Raju Vs. State of Haryana - Court Judgment

Excerpt:
- p.k. jain, j.1. this appeal is directed against the judgment/order dated march 15,1997 and march 18, 1997 respectively passed by the additional sessions judge, bhiwani whereby the appellant has been convicted under sections 377/ 201, i.p.c. he has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of rs. 1000/- and in default of payment of fine to further undergo rigorous imprisonment for 2 years for the offence under section 377, i.p.c. and to undergo rigorous imprisonment) for 3 years and also to pay a fine of rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for 9 months for the offence under section 201, i.p.c.2. the facts necessary for the disposal of this appeal, which can be gathered from the record of the trial court, are that on 9-7-1996, suman, the prosecutrix, a female child of 9 years, along with her uncle mehender singh was grazing buffaloes in the bani (open land adjacent to the village; meant for grazing and resting domestic animals). at about 5.30 p.m. mahender felt thirsty and went to the village to take water. in the mean while the appellant came and dragged the, prosecutrix into the nearby bushes and then committed sodomy upon the prosecutrix although the prosecutrix continued crying bitterly. mahender singh came back and found the appellant while committing the said sexual assault. on seeing mahender singh, the appellant ran away from the spot. suman was bleeding from her private parts and became unconscious. mahender singh lifted suman in his lap and brought her along with her blood stained 'pajama' to the house. he narrated the incident to his real brother prithi singh, father of the prosecutrix. suman gained consciousness after some time and narrated the incident to her parents. prithi singh took his daughter suman along with blood stained 'pajama' to the police station and lodged the first information report carbon copy of which is ex. pd.3. suman was medically examined by dr. (mrs.) meena barwar at general hospital, bhiwani, on 10-7-1996 at 2 a.m. and prepared her medico legal report (ex. pa). two sealed vials containing swabs taken from anal and vagial regions, a sealed packet containing two slides prepered from the fluid available from anal and vaginal regions, a packet containing pink colour 'pajami' and a sample of the seal were handed. over to the police which were taken into possession vide memo ex. pe. on 10-7-1996, s. i. amar singh (pw-10) inspected the place of occurrence and lifted blood stained earth from there after converting the same into a sealed parcel vide memo ex. pk. rough site plan ex. pl of the place of occurrence was prepared. the appellant was arrested and was medically examined by dr. t.c. tanwar (pw 2) of the general hospital, charkhi dadri who prepared his medico legal report ex. pc. a sealed parcel containing underwear and pajama of the appellant was handed over to the police which was taken into possession vide memo ex. pm. the sealed parcels were sent to the office of chemical examiner and the reports ex. pb and ex. pb/1 were received. after completing the investigation a charge-sheet was filed in the court.4. a charge under sections 376/201, i.p.c. was framed against the appellant to which he pleaded not guilty and claimed a trial.5. in support of its case, the prosecution examined ten witnesses. dr. (mrs.) meena barwal (pw-1) had examined the prosecutrix. she has proved the m.l.r. ex. pa. according to her testimony sexual intercourse against the order of nature had taken place in this case. dr. t.c. tanwar (pw 2) had medically examined the appellant on 10-7-1996 at 1 p.m. and had prepared the medico legal report ex. pc. suman (pw 3) is the prosecutrix and prithi singh (pw 4) is her lather and author of the first information report. shri dharam pal (pw 5) headmaster of government girls middle school, proved the certificate ex. pf signed and issued by him according to which the date of birth of the prosecutrix suman is 15-9-1985. head constable bishamber dyal (pw 6) and constable balwan singh (pw 7) have tendered their affidavits ex, pg and ex. ph respectively. jogender singh. (pw 8) had prepared the site plan ex. pj on the pointing out by mahender singh. constable bhim singh (pw 9) had delivered the copy of the first information report at the residence of the judicial magistrate, charkhi dadri at 10.30 p.m. on 9-7-1996. according to him, the first information report was entrusted to him at about 10.00 p.m. s. i. amar singh (pw 10) is the investigating officer.6. in his examination under section 313 criminal procedure code, the appellant denied the allegations of the prosecution and pleaded false implication. according to him, he had done labour work for 2/3 days at the house of prithi singh and when he asked for his dues the same were denied. a panchayat was convened which asked prithi singh to pay the dues but in vain. he has stated that he has been falsely implicated and the witnesses have also deposed falsely at the instance of