IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Criminal Appeal not D-658-DB of 2007 Date of decision :
09. 11.2012 Balwant ....APPELLANT VERSUS State of Haryana ....RESPONDENT CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE INDERJIT SINGH *** Present : Ms.Aditi Girdhar, Advocate, as Legal Aid Counsel, for the appellant.
Mr.R.K.S.Brar, Addl.
Advocate General, Haryana, for the respondent-State.
*** INDERJIT SINGH, J Appellant Balwant has preferred the present appeal against the judgment and order of sentence dated 15.06.2007, passed by the Sessions Judge, Hisar, vide which he has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo rigorous imprisonment for two years under Section 376 IPC.
However, he has been acquitted under Section 506 IPC Brief facts of the prosecution case are that accused Balwant, who is father of the prosecutrix has committed rape upon her.
On 17.08.2005, when the prosecutrix alongwith her younger sister came from the school in the recess, accused allowed the Criminal Appeal not D-658-DB of 2007 [2].younger sister of the prosecutrix aged about six years to go back to school but did not allow the prosecutrix aged about 8 years to go back to school.
At that time, wife of the accused and mother of the children had gone to jungle for fetching fodder for the cattle.
The house of younger brother of the accused namely Bulli Ram was adjoining to his house which is an abandoned house and there is only one cot.
Accused took the prosecutrix in that house and gave threat that if she raised alarm she would be killed.
Accused put off all his clothes except underwear and also forcibly removed the salwar of the prosecutrix.
Then he started committing rape forcibly.
On hearing the cries of the prosecutrix, Mahinder and Balraj came from their adjoining houses and rushed towards the place of occurrence.
On seeing them, accused ran away from the spot after jumping over the wall and he while jumping the wall also received injuries.
When the complainant, who is mother of the prosecutrix, came to her house at about 4:00 p.m.after fetching fodder, prosecutrix told all the facts to her.
The complainant consulted her brotherhood and relations and told them about the misdeed done by her husband with her daughter.
Ultimately, it was advised by all of them that the legal action must be taken against him.
When complainant Roshni was going to report the matter, police party met her and she got recorded her statement to ASI Raj Kumar on 18.08.2005 at about 4:50 p.m.Ruqa was sent to the police station on the basis of which FIR was registered.
Then the Investigating Officer visited the spot and prepared the rough site Criminal Appeal not D-658-DB of 2007 [3].plan.
Statements of witnesses including prosecutrix were recorded.
Prosecutrix was got medically examined from General Hospital, Hisar.
On the same day, Rajender and Chandi Ram produced accused Balwant before the police and he was arrested.
Investigating Officer also got him medically examined from General Hospital, Hisar.
Statement of prosecutrix under Section 164 Cr.P.C.was also recorded by Judicial Magistrate Ist Class on 22.08.2005.
After completion of investigation, challan was presented against the accused.
On presentation of challan, copy of challan and other documents were supplied to the accused under Section 207 Cr.P.C.Finding a prima facie case against the accused, he was charged for the offences under Sections 376 and 506 IPC to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 ASI Om Kumar, who mainly deposed regarding scribing of FIR Ex.PA/2 after receiving the statement of Roshni Ex.PA with endorsement Ex.PA/1.
PW2 Constable Bansi Lal is a formal witness, who tendered into evidence his affidavit Ex.PC.
He also deposed regarding handing over two sealed parcels by the doctor to him which were taken into police possession.
PW3 Dr.Bhupinder, Medical Officer, General Hospital, Hisar, medico legally examined Balwant on 18.05.2005 and found the following injuries on his person:- 1.
A lacerated wound of size 1 x 0.2 x 0.2 cm on back part Criminal Appeal not D-658-DB of 2007 [4].of skull.
Scab formation just starting stage.”
2. Swelling and bluishness on left clavicular and shoulder joint present.
Advised x-ray and ortho opinion.”
3. Multiple bluish contusions on back.”
4. No external injury visible on penis and testis.
Only tenderness present.
Pubic hair present, cut and sealed.
Penis was normal look, smegma not present.
PW4 Dr.Himani Kansal, SMO, Government Hospital, Hisar, medico legally examined the prosecutrix on 18.08.2005 and found the following injuries:- 1.
There was rounded bruises present.
There was all around the bruise marked of tooth present 2cm x 2cm over left cheek near the angle of mouth.
It was dark in colour.”
2. There are three circular bruises near the left nipple 1 cm diameter.
The marks of teeth was present.
On local examination, vulva is red and swollen.
No hairs (pubic) were developed.
No secondary sexual character were developed.
On separating labia, there was redness present in vagina.
Hymen was torn freshly with little ooze.
There was tenderness in vagina.
Two swabs were taken and sent for semen analysis.
Vagina admits only tip of finger with very difficulty.
Tenderness was present too much.
Criminal Appeal not D-658-DB of 2007 [5].Doctor also stated that the possibility of rape cannot be ruled out with the prosecutrix.
PW5 Smt.Nirmala Devi, Incharge, Government Girls Primary School, Budak, brought the record to prove the date of birth of the prosecutrix.
She also proved the certificate Ex.PH in this regard.
As per school record, the date of birth of the prosecutrix is 18.07.1999.
PW6 Subhash Chander, Draftsman, deposed regarding preparing scaled site plan Ex.PJ.
PW7 Head Constable Jagdish Parshad is a formal witness, who tendered into evidence his affidavit Ex.PK.
PW8 Smt.Poonam Suneja, Judicial Magistrate Ist Class, Hisar, mainly deposed regarding recording the statement of prosecutrix under Section 164 Cr.P.C.PW9 Inspector Dilbag Singh mainly deposed regarding preparing the report under Section 173 Cr.P.C.PW10 is the prosecutrix, aged about 9 yeaRs.who mainly deposed as per prosecution version.
