Criminal Appeal No.364-SB of 1999 v. State of Punjab

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. R.K.S. Brar, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction dated 18.1.1999 and the sentence order dated

19.1.1999 passed by the learned Additional Sessions Judge, Fatehgarh Sahib, whereby appellant Darbara Singh was convicted -2- Criminal Appeal No.364-SB of 1999. under Section 376 of the Indian Penal Code (for short `the Code') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/-, in default whereof to undergo further rigorous imprisonment for six months. The case of the prosecution, in brief, is that on

25.9.1996, at about 7.30 A.M, accused-appellant Darbara Singh, who, at the relevant time, was working as a Compounder-cum- Sweeper at the shop of a Doctor, was passing in front of the house of Mohan Singh (complainant). Mohan Singh called appellant Darbara Singh to come inside their house to see his son Bunty, who was ill. After seeing Bunty, the appellant told Mohan Singh that he was running temperature and that he should send someone to accompany him to take medicine from the Doctor's shop where he was working. Mohan Singh asked the prosecutrix (name withheld), who was less than ten years of age at that time, to accompany the accused-appellant to fetch medicine for her brother Bunty (Harjinder Singh). On reaching the clinic, the accused took the prosecutrix inside the room and bolted the door from inside. Thereafter, he threw the prosecutrix on a cot lying in the Doctor's shop and removed her `Salwar'. He also removed his `Pyjama' and committed rape upon the prosecutrix. When the prosecutrix did not turn up with the medicine, her father Mohan Singh reached the clinic at about 8.00/8.15 A.M and found the door of the medical shop bolted from inside. He heard the shrieks of the prosecutrix from inside -3- Criminal Appeal No.364-SB of 1999. the shop. Meanwhile, Charan Singh son of Parkash Singh also arrived there. Both Mohan Singh and Charan Singh pushed the door forcefully. The bolt was broken and they went inside the shop. On reaching there, they found that the accused was lying on the prosecutrix and was committing forcible sexual intercourse with her. On seeing them, the accused-appellant picked up his `Pyjama' and fled from there. The prosecutrix was made to put on her `Salwar'. Thereafter, she was lifted by her father Mohan Singh and taken to his house. The prosecutrix, on reaching her house, narrated the entire occurrence to her mother. Thereafter, Mohan Singh went to inform Jarnail Singh, Sarpanch of the Village about the occurrence. Later on, Mohan Singh and his wife Rajinder Kaur took the prosecutrix to Civil Hospital, Gobindgarh, for her medical examination. Dr.Jaspal Singh Rekhi (P.W.1), conducted the medico- legal examination of the prosecutrix on 25.9.1996 at 1 P.M and observed as under:- “ Laceration 2 cm on the perineum between vagina and valva which was muscle deep. Valva swollen, red, tender to touch. Hymen was intact and inflamed and swollen. No injury to secondary sex characters was present. “ Examination of Clothes: -4- Criminal Appeal No.364-SB of 1999. “ No blood stain was present but few stains were present on the front of `Salwar'. No clothes were torn”. Dr.Jaspal Singh Rekhi (P.W.1) opined that the possibility of rape could not be ruled out. The vaginal semen taken for detecting the presence of spermatozoa and other micro organism was sent to the Chemical Examiner, who vide his report (Exhibit P.G) opined that spermatozoa were found on the `Kameej' and `Salwar' of the prosecutrix. Since the prosecutrix was unfit to make statement, this case was registered on the basis of statement (Exhibit P.J) made by Mohan Singh, father of the prosecutrix. Assistant Sub Inspector Harminder Singh inspected the place of occurrence and prepared rough site plan. Search for the accused-appellant was made, but he was not traceable. On 26.9.1996, the police sought opinion from the Doctor as to whether the prosecutrix was fit to make statement. When she was declared fit to make statement, her statement was recorded by the police. On 2.10.1996, the appellant was produced before Inspector Harcharan Singh by Karnail Singh. Inspector Harcharan Singh deputed Assistant Sub Inspector Harminder Singh to get the accused medically examined from Civil Hospital, -5- Criminal Appeal No.364-SB of 1999. Fatehgarh Sahib. After examining the appellant, Dr.Ranjit Singh (P.W.8) prepared medico-legal report (Exhibit P.M) opining that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. After completion of investigation and due formalities, challan was presented against the appellant in Court. Vide charge sheet dated 15.2.1997, the appellant was charged under Section 376 of the Code, to which he did not plead guilty and claimed a trial. In order to prove guilt of the accused, the prosecution examined as many as twelve witnesses including Dr. Jaspal Singh Rakhi (P.W.1), complainant Mohan Singh (P.W.2), Pushpa Devi, Head Teacher of the School where the prosecutrix was studying (P.W.4), Dr.Swaran Singh, in whose clinic the appellant was serving as a Compounder-cum-Sweeper (P.W.5), the prosecutrix (P.W.6), Charan Singh, an eye-witness (P.W.7), Dr.Ranjit Singh, who had medico-legally examined the appellant (P.W.8), Assistant Sub Inspector Harminder Singh (P.W.9) and Inspector Harcharan Singh (P.W.10). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication at the behest of Bhajan Singh and Harnek Singh, with whom the family of the appellant allegedly had criminal disputes, which were pending. According to the appellant, he was implicated in this case so that he and -6- Criminal Appeal No.364-SB of 1999. his family could be pressurized by said Bhajan Singh and Harnek Singh to withdraw criminal cross-cases pending between the family of the appellant and Bhajan Singh and Harnak Singh. The appellant examined Rajinder Kaur, mother of the prosecutrix (D.W.1), Karnail Singh (D.W.2) and Dr.Madhu Bala (P.W.3) in his defence besides tendering in evidence show cause notice given to Dr.Jaspal Singh Rekhi (P.W.1) by the Court at Fatehgarh Sahib and the reply to that notice by Dr.Jaspal Singh Rekhi. I have heard Mr. R.K.S. Brar, Advocate, appearing for the appellant and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. After arguing for some time and comprehending that the evidence of the prosecution against the accused-appellant was impeccable, learned counsel for the appellant stated that he did not challenge his conviction. He, however, submitted that though the minimum sentence prescribed under Section 376 (2) (f) of the Code i.e for committing rape on a woman when she is under twelve years of age, is rigorous imprisonment for ten years besides fine, but keeping in view the special reason that the Sword of Damocles has remained hanging over the head of the appellant for more than thirteen and a half years, the sentence of rigorous imprisonment of ten years imposed upon the appellant may be reduced. According to the provisions of Section 376 (2) (f) of the -7- Criminal Appeal No.364-SB of 1999. Code whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Pushpa Devi (P.W.4), Head Teacher of the School where the prosecutrix was studying, produced on record the School Certificate (Exhibit P.L) to prove that the prosecutrix was born on 29.10.1986. Thus, she was less than ten years of age when the occurrence took place on

25.9.1996. Otherwise also, there is no dispute with regard to the age of the prosecutrix. The proviso to Section 376 (2) (f) of the Code 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 ten years. After considering the above submission made by learned counsel for the appellant and taking into account the facts and circumstances of the case, mentioned above, I do not see adequate and special reasons to reduce the sentence awarded to the appellant by the trial Court. Resultantly, this appeal is hereby dismissed being without any merit. January 29,2010. ( MOHINDER PAL ) JUDGE