Judgment:
CRA- S- 1051-SB of 2001 -1- In the High Court of Punjab and Haryana at Chandigarh CRA- S- 1051-SB of 2001 Date of Decision:19.2.2014 Manak Chand @ Mani ---Appellant Versus State of Haryana ---Respondent Coram: Hon’ble MRS.Justice Rekha Mittal *** Present:- MRS.Anju Arora, Advocate for the appellant Mr.Anupam Sharma, AAG, Haryana for the respondent-State *** REKHA MITTAL, J.
The present appeal has been directed against judgment dated 3.9.2001 passed by the Additional Sessions Judge, SiRs.whereby the appellant has been convicted and sentenced for commission of offence punishable under Section 376 of the Indian Penal Code (for short “IPC”.).extracted hereinbelow:- Under Section 376 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- In default of payment of fine to further undergo rigorous imprisonment for a period of six months.
Saini Paramjit Kaur The facts, in brief, are that Kamlesh daughter of Gian Chand 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -2- complainant is married with Pappu son of Kishan Lal in village Senwat Khera for the last about seven yeaRs.She already had two children but on 1.9.2000 she gave birth to a daughter.
His son-in-law Pappu came to his (complainant’s) house on 2.9.2000 and expressed desire to take his daughter (name not disclosed) with him as she was required for doing household work.
The complainant sent his daughter aged about 15 years with his son- in-law on the same date.
On 7.10.2000, the prosecutrix and Kamlesh returned to the house of the complainant at Dabwali.
The prosecutrix told her mother Sito Bai that on 12.9.2000, she was alone in the house of Kamlesh when Kamlesh’s devar (husband’s brother) Manak Chand came inside the room, bolted it from inside and by showing a knife committed sexual intercouRs.with her forcibly and thereafter he committed sexual intercouRs.with her many A times after giving threat to her life.
Sito Bai told the incident of rape to the complainant and he talked to the family members of Manak Chand accused.
The family members of Manak Chand initially agreed for marriage of the prosecutrix with Manak Chand but finally refused on 23.10.2000 when the complainant reported the matter to the police and led to registration of the FIR.
During investigation conducted by ASI Moola Ram, he inspected the spot in the presence of the prosecutrix and her father Gian Chand, prepared rough site plan of the place of occurrence.
Statement of the prosecutrix was recorded and her medico legal examination could not be conducted on that day due to her menses and she was got medico legally examined on 28.10.2000.
The accused was arrested on 2.11.2000 and was medically examined in the Civil Hospital, Dabwali.
The school certificate of the prosecutrix Ex.
PG was collected.
After completion of investigation, Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -3- challan was presented in the Court for trial.
The case was committed to the Court of Sessions as offence under Section 376 IPC being exclusively triable by the said court.
On hearing counsel for the parties and perusing the records, charge under Sections 376 and 506 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
To establish the charge against the accused, the prosecution examined as many as 07 witnesses namely, Dr.
Kulwinder Kaur PW1, Ram Sahai, Clerk Govt.
High School, Dabwali PW2, Constable Mohan Lal PW3, Inspector Mohinder Singh PW4, Nanki Devi PW5, Gian Chand PW6 and Moola Ram PW7.
On the evidence of the prosecution being closed, statement of the accused under Section 313 of the Code was recorded wherein he denied the incriminating circumstances and claimed innocence.
He set up the plea that parents of the prosecutrix wanted to marry her with him forcibly to which he resisted.
On 23.10.2000, he filed a suit for permanent injunction restraining the parents of the prosecutrix from marrying her with him forcibly.
Summons were served upon the respondents (parents of Nanki etc.) on that very day and after service of summons, father of the prosecutrix got this false case registered against him.
The prosecutrix never came to live at the house of his brother.
However, he examined Jagdish Rai DW1 and Pappu DW2 in his defence.
The learned trial court, on analysis of evidence adduced by the prosecution and after hearing counsel for the parties at length, held against the accused for committing rape upon the prosecutrix and as a sequel thereto, the accused was convicted and sentenced for committing offence Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -4- under Section 376 IPC, detailed hereinbefore.
Counsel for the appellant has submitted that the case of the prosecution is not free from lacunae, embellishments and improvements of which the benefit is liable to be extended to the appellant.
To bring home her contention, she has made few submissions.
The fiRs.submission made by counsel for the appellant is that as per allegations, the prosecutrix was subject to rape for the fiRs.time on 12.9.2000.
She came back to her parental home on 7.10.2000 but the FIR has been lodged on 23.10.2000, after a considerable delay of 01 month and 11 days since the fiRs.occurrence.
Another submission made by counsel is that the appellant has been falsely indicted in the crime as he refused to perform marriage with the prosecutrix.
The complainant and his family members were quite keen to establish marital alliance between the prosecutrix and the accused in view of their earlier relationship as the elder sister of the prosecutrix namely, Kamlesh was married to Pappu, elder brother of appellant Manak Chand, 07 years prior to the occurrence and Kamlesh was leading rather enjoying a happy married life.
Further dilating, it is argued that the accused filed a civil suit for permanent injunction restraining the parents of the prosecutrix from forcing him to perform marriage with the prosecutrix on 23.10.2000 and after receipt of summons in the said case on 23.10.2000 itself, the present false case was lodged at the behest of complainant Gian Chand.
