Criminal Appeal No.638-SB of 2005 v. State of Haryana

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Kuldip Singh Yadav, amicus curiae, for the appellant. Mr. Manish Deswal, Deputy Advocate General, Haryana. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction dated 11.2.2005 and the sentence order dated

12.2.2005 passed by the learned Additional Sessions Judge, Ambala, whereby the appellant was convicted and sentenced -2- Criminal Appeal No.638-SB of 2005. under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.2,000/- in default whereof to undergo further rigorous imprisonment for one month. As per allegations of the prosecution, on 30.4.2004 the appellant had raped the prosecutrix (name withheld), a child of six / seven years. The instant case was registered on the statement of Jai Pal Singh, uncle of the prosecutrix. The complainant along with Devinder Sharma and Raj Kumar had been attracted to the scene of crime on hearing cries of the prosecutrix and they had seen the appellant raping the prosecutrix in the fields of Raj Kumar. The appellant ran away from the spot after committing the crime. Dr. Santosh Pasrija (P.W.3) had medico-legally examined the prosecutrix. She had found dried mud on the feet, arms and left leg of the prosecutrix. There was a lacerated wound

1.5 cm x 1 cm mucosa deep on the posterior wall of vagina of the prosecutrix. Fresh bleeding was present on the wounds. She found that hymen admitted one finger tightly and bleeding was present on the hymen. The doctor found the clothes of the prosecutrix torn, mud covered and smeared with blood. Dr.Ramesh Pasricha (P.W.4) had conducted medico- legal examination of the accused and found that there was nothing to suggest that he was not capable of doing the sexual intercourse. The doctor had found diffused swelling on the dorsum of left hand of the accused. There was diffused swelling with -3- Criminal Appeal No.638-SB of 2005. superficial abrasion over his lower lip. There was diffused swelling of right side of face. There was diffused swelling on the dorsum of right hand. There was diffused swelling of the size of 15 cms x 15 cms on the middle of front of right thigh. It was reddish bluish in colour. There were multiple contusions of varying length and width of approximately 3 to 3.5 cms present on the back of chest and abdomen, reddish in colour. In this case, the prosecution had examined thirteen witnesses to prove its case. However, the prosecutrix, who was of tender age, was given up being an incompetent witness. Complainant Jai Pal Singh (P.W.2) and Raj Kumar (P.W.11) have stated that when they reached the spot on hearing the cries of the prosecutrix, they saw the accused committing rape on the prosecutrix. I have perused the statements of complainant Jai Pal Singh (P.W.2) and Raj Kumar (P.W.11). Both of them have corroborated each other on all the material particulars of the case. No discrepancy worth the name were observed in their statements. The report of the Forensic Science Laboratory (Exhibit P.R) shows presence of human semen mixed with blood on the `Salwar' and `Langot' (underwear) of the prosecutrix and `Langot' of the accused. Blood was also detected on the shirt and the vaginal swabs of the prosecutrix. The medical evidence, furnished above, and the report of the Forensic Science Laboratory (Exhibit P.R) fully corroborate the version given by complainant Jai Pal Singh (P.W.2) and Raj Kumar (P.W.11). The incident had occurred at about 5.30 P.M and the prosecutrix was examined at around 6.30 -4- Criminal Appeal No.638-SB of 2005. P.M on that very day by Dr. Santosh Pasrija (P.W.3). As mentioned above, the Doctor had found dried mud on the feet, arms and left leg of the prosecutrix. There was a lacerated wound

1.5 cm x 1 cm mucosa deep on the posterior wall of vagina of the prosecutrix. There was fresh bleeding in the wounds. The Doctor found that hymen admitted one finger tightly and bleeding was present on the hymen. The doctor had found the clothes of the prosecutrix torn, mud covered and smeared with blood. The prosecutrix was less than seven years of age, as is evident from the Birth Certificate (Exhibit P.Q) of the prosecutrix. As per this Birth Certificate, the date of birth of the prosecutrix is

2.11.1997. The occurrence had taken place on 30.4.2004. As such, she had not completed even seven years when she was ravished by the accused. She was brought before the trial Court on 2.12.2004. However, she could not give answers to simple questions of the Court. She was, therefore, found not a competent witness by the learned trial Judge. In these circumstances, non -examination of the prosecutrix, does not, in any way, make the case of the prosecution doubtful. The injuries found on the person of the appellant by Dr.Ramesh Pasricha (P.W.4), mentioned above, show how the prosecutrix had trembled out of pain that she caused diffused swelling on the dorsum of left hand of the accused, abrasion over his lower lip, diffused swelling on right side of face and diffused swelling on the dorsum of right hand of the accused. Further, there was diffused swelling of the size of 15 cms x 15 cms on the middle of front of -5- Criminal Appeal No.638-SB of 2005. right thigh of the appellant. Multiple contusions of varying length and width of approximately 3 to 3.5 cms were also observed on the back of chest and abdomen of the appellant. In view of the above, the prosecution has been able to bring home the guilt of the accused beyond all reasonable doubts. Consequently, the judgment of conviction rendered by the learned trial Judge is upheld. The medical examination of the prosecutrix shows how brutally she was ravished by the appellant. The doctor, who conducted medico-legal examination of the prosecutrix, has mentioned that she was in panic at the time of her examination. This shows who traumatic was the incident for the minor child. As such, the sentence awarded to the appellant commensurates with the offence committed by him. The impugned sentence order is also, accordingly, upheld. Resultantly, this appeal is hereby dismissed being without any merit. February 18, 2010. ( MOHINDER PAL ) JUDGE