Harphool Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Harphool Singh (hereinafter described as the appellant) directed against the judgment and order of sentence passed by learned Additional Sessions Judge, Sonepat dated 12.1.1993 and 14.1.1993 respectively. By virtue of the impugned judgment and order of sentence the learned trial Court held the appellant guilty of the offences punishable under Sections 376 and 323, Indian Penal Code. He was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/ for the offence punishable under Section 376 IPC. In default of payment of fine, he was to undergo further rigorous imprisonment for six months. The appellant was further sentenced to undergo rigorous imprisonment for six months for offence punishable under Section 323 IPC. Both the substantive sentences were directed to run concurrently.

Prosecutrix is Bhagan Devi. She is also known as Shakuntala. On 27.4.1992 her parents had gone to the fields to harvest mustard crop. She had taken VIIIth Class examination and schools were closed. The results have been declared. On 27.4.1992 at noon time her mother told her to fetch water from the nearby well of Chajju. The well of Chajju is about 20 killas from the fields of Bhagan Devi. She had gone for bringing water with a pitcher and a bucket. When she reached near the field of Kidara, just by the side of metalled road, appellant came from behind, lifted her and took her inside the water course. He wanted to rape her. Bhagan Devi resisted by saying that she was his sister in the family relations. It had no effect on the appellant. He gave fist blow on her face, tore her salwar and shirt and placed her in the water course, where she was raped. Bhagan Devi cried for help, but there was nobody in the neighbourhood. The appellant afterwards ran away.

With the empty bucket in her hand, prosecutrix came to her fields and narrated the incident to her parents. She accompanied her father to the police station, where F.I.R. was recorded. She was taken to General Hospital and examined. The prosecutrix was subjected to ossification test and it was opined that she was between the age of 15 to 161/2 years. The clothes of prosecutrix were taken into possession.

The appellant was arrested by Sub Inspector Jeet Ram on 15.8.1992. He was also examined by Dr.S.S. Malik and was found to be capable of indulging into sexual acts. Copies of school record of prosecutrix Bhagan were taken. On these broad facts, report under section 173 Code of Criminal Procedure was filed in Court.

The learned Additional Sessions Judge framed charge against the appellant for the offences punishable under sections 323/324 & 376 I.P.C. Needless to say the appellant pleaded not guilty and claimed trial. His precise defence forthcoming in the statement recorded under section 313 of the Code of Criminal Procedure was :

"I have been falsely involved because in the month of Phalgun 1992 I had given beating to Dilbagh son of Chattar Singh. 11/2=2 years ago Chatra had borrowed money from me for the marriage of his daughters Usha and Bhagan, prosecutrix. He had borrowed Rs. 5000/. He did not return the money and in order to grab that money he got me falsely involved in this case."

Vide the impugned judgment and order of sentence, the learned trial Court held that it has been proved beyond all reasonable doubts that the prosecutrix had been raped by the appellant. The plea of falsely implicating was rejected. With these basic findings, the order of sentence already mentioned above was passed.

Aggrieved by the said judgment and order of sentence, the present appeal has been filed.

Bhagan Devi, P.W. 5 made a statement before the learned trial Court that she is also known as Shakuntala. On the morning of 27.4.1992 her parents had gone to the fields for harvesting mustard crop. Her result of VIIIth class was declared on 27.4.1992. After the result she came to Gohana. Her mother told her to fetch water from the well of Chajju. This statement basically goes unchallenged and is corroborated by Nahni, P.W.6 mother of the prosecutrix. She endorsed what has been stated by Bhagan that she had sent the prosecutrix to fetch water from the well of Chajju. This evidence establishes that the prosecutrix had gone all alone to fetch water from the well of Chajju.

