Criminal Appeal No. 36-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 36-SB of 1998 Date of decision : 06.11.2008 Chandan Singh .....Appellant Versus State of Punjab ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Vivek Verma, Advocate as Amicus Curiae for the appellants. Mr. K.S.Kahlon, , Advocate for the appellant Mr. Manjari Nehru, Deputy Advocate General, Punjab . S. D. ANAND, J. The appellant is in appeal against his conviction for an offence under Section 376 IPC at the hands of the learned Trial Judge. The prosecution allegations, as apparent from the material obtaining on the file, were as under:- The prosecutrix, a minor female child, born to PW-6 Swinder Kaur alias Chhindo from the lions of her husband Mukhwant Singh, was (at home) alone when the appellant entered her house at about 3.00 P.M. and raped her. The prosecutrix raised an alarm which attracted her mother PW-6 Swinder kaur and latter's sister-in-law, Swaran Kaur to the spot. On seeing them appear on the scene, the appellant fled the spot. The prosecutrix was found bleeding from her private part's. In the meantime, the father of the prosecutrix also reached there. The prosecutrix was taken by her parents to the police. The offence was notified to the police. The Criminal Appeal No. 36-SB of 1998 -2- **** accused was arrested on that very night. PW-1 Dr. Tejinder Kaur, Medical Officer, had medico legally examined the prosecutrix on 24.9.1994 at about 10.45 P.M. The medical Officer observed as under:- “Axillary hair and pubic hair not present. Brest not developed. No external visible disease on the external ext-genitilia. No external visible injury on the lower abdomen, chest and inner aspect of thighs (both). Both labium minora and majora were swollen 3 x 1 ½ cm each and tender to touch. Inner side of vaginal wall two lacerated wound one on each side each measuring 1 x ½ cm and one posteriorly measuring 1 x 1 cm bled on touch. Hymen was lacerated and was bleeding on touch and was torn and admitted little finger with difficulty and there was tenderness present all over inner side of vagina. Two vaginal swab were taken. First from vaginal introtus and second from vaginal fornices.” Besides it, the following injuries were found on the person of the prosecutrix:- “1. Diffused swelling 2 ½ x 1 ½ cm on the right upper lip and corresponding laceration ½ x 1 cm on mucosal side. 2. Right first inciser tooth was also missing from the socket and fresh bleeding was present on the socket. Other teeth were normal and oro-dental hygine was good. 3. Multiple abrasions on the left side of neck about eight in number in an area of 10 x 8 cm. Also there was diffuse swelling on middle and front of neck 6 x 4 cm. 4. Three abrasions were present on right side of neck in an Criminal Appeal No. 36-SB of 1998 -3- **** area of 4 x 2 cm. 5. She was of average built and nurished, having difficulty in walking and standing.” The Medical Officer opined that injury no.2 was grievous in nature; while the other injuries were simple in nature. The probable duration of the causing of injuries was opined to be within 12 hours. She further opined that “in my opinion, the possibility of intercourse cannot be ruled out. ...... On receipt of report report of Chemical Examiner regarding two sealed parcels of swabs Ex. PC, I opined that possibility sexual intercourse cannot be ruled out. My opinion regarding this is Ex. PD which bears my signatures.” PW-2 Dr. Hardeep Singh, Medical Officer, Civil Hospital, Batala had conducted the medico-legal examination of the appellant on 27.9.1994 at 11.55 A.M. and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. PW-3 Dr. Jagjeewan Lal had conducted the Radiological x-ray examination of the prosecutrix for determination of her age and opined that radiologically the age of the prosecutrix was between 12-1/2 to 14-1/2 years. PW-4 MHC Balwinder Singh and PW-5 Constable Lakhwinder Singh tendered their affidavits Ex. PH and Ex. PJ respectively into evidence. The former was custodian of Malkhana and the case property remained in his custody during the period 24.9.94 to 26.9.94. The latter obtained the case property from MHC Balwinder Singh on 26.9.1994 and delivered the same to the Chemical Examiner on 27.9.1994. The averments, in the course of the affidavits, are to the effect contents of the case property were not tampered with during the period it was in their Criminal Appeal No. 36-SB of 1998 -4- **** custody. PW-6 Swinder Kaur and PW-9 Swaran Kaur are mother and aunt respectively of the prosecutrix. PW-7 SI Chanchal Singh is the Investigating Officer of this case. PW-8 is the prosecutrix herself. The appellant raised a plea of innocence. He did not indicate anything why he has been framed in this case. DW-1 Mukhwant Singh had examined in defence. The learned Trial Judge placed implicit reliance upon the testimony of mother Swinder Kaur, aunt Swaran Kaur and the prosecutrix herself and noticed that the presentation made by the above three witnesses, is fully in accord with the medical segment ( MLR as also the FSL report) which is supportive of the averment that the prosecutrix was hurt in the act of resistance and that examination of her private parts revealed that she had been violated. Learned Amicus Curiae (who came to be appointed on account of non appearance of original counsel on the earlier dates of hearing) argues that the prosecutrix is proved on record to be a major girl and the possiblity of it all having been a consensual affair cannot be ruled out. The latter plea was presented as an alternative in case the finding upheld was that it was the appellant who had deflowered the prosecutrix. The plea raised is denuded of merit. Though it is in the statement of the mother of the prosecutrix that she and her elder daughter (the latter being 18/19 years) were studying in the same school and that the former is a student of 4th standard, the prosecution has not placed on record any documented material to prove the date of birth of the Criminal Appeal No. 36-SB of 1998 -5- **** prosecutrix which may have