Criminal Appeal No. 1027-SB of 1997 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Appeal No. 1027-SB of 1997 Date of Decision: 21.4.2008. Rajbir Singh alias Raja …Appellant Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Anuj Balyan, Advocate for the appellant. Mr. Sunil Nehra, Assistant Advocate General, Haryana, for the respondent-State. Kanwaljit Singh Ahluwalia, J. The appellant has been convicted and sentenced by the Court of learned Additional Sessions Judge, Jagadhari, to undergo rigorous imprisonment for one year and a fine of Rs.2,000/- for the offence under Section 354 IPC. In default of payment of fine, to further undergo rigorous imprisonment for two months. He was also sentenced to undergo rigorous imprisonment for six months and a fine of Rs.500/- for the offence under Section 323 IPC. In default of payment of fine, to further undergo rigorous imprisonment for 15 days. Aggrieved against the same, the appellant has filed the present appeal. The appellant was named as accused in case FIR No. 178 dated 17.12.1993 registered at Police Station Chhapar under Sections 323, 376 read with Section 511 IPC. In the present case, FIR was Criminal Appeal No. 1027-SB of 1997 2 lodged on the statement of Amarjit Kaur. She stated that she is resident of Chhoti Pabni. She further stated that she used to help her mother in domestic chores and she is also student of 2nd standard. On 17.12.1993, she has gone to ease herself in the bara of Jheewers. There Raja son of Krishan Ram, caste Harijan, came and he caught hold of her and took her inside the Gohera. He threatened her not to speak and directed her to open the string of salwar, upon which she started weeping and he had forcibly opened the string of salwar and started unbuttoning his pant. At that time the hand of Raja came off from the mouth and complainant started weeping loudly. At that time, her aunt Bhulli wife of Dara Singh was standing outside the bara and she asked what was the matter. At that time Kanta Devi wife of Gurmukh entered. They both entered the bara and rescued the complainant. AT that time, Raja was naked. On arrival of Bhulli and Kanta accused ran away from the spot. They came back to her house where her aunt explained the entire matter to her mother. Her mother went to the shop of Raja to lodge protest. It is stated that Raja denied the allegations being false and threw brick bats which hit her mother on the head and other parts of her body. When Raja was throwing brick bats, Ram Avtar was purchasing goods from the shop of Raja. It is further stated that mother of complainant sustained injuries due to striking of brick bats and she was taken to Jagadhri Hospital. Panchayat of baradari was held in the evening and in the morning, for this reason the matter could not be informed to the police. The above said FIR was investigated. Report under Section 173 Cr.P.C. was submitted. Appellant was charged on 15.12.1994 for offence under Criminal Appeal No. 1027-SB of 1997 3 Sections 376 read with Section 511 IPC. He was also charged for offence under Section 323 IPC for causing simple injuries to Lachhmi Devi. Prosecution examined PW.1 Om Parkash, Draftsman, who had prepared the scaled site plan Ex.PA. Zile Singh, Sub Inspector, appeared as PW.2. He sated that on basis of ruqa Ex.PB, he recorded formal FIR Ex.PB/1 and on 9.1.1994 he submitted report under Section 173 Cr.P.C. Child victim who was aged about ten years appeared as PW.3. She reiterated the allegations levelled in the FIR. Mother of child victim appeared as PW.4. She sated that she has gone to the shop of the appellant to make a protest when the appellant threw brick bats and caused injuries to her. In cross- examination, she admitted that she used to purchase goods from the shop of appellant sometimes on credit and sometimes on cash. Sawan Ram, father of the child victim appeared as PW.5. He is witness to the various recoveries effected and reiterated what was told to him by his wife. Ram Avtar PW.6 has gone go the shop of accused to purchase goods and he is witness to throwing of brick bats by the accused due to which Lachhmi Devi suffered injuries. PW.7 Dr. Ramesh Kumar had medicolegally examined Lachhmi Devi, aged 40 years and found simple injuries on her person. PW.8 Ram Chander, Head Constable, is the Investigating Officer. Thereafter, prosecution has closed its evidence. All the Criminal Appeal No. 1027-SB of 1997 4 incriminating evidence was put to the accused and he denied the same. He stated that he was falsely implicated in the case. No witness was examined in his defence. Learned trial Court held that distance between the shop of accused and place of occurrence was short and place of occurrence was quite close to the shop of the accused, where admittedly people were present. Learned trial Judge also noticed that the occurrence had taken place on 17.12.1993 at 4.00 P.M., whereas the FIR was lodged on the next day i.e. 18.12.1993 at 2.00 P.M. but held that the delay stand explained and finally concluded as under:- “13. The prosecution case is that after putting his hand on the mouth of Amarjit Kaur the accused broke the string of her salwar and while he was unbuttoning his pant, his hand went off the mouth of Amarjit Kaur who cried loudly to attract Bhulli and Kanti. Seeing them the accused escaped. The question is as to whether this case attracts Section 354 IPC or it travels beyond that and can be said to be attempt to commit rape. In my opinion, it is not a borderline case even. The accused had not yet unbuttoned his pant and there is nothing to suggest that he made attempt to commit rape. In the direction of committing rape, he was still making preparation and this only amounts to the offence of outraging the modesty of the girl punishable under Section 354 IPC”. Criminal Appeal No. 1027-SB of 1997 5 Learned counsel appearing for the appellant has relied upon a judgment of this Court in Prabhu Dayal v. State of Haryana 1999(1) Recent Criminal Reports 429 and stated that the appellant should be released on probation. He has also placed reliance upon judgment in Nanak Chand v. State of Haryana 2006(1) Recent Criminal Reports 14 to pray that sentence of the appellant be reduced to already undergone. He has further stated that in case the injuries on the person of Lachhmi Devi, mother of complainant were caused due to an altercation over the payment of amount, which appellant had to receive from her (Lachhmi Devi) who was purchasing goods on credit from the shop of the appellant and in the heat of moment injuries were caused to Lachhmi Devi. Learned counsel has further stated that she has falsely concocted the story of outraging the modesty of victim. I am unable to accept the arguments advanced by the appellant. In the present case, victim was ten years child. Therefore, the appellant is not entitled to probation or reduction of sentence to already undergone. At the same time, in the present case occurrence had taken place in the year 1993. The appellant has undergone protracted trial of 15 years. Ends of justice will be fully met in case sentence of appellant is reduced from one year to six months. With the reduction in the sentence of appellant, present appeal is dismissed. (Kanwaljit Singh Ahluwalia) Judge April 21, 2008 “DK”