-1- Criminal Appeal No.308-SB of 1999. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.308-SB of 1999. Date of Decision: January 28, 2010. Jagroop Singh ...Appellant VERSUS State of Haryana ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Ms.Divya Sharma, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. Impugned in this appeal is the judgment of conviction dated 18.3.1999 and the sentence order dated 20.3.1999 passed -2- Criminal Appeal No.308-SB of 1999. by the Additional Sessions Judge, Karnal, whereby appellant Jagroop Singh was convicted under Section 354 of the Indian Penal Code (for short `the Code') and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/-,in default whereof to undergo further rigorous imprisonment for six months. Out of the said amount, Rs.8,000/-,if recovered,was ordered to be given as compensation to the prosecutrix (name withheld) as compensation. The facts of the prosecution case, in brief, are that the accused-appellant was residing in the neighbourhood of the prosecutrix. The father of the prosecutrix, namely, Mohan Lal (P.W.1) is a rickshaw puller. The prosecutrix was aged about 10/12 years at the time of occurrence. The allegations against the appellant are that in the evening of 1.4.1996, when the prosecutrix had gone out for playing and did not return, her mother Smt. Uma (P.W.2) had gone to look for her. Smt. Uma (P.W.2) heard the shrieks of the prosecutrix emanating from a room. Upon going nearer, she noticed the prosecutrix lying on a cot with her `Salwar' removed upto her knees and the accused was attempting to rape her. After completion of investigation, challan was presented against the appellant in Court. The accused was charged under Section 376 of the Code. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined -3- Criminal Appeal No.308-SB of 1999. as many as eight witnesses. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He stated that, in fact, complainant Mohan Lal (P.W.1) had assaulted him. In order to ensure that he (accused) may not file any complaint against the complainant, he was falsely implicated in this case. I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant, during the course of arguments, could not pose any serious challenge to the prosecution case. In this case the prosecution had moved an application on 27.8.1998 for examining Dr.G.S. Arora, Radiologist of Government Hospital, Karnal, for proving the age of the prosecutrix on the basis of the ossification test of the prosecutrix conducted by him. In response thereto, the accused had made a statement on the same date that he did not dispute the age of the prosecutrix as mentioned in Exhibit C.1, which had been prepared by Dr.G.S. Arora giving the age of the prosecutrix between 10/12 years. Mohan Lal (P.W.1), father of the prosecutrix gave her age as 11 years whereas Smt. Uma (P.W.2), mother of the prosecutrix gave her age as 10 years. Thus, the prosecutrix at the time of occurrence was 10/12 years of age. The prosecutrix while deposing as P.W.3 categorically stated that the accused had not removed his underwear and -4- Criminal Appeal No.308-SB of 1999. `Lungi' though her own `Salwar' had been removed and placed on a cot by the accused whereafter her mother arrived at the spot. Dr. (Mrs.) Savita Ajmani (P.W.5) stated that hymen of the prosecutrix was intact and vagina did not admit even little finger or swab stick. No outward injury on the body of the prosecutrix was noticed by he Doctor. These facts show that the appellant had not attempted penetration of the vagina of the prosecutrix. The accused had taken the prosecutrix to his house by luring her by giving a five rupee coin to her in order to outrage her modesty. Thus, the offence committed by the appellant would fall under Section 354 of the Code. He has rightly been convicted by the trial Court for this crime. Regarding the defence version as put forth by the accused in his statement recorded under Section 313 of the Code of Criminal Procedure that complainant Mohan Lal (P.W.1) had assaulted him and in order to ensure that he (accused) may not file any complaint against the complainant, he was falsely implicated in this case, no evidence was led by the accused. Nothing was disclosed as to when the fight between them had taken place. No report showing the medico-legal examination of the accused was produced on record. Even otherwise, it is not believable that a person would stake the life of his minor girl for falsely implicating a person. I In view of the above, conviction of the appellant under Section 354 of the Code, as recorded by the learned trial Judge, -5- Criminal Appeal No.308-SB of 1999. is upheld. However, keeping in view the fact that the Sword of Damocles has remained hanging over the head of the appellant for more than thirteen and a half years as the occurrence relates to April, 1996, I am of the opinion that ends of justice will be adequately met if the sentence of two years' rigorous imprisonment awarded to the appellant is reduced to one years' rigorous imprisonment and the sentence of fine and the default case including the payment of Rs.8000/- to the prosecutrix out of the amount of fine, if recovered, are left unaltered. I order accordingly. With the above modification in the impugned sentence order, this appeal is dismissed. January 28, 2010. ( MOHINDER PAL ) ak JUDGE