there was itching of vulva or anus. Consequently, soreness/redness of vulva, vagina and anal sphincter was not due to bed wetting or worm infestation or itching. It thus emerges that medical evidence is completely in consonance with prosecution case and is Crl. Appeal No. 442-SB of 2006 8 in no way inconsistent therewith. Judgment in the case of Naresh (supra), cited by counsel for the appellant, has no applicability whatsoever to the facts of the case in hand because in the reported case, ocular evidence was that the injuries were caused a day before, whereas medical evidence was that injuries were four days old. Thus, in that case, medical evidence was completely inconsistent with the ocular evidence and ruled out the prosecution version narrated by eye-witnesses. It is not so in the instant case. Presence of blood stains on the changed panty of the prosecutrix also corroborates the prosecution version depicting that she was subjected to sexual and carnal intercourse leading to bleeding. Defence version that the accused was implicated in false case in order to grab his house was denied by the complainant, when suggested in cross-examination. There is not even a shred of evidence to substantiate the said defence version. The accused did not dare to even examine his nephew Teja Singh in support of defence version, although the accused was residing with Teja Singh in the common house and according to the statement of the accused under Section 313 Cr.P.C., his nephew and family members were compelled to leave the house. No other person from the village has either been examined in support of defence version. Even otherwise, it is highly improbable that the accused would be implicated in false case of such a nature merely to grab his house. The contention that the occurrence could not take place in the Crl. Appeal No. 442-SB of 2006 9 presence of other family members of the accused is also completely untenable because there is not even an iota of material on record to substantiate the same. No question was even put to the complainant and his wife in their cross-examination regarding presence of other family members of the accused in the house at the time of occurrence nor any other evidence has been led in this regard. There is no material contradiction in the statements of complainant and his wife. So-called minor contradictions in their statements cannot be given undue importance in a case of such nature. On the other hand, some contradictions are likely to occur even in the statements of most truthful witnesses on account of different powers of perceptions, observation and memory. Non-examination of Sarpanch as witness by the prosecution has no adverse bearing on the prosecution case because the Sarpanch could only state whatever had been told to him by the complainant. The complainant and his wife have themselves supported the prosecution case, and therefore, non-examination of Sarpanch as witness is immaterial. Judgment in the case of Balwan Singh (supra), cited by counsel for the appellant, is completely irrelevant because in the instant case, no child witness has been examined. On the other hand, in the case of Balwan Singh (supra), there was no injury on the body or private parts of the child. Time of occurrence was 05:15 P.M. It was open place, where 4-5 shops were also situated nearby. In view of all these reasons, conviction in that case was set aside. Facts of said case are thus completely Crl. Appeal No. 442-SB of 2006 10 distinguishable. In the instant case, the occurrence took place inside the house of the accused himself, where he was residing. Injuries have been found on private parts of the prosecutrix in the instant case inasmuch as there was soreness/redness of vulva, vagina and anal sphincter and also laceration of hymen at two places. For the reasons aforesaid, I have no hesitation in concluding that the prosecution has led cogent and credible evidence to prove its case beyond reasonable doubt. Accordingly, the impugned judgment of conviction is affirmed. The sentence also does not warrant reduction because offence under Section 376 IPC is punishable with minimum sentence of rigorous imprisonment for ten years, when the rape is committed on a woman under 12 years of age. In the instant case, the prosecutrix was aged 3½ years only. There is no reason for awarding less than minimum sentence of imprisonment to the accused. On the contrary, keeping in view very tender age of the prosecutrix, the sentence awarded to the accused by the trial Judge cannot be said to be excessive in any manner so as to warrant interference or reduction in appeal. The inevitable result of discussion aforesaid is that there is no merit in the instant appeal, which is accordingly dismissed. August 25, 2011 ( L. N. MITTAL ) monika JUDGE