Criminal Appeal No.1052-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1052-SB of 1998 Date of decision : 29.9.2008 Satbir Singh .....Appellant Versus The State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Vijay S. Kajla, Advocate for Mr.Ashish Aggarwal, Advocate for the appellant Mr. S.S.Mor, Senior Deputy Advocate General, Haryana for respondent-State. S. D. ANAND, J. The appellant was convicted on a charge of having kept the prosecutrix in wrongful confinement and for having attempted to rape her. The prosecution allegations, shorn of the avoidable details, were as under:- The prosecutrix is the youngest child of her parents. At the relevant point of time, she was of the age of seven years and was on the rolls of a Government Educational Institution at Jundla, as a student of second standard. On 6.12.1995, her jobless brother (PW-3 Krishan) was at home. She also skipped the school. At about 1.30 P.M. on that day, the prosecutrix was standing near the shop of one Pappu in the village. The appellant met her over there Criminal Appeal No.1052-SB of 1998 -2- **** and took her to his house on the pretext that she should bring milk for him. However, on reaching his house, the appellant neither handed over any amount nor any glass to enable the prosecutrix to bring milk for him. Instead thereof, he bolted the door of his room from inside. Thereafter, the appellant undressed himself by removing his Pajama and underwear. He also undressed the prosecutrix by removing her salwar. Thereafter, the appellant forced himself upon the prosecutrix who started crying. The cries of the prosecutrix attracted PW-3 Krishan to the spot. He knocked at the door which (door) was opened by the appellant who (appellant) fled the spot while carrying the pajama in his hand. The chase given by PW-3 Krishan to the appellant proved abortive. Back home, the prosecutrix narrated the entire incident to her mother. Her father, an employee with the Electricity Board, came home in the evening and was apprised of the impugned occurrence. A number of Panchayats were held for two days to settle the issue but the parents of the appellant did not turn up at any Panchayat. The appellant had otherwise absconded by that time. It was thereafter that the matter was notified to the police vide statement Ex. PC. PW-1 Smt. Nirmal Chawla, Headmistress, Government Primary School, Jundla, owned up having issued certification Ex. PA wherein it is recorded that the date of birth of the prosecutrix was 14.1.1989. Apart therefrom, she made a record-based statement (on the basis of attendance register) that the prosecutrix Sunita did not attend the school on 6.12.1995. She proved Ex. PB, a photocopy of Criminal Appeal No.1052-SB of 1998 -3- **** the attendance register. PW-2 Sunita alias Urmila is the prosecutrix herself. PW-3 Krishan is a brother of the prosecutrix. PW-4 Gurvinder Singh is Vice-Sarpanch of village Jundla. He testified to the effect that appellant and his parents were summoned to appear before the Panchayat but they did not attend the Panchayat which was held on 2/3 days. It was thereafter that he advised the father of the prosecutrix to take recourse to the law. PW-5 Shashi Sharma, a Draftsman practising in the District Court, Karnal, had prepared scaled site plan Ex. PD on 12.12.1995 on the pointing of Arjun Singh and Balwant Singh. PW-6 Dr. G.L. Dhal, Medical Officer, General Hospital, Karnal, had medico-legally examined the appellant Satbir Singh on the police plea (Ex. PE) and opined that “there was nothing to suggest that the person examined by me was incapable of doing sexual intercourse in normal course of life.” PW-7 Balwant Ram testified that the appellant made an extra-judicial confession before him on 11.12.1995. This witness also attended the Panachayats which continued for 2-3 days and testified that appellant and his parents did not appear before the Panchayat. PW-8 SI Ram Sarup had investigated this case. The appellant raised a pure and simple plea of innocence. The appellant did not adduce any evidence in defence. Criminal Appeal No.1052-SB of 1998 -4- **** Finding the prosecutrix to be a competent child witness, the learned Trial Court placed implicit reliance upon her testimony. In order to draw sustenance for the impugned finding of indictment, the learned Trial Court also relied upon the testimony of PW-3 Krishan who is a real brother of the prosecutrix, who had been attracted to the spot from the house of their uncle where he was available at that point of time. In the context of the delay in the notification of the offence to the police, the learned Trial Court accepted the prosecution presentation that the intervening time was utilised in convening the panchayats before which the appellant and his parents did not otherwise enter appearance, inspite of repeated pleas in the relevant behalf. Learned counsel for the appellant argued that the delay in the notification of the offence to the police would be fatal in the present case because there is history of enmity between the father of the prosecutrix and the appellant and the former had attempted to outwit the latter by framing him on a false charge. In support of that averment, the attention of this Court was invited to a suggestion put to the prosecutrix in the relevant behalf. The plea merely deserves to be noticed to be discarded. Though there is no dispute that a suggestion was put to the prosecutrix that she was deposing falsely in view of the fact that her parents have enmity with the appellant, it is apparent that the prosecutrix denied the suggestion as incorrect. Insofar as PW-3 Krishan, who is a real brother of the prosecutrix, is concerned, he Criminal Appeal No.1052-SB of 1998 -5- **** too denied that “the accused has been falsely involved at our instance and at the instance of Chandgi due to enmity”. Insofar as the statement under Section 313 Cr.P.C. is concerned, all that the appellant averred in the course thereof was that “the witnesses are false and I have been implicated falsely”. The variations in the pleas taken up by the appellant in the context is interesting and apparent enough in the circumstances of the case. To the prosecutrix, there is a precise suggestion that appellant had been framed on account of enmity, her father has with the appellant. Though the suggestion put to her brother i.e. (PW-3 Krishan) was not that specific in character, in the context of the enmity which the parents of the prosecutrix allegedly had with the appellant, the suggestion goes further to suggest that the framing of the appellant in this case is on account of enmity which the appellant had with one Chandgi. There is nothing, in the suggestion or even otherwise, on record to indicate the relate-ability of Chandgi to the prosecutrix and her family. As against it, the specific suggestions put to the prosecutrix and her