Hari Ram vs State of Haryana

G. R Majithia, J.

The appellant has come up in appeal against his conviction and sentence under section 376 of the Indian Penal Code recorded by Additional Sessions Judge (III), Rohtak.

The prosecution story, briefly put, is as under :

The prosecutrix''s father PW8 Raghbir Singh is working as a Khalasi at Railway Station, Shakur Basti Delhi; that he used to go to Delhi from his village Pehrawar; that on the evening of December 9, 1985 Murti asked him that she was to go to Nangloi and her husband was to attend his duties during night, he should send the prosecutrix to her house so that she could sleep there with her small children; that the prosecutrix went to the house of Murti; that she alongwith Nirmala, Vedu and Sushma went to sleep; that Nirmala and the prosecutrix had slept on one cot, while on the other cot, the other children had slept; that the door of the room was bolted from inside; that at about midnight, the accused appellant knocked at the door of the house and the same was opened by Vedu; that the accused lighted a lamp and then put it off and thereafter, he threatened the prosecutrix and the children of Murti; that the accused picked up the prosecutrix and took her to another kotha of the house, where one cot was lying; that he laid her on the said cot and threatened her not to narrate the incident to anybody that he opened the string of the salwar of the prosecutrix and committed rape upon her thrice; that before committing rape, the accused got oil from Vedu and applied the same on the vagina of the prosecutrix; that the prosecutrix was stopped from raising the alarm by the accused by gagging her month with his hands; that after committing rape upon the prosecutrix the accused went away from the kotha and the prosecutrix remained weeping throughout the night; that at about 6/7 A.M. the prosecutrix went to her house and narrated the incident to her mother''s sister Dhan Pati, who then took off her salwar and saw the same; that Dhan Pati kept the salwar with her and went to Delhi to call the prose cutrix''s father; that the prosecutrix''s father alongwith Dhan Pati came to the village and the entire incident was narrated to him by the prosecutrix; that the prosecutrix''s father collected the Panchayat of the village, but the accused did not come there as he had absconded and that the panchayat advised prosecutrix''s father to lodge report at the police station. The report was lodged on December 11, 1985 at about 5 P.M.

The prosecution, in support of its case, examined Dr. (Mrs.) Anita Sharma (PW1), Dr. A.S. Dahiya (PW2), Dr. Gianender Kumar (PW3), Dhani Ram (PW4), Hawa Singh (PW5), Dhan Pati (PW6), Dr Anju Khosla (PW7), Raghbir Singh (PW8), Sumita (PW9) and Sheo Dhan Singh (PW10). Affidavits of Constable Ram Mehar Singh, Ex. PG, Constable Shamsher Singh, Ex. PH, and Moharrir Head Constable, Rohtas Singh, Ex. PJ. and report of the Forensic Science Laboratory, Ex. PM were also tendered into evidence. The witnesses Nirmala and Murti were given up by the prosecution as having been won over by the accused while Anand Parkash witness was given up as unnecessary.

The accused, when examined under section 313 of the Code'' of Criminal Procedure, denied the prosecution allegations. He alleged that his father and Mange Ram had strained relations and quarrel between them took place in his absence and he was involved in the instant case at the instance of the son of Mange Ram. In defence, the accused examined Murti Devi (DW1) and Ram Kumar (DW2).

Sumita, prosecutrix PW9 gave the minutest details of the incident as stated in the earlier part of the judgment. Her evidence is straight forward and rings true. In fact the occurrence is impliedly admitted by the accused when a suggestion was made to Sumita that she had sexual intercourse with whom she was friendly, after 10th morning. This suggestion presumably was put to the witness to elicit from her that she had friends with whom she enjoyed sex. If she had sex with a friend, it will not give a licence to the accused to subject her to sexual intercourse forcibly. The prosecutrix evidence receives corroboration in ample measures from the medical evidence. PW7 Dr. Anju Khosla, Lecturer in Gynae Department, medico legally examined the prosecutrix. Her local examination revealed thus :

"External genitalia : Whitish discharge seen at introitus. No injury on perineium. Hymen torn with red inflamed margins. Introitus admitted a small speculum easilywhite thick discharge seen at vault of vagina. Same was taken on Swab stick. No laceration or injury seen inside vagina. No bleeding seen."

The ossification test report Ex. PA coupled with the birth entry, Ex. PS, established that the prosecutrix was less than 16 years of age on the date of occurrence.

The prosecution story and the manner in which it occurred is fully proved by the evidence of PW6 Dhanpati and PW8 Raghbir Singh. PW6 is the late mother''s sister of the prosecutrix and PW8Raghbir Singh is the father of the prosecutrix. After the occurrence the prosecutrix had gone to her mother''s sister to share her grief. PW6Dhanpati could not have decided about the follow up action till the father of the prosecutrix had returned to the village. PW8 Raghbir Singh corroborated the prosecution version as it was narrated to him after the occurrence. I do not find any justification to disbelieve their evidence.

Smt. Murti who asked the prosecutrix to stay with her children during her temporary absence from the house, was cited as a prosecution witness. She was given up by the prosecution, but was examined by the defence, Her evidence when read in correct perspective indicates that she came to the Court to support the defence by denying that she ever asked the presecutrix to stay for the night in her house. She is a close relation of the accused and she has no regard for truth and lied in the Court with impunity.

The trial Judge correctly convicted the accused under section 376 of the Indian Penal Code. The charge against him stands fully established and I endorse the conclusion arrived at by the trial Judge. While upholding the conviction of the appellant, I feel that the sentence awarded is severe. The prosecutrix is less than 16 years of age. The attending circumstances and the age of the appellant who was about 21 years at the time of the trial warrant that he should be shown leniency on the question of sentence. The sword of democles had been hanging on his head for more than a decade the remained under detention for more than a year. He was ordered to be released on bail by this Court on December 12, 1986. It will meet the ends of justice if the sentence is reduced to the one already undergone by him. I order accordingly.