been recorded in the school record. For want of evidence of that category, the Court relied upon the result of the radiological examination for determination of her age. As already noticed in an earlier part of the judgment, PW-3 Dr. Jagjeewan Lal, Radiologist opined that on readiologically examination, the age of the prosecutrix was found to be 12-1/2 to 14-1/2 years. He did otherwise concede in the course of cross-examination, that the age so found could vary by two years either side. It would be pertinent to notice here that there is a precise observation made by the learned Trial Judge himself to the effect that the prosecutrix “did not appear to be more than 10/11 years of age.” The Presiding Officer also gave note at the time of recording of the testimony of the prosecutrix that she appeared to be aged 10 years by appearance. Though the prosecution does not appear to have acted diligently in the matter of ascertainment of the age of the prosecutrix, there is overwhelming material available on the file to prove that the prosecutrix was a minor. It would be pertinent to notice here that even the father of the prosecutrix testified on oath (DW-1) that his daughter is aged about 10 years. The fact that his testimony would he held (in a latter part of the judgment) to be non-substantive in character, does not dilute the fact that he did make a precise averment about the age of the prosecutrix. Insofar as the other facet of the argument is concerned, there is complete want of proof to the effect that the prosecutrix was a consenting party to the act. In the first instance, the aspect of consent or otherwise pale into insignificance on account of the tender age of prosecutrix. Even otherwise, if there was even an iota of truth in the plea Criminal Appeal No. 36-SB of 1998 -6- **** advocated on behalf of the appellant, the prosecutrix would not have sustained the number and nature of injuries found on her person by PW-1 Dr. Tejinder Kaur. Learned Amicus Curiae for the appellant, then, argues that the prosecutrix is not a reliable witness inasmuch as she stage volte-face twice over in the course of her statement. She initially did not name the appellant as the offender. She named him only in the course of cross- examination after she had been declared hostile. She staged a summer sault in the course of cross-examination directed at her on behalf of the appellant. In the re-examination, she again made a statement supportive of the prosecution presentation. This attitude of hers, the argument proceeds, proves that the impugned finding of indictment cannot be based upon her testimony. The plea raised is devoid of merit. While appreciating the testimony of a child witness, it cannot be lost sight of that a child is likely to dither in the Court atmosphere with which she is not familiar at all. It will be particularly so when the deposition is with regard to violation of her person. This observation assumed added importance in the light of the fact that there is not even a suggestion either to the prosecutrix or to the other or to her mother and aunt that they had any inimical inclination towards the appellant or that they had any other reason on account whereof they would be inclined to frame the appellant in this case. Apart therefrom, it requires pertinent notice that FSL report completes nails the appellant. There is a categorical finding that “semen was found on the exhibit No. I. No spermatozoa were found on the exhibit No. II.” The Medical Officer, who medico legally examined the prosecutrix, found as many as five injuries on her person including one grievous injury. She also found that hymen of the prosecutrix was lacerated. It is further in Criminal Appeal No. 36-SB of 1998 -7- **** her testimony that “both labium minora and majora were swollen 3 x 1 ½ cm each and tender to touch. ......Hymen was lacerated and was bleeding on touch and was torn and admitted little finger with difficulty and there was tenderness present all over inner side of vagina.” There is nothing, at all, unnatural in the ocular presentation made by her mother Swinder Kaur and aunt Swaran Kaur because the latter is residing in the immediate vicinity of the house where the prosecutrix was residing with her family at the relevant point of time. There is another very interesting aspect of the matter which completely proves that the appellant had tried to tamper with the course of justice by winning over the father of the prosecutrix who stepped into the witness box as defence witness. It is apparent from his testimony that he initially denied that his daughter had been raped by anybody. He also denied having taken her to police station or hospital. It is also in his testimony, that the prosecutrix was never got medico legally examined. Though he conceded in the cross-examination that he has been appearing in the Court on each and every date of hearing and he was present on the date of testimony of his wife and prosecutrix was recorded, he could not categorically say if the Doctor had obtained his thumb impression on the MLR (“when the medical examination of my daughter was conducted.”) He offered to give his specimen thumb impression for comparison and recording of further examination-in-chief was deferred. Interestingly enough, when the Finger Prints Expert wanted to obtain his specimen thumb impression, be backed out and volunteered a statement that he remembered had been present at the time of medico legal examination of her daughter at hospital and his thumb impression have been obtained by the Doctor. He, then, refrained from giving his specimen thumb Criminal Appeal No. 36-SB of 1998 -8- **** impression. A perusal of the file further reveals that he did not enter the witness box thereafter. His testimony, thus, cannot be said to be substantive in character. In the light of the fore-going discussion, I have no hesitation in affirming the finding of indictment recorded by the learned Trial Court. The appeal is held to be devoid of merit and is ordered to be dismissed. November 06, 2008 (S.D. ANAND) Pka JUDGE