Criminal Appeal No.272-SB of 1999 v. State of Haryana

Present: Mr. Vikas Kumar, Advocate, for the appellant. Mr. Manish Deswal, Deputy Advocate General, Haryana. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction dated 7.1.1999 and the sentence order dated 8.1.1999 passed by the learned Additional Sessions Judge, Sirsa, whereby the appellant was convicted under Sections 363, 366, 376 and -2- Criminal Appeal No.272-SB of 1999. 506 of the Indian Penal Code (hereinafter referred to as `the Code') and sentenced to undergo rigorous imprisonment for one year under Section 363 of the Code, to undergo rigorous imprisonment for four years under Section 366 of the Code, to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- in default whereof to undergo further simple imprisonment for two months under Section 376 of the Code and to undergo rigorous imprisonment for six months under Section 506 of the Code. All the sentences were, however, ordered to run concurrently. The instant F.I.R was registered against the appellant on 8.5.1997 at the instance of complainant Dara Singh, father of the prosecutrix (name withheld). The prosecutrix was working in the Forest Department on daily wages. Appellant Krishan Kumar was also working along with the prosecutrix. On 6.5.1997 at about 8.30 P.M, there was an altercation between the prosecutrix and her sister at their residence. At about 10 P.M on that day, the prosecutrix had gone outside to answer the call of nature but did not return. The complainant searched the prosecutrix, but in vain. Accused-appellant Krishan Kumar, who was on visiting terms to the house of the prosecutrix, was also found missing from his residence. The appellant had taken away the prosecutrix by way of inducement. The prosecutrix was later on recovered from the custody of the accused-appellant. The prosecutrix disclosed that on 6.5.1997, the appellant had inquired from her about the quarrel at her residence and thereafter took her in the fields of Brij Lal. -3- Criminal Appeal No.272-SB of 1999. The appellant raped the prosecutrix there and threatened her of dire consequences in case she disclosed about it to anybody. The accused-appellant was having a pistol with him at that time. On the next day, the prosecutrix was taken to Hanumangarh and confined in a room. The appellant kept on repeatedly committing rape with the prosecutrix forcibly. When the prosecutrix told the accused that she would commit suicide, he took her in a bus. They alighted from the bus and started walking near a canal, from where the prosecutrix was recovered by the police. After completion of investigation and due formalities, challan was presented against the appellant in Court. The accused-appellant was charged under Sections 363, 366, 376 and 506. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined as many as twelve witnesses including prosecutrix (P.W.1), complainant Dara Singh (P.W.2), Dr.S.L. Aggarwal (P.W.3), Dr.Dharmender Singh (P.W.10), Dr. Vinita Jhunthra (P.W.11) and Sub Inspector Surat Singh (P.W.12). Statement of the accused-appellant was thereafter recorded under Section 313 of the Code of Criminal Procedure. He denied the prosecution allegations and pleaded false implication. He admitted that the prosecutrix had gone with him of her own but he never committed rape on her against her wishes. Due to this reason, the complainant was annoyed with him and got the -4- Criminal Appeal No.272-SB of 1999. instant case registered against the appellant. Photographs Exhibit D.1 to D.3 were tendered in evidence by the accused. However, no oral evidence was adduced by the accused. I have heard the learned counsel for the parties and have gone through the records of the case. The prosecutrix (P.W.1) and complainant Dara Singh (P.W.2) have fully supported the prosecution case and deposed about the kidnapping, abduction and rape of the prosecutrix by the appellant. As stated above, the prosecutrix was recovered from the custody of the appellant. Dr. Dharmender Singh (P.W.10), who had examined appellant Krishan Kumar, opined that the appellant was fit to commit sexual intercourse. Dr. Vinita Jhunthra (P.W.11), who had medically examined the prosecutrix, did not observe any injury or stain on perineal region or medial aspect of the thighs of the prosecutrix. Old healed tags of hymen were present and the vagina could admit two fingers easily. In the report of the Forensic Science Laboratory (Exhibit P.M) semen was detected on the `Salwar' and vaginal swabs/slides belonging to the prosecutrix. The medical evidence as also the statement of the prosecutrix (P.W.1) shows that she was subjected to rape. The prosecutrix remained with the appellant from 6.5.1997 to

