Mubeen vs State of Haryana

Virender Singh, J.—Appellant Mubeen s/o Islam (labourer) was charged u/s 376 of Indian Penal Code for allegedly committing rape upon the daughter of Sabbir on 10.4.2002. The prosecutrix in this case was of the age of 9 years. I am not describing her name as it has been observed by the Hon''ble Supreme Court in State of Karnataka v. Puttaraja, 2004 (1) Criminal Court Cases 567 (S.C.); 2004 (1) RCR(Criminal) 113 (SC) that in the judgment, be it of Apex Court, High Court or Lower Court, the name of victim should not be indicated, I, therefore, have chosen to describe the prosecutrix as ''victim'' in this judgment.

The appellant now stands convicted for the aforesaid charge vide impugned judgment of Ld. Additional Sessions Judge, Fast Track Court, Sonepat dated 25.11.2002 and has been sentenced to undergo R.I. for 10 years and to pay a fine of Rs.5,000/-; in default thereof to further undergo R.I. for a period of two months. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the instant appeal.

Sabbir (P W-13), the father of the prosecutrix made a statement Ex.P-D to SI Ram Avtar (PW-14) on 10.4.2002 stating therein that out of his four children, the prosecutrix (victim), who was aged 9 years, was the eldest one. She had gone from her house for fetching water at about 3.00 p.m. When she did not return to the house for long time, he along with his wife Noorjahan @ Seema (PW-12) and Birbal s/o Mithan Brahman was going towards Jatwara locality of Sonepat, located near Railway Track, in search of his daughter, he received an information that the present appellant was taking his daughter towards Jatwara locality. It is then alleged that at about 5.00 p.m. when they were going towards Sugar Mill situated in Jatwara locality in search of the daughter, they heard some cries. Then all the aforesaid persons rushed towards that particular place (Pathwara) and noticed that the appellant was raping his daughter, while lying on her. After seeing the father and the other persons, the appellant started running away but he was caught at the spot. He was given slaps and fist blows. Some persons from nearby places had also reached there. In the meantime, the appellant succeeded in getting himself released and fled away from the spot. It is then alleged that Sabbir alongwith the victim went to the police station and made her statement (Ex.PD). Therefore, formal (Ex.PD/1) was recorded. The victim was medically examined on the same day by Dr.Mrs. Krishna Tehlan (PW-1). The clothes of the victim were also taken into possession. The investigating Officer visited the spot on 11.4.2000, prepared the rough site plan, recorded the statements of the witnesses. The appellant was arrested on the same day. He was medically examined by Dr.R.K.Kataria (PW-2). On completion of the investigation, the appellant was challaned in this case. As stated above, he has now suffered conviction.

4.I have heard Mr.Gorakh Nath, learned counsel for the appellant and Mr.D.S.Brar, A.A.G., Haryana. With their assistance, I have gone through the entire record.

The learned counsel for the appellant contends that taking the prosecution case to be true on its face, the offence of Section 376 IPC is not proved and it would at the most fall within the mischief of Section 376 IPC read with Section 511 IPC. The learned counsel then contends that as per the medical examination conducted by Dr.Krishna Tehlan (PW-10), the hymen of the prosecutrix was found intact. From this, he develops that may be that the victim had received some injuries on her person, the status of the hymen would indicate that the intercourse was not committed with her. So the charge of Section 376 IPC cannot be said to be legally proved.

Otherwise, in order to demolish the case of the prosecution in its totality, the learned counsel has submitted that Birbal, who was accompanying the father of the victim, right from the very beginning, did not support the case of the prosecution and was given up as having been won over. He was subsequently examined as one of the defence witnesses who has categorically stated that the appellant had not committed any bad act (rape) with the daughter of Shabir and the boy, who, in fact, had sexually assaulted the victim was caught by him and Shabir. He, however, had succeeded in getting himself released. The learned counsel submits that examined of Birbal as defence witness demolishes the case of the prosecution from its roots.

The learned counsel has also pointed out certain discrepancies in the statement of the victim, her mother Noorjahan @ Seema and Sabbir and submits that the case of the prosecution is on a slippery footing.

