Crl. Appeal No.309-DB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No.309-DB of 2003 Date of Decision : January 13, 2009 Sohan Lal .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. A. S. Virk, Advocate and Mr. P. C. Chaudhary, Advocate for the appellant. Mr. S. S. Randhawa, Addl. A. G., Haryana. * * * L. N. MITTAL, J. : Sohan Lal in this appeal has challenged judgment and order dated 06.01.2003 of learned Additional Sessions Judge, Kurukshetra thereby convicting the appellant under Section 376 of the Indian Penal Code (in short – IPC) and sentencing him to undergo rigorous imprisonment for life. Prosecution case may be narrated as under :- On 06.05.2001, at about 08:30 P.M., the prosecutrix (name not being mentioned), aged about 4 ½ years, was playing in the street outside her house at Station Majri Mohalla, Shahbad Markanda, along with other Crl. Appeal No.309-DB of 2003 2 children, whereas her mother Sunita-complainant was performing some puja in the house. After 10-15 minutes, Sunita came out and found that the prosecutrix was not there. On inquiry, the other children disclosed that the accused Sohan Lal @ Popi had taken away the prosecutrix on the pretext of giving her something. Complainant Sunita along with Rajesh, younger brother of her husband, started searching the prosecutrix. At about 09:30 P.M., they reached near liquor vend on Station Road, where from the opposite direction, accused Sohan Lal was seen coming along with the prosecutrix in his lap. However, on seeing the complainant and Rajesh, the accused threw the prosecutrix on the ground and fled away. The prosecutrix was bleeding from vagina and legs and was unconscious. The accused had committed rape on her. The complainant and Rajesh took the prosecutrix to hospital, where on the road leading to the hospital, ASI Ramesh Kumar, Incharge Police Post Shahbad, met them. Sunita-complainant made statement Ex.P-Q to ASI Ramesh Kumar regarding the occurrence. Ramesh Kumar made endorsement Ex.P-C on it and sent it to Police Station Shahbad, where on its basis, FIR Ex.P-C/1 was registered. Dr. Rachna Bansal PW-7 medico-legally examined the prosecutrix and found that she was conscious, uncooperative and crying in pain. Clothes were not torn but were stained with blood and mud. Following injuries were found on her person :- (1) Four abrasions each of approximately 1.5 cm x .5 cm seen on the right side of the face. (2) Small multiple abrasions on left cheek covering area of 3 x 2 cm. Abrasions were red in colour. (3) Abrasion of approximately 1 x .1 cm seen on the left nostril. (4) Patient complained of pain lower parietal and occipital region of scalp in mid-line. Tenderness was present. No bleeding. Advised X-ray. Crl. Appeal No.309-DB of 2003 3 On local examination, it was found as under :- (1) Perineal tear was present extending upto the anus. (2) Fresh bleeding was present. Anterior wall of rectum was protruding out. Patient was not allowing her to examine properly. Oedema was present around the perineal area. Blood stains were present all over thighs and lower leg and perineum. Hymen was absent. Vaginal swabs, frock and nikkar of the prosecutrix were given in sealed parcels to the police vide Memo Ex.P-L. Rough site plan Ex.P-S of the place of occurrence was prepared. Scaled site plan was also prepared. Statements of witnesses were recorded. On 10.05.2001, the accused was arrested. Dr. R. L. Arya, on medico-legal examination of the accused, found that there was nothing to suggest that he was not capable to perform sexual intercourse. Underwear of the accused was handed over in a sealed parcel to the police. Vide report Ex. P-F of Forensic Science Laboratory, blood was detected on vaginal swabs and clothes of the prosecutrix and human semen was also detected on her frock, but semen could not be detected on nikkar and vaginal swabs. Blood or semen also could not be detected on underwear of the accused. On completion of investigation, the accused was sent for trial. Charge under Section 376 IPC was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined 14 witnesses. Dr. R. L. Arya PW-1 stated about medico-legal examination of the accused. Head Constable Nasib Singh PW-2 tendered his affidavit Ex.P-A being formal witness. Constable Ram Parkash PW-3 stated that he delivered special reports in this case to Illaqa Magistrate and police officers. SI Chander Pal PW-4 stated that he prepared report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.). ASI Roshan Lal PW-5 Crl. Appeal No.309-DB of 2003 4 stated that he recorded formal FIR Ex.P-C/1. Constable Ashok Kumar PW-6 tendered his affidavit Ex.P-E being formal witness. Head Constable Mukesh Kumar PW-8 stated that he prepared scaled site plans Exs.P-J