Prem and Another vs State of Haryana

Jitendra Chauhan, J.—The present appeal has been filed against the judgment and order dated 11/12.11.2009, passed by the learned Sessions Judge, Fatehabad, whereby the appellants-accused were convicted and sentenced as under:

All the sentences were ordered to run currently.

The facts necessary for adjudication of the matter stand reflected in para No. 1 of the judgment, which area reproduced as under:-

The prosecution case is that on 16.2.2009, in the area of village Samain, both the accused had kidnapped the prosecutrix, statedly a minor, from her school, without the consent of her parents and accused Prem had attempted to commit rape upon the prosecutrix, and had also threatened her of dire consequences.

After completion of the formalities, report u/s 173 Cr.P.C. was filed in the court. The accused appellants were charged under Sections 363, 376, 511, 506, 34 of IPC, to which, they did not plead guilty and claimed trial.

In order to substantiate the charge, the prosecution has examined as many as thirteen witnesses, which are as under:

PW 1 Hoshiar Singh, the complainant, father of the prosecutrix, who has made a written complaint, on the basis of which the FIR was lodged.

PW 2 Prosecutrix (name withheld

PW 3 HC Mahabir Singh, attested the disclosure statements of accused Prem and Kalu i.e. Ex. P4 and P5 respectively; he also attested recovery memo Ex. P7, driving licence of accused Prem Singh.

PW 4 Dr. Asha Butani, proved the MLR Ex. P3 of the prosecutrix.

PW 5 HC Rajbir Singh, proved Ex. P14 Special report which was delivered to Illaqa Magistrate.

PW 6 SI Subhash Chander, initially investigated the matter and visited the place of occurrence, prepared the rough site plan Ex. P16; recorded the statements of witnesses; took the prosecutrix to the Civil Hospital, Tohana for medico legal examination.

PW 7 Inspector/SHO Hawa Singh, who prepared report u/s 173 Cr.P.C.

PW 8 HC Dilbag Singh, proved Ex. P14 formal FIR, which was recorded on the basis of ruqa Ex. P1. He tendered in evidence his affidavit Ex. P18.

PW 9 ASI Bahadur Singh, apprehended the accused; recovery memo Ex. P19, vide which the car was taken into possession; Parcels were taken into possession vide recovery memo Ex. P9.

PW 10 Balwant Singh, Draftsman, proved the scaled site plan Ex. P21.

PW 11 Dr. Hanuman Singh, proved the MLRs of both the accused and opined that nothing to suggest that the accused are not capable to sexual intercourse.

PW 12 Constable Sajjan, who carried the case property to the FSL Mandhuban.

PW 13 Suresh Kumar, Teacher, proved the Ex. P26 certified copy of register wherein the date of birth of the prosecutrix was mentioned.

When examined u/s 313 of the Code of Criminal Procedure, the accused-appellants denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence and false implication.

Before the learned trial Court, the main arguments raised by the defence counsel were that from the evidence no case of rape was made out as no internal on external injury was found on the person of the prosecutrix. The allegation of kidnapping was also not made out against the appellants. There was delay in lodging the FIR. There were material contradictions in the statements of the witnesses.

The learned trial Court rejected all the pleas and after hearing the learned counsel for the parties, convicted and sentenced the accused-appellant as noticed at the outset.

Feeling dissatisfied with the same, the accused-appellant preferred this appeal, which was admitted on 10.11.2012 and recovery of fine was stayed.

Learned counsel for the appellants submitted that the learned trial court has committed a grave error while convicting the appellants. He further argues that the occurrence took place on 16.2.2009, whereas the FIR was registered on 20.2.2009, therefore, there is unexplained delay of four days in lodging the FIR. He further argues that there is nothing on record to suggest that the prosecutrix was less then 16 years of age at the time of occurrence. PW 1, Hoshiapur Singh, father of the prosecutrix, has not supported the prosecution case with regard to her age. He further argues that the date of birth was not given by the father of the prosecutrix at the time of initial enrollment in the school. The same was recorded by the concerned teacher. He further argues that the chowkidar of the village, who made the entry of the birth of the prosecutrix, was not examined. It is further contended that the whole version is concocted and does not inspire any confidence. The story of kidnapping framed by the prosecution is highly improbable as the place of kidnapping was flooded with children, inside and outside the school, which is admitted by the prosecutrix herself. He further argues that the learned trial court did not take proper notice of the statement of Dr. Asha Bhutani, who conducted medico legal examination of the prosecutrix, who had categorically stated that no external injury was noticed on the person of the prosecutrix and opined that rape does not seem to have been committed upon the prosecutrix. He lastly argues that case u/s 363 IPC is not made out as the prosecutrix was brought back at the gate of the school without causing any harm to harm.