brother were not even re-iterated in the statement under Section 313 Cr.P.C. It is not to be taken to suggest that ommission to raise a specific plea in the statement under Section 313 Cr.P.C. would entitle the Court to draw an inference adverse to the interest of the appellant. That part of the averment has been noticed only in order to indicate the inconsistent stances taken up by the appellant at the trial. Before proceeding to undertake the adjudicatory exercise Criminal Appeal No.1052-SB of 1998 -6- **** further, it would be appropriate to notice the social scenario which is till date prevalent in the Indian society. Exposed aberrations apart, which too are exceptions to the general rule, the parents of Indian females are very reluctant to make an such allegation which, by and large, exposes their female child to avoidable ridicule and character assassination. There are people who would be charitable and considerate and would not indulge in any act which would adversely affect the female child. At the same time, there are uncharitable people as well who would treat the prosecutrix and her family as tainted. The verbal platitudes from the public plateforms notwithstanding, there can be no escape from the fact that the fact of involvement of a female child in a case of indicated category, affects the future matrimonial prospectus of the prosecutrix herself and may be that of her other siblings as well. I have no hesitation in conceding that this part of the societal scenario would not, ipso facto, suggest that outright reliance ought to be placed upon the testimony of the prosecutrix to indict the alleged ravisher. The Court would, in the process of adjudication, also have due care to find out if there is any semblance of pre- occurrence bitterment between the parties or not. In the normal course of things, every act of ravishment or a crime of any type would be actuated by a motive. At the same time, the motive is an aspect which lies close to the heart of perpetrator of the crime and it may not always be apparent to the victim. In cases of deflowering of the prosecutrix, the motive part may be altogether missing and it may Criminal Appeal No.1052-SB of 1998 -7- **** be that the perpetrator of the crime is over taken by his beastly instincts and he proceeds to have or attempt to have carnal knowledge of the prosecutrix. As already noticed in an earlier part of the judgment, the learned Trial Court put few questions to the prosecutrix and declared her to be a competent child witness. It was thereafter only that the learned Trial Court proceeded to examine her. In the course of her testimony on oath, she was very categorical that the appellant “is my brother in relation.” She also had no difficulty in conceding that she used to frequent the house of the appellant earlier. At the same time, she was equally forthright that none was available in the house of the appellant at the time she was taken over there on the indicated pretext. That statement of hers is in complete accord with that of PW-3 Krishan. That the prosecutrix is on the rolls of a Government Educational Institution, as a student of second standard, is apparent from the record-based testimony of PW-1 Smt. Nirmal Chawla, who is the Headmistress of Institution. Both, the prosecutrix and her jobless brother i.e. PW-3 Krishan, are one on the point that former did not attend the school as she was suffering from headache on that date. In this context, learned counsel for the appellant argued that Investigating Officer had told the Court that the prosecutrix attended first half of the working hours at the school. That fact, the argument proceeds, falsifies the prosecution presentation about her Criminal Appeal No.1052-SB of 1998 -8- **** availability at the time of the impugned occurrence. There is no merit in the plea. The Investigating Officer did not, at all, indicate that the record maintained by the school authorities was incorrect. If he had found out that the prosecutrix had attended the school during the earlier part of the day, he ought to have recorded the statement under Section 161 Cr.P.C. of the concerned teacher or the official who intimated that fact to him. That statement of the Investigating Officer is apparently misconceived, particularly when it falsified by the contents of attendance register Ex. PB. Insofar as the aspect of the delay is concerned, the statement made by prosecutrix and her brother, in the context of convening of panchayats and also the fact that the appellants and his parents refrained from entering appearance and joining the proceedings of the Panchayat, is supported by that of PW-4 Gurwinder Singh who is Vice-Sarpanch of the Panchayat. As already noticed in an earlier part of the judgment, the family members of a prosecutrix are generally reluctant to go to the law and would like to settle things out of Court. The terms of the compromise in the context could inclined a sincere feeling of atonement on the part of the perpetrator of the crime of even financial separation, if the victim is from a financially incapacitated family.. In this case, appellant and his parents did not attend the panchayat inspite of having been summoned for that purpose. That, by itself, is also suggestive of a guilty state of mind on the part of the Criminal Appeal No.1052-SB of 1998 -9- **** appellant. There is indeed of some bit of variation on the point about who exactly had produced the appellant before the Police. PW-7 Balwant Singh would want the Court to believe that it was he produced the appellant at Police Post, Jundla. As against it, PW-8 Ram Sarup, Investigating Officer, testified at trial that Sultan Singh, Member Panchayat, had produced the appellant before him at Bus Stand, Jundla. However, this variation cannot be said to be of that significance which could invalidate an otherwise validly proved prosecution presentation. The present is thus, a case in which the appellant is proved to have attempted to deflower the prosecutrix who, apart from being of the tender age of seven years, is closely related to him. The notification of the impugned crime to the police has further been proved to have been delayed on account of the endeavour made by the Panchayat to put the parties to terms. The panchayat efforts are proved to have been thwarted by the appellant inasmuch as neither he nor his parents opted to appear before the Panchayat inspite of having been repeatedly summoned in the relevant behalf. It is also apparent from the record that the appellant has not, at all, been able to prove that the prosecutrix and members of her natal family had any inimical inclinations towards him which could have actuated them to frame him in this case. In the light of the fore-going discussion, the appeal is held to be devoid of merit and is ordered to be dismissed. September 29, 2008 (S. D. ANAND) Pka JUDGE