Mohinder Pal @ Pappu vs State of Haryana

R.L. Anand, J.

Mohinder Pal alias Pappu son of Tej Ram was a young boy of 17 years at the time of the alleged commission of the offence u/ss 363/366/376, IPC and after his conviction and sentence, has filed the present appeal which has been directed against the judgment and order dated 10.12.1986, passed by the court of Addl. District and Sessions Judge, Karnal, who convicted the appellant u/ss 363/366/376, IPC, and sentenced him to undergo R.I. for a period of 3 months and to pay a fine of Rs. 100/ u/s 363, IPC; in default of payment of fine, he was further directed to undergo RI for three months. The appellant was further directed to undergo RI for a period of 5 years and to pay a fine of Rs. 100/ u/s 366 IPC; in default of payment of fine, he was directed to undergo RI for 3 months. He was also sentenced to undergo RI for 7 years u/s 376, IPC and to pay a fine of Rs. 200/; in default of payment of fine, he was directed to undergo R.I. for six months. The trial court further held that all the sentences shall run concurrently.

The brief facts of the case are that Miss Promila was allegedly aged about 14 years and she is daughter of Jai Singh. During the days of occurrence, she was a student of 7th class of S.D. Girls High School, Karnal. She had one brother Shashi aged about 8 years, who was studying in 2nd class. Promila was residing in Mohalla Lado Bagri Jattan with her parents. The name of her mother is Jamuna Devi. The appellant was employed at the shop of his brotherinlaw Jai Pal as servant in order to iron the clothes. That shop is situated at a short distance from the house of Promila, where she used to go in order to get the clothes ironed from the appellant. As per the story of the prosecution, the appellant used to give Rs. 4/5 to her whenever she visited the shop for getting the clothes ironed. After some visits, the appellant started catching hold of her Chunni and in that process used to catch hold of her nipples and further used to cut jokes with her. In the month of March, 1986, the appellant seduced the prosecutrix Promila by giving her some money and told her that she should offer herself for sexual intercourse, but the prosecutrix did not know about sex and refused to oblige him. However, the appellant offered some money and took her to a room and removed her salwar. The appellant, then removed his pant and made the prosecutrix to lie on the ground and raped her. The prosecutrix told the appellant not to do so but the appellant committed sexual intercourse with the prosecutrix by force as a result of that she started bleeding from her vagina. Even after that incident, the appellant allegedly raped the prosecutrix 2/3 times on different dates. The story of the prosecution further proceeds that on 28.4.1986, Promila had gone to the shop of the accused in order to get the clothes ironed but the appellant told her that he would take her to Bombay for sight seeing. He offered some money to the prosecutrix and by inducing her, took her to the Railway Station, Karnal, but could not get the train. He, then, took her to the Bus Stand, Karnal, from where they, in a bus, went to Delhi and from Delhi they went to Gwalior as they could not get the tickets for Bombay. They reached Gwalior at about 3/4.00 p.m. on 29.4.1986. They were sitting in the passengers hall and there PW10 ASI Rameshwar Parshad Kapoor apprehended both of them at about 7/7.30 p.m. and produced them before the Incharge, Police Post, G.R.P. Gwalior, and they were got medicolegally examined. The Gwalior police, then, handed over the custody of the prosecutrix and that of the accused to the police of District Karnal on 2.5.1986.

PW9 ASI Hari Ram recorded the statement of Promila u/s 161, Cr.P.C. and got her as well as the appellant medicolegally examined. PW3 Dr. Ravinder Kumar medicolegally examined the accused on 2.5.1986 at about 9 p.m. and opined that he was fit to perform sexual intercourse. PW2 Dr. Kusum Garg medicolegally examined Promila at about 11.30 a.m. on 3.5.1986 and found the following injuries on her person :

"1. Bluish contusion 3 cms x 2 cms of left scapula region.

Bluish contusion 4 x 2.5 cms over right scapula region."

The doctor further opined that hymen of the prosecutrix showed old healed tears and her vagina admitted two fingers and further she was habitual to sexual intercourse. She next stated that the injuries on the person of the prosecutrix were simple in nature caused by a blunt weapon within a duration of 48 to 72 hours. PW1 Dr. K.B. Kamal, Medical Superintendent, Civil Hospital, Karnal, radiologically examined Promila on 6.5.1986 for determination of her age and opined that she was aged between 12 to 14 years and he proved his report Ex. PA to this effect. PW9 Hari Ram ASI got the statement Ex. PL of the prosecutrix recorded u/s 164, Cr.P.C. He took three sealed packets from the lady doctor into possession vide recovery memo Ex. PJ and also prepared the rough site plan, Ex. PK, of the place of occurrence at the instance of Promila. He also obtained the birth entry of the prosecution (prosecutrix ?) from the Municipal Office. As per the birth entry, the date of birth of the prosecutrix has been recorded as 26.11.1972.