PW11 Roshni, mother of the prosecutrix, also deposed as per prosecution version.
PW12 Mahender Singh, eye witness to the occurrence, also deposed as per prosecution version.
PW13 ASI Raj Kumar, Investigating Officer, deposed regarding the investigation of the case.
Learned Public Prosecutor, after tendering into evidence Forensic Science Laboratory Report Ex.PQ, closed the prosecution evidence.
At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C.and confronted with the evidence of prosecution.
The accused denied the correctness of the Criminal Appeal not D-658-DB of 2007 [6].evidence and pleaded himself as innocent.
In defence, the accused examined DW1 Satbir Singh who mainly deposed that a false case has been registered due to a quarrel between Balwant and Balraj.
The trial Court, after appreciation of evidence and material on record, convicted and sentenced the accused as stated above.
At the time of arguments, learned counsel for the appellant contended that there is delay of about 26 hours in recording the FIR which creates reasonable doubt in the prosecution version.
She further contended that the Forensic Science Laboratory report does not tally with the medical evidence.
She also contended that Chandi Ram and Rajinder, who produced the accused before the police, were not examined.
Learned counsel for the appellant next contended that conduct of PW11 Roshni, complainant, regarding the death of her earlier husband Wazir also creates suspicion in the present case.
She also argued that a reasonable doubt exists in the present case and benefit of doubt should be given to the appellant-accused.
On the other hand, learned Addl.
Advocate General, Haryana, contended that the case of the prosecution has been duly proved by the PWs, who have consistently deposed regarding the occurrence.
Prosecutrix, who is minot daughter of accused and is a child witness, herself has consistently deposed as per prosecution Criminal Appeal not D-658-DB of 2007 [7].version against the accused and there is no reason or ground why she will depose falsely.
PW11 Roshni, mother of the prosecutrix, also deposed as per prosecution version.
PW12 Mahender Singh, eye witness to the occurrence, has also consistently deposed regarding the prosecution version.
Learned Addl.
Advocate General, Haryana, further contended that the statements of PWs have been duly supported by medical evidence.
Delay has been fully explained by the complainant.
There is no reasonable doubt exists in the prosecution version and appeal having no merit should be dismissed.
We have heard learned counsel for the appellant and learned Addl.
Advocate General, Haryana and with their assistance, we have gone through the evidence on record minutely and carefully.
From the record, we find no merit in the contentions of learned counsel for the appellant.
There is delay in recording the FIR of about 26 hours but this delay has been duly explained by the complainant.
At the time of occurrence, complainant had gone to fetc.fodder for the cattle and when she came back in the evening, the occurrence was narrated to her by the prosecutrix.
Then the mother of prosecutrix made discussion with the family members and night had fallen and the family members advised that they should report the matter to the police that wrong had been committed by Balwant.
Otherwise also, it is a sensitive matter.
Prosecutrix is daughter of the accused and the complainant is wife of the accused.
Keeping in view these relations, it was firstly discussed with the other Criminal Appeal not D-658-DB of 2007 [8].persons whether the matter is to be reported or not and ultimately, it was advised to the complainant to report the matter against the accused keeping in view the nature and gravity of the matter.
Therefore, the delay in the present case has been duly explained.
Otherwise, also delay itself is not fatal to the prosecution case.
The only precaution to be taken by the Court is to scrutinize the evidence more cautiously and carefully.
In the present case, prosecutrix, who is aged about 9 yeaRs.has consistently deposed regarding the occurrence against her father.
There is no reason or motive for her to falsely depose against her father.
We have also perused the cross-examination of the prosecutrix.
There is nothing on the record to show that she was tutored not there is anything in the cross- examination which may make her statement unreliable.
She has also given statement under Section 164 Cr.P.C.before the Magistrate, which is also duly proved by the Magistrate by coming to the witness box.
The statement of prosecutrix is duly supported and corroborated by complainant PW11 Roshni, mother of the prosecutrix.
Further PW12 Mahender Singh has also consistently deposed regarding the occurrence as he is the eye-witness to the occurrence.
There is no enmity or motive of PW12 Mahender Singh to depose against the accused falsely.
The other eye-witness could not be examined due to his death.
Oral statements of the PWs are duly supported by medical evidence.
Hymen was found torn freshly.
Keeping in view the injuries on the person of the prosecutrix, we find Criminal Appeal not D-658-DB of 2007 [9].that medical evidence also duly supports and corroborates the prosecution version.
Simply that in the Forensic Science Laboratory report, no semen could be detected on any of the exhibits, it cannot be held that Forensic Science Laboratory report is contradictory to the medical evidence.
Again the argument of learned counsel for the appellant that Chandi Ram and Rajinder, who produced the accused before the police, have not been examined, has no merit.
They are not the material witnesses, therefore, their non-examination in no way creates any doubt in the prosecution version.
Further, we find that there is nothing on the record to show any past conduct of complainant Roshni (PW11) regarding the death of her earlier husband Wazir and on this ground her statement cannot be held as unreliable.
She is not the eye-witness to the occurrence.
She has deposed and reported the matter whatever was narrated to her by the prosecutrix and the eye-witnesses, therefore, from the evidence on record, we find no merit in the contentions of learned counsel for the appellants.
The prosecution has duly proved its case by leading cogent evidence beyond any reasonable doubts.
Therefore, from the aforesaid discussion, we find no merit in the appeal and the same is dismissed.
(SATISH KUMAR MITTAL) (INDERJIT SINGH) JUDGE JUDGE 09 11.2012 mamta Criminal Appeal not D-658-DB of 2007 [10].