prithi singh. he has not produced any evidence in his defence.7. on an appraisal of the evidence produced by the prosecution, the trial judge came to the conclusion that the prosecution has proved a case for the offences under sections 370/201, i.p.c. against the appellant and convicted and sentenced him as stated above. feeling aggrieved, the convict has filed this appeal from jail...8. shri anil kmar shukla, advocate, has been appointed as an amicus-curiae to argue on behalf of the appellant.9. i have heard the learned counsel for the parties who have taken me through the record of the trial court.'10. shri anil kumar shukla, the learned counsel for the appellant, while assailing the order of conviction, has argued that the appellant was charged for the offences under sections 376/201, i.p.c. but convicted under sections 377/301, i.p.c. which is not permissible in the eyes of law. it has been argued by the learned counsel that an offence of sodomy cannot be said to be a minor offence in the context of an offence of rape. it has been pointed out that the appellant cross-examined the witnesses keeping in view the charge framed against him and was never made aware that he was facing a trial for an offence of sodomy. on the other hand, learned assistant advocate general haryana has argued that copies of the documents relied upon by the prosecution in support of its case were supplied to the appellant before commencement of the trial, the appellant was being represented by an advocate and was fully aware regarding the allegation levelled against him. it has been further argued that the appellant has failed to show that any prejudice has been caused to him.11. i have given my careful thought to the respective arguments advanced at the bar. it is corrects that the appellant was charged for an offence of rape but convicted for an offence of sodomy.12. it cannot be disputed that a charge forms the foundation of session trial and is the most important step in it. the accused must know and understand what he is being tried for and must be told in clear and unambiguous terms. at the same time the code of criminal procedure expressly provides in section 464 that no error omission or irregularity in the charge or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. the leading judgment on the point in hand is the decision of the apex court rendered in willie (william) slaney v. state of madhya pradesh air 1956 sc 116 : (1956 cri lj 291). after examining the various provisions contained in the code of criminal procedure, 1898, their lordships were pleased to observe as under :-sections 225, 232, 535 and 537(a) between them cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. the code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice.in para 45 of the judgment their lordships examined and answered the question as to whether a failure of jsutice has in fact occasioned or any prejudice has been caused to a convict:-in adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere, but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand, also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage.if it was not and particularly where the accused is defended by counsel it may in given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that 'no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused.the corresponding provisions contained in the present code are in no way different and the aforesaid judgment holds the field even today.13. in the case in hand, the copy of the medicnl examination report (ex. pa) and copy of the opinion ex. pa/2 prepared and recorded by dr. (mrs.)meenabarwar(pw 1) in respect of the medico legal examination of the prosecutrix suman conducted on 10-7-1996 at 2 a.m. were furnished to the appellant along with the copies of the other documents relied upon by the prosecution in support of its case. from a bare reading of the m.l.r. ex. pa and the opinion ex. pa/2, it becomes clear that the appellant was fully aware that he was being prosecuted for committing intercourse in the anal region of the prosecutrix suman. he was duly represented by shri vijay singh advocate throughout the trial. the copies of the reports of the chemical examiner ex. pb and ex. pb/1 were also supplied to the appellant before the commencement of the trial which also made him aware regarding the allegations to be faced. the appellant was given full and fair opportunity to cross-examine the prosecutrix on this aspect of the case. in his examination under section 313 of the code of criminal procedure, it was explained to him that the prosecution had produced evidence regarding committing of sodomy by him upon the prosecutrix. the appellant denied all the allgeations regarding the sexual assault alleged to have been committed by him upon the prosecutrix and stated as under :-i had done the labour work for two or three days at the house of the complainant pirthi singh. i asked for my dues but the complainant did not pay my dues. i also collected a panchayat. the