After the completion of the investigation of the case, the appellant was challaned in the court of the CJM, Karnal, who supplied the copies of the documents to the appellant and vide commitment order dated 16.9.1986, committed the appellant to the court of Sessions to face trial u/ss 363/366/376, IPC. Vide orders dated 20.9.1986, the charges were framed against the appellant u/ss 363/366/376, IPC, to which the appellant pleaded guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Dr. K.B. Kamal, who conducted the ossification test of the prosecutrix and vide report Ex. PA opined that she was aged between 12 to 14 years. PW2 Dr. Kusum Garg, also medicolegally examined Promila, prosecutrix. At the time of her examination, the prosecutrix gave her age as 16 years. The doctor found two injuries already stated above on her person and issued MLR, Ex. PC. This doctor further stated in the MLR of the prosecutrix that as per the statement of the prosecutrix she started menstruating about two years back from the date of her examination, which took place on 3.5.1986. Dr. Ravinder Kumar, PW3, medicolegally examined the appellant in order to determine whether he was fit to perform sexual intercourse or not and as per the opinion contained in Ex. PD, the appellant was capable to perform the sexual intercourse. PW4 Dr. Gian Inder Sharma, is the doctor from Gwalior, who earlier medically examined the appellant when he was produced before him by the police of Gwalior. As per the observations of this doctor, the appellant was fit to perform the sexual intercourse. The prosecutrix was also produced before this doctor but she was referred to a lady doctor to find out whether rape has been committed upon her or not. The prosecutrix appeared in the trial court as PW5 on 20.10.1986 and she gave her age as 15 years before the start of her statement. Nevertheless, she corroborated the allegations of the prosecution as stated in the earlier portion of this judgment. PW6 Jai Singh son of Mangal Ram is the father of the prosecutrix who also stated about the minority of his daughter besides that his daughter was studying in S.D. Girls School in the 7th class during the days of occurrence. PW7 Bhim Singh deposed that on 28.4.1986 at about 5 p.m., he saw the prosecutrix and the accused going together outside the Bus Stand. PW8 is Manohar Lal, Draftsman, who prepared the scaled site plan, Ex. PH. PW9 Hari Ram, ASI, is the local I.O. and the material portion of his investigation I have already stated above. ASI Rajeshwar Parshad Kapoor, hails from Police Station, G.R.P. B.G. Gwalior, who earlier arrested the appellant and the prosecutrix from the Railway Station on 29.4.1986 at about 7/7.30 p.m. from the Waiting Hall.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and his plea was as follows :

"I am innocent. I have been falsely implicated by the Gwalior Police. I was waiting for the train for Karnal when I saw Promila getting down from the train which had come from Karnal. She requested me to bring her to Karnal as she had been beaten by her mother and in anger had left home. I was waiting for the train to come to Karnal when Gwalior Police apprehended us and involved me in the false case."

The learned trial relied upon the story of the prosecution including the statements of the prosecutrix and her father by rejecting the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. R.S. Cheema, Sr. Advocate, with Mr. Rajiv Trikha, Advocate, counsel for the appellant and Mr. Sanjeev Sheroran, Advocate, appearing on behalf of the State of Haryana, and with their assistance, have gone through the record of this case.

In his usual politeness but firmness, Mr. Cheema, the learned senior counsel made an endeavour to convince to this court regarding the age of the prosecutrix by submitting that even from the evidence which has been led by the prosecutrix, it is not proved that the Date of Birth of the prosecutrix is 26.11.1972. Rather, it appears that the prosecutrix was more than 16 years of age in the month of March, 1986, and in fact her correct Date of Birth is 2.6.1966, as proved from the birth entry Ex. D1, which has been pressed into service by the defence counsel during trial.

