Full Judgment
Sabina, J. The appellant has preferred this appeal challenging his conviction and sentence as ordered by the trial court vide
JUDGMENT / ORDER
dated 13.12.2004/14.12.2004 under Section 307, 376, 302 of the Indian Penal Code ('IPC' for short).
On 24.2.2003, prosecutrix suffered her statement before Assistant Sub Inspector Rohtas Kumar, Police Station Chandhat that she was resident of village Sirsia and was doing labour work. She had got married about six years ago and had been blessed with a son namely Sehzad who was aged about one year. She was residing with her husband as a tenant in the house of Rajbir Singh for the last 8-9 months. Her husband was working as a mason but for the last 2 months, he was staying at home due to injury on his foot. On 21.2.2003, the day of Juma, she had gone to Farid Park along with her son for begging. She met Ramesh, an employee of Sulabh Sochalya. She knew him for the last 2-3 months as he used to come to visit Akhtar who was from her brotherhood and was running a scooter repair shop in Meat Market, Old Faridabad. Ramesh asked her to accompany him and further told her that he would give her `2,000/- to enable her to get her husband treated. Due to this inducement, she accompanied Ramesh to Ajay Colony, Ballabgarh. She stayed there for the night. On 22.2.2003, Ramesh told her that he could not make arrangement for the money and took her to Palwal by train and from there he took her to Rasoolpur in a three-wheeler. Then he took her towards Kamrawali, to Agra canal, on foot. He asked her to sit over there and told her that he would bring the money for her. She kept on sitting there on the bank of the canal along with her son. At about 8.00 P.M., Ramesh came there and committed rape on her person against her wishes. When she raised protest, her bangles broke and she sustained injuries on her neck and face. Then he tied her dupattaon her neck with an intention to kill her and threw her in Agra canal. At the time of commission of rape, Ramesh had taken off his black coloured jacket and had placed the same at the spot. Ramesh took away her son with an intention to kill him. Due to the grace of God, she was able to save herself by catching hold of bushes growing on the bank of the canal. She stayed in the canal by holding the bushes and Ramesh went away believing her to be dead. Thereafter, she came out of the canal and reached village Lulwari and met the Sarpanchof the village. He took her to the house of the Chowkidar. In the morning, she reached her rented premises after informing the Sarpanchand Chowkidarbut her husband was not available. She kept on waiting for her husband but could not meet him. Then she left to lodge the report along with her landlord Rajbir.
On the basis of the statement of the prosecutrix, formal FIR No. 49 dated 24.2.2003 was registered at Police Station Chandhat under Section 376, 307, 364 IPC.
Then Assistant Sub Inspector Rohtash Kumar went to the spot and prepared rough site plan. He lifted broken bangles of red colour, plastic chappalof black colour, one black coloured jacket from the spot and the same were taken in possession. He recorded the statements of the witnesses and got the prosecutrix medico legally examined. Then he went to Sulabh Sochalya International Sewa, Plot No. 1886, Sector 28, Faridabad and took the photograph (Ex. P-1) of Ramesh from the incharge of the organization.
On 25.2.2003, Assistant Sub Inspector Ram Lubhaya arrested the appellant as he had surrendered before the Area Magistrate. The appellant was got medically examined.
On 26.2.2003, Sub Inspector Ram Singh took over the investigation of the case. During interrogation, the appellant suffered a disclosure statement and on the basis of the same, he got demarcated the place of crime where rape had been committed. He also led the police party to the place where he had thrown the child in the canal and got recovered the dead body of the child from the bushes in the canal. The dead body was identified by the complainant. Sub Inspector Ram Singh prepared inquest report qua the dead body and thereafter, sent the same for post mortem examination. The dead body of the child was handed over to the complainant and her relations.
After completion of investigation and necessary formalities challan was presented against the appellant.
In order to prove its case, prosecution examined 15 witnesses during trial.
After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, 1973 pleaded that he was innocent. He had never worked as an employee of Sulabh Sochalya, Sector-28, Faridabad.
The appellant examined three witnesses in his defence.
Learned counsel for the appellant has submitted that there was inordinate delay in lodging of the FIR. The prosecutrix, while appearing in the witness box, had made material improvements in her statement. The appellant had been falsely involved in this case. Hence, the appellant was liable to be acquitted.
Learned state counsel, on the other hand, has submitted that the prosecutrix had no reason to falsely involve the appellant in this case and shield the real culprit. The ocular version was duly corroborated by medical evidence.
PW-1 Dr. Anju Verma, who had medico legally examined the complainant/prosecutrix on 24.3.2003, found following injuries on her person:-
1. Multiple abrasions over front varying size 2 x 1 to 3 x 1 cm. Scab formation, reddish brown in colour. Duration 2 to 3 days. Weapon blunt.
2. Abrasions 2 x 3 cm just below the left eye-lid reddish brown in colour. Duration 2 to 3 days. Weapon was blunt. Per abdomen soft.
PW-1 further opined that possibility of sexual intercourse could not be ruled out.
PW-6 Dr. B.S.Sharma deposed that on 27.2.2003 at about 10/11.00 A.M., he had conducted post mortem examination on the dead body of Sehzad aged one year and had observed as under:-
The length of the body was approximately 28''.
External Examination
It was a dead body of a male child aged about one year moderately build and well nourished. Rigor mortis was absent. Post mortem staining was absent. Wearing of printed sweatot, white jhabla and pyjama. All clothes were smeared with grass and mud and were wet.
The dead body was under the signs of putrification like that eyes came out from the socket, tongue between the teeth, lip swollen and everted. Distended body present. External genetalia was swollen. Foul smelling was present, adult fly was present. Scalp haris were easily pulled out, nail was loose and detached, skull suture was separated, skin of the hand and feet became sodden and bleached, face softened, faded white colour.