panchayat also told the complainant that my dues should be paid. i do not know how suman sustained injuries. i have been implicated in this case falsely.the denial of allegations and the aforesaid plea raised by the appellant are enough to show that the case against him was fully and fairly explained to him and he was affoded a full and fair opportunity of defending himself. he was tried by a competent court. the prosecutrix and dr. (mrs.) meena barwar were duly cross-examined keeping in view the fact that the appellant was being prosecuted for an offence of sodomy and not that of rape. consequently, no prejudice has been caused to the appellant by framing a charge under section 376, i.p.c. and convicting him for an offence under section 377, i.p.c.14. the learned counsel for the appellant has further argued that the first information report is stated to have been recorded at 10-30 p.m. at police station sadar, dadri and copy thereof is stated to have been received by the judicial magistrate, charkhi dadri at 10-30 p.m. itself. it has been further pointed out that according to constable bhim singh (pw 9) copy of first information report was entrusted to him at about 10 p.m. and he had delivered the same at the residence of judicial magistrate, charkhi dadri at 10-30 p.m. the learned counsel has also referred to the statement of sub-inspector amar singh (pw 10), the investigating officer wherein he has stated that the first information report was commenced to be recorded at 10-30 p.m. and concluded at 11-15 p.m. according to him, the residence of the judicial magistrate is at a distance of about 1 kilometre from the police station. from this, the learned counsel has tried to argue that the entire version has been concocted after due deliberations and the appellant has been falsely implicated. it is correct that there is some discrepancy in the statements of constable bhim singh (pw 9) and s.i. amar singh (pw 10) vis-a-vis the copy of the first information report ex. pd on which there is an endorsement of the judicial magistrate, charkhi dadri. this discrepancy does not affect the prosecution case at all. the obvious reason is that both these witnesses were deposing after about one year of the occurrence. further, the occurrence took place at about 5.30 p.m. at a distance of 15 kilometres from the police station. pirthi singh along with the prosecutrix went to the police station and lodged the report without any delay, although he was approached by certain persons for compounding the matter. the endorsement made by the judicial magistrate goes to show that he had received the copy of the first information report at 10.30 p.m. the correctness or genuineness of this endorsement cannot be disputed. if there is some error committed by the police in recording the time at which the first information report was recorded on the statement of pirthi singh, the conviction would not be affected unless there is some material on the record to show that this was done deliberately to manupulate a version or to introduce some witnesses falsely. in the present case, even mahender singh, uncle of the prosecutrix who had brought her from the place of occurrence to the house has not been examined. no other eye-witness to the occurrence has been introduced by the prosecution. therefore, it cannot be said that some mistake or error in respect of time mentioned in the first information report or in the statements of aforesaid two witnesses would materially affect the prosecution case.15. the learned counsel for the appellant has further argued that the conviction of the appellant is not sustainable merely on the bald statement of the prosecutrix who was of a tender age and was not put under oath even. it has been argued by the learned counsel that according to the prosecution mahender singh, the uncle of the prosecutrix, was an eye-witness and he has been withheld without any reason. after reading out the statement of the prosecutrix (pw 3), it has been argued that she cannot be said to be acredible witness and there is no evidence to corroborate her testimony.16. in a long chain of decisions, it has been observed that children are a most untrustworthy class of witnesses, for when of tender age, they live in a realm of make believer, they are prone to mistake dreams for reality. they are pliable as clay and repeat glibly as of then own knowledge what they had heard from others. however, there is no rule of law in india that evidence of child witness cannot under any circumstances be acted upon. there is no legal embargo in recording a conviction upon sole testimony of a child witness and the necessity of corroboration is a matter of prudence. when the oral testimony of the child witness is found to be throughly honest and straight forward and implicitly reliable, even the solitary testimony of the child witness is sufficient to sustain the conviction of the accused.17. after perusing the testimony of prosecutrix suman (pw 3), the same appears to be throughly honest and