Ishwar Giri @ Som Dutt vs State of Haryana

K.C. Gupta, J.—This appeal has been directed by the accused against judgment dated 23.4.1998 and order dated 24.4.1998 passed by the learned Additional Sessions Judge, Karnal, whereby he was found guilty and convicted under Sections 342 and 376(2)(f) IPC and sentenced to undergo 10 years'' rigorous imprisonment and fine of Rs. 1000/- u/s 376(2)(f) IPC; in default of payment of fine he was further sentenced to undergo R.I. for two months. He was also sentenced to undergo R.I. for six months u/s 342 IPC. However, both the substantive sentences were ordered to run concurrently.

Briefly stated, the facts are that on 27.4.1996, PW10 Smita prosecutrix aged about 10 years was present in her house alongwith her younger brother Sanjiv aged 7 about years. Her parents and two elder brothers had gone out of the house for harvesting crop of wheat in the field of Darshan Singh in village Behlol Pur at about 6/7.00 A.M. On that day at about 12 or 12.30 P.M., the appellant who had been residing with Baba Beer Giri in Shiv temple of village Kachhwa tress-passed into her house and gave some money to Sanjiv, brother of the prosecutrix in order to send him out for bring Kulfi... In the meantime, the appellant asked the prosecutrix to bring water and he also followed her and closed the door of the room. He stripped her naked and raped her in the room. She raised an alarm. The appellant was apprehended by Diwan Chand son of Bhhinku Ram and Gehna Ram son of Sonu Ram.

It was next averred that when parents of the prosecutrix returned to the house then she was weeping. In the meantime, Man Singh Sarpanch and Sain Dass also reached there. The appellant was handed over to them. Man Singh Sarpanch gave slaps (SIC) to the appellant and asked him to run away. Thereafter, Sunita prosecutrix narrated the details of the occurrence to her mother PW9 Jit Kaur. Blood stains were also lying at the spot.

PW9 Jit Kaur along with Suresh Kumar Deputy Sarpanch, went to the police station and made statement Ex.PG which was recorded by M.H.C. Jai Parkash. Sunita prosecutrix was medico legally examined by a doctor of the General Hospital, Karnal on the same day. The appellant was arrested on 28.4.1996 and was also got medico legally examined.

After completion of the investigation, challan was put up in the court of Judicial Magistrate Ist class, Karnal who in turn vide his order dated 10.8.1996 committed the case to the Court of Sessions.

Having made out a prima facie case, the appellant was charged under Sections 342 and 376, IPC on 12.9.1996 to which he pleaded not guilty and claimed trial.

In other to prove the allegation, the prosecution examined (SIC) witnesses.

After close of the prosecution evidence, statement of appellant was recorded u/s 313, Cr.P.C. where he denied the prosecution allegations and pleaded false implication. He further submitted that he was having some dispute with one Beer Giri who was his Guru Bhai and they used to reside together in the Dera of village Kachhwa. He further stated that he used to go to the village to beg alms and used to visit the houses of the villagers including the house of Tara Chand and at the instance of Beer Giri he has been falsely implicated in this case.

After hearing learned P.P. for the State and the learned defence counsel, the Additional Sessions Judge, Karnal found the applicant guilty and convicted him u/s 342/276(2)(f), IPC vide judgment dated 23.4.1998 and sentenced him vide order dated 24.4.1998 as stated above.

Aggrieved by the said judgment and order, the present appeal was filed from jail.

Ms. Vandana Malhotra, Advocate, was appointed as Amicus Curiae.

I have heard Mr. Rajneesh Malhotra for Ms. Vandana Malhotra learned counsel for the appellant, Mr. Sudhir Nehra, AAG Haryana and carefully gone through the file.

PW10 Sunita prosecutrix has categorically stated that about one year prior to recording her statement on 19.3.1997, her parents and elder brothers and gone out to the fields for harvesting wheat crop and she along with her younger brother was present in the house. She next stated that the appellant visited their house and he gave some money to her brother Sanjiv and sent him out to purchase Kulfi. She next stated that the appellant then demanded water to drink from her and when she went inside to take water, the appellant followed her and closed the door of the room and raped her. She further stated that she had raised alarm and on her raising alarm, Bansi and Gadrani residing in their neighbourhood came there. Many villagers had also collected there. She further stated that after some time, her parents had reached the house and she narrated the whole occurrence to her mother. She further stated that she was also taken to the civil hospital next day and her medico legal examination was done and the Salwar which she was wearing was taken into possession by the doctor. She further stated that the Salwar Ex.P1 which has been shown to her was the same and she was wearing it when she was raped.

Her statement is supported by the medical evidence of PW7 Dr. (Mrs.) Naresh Saini. She stated that on 27.4.1996, she had examined Sunita daughter of Tara Chand aged 10 or 11 years and on medical examination, she found that her secondary sex characters were not developed.Breasts were still undeveloped. No public or axillary hairs were seen and she has not yet started menstruating. However, she stated that there was no mark of injury on her private parts except that her libia majora and minora were swollen and further her hymen was in tact. She proved Ex.PE the correct carbon copy of her medico legal report. She further stated that as per report of the Forensic Science Laboratory Ex.PF human semen was detected on Salwar Ex.P1 and in her opinion, the prosecutrix was subjected to intercourse.

From the above evidence of the prosecutrix coupled with the statement of the doctor, it is conclusively proved that the prosecutrix who was minor was subjected to rape. Even if full penetration has not taken place as the hymen was intact, then also it cannot be said that she was not raped. Learned counsel for the appellant has pointed out certain discrepancies but those discrepancies do not affect the substantive of the case. Hence, there is nothing to interfere as for as conviction of the appellant is concerned. Faced with this situation, counsel for the appellant contended that a lenient view be taken and the sentence awarded to the appellant should be reduced. Keeping in view the fact and circumstances of the case and the fact that the appellant is undergoing the agony of trial for the last more than 6 years, I take a lenient view in the matter and sentence the appellant to 7 years'' R.I. and fine of Rs. 1000/- u/s 376(2)(f), IPC; in default of payment of fine, the defaulter shall undergo further R.I. for two months. He is further sentenced to 6 months'' R.I. u/s 342, IPC. However, both the sentences shall run concurrently.

With the above modification in the sentence, this appeal is dismissed.