and P-K of the place, from where the prosecutrix was taken away by the accused and of the place where the prosecutrix was raped by the accused. Head Constable Joginder Singh PW-9 stated he got the prosecutrix and the accused medico-legally examined. ASI Maya Ram PW-10 partly investigated the case and recorded statements of some witnesses. Sunita- complainant PW-11 and Rajesh PW-12 have broadly stated according to the prosecution version narrated herein above. The prosecutrix was also put in the witness-box as PW-13, but in view of her tender age, she was found to be not in a position to make statement on oath and was therefore discharged. ASI Ramesh Kumar PW-14 stated about the 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 alleged that on that day, he was returning to his house and he saw the prosecutrix lying injured on the road and being neighbour, he took her in his lap to hand her over to her parents. However, no evidence was led by the accused in his defence. Learned Additional Sessions Judge, Kurukshetra, vide his impugned judgment and order dated 06.01.2003, convicted the accused under Section 376 IPC and sentenced him to undergo rigorous imprisonment for life. Feeling dissatisfied, the convict has preferred this appeal. We have heard learned counsel for the parties and examined the case file with their assistance. In this case, the FIR was lodged very promptly. The prosecutrix was playing outside her house at about 08:30 P.M. After 15-20 minutes thereof, her mother came out of the house and found that the Crl. Appeal No.309-DB of 2003 5 prosecutrix was not there. The mother was told by the other children that the accused had taken away the prosecutrix on the pretext of giving her something i.e. sweet etc. Sunita and Rajesh, mother and uncle respectively of the prosecutrix, started searching for her. At about 09:30 P.M., they found that the accused was bringing the prosecutrix in his lap, but on seeing them, the accused threw the prosecutrix on the ground and fled away. The prosecutrix was bleeding from vagina. She was taken to hospital. On the road to hospital, statement Ex.P-Q was made and the said statement concluded with police endorsement at 10:30 P.M. and FIR was registered at 10:45 P.M. Thus, FIR was lodged very promptly. Detailed version narrating entire sequence of events was given in the FIR. The accused was also named. FIR is thus a significant piece of evidence. The prosecution version has been fully corroborated by Sunita PW-11 and Rajesh PW-12, mother and uncle respectively of the prosecutrix. The prosecution even brought the prosecutrix to the witness-box, but being of tender age, she was not found to be competent to depose. The statements of Sunita and Rajesh are sufficient to prove the guilt of the accused. Commission of rape on the prosecutrix is fully proved from the medical evidence. Hymen was found absent. Clothes were stained with mud and blood. Injury found on the person of the prosecutrix, as already noticed above, clearly establishes that she had been subjected to sexual intercourse. Dr. Rachna Bansal had also opined that there was strong possibility of rape. Other injuries were also found on the person of the prosecutrix. Perineal tear extending up to anus was present. Oedema was present around the perineal area. Blood stains were present all over thighs and lower leg and perineum. Human semen was also detected on the frock of the prosecutrix. Thus, there is ample evidence on record to establish that the prosecutrix had been subjected to forcible sexual intercourse. The accused even in his statement under Section 313 Cr.P.C. has admitted that he was carrying the prosecutrix, who was in injured condition. However, there is no evidence in Crl. Appeal No.309-DB of 2003 6 support of the defence version that the accused found the prosecutrix lying in injured condition on the road and being neighbour, he was taking her in his lap to hand her over to her parents. No such suggestion was even put to prosecution witnesses Sunita and Rajesh in their cross-examination. Moreover, if it had been so, there is no reason why the accused would have thrown the prosecutrix on the ground on seeing her mother and uncle coming. The accused has also not stated as to where he found the prosecutrix on the road. On the contrary, the occurrence allegedly took place at a place near pond. This is substantiated by the fact that clothes of the prosecutrix were stained with mud as well besides blood. The accused was named in the FIR which was lodged very promptly. There is also no reason why Sunita and Rajesh would depose falsely against the accused. Thus, the prosecution evidence is sufficient to establish the guilt of the accused beyond reasonable doubt. Learned