14.6.1997. She was recovered from the custody of the appellant on 15.6.1997. During this period, the prosecutrix travelled with the appellant at many places. However, keeping in view the age of the prosecutrix, she cannot be said to be a consenting party in this case. Complainant Dara Singh (P.W.2), father of the -5- Criminal Appeal No.272-SB of 1999. prosecutrix, has categorically stated that his daughter was 15 years old at the time of the incident. The prosecutrix while deposing in Court as P.W.1 also gave her age as 15 years. Dr.Vinita Jhunthra (P.W.11), who had medico-legally examined the prosecutrix, described her age as 16 years in the medico-legal report Exhibit P.H. However, Dr. Vinita Jhunthra referred the prosecutrix to the Radiologist for age verification. Dr.S.L. Aggarwal (P.W.3), who had conducted the ossification test of the prosecutrix, vide his report Exhibit P.B gave the age of the prosecutrix between 17 years and 19 years. In the ossification test there is a margin of error on either side which varies from 1-1/2 years to 2 years. The appellant has also produced on record photographs (Exhibits D.1 to D.3) depicting marriage of the appellant with the prosecutrix. The photographs of the prosecutrix show, in certain terms, that she was a minor at that time. Learned counsel for the appellant has laid much emphasis on the point that the matter was reported to the police on 8.5.1997 after a delay of two days and it makes the case of the prosecution doubtful. I have given thoughtful consideration to the argument raised by learned counsel for the appellant, but do not find any force therein. The delay in this case has not remained unexplained on record. In fact, it stands fully explained. As mentioned above, appellant Krishan Kumar had become quite familiar with the family of the complainant as the prosecutrix was working on -6- Criminal Appeal No.272-SB of 1999. daily wages in the Forest Department where the appellant was also working. The appellant had developed intimacy with the prosecutrix, enticed her to leave her parental house and thereafter committed rape on her on various occasions at different places. The complainant had suspected the appellant to be behind the disappearance of the prosecutrix when the appellant was also found missing from his house. However, due to the intimacy of the appellant with the family of the complainant, it took some time to unearth that it was in fact the appellant who had perpetrated this heinous crime. Thus, there was no undue delay in lodging the report with the police and the delay stands satisfactorily explained on record. Besides, on the one hand, the promptness in lodging the report with the police does not ipso facto furnish any guarantee regarding truthfulness of the version put forth and,on the other hand, the delay in lodging the report in itself does not lead to a conclusion that the entire version is false. The delay, at the most, puts the Court on its guard to scrutinize the evidence led by the prosecution very carefully. At the same time, the Courts cannot overlook the fact that in sexual offences the delay in lodging the F.I.R is generally due to the reason of reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and honour of her family and it is only after giving a cool thought to the matter that a complaint is lodged. It so happened in this case. In view of the above, the prosecution has been able to -7- Criminal Appeal No.272-SB of 1999. bring home the guilt of the accused -appellant beyond all reasonable doubts. The judgment of conviction recorded by the trial Court against the appellant is upheld. Insofar as sentence awarded to the appellant by the trial Court, as noticed above, no injury marks were found on the private parts or body of the prosecutrix and it was a case of consent. The prosecutrix remained with the appellant for more than a month. The prosecutrix being minor was not a consenting party. The appellant having committed rape with minor, is liable to be punished with rigorous imprisonment for a term which shall not be less than seven years, but the proviso to Section 376 provides that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than seven years. Though the minimum sentence prescribed for the offence committed by the appellant under Section 376 of the Code, as noticed above, is rigorous imprisonment for seven years, but keeping in view the facts that the occurrence relates to May, 1997 and the Sword of Damocles has remained hanging over the head of the appellant for more than twelve and a half years and that the appellant was quite young at the time of occurrence and now both the appellant and the prosecutrix must be well-settled in their lives, the sentence of rigorous imprisonment of seven years imposed upon the appellant under Section 376 of the Code deserves to be reduced. -8- Criminal Appeal No.272-SB of 1999. After taking into consideration the facts and circumstances of the case, mentioned above, I am of the considered opinion that ends of justice will be adequately met if the sentence of rigorous imprisonment of seven years awarded to the appellant by the trial Court under Section 376 of the Code is reduced to rigorous imprisonment for four years and the sentence of fine and the default clause is left unaltered. I order accordingly. The sentences awarded to the appellant for the other offences by the trial Court shall remain unaltered. However, all the sentences shall run concurrently. With the above modification in the impugned sentence order, this appeal is hereby dismissed. March 12 , 2010. ( MOHINDER PAL ) JUDGE