Jagdish vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Jagdish son of Om Parkash directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Panipat dated 17.11.1994. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offences punishable under Sections 363/376 and 506 Indian Penal Code. By the subsequent order of sentence for the offence punishable under Section 363 IPC, the appellant was sentenced to undergo rigorous imprisonment for 2 years and a fine of Rs. 50/. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 months. For the offence punishable under Section 376 IPC, he was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 100/. In default of payment of fine he was to undergo further rigorous imprisonment for 6 months. Lastly for the offence punishable under Section 506 IPC, the appellant was directed to undergo rigorous imprisonment for one year. The substantive sentences were directed to run concurrently.

The relevant facts are that Siri Pal father of the prosecutrix is a cobbler by profession. On 5.5.1993 at about 8.00 A.M. he left his house to go to Jawahar Market for the repair of the shoes. He has six daughters. Prosecutrix Km. Pushpa is the eldest amongst his daughters. The wife of Siri Pal Smt. Rajeshwari also left the house for doing the labour work in Adarsh Factory. At about 10.00 A.M. Km. Pushpa was cleaning the drain outside the house. The appellant was his neighbour. He came there and gagged her mouth with a piece of cloth. He took her forcibly to his house. She was made to lie on a cot and the appellant raped her. He threatened her that if she told anything to any person, then she would be murdered. After the incident, the prosecutrix was returning to her house. On the way she met her aunt Kaila Devi. The entire incident was reported to her. Smt. Kaila Devi went to the house of the appellant and reprimanded him. The appellant again threatened her that in case she reports the matter to the police, she would be murdered. The parents of the prosecutrix returned in the evening. The entire episode was narrated to them. When Siri Pal father of the prosecutrix was taking her to the police station for making a report with the police, ASI Daya Nand met them at Lal Batti Chowk, Panipat. He recorded the statement of Siri Pal, on the basis of which formal First Information Report was recorded by ASI Ajit Singh. Statement of the prosecutrix was also recorded.

Km. Pushpa was medically examined by Dr. Abha Bhawan. She found that the secondary sex character of Km. Pushpa had not developed. There was no external injury on her person. Her hymen was freshly been ruptured. There was tenderness. Her vagina admitted one finger tightly. It was opined by Dr. Abha Bhawan that possibility of Km. Pushpa having been raped could not be ruled out. Dr. Abha Bhawan handed over three sealed packets to ASI Daya Nand. He took the same into possession vide a recovery memo attested by C. Satbir. On 11.5.1993 the statement of the prosecutrix was recorded under Section 164 Cr.P.C. The appellant was arrested on the same day (11.5.1993). He was medically examined. Dr. Gulshan Bajaj examined the appellant and opined that he was sexually potent. The underwear of the appellant was converted into a sealed parcel. SI Hari Singh was investigating the matter. He took the same into possession and deposited it in the Malkhana. After competing the investigation, challan as against the appellant was filed.

The learned trial court framed a charge against the appellant for the offences punishable under Sections 363/376/506 IPC. The appellant pleaded not guilty and claimed trial. During the course of trial, the prosecution examined 15 witnesses comprising of Dr. Abha Bhawan PW7, Siri Pal father of the prosecutrix PW.9, Km. Pushpa the prosecutrix herself as PW.10, Smt. Kaila Devi PW.11 besides Harpal PW.12. After the prosecution closed its evidence, the statement of the appellant in terms of Section 313 Cr.P.C. was recorded. The prosecution evidence was put to him in the form of different questions. It was denied by the appellant that he has any hand in the incident. The prosecutrix was described to be 19 or 20 years of age. As per the appellant uncle of the prosecutrix had strained relations with the father of the appellant. At his behest, the father of the prosecutrix got a case falsely registered against the appellant. No evidence in defence was produced.

The learned trial court on appraisal of the evidence concluded that it is not proved that prosecutrix Km. Pushpa was 11 or 12 years of age at the time of the incident. But she was more than 16 years of age. It was held that she was raped. The version of the appellant to the contrary that he was falsely implicated was rejected. With these findings, the impugned judgment and the order of sentence was passed.