counsel for the appellant contended that the case is based on circumstantial evidence and there is no eye-witness of the alleged occurrence of rape. Relying on two judgments of Hon'ble Supreme Court in Baldev Singh vs. State of Haryana reported as 2009 (1) R.C.R. (Criminal) 252 and State of U.P. vs. Ram Balak and another reported as 2008 (4) R.C.R. (Criminal) 845, it was contended that in the case of circumstantial evidence, following tests have to be satisfied :- (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability Crl. Appeal No.309-DB of 2003 7 the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence ; (5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. In the instant case, however, all these tests are fully satisfied and there is complete chain of circumstances to prove the guilt of the accused and to exclude his innocence. Learned counsel for the appellant contended that there is only hear-say evidence of the children that the accused had taken away the prosecutrix while she was playing outside the house, but the said children have not been examined as witnesses. The contention cannot be accepted. The children also could be of the age group of the prosecutrix and could not have been competent witnesses. However, they could certainly tell the mother of the prosecutrix that the accused had taken away the prosecutrix. The said evidence is relevant and admissible and it was so mentioned in the prompt FIR that the children told the complainant that the accused had taken away the prosecutrix. Moreover, a little while thereafter, the accused was found bringing the injured prosecutrix in his lap and on seeing the mother and uncle of the prosecutrix, the accused fled away throwing the prosecutrix on the ground. In the small interval, the accused had committed rape on the prosecutrix. Since the accused had taken away the prosecutrix and was also bringing her back after a short while, the only inference can be that it was the accused and not anybody else, who had committed rape on Crl. Appeal No.309-DB of 2003 8 the prosecutrix because commission of rape is fully established even from medical evidence. Learned counsel for the appellant emphatically argued that Sunita and Rajesh have made improvements in their statements in the Court. It was pointed out that Sunita deposed that the prosecutrix was playing along with the accused, but it was not so stated by her in the FIR, with which she was confronted. Similarly, Rajesh stated in the witness-box that he was sitting on cot outside the house and the accused had taken away the prosecutrix and that the prosecutrix told her that the accused had committed rape on her, but Rajesh had not so stated before the police in his statement Ex.D-A under Section 161 Cr.P.C., with which he was confronted. However, even if these improvements in the statements of these two witnesses are ignored or excluded from consideration being improvements, the other prosecution evidence is more than sufficient to bring home the charge against the accused. Learned counsel for the appellant contended that the mere circumstance that the accused was bringing the injured prosecutrix is not sufficient to hold him guilty of the offence of rape. The contention is devoid of merit because this is not the solitary circumstance proved by the prosecution. It has also been proved that a short while earlier, it was the accused, who had taken away the prosecutrix and thereafter, he was seen bringing the prosecutrix and in the mean time, she had been subjected to sexual intercourse and it has also been proved that the accused, on seeing the mother and uncle of the prosecutrix, fled away throwing the prosecutrix on the ground. All these circumstances complete the chain to nail the accused. From the aforesaid discussion, it emerges that guilt of the accused-appellant has been proved beyond reasonable doubt. Learned counsel for the appellant submitted that the case is based on circumstantial evidence and therefore, maximum sentence of life imprisonment provided for the offence, as awarded by the trial court, should be reduced. We have Crl. Appeal No.309-DB of 2003 9 carefully considered the submission. Keeping in view all the circumstances of the case, we feel that the ends of justice would be met if the appellant is awarded rigorous imprisonment for 14 years, instead of life imprisonment. We order accordingly and reduce the sentence of the appellant to rigorous imprisonment for 14 years. The appeal stands disposed of accordingly with aforesaid modification in sentence. The appellant, if on bail, shall surrender to bail bonds or shall be arrested to undergo the remaining part of his sentence. ( L. N. MITTAL ) JUDGE January 13, 2009 ( MEHTAB SINGH GILL ) monika JUDGE