Criminal Appeal No.495-SB of 1999. -1- In the High Court of Punjab and Haryana at Chandigarh. Criminal Appeal No.495-SB of 1999. Date of decision:24-3-2009 Krishan ...Appellant. Versus State of Haryana. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. MPS Mann, Advocate for the appellant. Mr. A.K.Jindal, AAG Haryana. ... K. C. Puri, J. Judgment. This appeal is directed against the judgment/order dated16.3.1999/18.3.1999 passed by Mrs. Sneh Prashar, the then Additional Sessions Judge, Rohtak, whereby the accused was held guilty, convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- and in default of Criminal Appeal No.495-SB of 1999. -2- payment of fine, to undergo further rigorous imprisonment for a period of 1-1/2 years under Section 376 IPC; to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months under Section 452 IPC and to undergo rigorous imprisonment for a period of six months under Section 323 IPC. The sentences of imprisonment awarded to the accused under the above heads were ordered to run concurrently. The prosecution version is that the prosecutrix (the name of prosecutrix is not mentioned in view of judgments of the Hon'ble Supreme Court) fell victim to sexual lust of accused. The prosecutrix stated in the First Information Report, Exhibit PD, that she had three children. On 5.5.1997, she was sleeping along with her youngest son Sandeep. Her husband had gone to Meham in connection with some personal work. Her mother-in-law and other two children had gone to the other interior of the house. At about 1.00 PM, Krishan accused, entered into her room and fell on her. She suddenly woke up and tried to get herself released from his clutches. On this, he gave her slaps and also gave bite on her cheeks. He forcibly picked her up from the cot and fell her on the Criminal Appeal No.495-SB of 1999. -3- floor,opened the string of her Salwar and raped her against her wishes. She raised shouts for help on which her mother-in-law Nahanti and brother-in-law Azad Singh were attracted to the spot. They tried to apprehend the accused but on seeing them, he left her and ran away. During the incident, her bangles got broken. Balwan Singh, husband of the prosecutrix came. She informed him about the incident. She along with her husband went to the Police Station where on her complaint a case under Sections 323, 452 and 376 IPC was registered. Investigation in the case was conducted and after completion of the same, the accused was challaned. To substantiate the charges against the accused, the prosecution examined PW-1 HC Surjit Singh, PW-2 Dr. Rohtas Tanwar, PW-3 ASI Sher Singh, PW-4 Constable Dalbir Singh, PW-5 Constable Raju, PW-6 HC Ajmer Singh, PW-7 Constable Sunder Singh, PW-8 Dr. Manju Arora, PW-9 SI Randhir Singh, PW-10 Constable Sukhvinder Singh, PW-11 prosecutrix, PW-12 Azad Singh and PW-13 ASI Chhote Lal. After the close of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to him in the form of Criminal Appeal No.495-SB of 1999. -4- questions to which he replied in the negative. He further stated that he had been falsely implicated in the present case. The defence taken by him is that on 5.5.1997, a quarrel had taken place between the prosecutrix and his mother. On account of physical assault on his mother, he had gone to the house of prosecutrix to complain and had scolded her. It is for that reason that he was falsely implicated in the present case. The accused denied that any occurrence, as stated by the complainant, had taken place at her house. He also stated that the persons of mischievous character used to visit the house of prosecutrix to which he and and his family raised objections. He was arrested on 5.5.1997 from his house by the police and another false case under Narcotic Drugs and Psychotropic Substances Act was also planted on him by the police. In his defence, the accused examined DW-1 Ompati. After the trial, the accused was convicted and sentenced, as noticed earlier. The learned counsel for the appellant has submitted that the medical evidence does not prove the factum of rape. There was no injury on the private parts or other parts of the body except two injures on her cheek. The doctor has categorically stated that the Criminal Appeal No.495-SB of 1999. -5- injuries on the person of prosecutrix could be by friendly hand. In fact, at the most, it is a case of consent. Mere fact that semen was found on the shirt of the prosecutrix does not prove the factum of rape, more so when the prosecutrix is a married woman. The prosecution has not examined the doctor to state that the denture marks on the cheek are that of the accused. According to the prosecutrix, her bangles were broken at the spot but there was no injury on the arms of the prosecutrix. This fact also corroborates that the recovery of broken bangles has been shown just to strengthen the case of the prosecution. I have carefully considered the said submissions but do not find any force in the same. Abrasions on the cheeks of the prosecutrix were found which fact corroborates the version of the prosecutrix. The presence of semen on the clothes of the prosecutrix further lends support to the case of the prosecution. Had it been a case of consent, then there could not have been any abrasion on the cheek of the prosecutrix. It is not necessary that breaking of bangles, in all probability, would cause injuries. The bangles could be broken and there may not be any injury. It was not necessary to get compared the dentures of the accused with the injuries on the Criminal Appeal No.495-SB of 1999. -6- cheeks of the prosecutrix. The prosecutrix was a married woman and it was not necessary that there must be an injury on her private parts. By setting up a case of consent, the counsel for the appellant has half-heartedly admitted the factum of sexual intercourse. The testimony of the prosecutrix inspires confidence and has been rightly accepted by the trial Court. So, there was no reason for the prosecutrix to falsely implicate the accused. The learned counsel for the appellant has further submitted that there are discrepancies in the testimony of the prosecutrix and that of PW-12 Azad Singh. The prosecutrix has stated that the accused fell her on the floor from the cot and laid upon her whereas PW Azad Singh has stated that the accused was lying on the prosecutrix on the bed. I have carefully considered the said submission but do not find any force in the same. Minor discrepancies are bound to occur. The prosecutrix has stated that the accused made to fell her on the floor from the cot and then laid upon her whereas Azad Singh has stated that the accused was on the cot. So, the said discrepancy does not go to the root of the case. The testimony of the prosecutrix is not that of an accomplice but is that of an injured witness. Criminal Appeal No.495-SB of 1999. -7- The learned counsel for the appellant has further submitted that the prosecution witnesses have made improvements for which they have been duly confronted. So, these improvements make the case of the prosecution suspicious. I have carefully considered the said submission but do not find any force in the same. No material improvement which goes to the root of the case has been pointed out, during the course of arguments. Minor improvements or discrepancies are bound to occur in the testimony of truthful witnesses. The presence of human semen on the shirt and Salwar of the prosecutrix and the underwear of the accused further lends support to the testimony of the prosecutrix. The learned counsel for the appellant has submitted that punishment awarded is harsh. I have carefully considered the said submission but do not find any force in the same. Minimum sentence has been prescribed in the Act. The Court can reduce the sentence if special reasons are made out. The accused has ravished married woman having children. So, no ground for reducing the sentence is made out. Consequently, the appeal is without any merit and the Criminal Appeal No.495-SB of 1999. -8- same stands dismissed. A copy of judgment be sent to the trial Court for strict compliance. March 24th ,2009. (K. C. Puri ) Jaggi Judge