Criminal Appeal No. 398-SB of 1998 v. The State of Haryana

CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Bipan Ghai, Senior Advocate with Mr. Deepak Garg, Advocate for the appellant. Mr. S.S.Mor, Senior Deputy Advocate General, Haryana. S. D. ANAND, J. The appellant was convicted by the learned Trial Court for an offence under Section 376 IPC on allegations which may be indicated as under:- The first informant/appellant (Jagbir Singh PW) had four issues, three sons and a daughter, out of whom, the prosecutrix was youngest and was aged 6 years at the relevant point of time. On

19.8.1996, at about 9.00 A.M., the wife of first informant Jagbir Singh despatched her children to the school. Thereafter, the husband-wife duo started for Bakani wala fields to fetch fodder. They went over there in a bullock-cart belonging to Hazari Singh, a brother of Ist informant Jagbir Singh. When they reached near the fields at about 8.30 A.M., they heard the cries of a child emnating from inside the Bajra crop. Jagbir Singh brought the cart to a halt, entered the field and found the appellant committing rape upon the prosecutrix. On seeing Jagbir Singh appear on Criminal Appeal No. 398-SB of 1998 -2- **** the scene, the appellant fled the spot and took along his trouser. The prosecutrix who was bleeding from her private parts and was crying informed her father that she had been enticed from in front of the school on the pretext of getting her eatables. The usual formalities followed and the appellant was challaned in due course. PW-1 Dr. Jangsher Singh had medico-legally examined the appellant on 30.8.1996 and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. PW-2 Dr. M.K.Bishnoi conducted the ossification test of the prosecutrix and proved his report Ex. PG and X-ray films Ex. PG/1 and Ex. PG/2. PW-3 Ravita is the prosecutrix herself. PW-4 Jagbir Singh is the first informant/father of the prosecutrix and also the eye witness of the impugned occurrence. PW-5 Ram Chander Patwari had prepared scaled site plan ( Ex. PJ) on the pointing of Jagbir Singh. PW-6 SI Ram Bhaj and PW-8 SI Mahi Pal are the Investigating Officers of the case. PW-7 Dr. Laxmi Rohtagi, employed in Sanjay Gandhi Memorial Hospital, Deptt. Gyanic, Mangol Puri, Delhi, had medico legally examined the prosecutrix on 19.8.1996. The appellant pleaded innocence and, in course of statement under Section 313 Cr.P.C., averred as under:- “I have committed no offence. The case has been made against me at the instance of the father of the prosecutrix. He is having old enmity with us.” Criminal Appeal No. 398-SB of 1998 -3- **** Learned Trial Court accepted the prosecution presentation, declined the defence plea of innocence and proceeded to record the impugned finding of conviction. Learned Senior Counsel, appearing on behalf of the appellant, argues that the medical evidence is not in tandem with the prosecution presentation and it falsifies the allegation of rape itself. In support of the averment, the attention of this Court is invited to the effect that PW-7 Dr. Laxmi Rohtagi did not find any external injury on the person of the prosecutrix. “The plea raised is completely devoid of merit. Though no external injury was indeed found on the person of prosecutrix, PW-7 Dr.Laxmi Rohtagi did notice that the prosecutrix was bleeding from vagina and on vaginal examination, the hymen was found ruptured and it was found that the vagina admitted one finger loosely. In the course of cross- examination though she conceded that possibility of hymen getting ruptured by trauma cannot be ruled out, she affirmed that without penetration of panis into vagina, one finger could not have been inserted.” It is, then, argued that the presence of Jagbir Singh at the time of impugned occurrence is unnatural. The plea raised does not deserve acceptance. In the course of a forthright presentation, PW-4 Jagbir Singh indicated the circumstances under which he happened to be around at the time of impugned occurrence. There is a vague suggestion to him that the complainant party had a dispute with the appellant prior to the impugned occurrence and the latter had been falsely implicated on that account only. The nature of that dispute was not indicated. That plea, even otherwise, is not adequately buttressed by the statement made by the appellant in the course of statement under Section 313 Cr.P.C. In the course thereof, he averred that Criminal Appeal No. 398-SB of 1998 -4- **** he has old enmity with the father of the prosecutrix. If a normal person make that allegation, it is compulsive for him to indicate to the Court the nature of the dispute he had with the complainant party. It is then only that the Court would be able to appreciate whether it was a case of false implication, as an act of reprisal or not. Apart therefrom, the appellant cannot wish away the clear unambiguous and clinching testimony on oath of the prosecutrix who was found by the learned Trial Court to be a competent child witness. She being a child of tender years could not obviously have been in a position to resist the dastardly act committed by the appellant. She was very categorical in averring that her parents and her uncle met her in the fields. It may be noticed in the context that PW-4 Jagbir Singh had testified on oath that he and his wife had gone to the field while his brother, who was owner of the bullock-cart followed them. In absence of any strong reasons, it would be unnatural to expect that a normal human being would stake the honour of a female member to the house hold just for the sake of falsely implicating the enemy. In this case, it has not been proved even otherwise that the father of the prosecution had any inimical inclination towards the appellant. In the light of the fore-going discussion, the appeal is held to be devoid of merit and is ordered to be dismissed. November 03, 2008 Pka (S.D. ANAND) JUDGE