8A. Learned counsel for the appellant in the first instance alleged that the prosecutrix has not shown to be below 16 years of age, but the argument which was so advanced is totally without merit which necessarily had to be rejected. Bhagan Devi, P.W. 5 described her age as 15 years. Ramphal P.W.7 a teacher of Govt. Girls High School, Jagsi had brought the Admission register pertaining to the prosecutrix. The witness added that the date of birth of the prosecutrix in the register is recorded as 10.3.1977. He proved the certificate Ex.PL. To lend further support in the same direction, Dr. Promila Jain, PW10 had been examined. She had examined the Xray of the prosecutrix and in her opinion Bhagan was between the age of 15 to 161/2 years. It has to be remembered that Bhagan Devi, PW5 is the daughter of a couple who was basically working in the fields. It would be too much to expect that a regular birth certificate must be forthcoming. There is no other material so as to show that Bhagan Devi was above the age of 16 years. Bhagan Devi narrated in Court as to how she had been raped. In her own words recorded in the trial Court she stated that "I reached near the field of Kidara son of Shiv Lal by metalled road, accused Harphool son of Sube Singh now present in Court room was standing under a tree and he was grazing his buffalo. Seeing me alone he came from behind and took me in his grips (kauli) and took me inside a water course at a distance on one killa. He wanted to commit rape on me and gave fists blows on my face and breasts. He said that he would certainly commit rape on me despite the fact that I reminded him that I was his sister in the family relations. He tore my salwar and placed me in the water course." Thereafter she was raped. She cried for help but there was nobody near that place. During crossexamination the witness had denied that she had made the statement voluntarily and that she had not gone to the spot in search of her lost ornaments namely her nose pin and the ring. In normal circumstances, the statement of prosecutrix itself may require no corroboration, but in the present case, other evidence on the record clearly proves the truthfulness of the statement of Bhagan. Dr. Mrs. Ranjna Gupta Civil Hospital, Gohana examined the prosecutrix on the date of the incident. She found the following injuries on her person :

"1. Reddish contusion along with swelling measuring 4.5 cm x 3 cm on the face below the left eye.

Reddish contusion on the undersurface of left half of upper lip measuring 1.5 cm x 1.5 cm.

Reddish contusion on the undersurface of left half of upper lip measuring 1.5 cm. from the rt. angle of mouth (on the cheek).

Multiple small abrasions with clotted blood present on the front of neck and under surface of check (nail marks).

Abrasions of 3.5 cm. x 2 cm over the back of right shoulder region. Clotted blood present.

The said injuries reproduced above lend corroboration that there was resistance to the acts of the appellant with a result that the prosecutrix suffered contusions and abrasions on certain parts of her body. Besides that Nahni PW7 mother of the prosecutrix recites that immediately thereafter the prosecutrix had come with empty bucket and had told her and Chatter Singh father of the prosecutrix about the act of the appellant. The detailed crossexamination does not shake their testimonies and there is no escape to the conclusion of believing the prosecutrix that the appellant had raped her.

The plea of the appellant that he had falsely been implicated because loan had been given to the father of the prosecutrix amounting to Rs. 5000/ which was not returned and that in the month of Phalgun 1992 he had given beatings to Dilbagh son of Chatter Singh as a result of which he was implicated. This defence is clearly and afterthought. It is not clear as to why without any writing, a loan of Rs. 5,000/ was given and further no action, for recovery of the same had been taken. It was not so specifically suggested to the witnesses to bring home what was alleged by the appellant. There is no hesitation in rejecting the said version.

Learned counsel for the appellant in that event argued that the appellant was not in the village on 27.4.1992. In support of his defence the appellant produced Het Ram, DW1. The witness stated that appellant was 2nd driver in his truck on 27.4.1992. He had gone to Bangalore with the truck. He admitted that no such log book is maintained He has showed his inability to tell whether truck left for Delhi at 8 p.m. or at 11 p.m. The learned trial Court rightly recorded that firstly in the absence of log book, it cannot be said that the appellant had left Delhi with the truck on 27.4.1992 and further it was possible that after committing rape, the appellant had left his village. I find no reason to come to other conclusion.

Suba DW2 father of the appellant made a statement that his son is only bread earner for the family and on 27.4.1992 he was not in the village. It is not out of place to mention that even the witness had not been able to say that the appellant was the conductor or driver of the truck which left the village on 27.4.1992, or had gone to Bangalore. In the absence of any other cogent and convincing evidence, this plea is necessarily without basis. There is no reason to upset the findings of the trial Court.

No other argument was raised.

For the reasons recorded above, the appeal fails and is dismissed.