Crl. Appeal No.64-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.64-SB of 1997 Date of Decision : February 28, 2008 Inam S/o Shabir, ....Appellant R/o village Hathwala, Police Station Samalkha. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gianinder Saini, Advocate, for the appellant. Mr. Kartar Singh, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 4.1.1997, and the order of sentence of the even date, rendered by the Court of Addl. Sessions Judge, Panipat, vide which it convicted the accused/appellant Inam, for the offence punishable under Section 354 of the IPC, and sentenced him to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs.2000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of three months. The accused was, however, acquitted of the offence punishable under Section 376 of the IPC. 2. The facts, in brief, are that on 19.2.1993, at about 1.00 PM, the prosecutrix alongwith her father Mishri, came to Police Station Samalkha, and lodged FIR Ex.PD, to the effect that a day before i.e. on 18.2.1993, at about 4.00 AM, she had gone to the kuraries to throw cow dung, where Inam appeared from the side of Saini's Bitoras, caught hold of her, physically lifted and threw her on the nearby heap of cow dung cakes, with bad intention. She raised noise, which attracted her brother's wife Jumrat, who was also following Crl. Appeal No.64-SB of 1997 2 her, to throw cow dung. She raised alarm, as a result whereof, the accused left the prosecutrix and ran away. It was further stated that for the last 3/4 days, the father of the prosecutrix, was away to the house of her maternal uncle, whereas, her brothers were also away for labour work. As soon as, Mishri, father of the prosecutrix, returned, the matter was reported to the police. After recording the FIR, Bhagat Singh, ASI, visited the spot, and prepared the rough site plan Ex.PG. 3. On 21.2.1993, Om Parkash, SHO, was present at Bus Stand of village Hathwala, where the prosecutrix alongwith her father, met him. She made supplementary statement Ex.DC, to the effect that on the said date, time and place, in fact, she was raped by the accused, but she had lodged the report only for molestation, as she was unmarried. It was also mentioned, therein, that her father arrived, in the house, on the evening of the occurrence, and she had apprised him of the incident. On the basis of supplementary statement, the offence was converted into one under Section 376 of IPC. Om Parkash, SHO, visited the spot, recorded the statement of Jumrat, and sent the prosecutrix for medico legal examination. Dr. Anu Arora, medico-legally examined the prosecutrix. On 23.2.1993, the prosecutrix was produced before the Illaqa Magistrate. She made her statement under Section 164 of Cr.P.C. 4. The accused was arrested on 24.2.1993, by Om Parkash, SHO. He was got medico legally examined. On 23.3.1993, again the investigation was handed over to Bhagat Singh, ASI. He visited the house of the prosecutrix, where Smt. Kapoori, mother of the prosecutrix, handed over to him Ex.PC, birth certificate of the prosecutrix. The same was taken into police possession. On 29.3.1993, the prosecutrix was radiologically examined by Dr. S.S.Wadhwa, Civil Hospital, Panipat, who found her, between 16 to 17 years. Copy of jamabandi of the place of the alleged occurrece, Ex.PH, was also taken into possession by the Investigating Officer. After the completion of investigation, Crl. Appeal No.64-SB of 1997 3 the accused was challaned. 5. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 376 of the IPC, was framed against him, to which he pleaded not guilty and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. Raj Kumar (PW-1), Dr. Anu Arora (PW-2), Statical Assistant in the Office of the Registrar, Births and Deaths, Amar Singh (PW-3), Hari Singh, Patwari(Retd.) (PW-4), the prosecutrix (PW-5), Jumrat (PW-6), Smt. Kapoori (PW-7), mother of the prosecutrix, Mishri (PW-8), father of the prosecutrix, Om Parkash, SI (PW-9), and Bhagat Singh, ASI (PW-10), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 7. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was further stated that the prosecutrix and her mother used to throw cow dung, in the bara of Maksood, his uncle. A quarrel had taken place 2/3 days prior to the occurrence, between his mother and the prosecutrix, in which he had also intervened. It was further stated that, on account of that reason, the prosecutrix and her mother, nursed grudge against him. There were also some rivals, of his father, who later on instigated the prosecutrix and her father got him falsely implicated, in this case. The accused, however, did not lead any evidence, in his defence. 8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of conviction and the Crl. Appeal No.64-SB of 1997 4 order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 10. I have heard the learned counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very outset, contended that the trial Court was wrong, in relying upon the evidence of the prosecutrix, which could not by any stretch of imagination, be said to be truthful. He further contended that once the trial Court found that the evidence of the prosecutrix that rape was committed with her, by the accused, was false, there was no reason to come to the conclusion, that the accused outraged her modesty, and committed an offence punishable under Section 354 of the IPC. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The report which, in the first instance, was made by the prosecutrix by going alongwith her father, and which formed the basis of FIR, was to the effect that the accused had molested her, when she threw the cow dung, at the bara of Saini's. Even Jumrat, her near relation, who was following her at a little distance, also did not see the accused committing rape with her. Even no semen could be detected on the salwar, vaginal swab, and the pant of the prosecutrix. Even the Doctor, when medico-legally examined the prosecutrix, did not find any mark of struggle on her body. The prosecutrix, being unmarried girl, had rape been committed with her, she would have certainly resisted, as a result whereof, there would have certainly been injuries, on her private parts and struggle marks, on her other parts of the body. There was an old tear of the hymen of the prosecutrix, as stated by the Doctor. Since, report Ex.PE of the Forensic Science Laboratory, Madhuban and the medical evidence did not support the theory of rape having been committed with the prosecutrix, the trial Court, in my opinion, was right in coming to the conclusion, that the report Ex.PD, which was got recorded by the prosecutrix, that the accused Crl. Appeal No.64-SB of 1997 5 molested her, was correct. If a witness is found to be not truthful, in respect of one aspect of the case, it cannot be said that, she cannot be believed with respect to the remaining aspects of the case. The evidence of a witness, on a point, on which the same is found to be false, can be ignored, but his/her evidence, on other points, which is found to be creditworthy, can be believed. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next contended by the Counsel for the appellant, that there was 33 hours delay in lodging the FIR, which was utilized for false implication of the accused, introduction of false witnesses and concoction of story. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is proved from the evidence, on record, that the father of the prosecutrix had gone to some other village. Since, the honour of an unmarried girl was involved, decision with regard to the registration of FIR, could only be taken by the head of the family. The other family members of the prosecutrix, waited for the arrival of the father of the prosecutrix. Only after he arrived, the report was lodged. Under these circumstances, delay, if any, in lodging the report, stood explained. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. The Counsel for the appellant, last of all, submitted that the appellant has been facing the agony of protracted criminal proceedings, since 24.2.1993, when he was arrested. He further contended that, it was a fit case, in which he should be granted the benefit of the provisions of probation of Offenders Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The appellant, outraged the modesty of an unmarried girl. Had Jumrat, near relation of the prosecutrix, not reached the place of occurrence in time, the accused would have certainly accomplished his Crl. Appeal No.64-SB of 1997 6 act of rape. No ground, therefore, is made out, for the release of the accused, on probation of good conduct. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. No other point, was urged, on the behalf of the parties. 15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 4.1.1997, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, Panipat, shall comply with the judgment, with due promptitude. February 28, 2008 (SHAM SUNDER) Vimal JUDGE