Crl.A. No.537-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.537-DB of 2001 DATE OF DECISION: May 6, 2010 TOLA RAM S/O CHENA RAM ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. PRESENT: DR. DEIPA SINGH, ADVOCATE AMICUS CURIAE, FOR THE APPELLANT. MR. G.S. CHAHAL, ADDL.A.G., HARYANA. ASHUTOSH MOHUNTA, J. The appellant, Tola Ram, has challenged judgement of conviction dated 31.8.2001 and and order of sentence dated 6.9.2001, passed by the Sessions Judge, Hisar, whereby the appellant has been convicted under Section 363, 366 and 376 IPC and has been sentenced to undergo as under:- Under Section 363 IPC - R.I. for 5 years and fine of Rs.10000/-. In default of payment of fine, R.I. for 1 year. Under Section 366 IPC - R.I. for 7 years and fine of Rs.15000/-. In default of payment of fine, R.I. for 2 years. Under Section 376 IPC - R.I. for life and fine of Rs.25000/-. In default of payment of fine, R.I. for 3 years. All the sentences were ordered to run concurrently. Crl.A. No.537-DB of 2001 -2- The prosecution case, in brief, is that on 11.4.2000, Krishan Chand (PW5) made a statement (Ex.P6) before Mohinder Singh, S.I., Police Station City Hisar to the effect that he was working as Manager of Bishnoi Mandir/Dharamshala, Hisar for the last about 23 years . Yesterday, i.e. on 10.4.2000, at about 6.30 p.m., the accused came alongwith a girl to the Dharamshala Mandir for staying there and gave his identity as Tola Ram S/o China Ram, presently resident of Suratgarh. The accused introduced the girl, named Ashki @ Guddi, as his daughter . They were allotted Room No.27 in the Dharamshala. On 11.4.2000, at about 11.00 a.m. when he alongwith Deep Chand, Tubewell Operator and Raghbir Singh, Sweeper was checking the room No.26 for cleaning purpose, they heard shrieks from inside Room No.27. The room was pushed open and it was found that the accused was committing sexual intercourse with the Ashki (prosecutrix). The accused was in a naked position and the Salwar of the prosecutrix was separated and her shirt was folded upwards and the prosecutrix was crying. On seeing them, the accused got frightened and tried to escape, but was captured by them. On an enquiry made from the prosecutrix, she told her father's name as Ram Chand. She further told that 4-5 days back, the accused came to her house and told that he would make her meet with her brother at village Manak Kheri where her brother was working as labourer. Her younger brother also accompanied them, but was sent back by the accused by giving him two rupees. Thereafter, the accused took her to his friend's house at Suratgarh and kept their for two days. Thereafter on the next day, she was taken to Gugga Mari where she was also kept for two days. Yesterday, i.e on 10.4.2000, she was brought to Hisar where was made to Crl.A. No.537-DB of 2001 -3- stay in a room and was raped during the night. Today also, i.e. on 11.4.200, in the morning, the accused had committed sexual intercourse with her and was threatened with dire consequences. On the basis the statement of Krishan Chand (PW5), FIR No.208 dated 11.4.2000 under Section 363/366/376 IPC was registered against the accused. The spot was inspected by S.I. Mohinder Singh and a piece of cloth was lifted from the spot and was made into a sealed parcel. The accused was got medically examined from Dr. Ajay Bishnoi, while the prosecutrix was got examined by Dr.Himani Gupta (PW8) on 13.4.2000. After her medical examination, the Medical Officer handed over two parcels (i) swab and (ii) clothes of the prosecutrix and both these parcels were taken into possession vide seizure memo Ex.P4. On 3.5.2000, scaled site plan of the spot was got prepared from Raju Draftsman (PW11). During the investigation, birth certificate (Ex.P10) of the prosecutrix was also taken into possession. After completion of necessary investigation, the accused was challaned. Finding a prima facie case against the accused, he was charge- sheeted under Section 363, 366 and 376(2)(f) IPC, to which the accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 13 witnesses. PW1 Dr. R.J. Bishnoi, Medical Officer, G.H. Hisar medically examined the accused-appellant and opined that the accused was fully capable to perform sexual intercourse. Crl.A. No.537-DB of 2001 -4- PW5 Krishan Chand, eye witness stated that on 10.4.2000, at about 6.30 p.m., the accused came alongwith the prosecutrix aged 10 years to the Dharamshala for stay and was allotted Room No.27. The accused introduced the prosecutrix as his daughter. On 11.4.2000, while cleaning Room No.26 PW5 Krishan Chand, Deep Chand, Tubewell Operator and Raghbir Singh, Sweeper heard noise from Room No.27 and after opening the door of the same, found the accused having sexual intercourse with the prosecutrix. The prosecutrix was weeping. Her Salwar was down the knees and her shirt was upward. On seeing them, the accused tried to escape, but was caught. PW6 Deep Chand, who was also the eye witness to the incident deposed on the same lines as PW5 Krishan Chand. PW8 Dr.Himani Gupta, Senior Medical Officer, Civil Hospital, Hisar conducted the medical examination of the prosecutrix and found that her hymen was freshly ruptured and redness was present. The Doctor also opined that possibility of sexual intercourse on the intervening night of 10/11.4.2000 at 11.00 a.m. cannot be ruled out. PW9 Rajinder Kumar, Clerk, Municipal Committee, Suratgarh tendered into evidence the record the Registrar, Births & Deaths of Municipal Committee, Suratgarh vide which as per entry No.160 the date of birth of the prosecutrix was mentioned as 23.11.1989, daughter of Smt.Bimla and Ram Chander. The