Crl. Appeal No. 433-SB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 433-SB of 2006 Date of Decision : August 05, 2011 Ajit Singh .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amit Aggarwal, Advocate for the appellant. Mr. Anil Kumar, DAG, Haryana. * * * L. N. MITTAL, J. (Oral) : Accused Ajit Singh, who stands convicted under Section 376 read with Section 511 and Section 363 of the Indian Penal Code (in short – IPC) and sentenced to undergo rigorous imprisonment of five years and fine of Rs.3,000/- for the former offence and to undergo rigorous imprisonment for three years and fine of Rs.2,000/- for the later offence by learned Additional Sessions Judge, Sonepat, vide judgment and order dated 03.01.2006, has filed the instant criminal appeal. Both the substantive sentences of imprisonment were ordered to run concurrently. Prosecution case is that on the night intervening 11/12.05.2005, Crl. Appeal No. 433-SB of 2006 2 complainant Mahavir Singh was sleeping in his gher along with his wife, a grand-son and two grand-daughters aged about six years. At about 02:00 A.M. in the night, when the complainant got up, he found that his one grand-daughter i.e. prosecutrix (name not being mentioned) was missing from her cot. The complainant along with his sons Naresh and Ajmer searched for the prosecutrix. At some distance, near the pond, they heard the cries of weeping of the prosecutrix coming from the bushes. They went there and found that the prosecutrix was lying on the ground and the accused-appellant Ajit Singh was lying on her. Underwear of the prosecutrix had been put off and was lying on one side. The accused was fondling with the prosecutrix for committing rape on her. On seeing complainant and his sons, the accused fled away. There were teeth bites on the face of the prosecutrix besides scratches of bushes on her legs. The prosecutrix told that the accused had picked her up from her cot and brought her to the aforesaid spot by shutting her mouth and had removed her underwear and was lying on her. The complainant reported the matter to police on 12.05.2005. Thereupon, the instant case was registered and investigated. Statements of witnesses were recorded. Accused was arrested. Other investigation formalities were completed. 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 363 and 376 read with Section 511 IPC. Crl. Appeal No. 433-SB of 2006 3 Charge under Sections 363 and 376 read with Section 511 IPC was framed against the accused, who pleaded not guilty and claimed trial. To prove its case, prosecution examined 12 witnesses. Complainant Mahavir Singh (PW-3), his son Naresh Kumar – father of the prosecutrix (PW-4) and the prosecutrix herself (PW-9) broadly stated according to the prosecution version. ASI Sittar Singh (PW-11) stated about investigation of the case. Dr. Varsha (PW-12) stated about medico- legal examination of the prosecutrix. Teeth bites and abrasions were found on face and thighs of the prosecutrix. Other witnesses examined by the prosecution are more or less formal witnesses. 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. The accused alleged that he has been falsely implicated in this case because some person wanted to grab his property and got him implicated in this case in collusion with police. No evidence was led by the accused in his defence. Learned Additional Sessions Judge, Sonepat, vide impugned judgment and order dated 03.01.2006, convicted and sentenced the accused, as already noticed in the opening part of this judgment. I have heard learned counsel for the parties and perused the case file with their assistance. All the prosecution witnesses have fully supported the prosecution case. Their statements could not be impeached in their cross- Crl. Appeal No. 433-SB of 2006 4 examination. They had no motive to implicate the accused in a false case or to depose falsely against him. Even the accused, in his statement under Section 313 Cr.P.C., has not imputed any motive against the prosecution witnesses. On the other hand, the complainant Mahavir Singh (PW-3) and Naresh Kumar (PW-4) i.e. grand-father and father respectively of the prosecutrix would not have lodged a false case against the accused because the case involved the honour of prosecutrix aged about six years only and also involved prestige and honour of the whole family. There is no reason to doubt or discard the sworn statements of the prosecution witnesses. The prosecutrix herself has also been examined and has supported the prosecution version. It cannot be said that she has made tutored statement. Before recording her statement, learned trial Judge satisfied himself that she was a competent witness by putting her general questions. There is also no reason why she would be tutored to make false statement against the accused. The accused has simply denied the prosecution version and has not led any evidence in his defence. Learned counsel for the appellant contended that there has been delay in lodging the FIR making the prosecution case suspicious. The contention cannot be accepted. The occurrence took place at about 02:00 A.M. i.e. dead hour of the night. Statement Ex.P-C made by the complainant to the police for lodging FIR along with police endorsement thereon concluded at 12:15 P.M. Consequently, it cannot be said that there Crl. Appeal No. 433-SB of 2006 5 has been any significant delay in lodging the FIR. There is also distance of about nine kilometers from the village of the complainant to the place, where the police party met the complainant, while on way to Police Station to lodge FIR. Moreover, since family honour and prestige was involved, the aforesaid so-called delay cannot be said to be significant or fatal to the prosecution case. It was also contended that complainant Mahavir Singh and his son Naresh Kumar cannot be said to be eye-witnesses. The contention is untenable because both these witnesses themselves saw the accused lying on the prosecutrix on the ground. They also saw that underwear of the prosecutrix had been removed. They also saw that the prosecutrix was having teeth bites on her face and abrasions on her legs. They also saw the accused running away from the spot. Consequently, it cannot be said that they are not eye-witnesses of the occurrence. Moreover, the prosecutrix herself has also stepped into the witness box and deposed as per prosecution version. She has stated that the accused had taken her away from the cot by shutting her mouth and gave her teeth bites and put off her underwear and then laid on her. Identity of the accused is also not in dispute because the accused belongs to the village of the complainant and he was identified by the complainant and his sons. He was named in the FIR itself. As noticed herein before, there is no reason for false implication of the accused by the complainant in case of such a nature. Crl. Appeal No. 433-SB of 2006 6 For the reasons aforesaid, I find that the prosecution evidence is credible and inspires confidence and is sufficient to bring home the charge against the accused-appellant beyond shadow of reasonable doubt. Consequently, impugned judgment of conviction is upheld. As regards quantum of sentence, the accused kidnapped a girl aged less than six years at dead hour of the night, while she was sleeping and then tried to commit rape on her. Keeping in view the nature of the offence, sentence of rigorous imprisonment for five years for offence under Section 376 read with Section 511 IPC cannot be said to be excessive. In addition to it, Custody Certificate filed today in Court by learned State counsel, is taken on record. It depicts that the accused- appellant was released from jail on 10.07.2009 on completion of the period of sentence after undergoing actual sentence of 04 yeas 01 month and 27 days and earning remission of 10 months and 03 days. Consequently, the question of quantum of sentence is of academic importance only. However, on merits, the sentence awarded by the trial Judge does not warrant reduction, as already noticed herein before. As a necessary upshot of the discussion aforesaid, I find no merit in the instant criminal appeal, which is accordingly dismissed. August 05, 2011 ( L. N. MITTAL ) monika JUDGE