On the basis of the aforesaid submissions, the learned counsel contends that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt for the charge u/s 376 IPC and he deserves acquittal or in the alternative, the main offence of Section 376 IPC may be diluted to one u/s 376 IPC read with Section 511 IPC.

On quantum of sentence, the learned counsel contends that the appellant has already undergone 4 years and 10 months by now. He was of the age of 28 years at the time of occurrence and in case, the main charge of Section 376 IPC is disapproved against him, he in that eventuality deserves a lenient view with regard to quantum of sentence.

Repudiating the submissions advanced on behalf of the appellant, the learned State counsel submits that the appellant has no escape in this case as the charge against him is proved to the hilt; that thee is no reason to disbelieve the statements of the prosecutrix and even if some discrepancies have occurred in the statements of the main prosecution witnesses, that would not demolish the case of the prosecution at all; that from the medical evidence, the main charge of Section 376 IPC is proved in this case and it cannot be said that the appellant had just made an attempt to commit rape upon the victim.

On the point of quantum of sentence, the learned State counsel submits that the case in hand is of a child rape and the petitioner who was of the age of 28 years at that stage, does not deserve any concession in this Court.

After hearing the learned counsel for either side and perusing the entire record very minutely, I am of the considered view that the prosecution has been able to prove its case against the appellant beyond any shadow of reasonable doubt and his conviction u/s 376 IPC recorded by the trial Court deserves to be upheld. My reasons for arriving at the said conclusion are as under:

The main attack on the prosecution case is with regard to the gravity of the offence. I have once again perused the statement of the prosecutrix in the light of the medical evidence on the file. It is the positive case of the prosecutrix that the appellant has committed sexual intercourse with her. She stated that at 3.00 p.m., she had gone to fetch water from the tap in street when she saw the appellant coming in the lane and enquired from her the way to Mohalla Jatwara, Sonepat. She then states that he requested her to accompany him to some distance so that he could reach his destination. She agreed to it and on the way, he forcibly took her to an isolated area in the kikkar trees and committed rape on her person. She then depicts the complete action. Dr.Mrs.Krishna Tehlan, who examined the victim on 10.4.2000 at 11.00 p.m., noticed that there were injury marks over her neck, thigh which were 8 cms inferior (interior?) to anterior-superior iliac spine. On local examination, injury was also found posterior to hymen. Bleeding was also present. No doubt she has stated that hymen was intact but she has made it clear that injury of forchette extends upto posterior of margin of hymen. In her cross-examination, she makes it clear that the hymen was found intact for the reasons that there was a small passage for entry of penis and therefore, the injury was near the hymen. From the aforesaid medical evidence, perhaps there remains no doubt in my mind that the victim in this case has been subjected to sexual intercourse. There was certainly an act of penetration of male organ though extensive damage is not done in this case to labia majora and labia minora. The bleeding was also present just posterior to hymen and taking all the factors into consideration, ultimately, doctor gave the opinion Ex.PH/1 to the effect that possibility of sexual intercourse with the victim cannot be ruled out. The aforesaid internal status of the private part of the victim speaks volumes of the fact that she has been subjected to sexual intercourse. In sequel to the aforesaid evidence, it can be safely said that rape has been committed.

I have very minutely re-examined the statements of the prosecutrix vis-a-vis the statements of her parents who have been examined as P W-12 and P W-13 respectively and do not find any intrinsic infirmity which would uproot the case of the prosecution. Minor discrepancies have to be ignored.

Much has been said about Birbal, who according to the prosecution case, was throughout with the parents of the victim and has now been given up as having been won over. But in my considered view his statement as one of the defence witnesses would not advance the case of the defence even by an inch. In his substantive statement, Birbal states that after the appellant was arrested, he was called by the police to identify him and he told the police officers that the appellant was not the boy, who, in fact, had committed the rape on the victim. If this all was true, the parents of the appellant or anyone from side of the appellant should have raised hue and cry by knocking at the door of the high officers but the same is not done. This shows that in fact, Birbal who was initially joined by the father of the victim, has now chosen to help out the appellant, may be for certain extraneous reasons. This appears to be the reason that he was given up by the prosecution as having been won