A fine frothy, leathery teracious froth was present under chest compression, washer women hand present.
Internal Examination
Both the lungs were clotted, distended and no cut section, fine froth mixed with blood was present, associated with air bubble when squeezed the lungs. Larynx and trachea contained fine froth. Stomach and intestines contained small amount of water. Other organs were health and normal.”
In his opinion, the cause of death was due to asphyxia as a result of drowning. The probable time between injuries and death was few seconds to few minutes and between death and post mortem examination it was 5 to 7 days.
PW-11 Dr. J.D. Singh deposed that he had examined Ramesh on 25.2.2003 and there was nothing to suggest that the patient was not able to perform sexual intercourse.
The doctor, who had medico legally examined the prosecutrix, gave the opinion that possibility of sexual intercourse could not be ruled out and the doctor, who had conducted post mortem examination on the dead body of deceased Sehzad aged one year, opined that he had died due to asphyxia as a result of drowning.
The appellant has taken the plea that he was not working with the Sulabh organization. PW-2 T.N.Dubey, Incharge of Sulabh International Social Service Organization deposed that he had told the police the father's name of the appellant whose photo was available in their record. He took out the photo of Ramesh from their record and had handed over the same to the police. He further deposed that he had seen the photo of Ramesh on the court file Ex. P-1 and it was the same photograph which was taken in possession by the police vide memo Ex. PB which was signed by me.
DW-1 Ram Sarup is the father of the appellant and he deposed that his son had never worked with Sulabh International Society, Faridabad as a sweeper. DW-2 also deposed that the appellant had never worked with Sulabh International Service Society, Faridabad. DW-3 Heera Lal has corroborated the statement of DW-2 to this effect.
However, no reliance can be placed on the statements of the defence witnesses to the effect that the appellant had never worked with Sulabh International Service Society, Faridabad in view of the testimony of PW-2. PW-2 is an independent witness and had handed over the photograph (Ex. P-1) of the appellant to the police, maintained in their office. Since PW-2 is an independent witness, he had no reason to depose falsely. Further, the said witness has deposed as per record maintained in their office. Thus, the prosecution had been successful in establishing that the appellant was working with Sulabh International Social Service Organization.
The complainant/prosecutrix, while appearing in the witness box, has deposed that prior to the occurrence, her husband's leg was fractured. She used to go for begging along with her son. The appellant had earlier given her ` 5/- on one occasion. The appellant took her to Ballabgarh where he told her that he could not arrange money for her. Then he made her sit near the canal and had gone to arrange for money to his house. However, in the evening, he committed rape on her person and thereafter, attempted to strangulate her and threw her in the canal. The appellant also threw her one year old son in the canal. She managed to come out of the canal but her son could not be traced and his dead body was recovered later from the canal. She had gone to the house of the Sarpanchof the nearby village. Then the Sarpanchtook her to the police station where her statement was recorded. Her landlord had also accompanied her to the police station. The police informed her qua detection of dead body of her child. Thereafter, she had gone to the hospital and came to know that her son had died.
The prosecutrix has deposed in a most natural manner. Although, she had not stated in her statement before the police that the appellant had also thrown her son in the canal whereas, while appearing in the witness box, she deposed that her son had also been thrown in the canal. The said discrepancy can be because the son of the prosecutrix must have been thrown in the canal after she was thrown in the canal. Apparently, when she lodged the FIR, she did not know that her son had also been thrown in the canal. Later on, on the basis of the disclosure statement suffered by the appellant, the dead body of the son of the prosecutrix was recovered from the canal and it appears that the improvement made by the prosecutrix in her statement is due to the said fact and cannot be said to be fatal to the prosecution case. The prosecutrix had no reason to falsely involve the appellant in this case. There is nothing on record to suggest that the prosecutrix had any ill will or enmity against the appellant to have falsely involve him in this case. The prosecutrix is a poor lady who had indulged in begging as her husband was lying at home due to injury suffered by him. It is evident that the appellant took advantage of the prosecutrix and took her along with him on the pretext that he would give money to her. Thereafter, the appellant had committed rape on her person and then threw her in the canal. The appellant also threw one year old son of the prosecutrix in the canal. Thus, the prosecutrix was raped and has lost her one year old son also in the occurrence.
The statement of the prosecutrix is duly corroborated by PW-14 Girraj Singh. The said witness is the Sarpanchof village Lulwari. He deposed that on the night intervening 22/23.2.2003 at about 1/1.30 A.M., prosecutrix had met him and told him that she had been raped by Ramesh and thereafter, she was thrown in the canal. He was also informed by her that Ramesh had taken away her son aged about one year and had murdered him. The prosecutrix had further told him that she had saved herself by catching hold of the bushes in the canal. Her clothes were wet. He had sent the prosecutrix to the house of the Chowkidarof the village.
Thus, the statement of the prosecutrix is duly corroborated by PW-14 and the medical evidence. In these circumstances, the delay in lodging the FIR cannot be said to be fatal to the prosecution case. The prosecutrix, who was a poor lady, immediately informed the Sarpanchof the nearby village and then she went home. Since she could not meet her husband, the delay occurred in lodging of the FIR. The delay in the facts and circumstances of the present case is natural and, thus, not fatal to the prosecution case. Further, there is nothing on record to suggest that the delay in lodging the FIR had been used for falsely involving the appellant in this case. Rather, the prosecution has been successful in proving its case. The appellant, after committing rape on the person of the prosecutrix, threw her in the canal. The appellant also threw one year old son of the complainant in the canal. The dead body of the child was recovered at the instance of the appellant from the canal. In these circumstances, the learned trial court had rightly convicted and sentenced the appellant under Section 302, 376, 307 IPC.
No ground for interference is made out.
Dismissed.