On the other hand, the learned State counsel submits that the prosecution case is fully proved. He argues that the prosecutrix was less then 16 years of age and was kidnapped by the appellants during lunch hours of the school. The prosecutrix was a student of IV standard. From the MLR Ex. P22 of accused Prem and MLR Ex. P23, it is made out that the accused appellants were capable of performing sex. As per the FSL report, human Siemens on the dirty blue cotton underwear was detected. Therefore, he prays for dismissal of the appeal.

I have heard the learned counsel for the parties and perused the record, with their able assistance.

From the perusal of the record, it emerges that the occurrence took place on 16.2.2009, but the complaint Ex. P1 was made on 20.2.2009 i.e. after four days of the occurrence. The prosecutrix was a school going child. She was not going to school due to distress condition. PW 1, Hoshiar Singh, the father of the prosecutrix, in his statement deposed that "due to fear, my daughter did not disclose this fact to me for two days and she was suffering from fever for two days. On 19.2.2009, when he forcibly asked from her why she was not going to school, then she narrated me the whole incident and started weeping." The prosecutrix had been threatened by the accused not to share the incident, else she would be killed. She remained under distress for two days. Therefore, in view of this, the matter came to the knowledge of the complainant on 19.9.2009 and on the same day, he got typed an application and submitted to the SHO. The complainant is an illiterate person. Due to trauma, the prosecutrix did not disclose the incident to anybody. Thus, from a sequence of events stated above this Court is of the view that the delay stands explained and there was no delay.

The prosecutrix was a student of IV standard at the relevant time. From the MLR carried out upon her by PW 4 Dr. Asha Bhutani, Medical Officer, General Hospital, Tohana and on the basis of physical appearance and other physical characteristics and considering the number of teeth i.e. 28, it is conclusively proved that the prosecutrix was less then 16 years of age at time of occurrence.

There is a categoric statement of the prosecutrix that accused Prem forcibly removed her salwar, after removing his pant and tried to commit rape upon her. But he could not succeed as the victim started crying and the accused got frightened and dropped her back. The fact remains that the prosecutrix was forcibly bundled inside the car and an attempt was made to commit rape upon her. It is admitted fact that Kalu was driving the vehicle.

From statements of accused under Sections 313 of the Code, it reveals that they have stated that they have been falsely implicated. The appellants have tried to suggest that the present FIR is on account of monetary dispute between father of the prosecutrix and the appellant. However, no such plea was taken by the accused during their cross-examination under Sections 313 Cr.P.C. In the absence of the same, the plea taken by the appellants deserves to be rejected being without any substance. Otherwise also, except the bald statements made by the accused-appellants, there is no material on record to suggest regarding the pendency of any dispute between the appellants and family members of the prosecutrix. Learned trial Court has specifically recorded in his finding whether the prosecutrix was a competent witness to depose being a child witness. The prosecutrix was a student of 4th standard. As per the document on record, she was twelve years of age at time of occurrence. However, nothing has been stated about the previous enmity or anything. However, it seems highly improbable that a father can put such type of allegation at stake of prestige of his teenager daughter. The prosecution has proved his case against the accused-appellants beyond reasonable doubt. Considering the totality of the facts i.e. the age of the prosecutrix and the complainant, father of the prosecutrix, being an illiterate labourer and the statement of PW 11 Dr. Hanuman Singh, who prepared the MLR Ex. P22 with regard to Prem and Ex. P23 with regard to Kalu, wherein it has been noticed that there was nothing to suggest that the appellants are not capable to commit sexual intercourse and the statement of PW 4 Dr. Asha Bhutani, who after examination of the prosecutrix has testified that uterus cervix and vagina were not well developed i.e. not adult type, which clinches the issue with regard to the age of the prosecutrix, this Court finds no ground to interfere in the well reasoned judgment passed by the learned trial Court. As such, the present appeal fails and is dismissed being devoid of any merit.