Aggrieved by the same, the present appeal has been filed.

The first and foremost question agitated by the appellant''s learned counsel in this regard was about the age of the prosecutrix. He urged that she was above the age of 16 years and that the prosecution has failed to prove that she was below 16 years of age or was 11 or 12 years old at that time.

In the present case Km. Pushpa was not subjected to ossification test to spell her age. There was no birth certificate or school leaving certificate to show the age of Km. Pushpa. The evidence produced in this regard was oral. Siri Pal father of the prosecutrix gave the age of Km. Pushpa as 17 or 18 years. The aunt of Km. Pushpa Smt. Kaila Devi described her age as 11 or 12 years. But in this regard she was crossexamined. She admitted that she was married 15 or 16 years ago. She also admitted that Siri Pal was married before her marriage. At the time of her marriage Siri Pal had two children. It has to be remembered that Km. Pushpa is the eldest child. This certainly would show that she could not be 11 to 12 years of age at the time of the incident. Harpal PW.12 uncle of the prosecutrix gave her age as 20 years. It is true that Km. Pushpa herself described her age as 12 or 13 years. But since she had not studied in any school, it is difficult to believe her statement and on the basis of the testimonies of her relatives, it is clear that she was not below 16 years of age. Dr. Abha Bhawan appeared as PW.7 and had stated that there is no puberty changes or axillary hair growth. However, the said statement is not conclusive to the age of Km. Pushpa. It has transpired in evidence that she was anaemic. The physical examination would not determine the age correctly. Mensuration as is well known could be delayed in certain cases. Consequently, learned counsel for the appellant was right when he alleged and argued that Km. Pushpa was not below 16 years of age at the time of the incident.

It was further urged that there were no injuries on the person of Km. Pushpa and it rules out the possibility of her having been raped. Km. Pushpa appeared in court and made a statement. In her examinationinchief she stated:

"Jagdish accused present in the Court who was standing in front of the house, came there. He gagged my mouth with a piece of cloth and lifted me and took me to his house and made me to lie on the cot and raped me. Accused had also threatened while committing rape that if I told anything to any person then I would be killed. I was returning to the house after the accused raped me, in the way my aunt Kaila Devi met me and I told the whole occurrence to her. Smt. Kaila Devi went to the accused to reprimand him but he also threatened her by saying that if she reported the matter to the police then she will be killed."

During crossexamination pointed questions were put to her as to why she did not raise an alarm. She explained that she could cry as the appellant had gagged her mouth with a piece of cloth. She also explained that ladies were sleeping inside their houses and that she had struggled but the appellant had caught hold of her hands. Thereupon she was weeping. In the peculiar facts to insist that there should be marks of injuries on her person would not be correct.

Km. Pushpa not only stated that she had been raped by the appellant but corroboration is provided by the statement of Smt. Kaila Devi her aunt PW.11. She had explained that the prosecutrix had come weeping from the house of the appellant. She told her about the appellant having raped her. The clothes of the prosecutrix were blood stained. When immediately Km. Pushpa told her aunt about the incident and her clothes were blood stained, it corroborates that statement made by Km. Pushpa. Further corroboration and proof is provided by the medical examination of Km. Pushpa conducted by Dr. Abha Bhawan PW.7. She had found :

"On examination : General condition, fair, mild and anaemic. No external marks of injury. Secondary sex characters were not developed.

On breast examination : No puberty changes, no pubic or axillary hair growth.

On Local examination : Old burn scar, (sic) on the left groin and parineum side. Hymen was freshly ruptured.

Tenderness : Red and irregular margins, admits one finger tightly. Cervixupright, Uterus retroverted, small size. No internal bleeding."

The above said report which is unchallenged reveals that not only the prosecutrix was weeping, her hymen had freshly been ruptured. These factors lend sufficient corroboration to the statement of Km. Pushpa and show that in fact she had been raped. There is no ground to discredit or on other words upset the findings of the trial Court.

No other argument was raised.

For these reasons, the appeal being without merit fails and is dismissed.