Counsel in the alternative has made a submission that if it is held that the prosecutrix was subject to sexual intercouRs.by the accused, the prosecutrix herself was a consenting party and for that reason, no injury was found on her private parts or otherwise during her medical Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -5- examination.
According to counsel, the prosecutrix was more than 16 years of age at the time of occurrence and her consent for sexual intercouRs.exonerates the appellant for his alleged sexual assault.
Counsel for the State has supported the judgment passed by the learned trial Court with argument that delay in lodging the FIR in cases involving honour and dignity of a girl and her family, is irrelevant when otherwise it has been sufficiently explained in the instant case.
It is further argued that it is highly difficult rather impossible to believe that father of the prosecutrix could lodge a false FIR against the accused at the cost of damaging matrimonial prospect of the prosecutrix, a young unmarried girl aged about 16 yeaRs.I have heard counsel for the parties and perused the case file.
Before adverting to the submissions made by counsel for the parties, it is appropriate to note that rape leaves a permanent scar and has a serious psychological impact on the victim and her family members and, therefore, no one would normally concoct a story of rape just to falsely implicate a person.
In Indian society, any girl or woman would not make such an allegation against a person as she is fully aware of the repercussions flowing therefrom.
If she is found to be false, she would be looked by the society with contempt throughout her live.
For an unmarried girl, it would be difficult to find a suitable groom.
Equally true is that testimony of a prosecutrix stands at par with that of an injured-victim.
It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.
In this context, reference can be made to Rameshwar versus State of Rajasthan AIR1952SC54 The Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -6- relevant observations in the judgment are quoted thus:- “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge....”
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Now reverting to the case in hand, much stress has been laid by counsel on the aspect of delay in lodging the FIR.
As per settled proposition of law, delay itself cannot be a ground to discard the prosecution version but delay put the Court on guard to be more circumspect in evaluating the prosecution evidence to rule out possibility of false implication.
As has been noticed earlier, keeping in view the impact of false implication likely to leave for the victim and her family, it becomes difficult to believe that parents of a young unmarried girl would set out false allegations to implicate the accused in the crime.
I would hasten to add that in the case at hand, it was all the more difficult for father of the prosecutrix to falsely implicate the accused as he is the real younger brother of his son-in-law Pappu.
The false implication of the accused would not only spoil matrimonial prospect of the prosecutrix but had reasonable prospect of setting the matrimonial life of Kamlesh to ignition, keeping in view her vulnerable position being the daughter-in-law of that family.
The prosecution has otherwise satisfactorily explained the delay in lodging the FIR.
The prosecutrix during her stay in her sister’s house narrated her tale of woe to her elder sister Kamlesh but she showed indifferent attitude, may be fearing trouble to herself.
She returned to her parental home on 7.10.2000 and immediately narrated her story to her Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -7- mother who further confided in her husband.
The family in view of their earlier relationship that their elder daughter was married to elder brother of the accused thought it fit to persuade the family of the accused to agree for marriage of the prosecutrix with the accused so that they are saved from any blow to honour and dignity of the two families.
As ill luck would have been, the accused did not agree rather filed a civil suit for injunction against the complainant family to desist from forcing him to perform marriage with the prosecutrix, indicating the intention of the accused in clear terMs.The conduct of the father of the prosecutrix being reluctant to make the crime public and to secretly arrange marriage of the prosecutrix and the accused is quite natural and acceptable to reason.
In this view of the matter, the accused cannot derive any strength to his plea from delay in lodging the FIR.
The contention of the appellant that he has been falsely implicated in this case as the family of the prosecutrix was interested in marrying her with the accused and he refused is unfounded and merits outright rejection.
The mere fact that the family of the accused has a better financial status viz-a-viz family of the prosecutrix, in my considered opinion, is not at all sufficient to accept the plea of false implication particularly in the circumstances noticed hereinabove.
The appellant, in the alternative, has raised a plea that the prosecutrix herself was the consenting party to sexual relationship.
To bring home her contention, it is submitted that there was no injury on the private parts or otherwise of the prosecutrix in view of her medical examination.
The prosecutrix has categorically stated that the accused had a knife in his hand when he came inside the room and committed sexual Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh CRA- S- 1051-SB of 2001 -8- intercouRs.on 12.9.2000.
There was no occasion for the prosecutrix to offer any resistance.
She was subject to rape subsequently by extending threat to eliminate her.
The prosecutrix was subject to medical examination on 29.10.2000 more than one and a half month after the fiRs.assault, otherwise ruling out possibility of any injuries on her body.
The non- presence of injury on the person of the prosecutrix, in the circumstances of the present case, by no stretc.of imagination can form the basis to hold in favour of the accused that the prosecutrix was a consenting party to sexual intercourse.
This apart, it has been repeatedly held by the Courts that non- existence of injuries on the person of the victim is not necessarily an evidence of falsity or evidence of consent.
No other point has been raised by learned counsel.
The learned trial court has awarded minimum prescribed sentence of seven yeaRs.There are no mitigating much less special circumstances to award sentence less than the minimum prescribed in law.
In view of what has been discussed hereinabove, finding no merit, the appeal is dismissed.
The judgment passed by the learned trial court convicting and sentencing the appellant is affirmed.
The appellant, if on bail, be taken in custody to suffer the remaining sentence.
( Rekha Mittal ) Judge 19.2.2014 Paramjit Saini Paramjit Kaur 2014.03.05 15:35 I attest to the accuracy and integrity of this document Chandigarh