straight forward. she did not hesitate in giving reply to the various questions put to her in her cross-examination. the version stated by her is so natural that it can hardly be disbelieved. moreover, her testimony is corroborated on all the material particulars by the medical evidence of doctor (mrs.) meena barwar (pw 1). according to the report ex. pb prepared by the office of the forensic science laboratory, human blood was detected on the pajama worn by the prosecutrix. blood was also detected on the swab and slide taken from the fluid of the anal region. the earth lifted from the place of occurrence was also found to be blood stained. the underwear (ex. p 3) removed from the person of the appellant at the time of his medical examination and handed over to the police in a sealed parcel, was found to be stained with human semen vide report ex. pb prepared by the forensic science laboratory. according to the testimony of doctor t.c. tanwar (pw 2), the appellant has been found to be capable of performing sexual act. this evidence fully corroborated the testimony of the prosecutrix. non-examination of mahender singh does not affect the testimony of the prosecutrix or the prosecution case in any manner. the plea in defence raised by the appellant appears to be an after thought idea and it cannot be believed that for petty wages, if any, pirthi singh would place the future of his daughter of tender age at stake.18. in view of the above discussion, it stands fully established that the appellant had commmitted carnal intercourse against the order of nature with the prosecutrix. the conviction of the appellant recorded under section 377, i.p.c. by the trial court is perfectly justified on the materials available on the record and the same is hereby affirmed.19. as regards the conviction under section 201, i.p.c., the learned counsel for the appellant is justified in contending that there is no evidence on the record to show that the appellant has concealed or destroyed the evidence of the offence of sodomy committed by him. surmises and conjectures would not take the place of proof. the learned state counsel has not been able to point out any evidence on the record to prove the charge under section 201, i.p.c. against the appellant. therefore, the necessary conclusion is that the conviction of the appellant under section 201, i.p.c. is bad in law and is hereby set aside.20. lastly the learned counsel for the appellant has argued that the sentence imposed upon the appellant is extremely on the higher side and is disproportionate to the magnitude of the offence. it has been pointed out by the learned counsel that the appellant is not a previous convict and is about 20/21 years of age. it is thus argued that a lenient view on the question of sentence may be taken. on the other hand, the learned state counsel has around that the appellant is guilty of a henious offence, that he has committed carnal intercourse against the order of nature with a female of tender age i.e. 9 years of age and no leniency ought to be shown in the matter of sentence which should be deterrent in nature.21. i have given my careful thought to the question of sentence. it cannot be disputed that the question of sentence is sensitive in nature. it is very easy to convict a person of some offence. but once a person is found guilty, it is difficult to decide as to how to deal with him. it is also well settled that the sentence should be proportionate to the gravity of the offence. the court, while imposing sentence should keep into consideration the anticidents and the character of the convict and the circumstances in which the alleged offence has been committed. no hard and fast rule can ever be laid down for imposing a just and proper sentence upon the convict and the question differs from case to case.22. it is correct that the appellant has committed an unnatural offence upon a female of 9 years, which implies sexual perversity. at the same time it cannot be ignored that the appellant is 20/21 years of age and is not a previous convict. therefore, a sentence of long term imprisonment may not have a healthy effect or result in this case. at the same time, the nature of the offence committed by the appellant requires that he must be kept in the enviornment of an institution of confinement for some period to enable him to ponder and brood over his perversity and learn how to live in a well organised society. in the facts and circumstances of this, a sentence of three years rigorous imprisonment would meet the ends of justice.23. as a result of the above discussion this appeal succeeds in part. the conviction of the appellant for the offence under section 201, i.p.c. is set aside. however, his conviction under section 377, i.p.c. is affirmed. the sentence imposed upon the appellant for the offence under section 377, i.p.c. is reduced to three years rigorous imprisonment and a fine of rs. 1000/-and in default of payment of fine to further undergo rigorous imprisonment for six months.