Sessions Judge, Hisar, after satisfying himself and finding the prosecutrix to be fit for making a statement recorded her statement. PW10 the prosecutrix made a statement to the effect that the accused came to her house and asked her to accompany her to meet her Crl.A. No.537-DB of 2001 -5- brother Mania at village Manakheri. Her younger brother Birbal also accompanied her, but was asked to go back by the accused after giving Rs.2/- to him. Thereafter, the accused took her to Gugamari and kept her there for two days. Then the accused took her to village Rawal and then to Hisar where they stayed in a Dharamshala and in the night, the accused committed sexual intercourse with her forcibly and threatened her with dire consequences. The prosecutrix was again raped on the next day in noon time and on raising an alarm two persons of Dharamshala came and apprehended the accused. The report of Forensic Science Laboratory, Karnal was also tendered into evidence vide which human semen was detected on the said piece of cloth. Thereafter, the prosecution evidence was closed. After closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. The trial Court after relying upon the eye witnesses account and the medical evidence, convicted and sentenced the accused-appellant under Section 363, 366 and 376 IPC, in the manner as narrated in the opening paragraph. Dr. Deipa Singh, Amicus Curiae, counsel for the appellant has contended that the offence under Section 363 and 366 IPC have not been proved in accordance with law. She has further stated that the accused has been falsely implicated. It has been argued that there is no evidence in order to prove the offence of kidnapping. On the other hand, counsel for the State submits that a perusal of the statement of the prosecutrix Ashki @ Guddi and the statements of Crl.A. No.537-DB of 2001 -6- Krishan Chand (PW5) and the statement of Deep Chand (PW6) leave no manner of doubt that rape was committed by the accused. Both Krishan Chand (PW5) and Deep Chand (PW6) have stated that the accused had introduced the prosecutrix as his daughter. On 11.4.2000, while they were cleaning Room No.26, both of them heard noise emanating from the adjoining Room No.27 and on opening the door, they found that the prosecutrix was weeping and her salwar was down to her knees. They also found the accused in half naked condition. The accused tried to run away, but was apprehended and was handed over to the Police. The prosecutrix had told that accused had committed rape on her. The prosecutrix was examined as PW10 and as she was only 10 years old, therefore, the Court had to put questions to her in Hindi to find out whether she was fit to depose on oath or not. After satisfying itself, the Court recorded her statement. The prosecutrix categorically stated that the accused took her to Gugga Mari where she was kept for two days and thereafter the accused took the prosecutrix to village Rawal and from there to Hisar. During night, the accused had committed sexual intercourse with her forcibly. Next day again, the accused committed sexual intercourse with her. She raised an alarm and thereupon two persons came and apprehended the accused. In her cross-examination she has further stated that she was not tutored by anyone and narrated the entire incident in the manner it had occurred. A perusal of the aforementioned facts clearly shows that the prosecutrix who was a young girl of 10 years of age was raped by the accused-appellant. The prosecutrix has categorically deposed that the accused took her to Gugamari where she was kept for two days and Crl.A. No.537-DB of 2001 -7- thereafter to village Rawal and from there to Hisar and on these places, the accused had committed raped upon her. Apart from the above, PW1 Krishan Chand and PW6 Deep Chand heard shrieks of the prosecutrix while they were cleaning the adjoining room of the dharamshala in which the accused was staying. They found the accused in half naked condition. The accused tried to run away, but was apprehended and was handed over to the Police. Their testimonies have further been corroborated by the statement of PW8 Dr.Himani Gupta, who conducted the medical examination of the prosecutrix and found that hymen was freshly ruptured and redness was present. The Doctor opined that possibility of sexual intercourse having been committed could not be ruled out. The entire case is further strengthened by the report of PW1 Dr. R.J. Bishnoi, Medical Officer, G.H. Hisar who opined that the accused was fully capable to perform sexual intercourse and further the report of the Forensic Science Laboratory, Karnal, according to which, human semen was detected on the clothes worn by the appellant which was sent to the laboratory. Thus, from the depositions of the prosecutrix and the testimonies of PW5 Krishan Chand and PW6 Deep Chand, it is amply proved on record that the accused had enticed prosecutrix Ashki @ Guddi and had taken her away from the lawful custody of her parents and had committed rape upon her. It has been proved that the prosecutrix was of the age of 10 years and 5 months on the date of commission of the offence. The trial Court has rightly convicted the accused under Section 363, 366 and 376 IPC. The sentence awarded to the accused is just and fair and no leniency whatsoever is called for. Resultantly, we find no merit in the appeal and the same is Crl.A. No.537-DB of 2001 -8- dismissed. In case, the appellant is on bail, his bail bonds are cancelled and he be taken into custody forthwith to serve out the remaining portion of his sentence. (ASHUTOSH MOHUNTA) JUDGE May 6, 2010 (MEHINDER SINGH SULLAR) Gulati JUDGE