Prem Bahadur vs U.T.Chandigarh

V.S. Aggarwal, J.

Pushpa daughter of Kishan Lal aged about 9 years was living with her father at Mani Majra, Chandigarh. Kishan Lal made his livelihood by selling sugarcane on a pushcart. Appellant Prem Bahadur worked in a canteen and used to visit Kishan Lal. On 17.3.1992 at about 7.30 P.M. he came to the house of Kishan Lal. He took Pushpa prosecutrix with him on the pretext that he would take her to the Bazar. After sometime, appellant did not return, Kishan Lal found that Pushpa had come home while crying. On the enquiry made by Kishan Lal and his wife Saroj Bala, she disclosed that the appellant had taken her towards the cremation ground and raped her. There were blood stains on the shirt and salwar of Pushpa.

On the basis of these facts, Kishan Lal lodged a report and formal F.I.R. was recorded at police station Mani Majra.

Pushpa was medically examined by Dr. (Mrs.) Virpal Kaur. The investigation was taken up by Sub Inspector Om Parkash. The salwar and the frock which were blood stained, were taken into possession vide recovery memo. Pushpa took Sub Inspector Om Parkash and others to the place where she was raped. After Pushpa was medically examined, her underwear was produced by Constable Harminder Singh and was taken into possession vide another recovery memo.

Appellant was arrested on 31.3.1992. He was medically examined and found to be sexually potent. On these facts, report under Section 173 Code of Criminal Procedure was submitted in the Court of learned Judicial Magistrate.

Needless to say that on the charge having been framed against the appellant with respect to the offences punishable under Sections 376 and 506 Indian Penal Code, he pleaded not guilty and claimed trial. The learned Additional Sessions Judge, Chandigarh found the appellant guilty of the offences punishable under Sections 376 and 506 Indian Penal Code and thereupon sentenced him to undergo rigorous imprisonment for ten years and a fine of Rs. 2,000/ with respect to the offence punishable under Section 376 Indian Penal Code and in default of payment of fine, he was to undergo further rigorous imprisonment for two years. He was further sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 200/ with respect to the offence punishable under Section 506 Indian Penal Code and in default of payment of fine, he was to further undergo rigorous imprisonment for three months. Both the sentences were directed to run concurrently.

Pushpa was aged about 9 years at the time of alleged incident. She was produced in the Court of learned Additional Sessions Judge and the learned trial court had questioned her as to if she was competent to be a witness and questions were put to her. After putting a few questions to her, the learned trial Court recorded that she does not know what is true and false and cannot be taken to be a competent witness. In this process, she had not been examined as such. The learned counsel for the appellant highlighted such facts that when prosecutrix Pushpa was not examined, there is no evidence on the record as to if, she was raped or not. But attention was, however, drawn to the decision of the Hon''ble Supreme Court in the case of State of Karnataka v. Mahabaleshwar Gourya Naik, 1992(2) RCR 159 . In paragraph 12 the Supreme Court had noted as under:

"The reason for recording an acquittal of the offence under Section 376 IPC by both the Courts below is the nonavailability of the victim for examination, As we have already pointed out, the victim is stated to have committed suicide on 15.11.77 i.e. nearly one and a half months after the occurrence. Whatever might be the reason for her death, the question would be whether the case of the prosecution should be thrown overboard because of the nonavailability of the victim for examination on account of her death or whether the Court can record a conviction for any offence that is made out on the available evidence, let in by the prosecution."

Thereafter, the other evidence available on the record was discussed and on appraisal of the same the Supreme Court accepted the appeal filed by the State so as to hold that the concerned person committed the offence punishable under Section 376 Indian Penal Code. It was concluded that in the said case since the victim was dead and could not be examined, it could never be taken to be the ground of acquitting the accused, if there is evidence otherwise available, proving the criminal act of the accused concerned. Thus, this argument advanced by the appellant''s learned counsel in face of the above said pronouncement must fail.