This court gave a serious thought to the submissions raised by the learned counsel for the appellant but I am of the considered opinion that the contention of the learned counsel for the appellant cannot be accepted. The document, Ex. D1, cannot be read for the advantage of the appellant because in this case, the father''s name has been written as Rattan son of Mangal. Jai Singh son of Mangal Singh, appeared as PW6 and he deposed that he is the father of Promila. The father''s name of Promila is Mangal which is not in consonance with the document Ex. D1. To the contrary, the birth entry which has been relied upon by the prosecution indicates that the petitioner was born on 26.11.1972 and, in these circumstances, she was definitely less than 16 years of age during the month of March, 1986. It is true that in the proceedings recorded by the G.R.P., Gwalior, the age of the prosecutrix earlier was written as 17 years and that it has been tampered to 15 years; that in the MLR conducted by the doctor, the prosecutrix gave her age as 16 years but both these ages written or recorded are by way of approximation. The direct testimony of Promila when she gave her statement before the court is to the effect that she was 15 years of age. There is one extra circumstance which goes in favour of the prosecutrix. When the prosecutrix appeared before the doctor, she stated that she started menstruating about 2 years back before the date of her examination. We all know that in this part of the country, our girls start menstruating approximately in between the ages from 12 years to 14 years. Keeping in view the direct statement made by the prosecutrix coupled with the opinion of the Radiologist, this court is inclined to hold that Promila was definitely less than 16 years of age in the month of March, 1986 as this aspect of the case is further in consonance with the statement of the father and the birth entry.

So far as the position of law in sexual offences is concerned, it is becoming clear day by day. The Hon''ble Supreme Court and various High Courts have laid down the following parameters while appreciating the evidence in such like cases :

the statement of the prosecutrix is to be treated at par like an injured witness;

seeking corroboration to the testimony of the prosecutrix would be adding insult to her injury and the courts can always act upon the bald statement of the prosecutrix and can convict the accused; and

rape cases are to be dealt with sensitivity and to always seek corroboration to the testimony of the prosecutrix will not be right on the part of the courts below.

In this regard, my view is supplemented even from the observations of the Supreme Court reported as State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 SC 1588 and State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393. Even Promila, prosecutrix, while appearing as PW5, categorically stated that she had been going to the shop of the appellant. The shop of the appellant was situated close to her house and, in these circumstances, there is close proximity giving a reasonable inference that the appellant could be attracted to a young girl of about 16 years. It has further come in the evidence of Promila that the appellant started giving advances and, ultimately, he took the benefit of the innocence of the prosecutrix and one day, she was made to lie on the ground submit herself for the purpose of sexual intercourse before the appellant against her wish and consent. The advances of the appellant continued. Lastly on one day, she was enticed and kidnapped from the lawful guardianship of PW6 and, ultimately the couple was found at Gwalior where they were arrested by the police. The defence which has been taken up by the appellant is neither probable nor believable. There is not an iota of suggestion pointed out to the father of the prosecutrix as to why he and his daughter are implicating the present appellant. Acting upon the testimony of Promila and her father, coupled with the medical evidence, I am of the considered opinion that the offences u/ss 363/366/376, IPC, are proved against the appellant beyond any reasonable doubt and I maintain the conviction of the appellant for the above offences.

The learned senior counsel, then, submitted that in the matter of sentence, this court should interfere because there are sufficient and cogent reasons for reducing the sentence of 7 years awarded to the appellant u/s 376, IPC. According to the learned senior counsel, the cogent and sufficient reasons are : (1) that the appellant was a young boy of 17 years at the time of the commission of the offence. The girl was also a young girl of about 16 years though she has been proved to be less than 16 years, yet she fully understood the virginity of her person; (2) she might have been attracted qua the appellant and might have given herself for the purpose of sexual intercourse but taking the advantage of her minority, ultimately, the prosecution has made out a case qua the appellant; and (3) the prosecutrix while her way from Karnal to Gwalior never objected against the conduct of the appellant that she was earlier raped or enticed by the appellant. The conduct of the prosecutrix indicates that she was also a willing party while accompanying the appellant. The appellant has been found guilty because of the minority of the prosecutrix.

I fully agree with the submissions raised by the learned senior counsel. The statement of the prosecutrix does not inspire confidence entirely but was sufficient to maintain conviction of the appellant. She was not in a position to tell various dates on which the appellant committed sexual intercourse with her. The prosecutrix looks to be a consenting party to the entire episode but she has been proved to be less than 16 years or 18 years of age, therefore, the conviction of the appellant has been maintained. Above factors, however, have to be taken note of by this court while awarding the sentence to the appellant and in the view of this court, adequate and special reasons have been made out justifying this court to reduce the maximum sentence awarded to the appellant from 7 years to 4 years u/s 376, IPC. The sentence awarded to the appellant u/s 366, IPC, also stands reduced from 5 years to 3 years. The sentence awarded to the appellant u/s 363, IPC, is not disturbed. All the sentences shall run concurrently. The appellant shall also pay the fines as imposed by the trial court.

With the above modification in the matter of sentence, the appeal is hereby dismissed.