Necessarily, one has to travel to other evidence on the record. It is admitted by the appellant to the answer to question No. 2 in his statement recorded under Section 313 Code of Criminal Procedure that he was living in the neighbourhood of Kishan Lal and was on visiting terms with Kishan Lal father of Pushpa, the prosecutrix. Saroj Bala mother of the prosecutrix as well as Kishan Lal, both deposed during the course of trial that on 17.3.1992, the appellant had come to their house and had taken Pushpa on the pretext that he had to take her to the Bazar. Both the witnesses were crossexamined, but in this regard that the appellant had taken Pushpa with him was not challenged. There is no reason otherwise on the record to discredit the statements made by the parents of Pushpa. This shows and establishes beyond any pale of controversy that Pushpa had been taken by the appellant around 7.00 or 7.30 P.M.

It is further in the evidence of Saroj Bala PW5 and Kishan Lal PW3 that Pushpa was found standing on the road with bloodstained clothes where she was crying. She had told her parents that she was raped by the appellant. The statement made by Pushpa to her parents shortly after the occurrence is relevant. There is precious little on the record to infer or conclude that there was any motive so as to implicate the appellant falsely. The defence taken up by the appellant that mother of Pushpa was not returning the money of appellant which she had taken as loan and on that ground she had implicated him, is clearly an afterthought. When Kishan Lal appeared as PW3, no such suggestion was put to him. Saroj Bala PW5 was vaguely suggested that there was some dispute between them and the appellant regarding certain payments. It was not suggested that Saroj Bala had taken a loan as such. The suggestion given to Saroj Bala is positively vague and indefinite. In any case, it cannot be believed that on that ground Pushpa as such would be allowed to be raped.

Dr. Virpal Kaur PW1 had examined Pushpa, the prosecutrix on 18.3.1992 and found:

"There was a reddish abrasion on both cheeks below the eyes of about 2.5 cm x 1.5 cm irregular. There is another reddish abrasion of about 2.5 cm x 2 cm on the upper part of the middle of the chest. No other external mark of injuries seen. Secondary sex characters not developed. No axillary or pubic hair breasts not developed height 47 inches teeth 14x14. Local examination there was a small tear of about 1 cm in the region of fourchette in the midline Slight bleeding from it present fresh tear. There is another 4 degree clock position extending from hymen outwards to labial edge. Hymen is torn in position 12 degree clock plus 4 degree clock, reddish inflamed, Vagina admits one finger with difficulty and is tender."

The duration of the injuries was found to be less than two days. Dr. Virpal Kaur repelled the suggestion that the injuries on the person of the prosecutrix could be caused by a fall or entangled with any barbed wire. The injuries on the private parts of Pushpa corroborate what had been the case of the prosecution. The said evidence clearly establishes the guilt of the appellant with respect to the offence under section 376 Indian Penal Code.

Appellant took the plea that on 17.3.1992, he was not in village Mani Majra but was at Parol near Mullanpur, tehsil Kharar and was enjoying the festival of Holi alongwith members of his community. This was never the case of the appellantaccused that he was not present in the village. The alibi alleged and the plea in this regard floated consequently, is without any merit and substance.

In that event it had been pointed out that in any case, there is no evidence to substantiate the charge framed under Section 506 Indian Penal Code. The prosecutrix has not been examined by the learned trial court and in the statements made by Saroj Bala PW5 as well as Kishan Lal PW3 (parents of the prosecutrix), there is no evidence forthcoming as to if any threat was given to the prosecutrix concerning her person, reputation or property or to the person or reputation in one whom she may be interested. Consequently, in lack of evidence, it necessarily must follow that the charge under Section 506 Indian Penal Code was not proved.

Not other argument was raised before me.

For the reasons given above, I partly accept this appeal and set aside the judgment and order of sentence against the appellant with respect to the charge under Section 506 Indian Penal Code.

Subject to the aforesaid, the appeal fails and is dismissed.