Raju vs State of Haryana

L.N. Mittal, J.—Instant criminal appeal has been preferred by convict Raju impugning judgment of conviction dated 22.05.2006 and order of sentence dated 24.05.2006 recorded by learned Additional Sessions Judge, Sirsa, thereby convicting the accused-Appellant under Sections 363, 366 and 376 Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/-and in default thereof, to undergo further imprisonment for three months u/s 363 Indian Penal Code; to undergo rigorous imprisonment for five years and to pay fine of Rs. 2,000/-and in default thereof, to undergo further imprisonment for four months u/s 366 Indian Penal Code and to undergo rigorous imprisonment for seven years and to pay Rs. 5,000/-and in default thereof, to undergo further imprisonment for six months u/s 376 Indian Penal Code, but all the substantive sentences have been ordered to run concurrently.

Prosecution case is that the prosecutrix (name not being recorded) aged about 16 years had gone to ease herself on 14.02.1999. The accused came there and kidnapped her. He took her to the house of one Karam Chand telling there that she was his wife. The accused raped the prosecutrix there during the night. Next day the accused brought the prosecutrix to Sirsa and left her at the house of one person of Dhanak community. The accused went to Ellenabad to bring money, but the accused did not return. Ultimately the prosecutrix was left at the house of his father Kundan Singh-Complainant on 20.02.1999 by one Revati. In the meantime, the complainant had reported the matter to the police on 15.02.1999 by making statement, on which FIR was registered. The prosecutrix was got medically examined. Her statement u/s 164 of the Code of Criminal Procedure (in short, Cr. P.C.) was also got recorded. Necessary investigation was conducted. Statements of witnesses were recorded. Site plan of place of occurrence was prepared. The accused could not be arrested inspite of search and was, therefore, declared proclaimed offender. Ultimately the accused was arrested on 18.10.2004. On completion of investigation, police presented report u/s 173 Code of Criminal Procedure for prosecution of the accused under Sections 363, 366 and 376 Indian Penal Code.

Charge under Sections 363, 366-A and 376 Indian Penal Code was framed against the accused, who pleaded not guilty and claimed trial.

In order to prove its case prosecution examined 12 witnesses.

ASI Ram Kumar PW-1 being formal witness tendered his affidavit in evidence.

Mr. B. Diwakar PW-2 while posted as Chief Judicial Magistrate allowed certified copy of statement of prosecutrix recorded u/s 164 Code of Criminal Procedure to be taken by the Police.

Kundan Singh complainant PW-3, prosecutrix as PW-4 and Karam Chand, PW-11 broadly stated according to prosecution version.

Retired ASI Om Parkash PW-5 stated about investigation of the case conducted by him.

Dr. Kuldeep Singh, Medical Officer PW-6 stated about medico-legal examination of the accused and opined that there was nothing to suggest that the accused was not capable of performing sexual activity.

Mr. K.R. Goyal, PW-7 while posted as Additional Chief Judicial Magistrate recorded statement of the prosecutrix u/s 164 Cr. P.C. and proved the same.

Dr. J.K. Bishnoi PW-8 stated about radiological examination of the prosecutrix and opined that her age was between 17 and 18 years with error of two years on either side.

Lekh Raj, Constable PW-9 tendered his affidavit beign formal witness.

Dr. Mrs. Meenakshi Goel PW-10 stated about medico-legal examination of the prosecutrix.

ASI Jagdish Singh PW-12 stated that he arrested the accused on 18.10.2004. He also stated about subsequent investigation conducted by him.

The accused in his examination u/s 313 Code of Criminal Procedure denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he had a quarrel with the complainant 3-4 days prior to the alleged occurrence and for this reason, he has been falsely implicated in this case. The accused did not lead any evidence in his defence.

Learned Additional Sessions Judge vide impugned judgment and order convicted and sentenced the accused as already noticed hereinbefore. Feeling aggrieved, the convict has preferred the instant criminal appeal.

I have heard learned Counsel for the parties and perused the case file with their assistance.

All the prosecution witnesses have broadly supported the prosecution case. Their statements could not be impeached in their cross-examination. Their statements inspire confidence. Statement of prosecutrix and her father are corroborated by statement of Karam Chand to whose house the accused had taken the prosecutrix after kidnapping her. Karam Chand is father of the friend of the accused himself. Complete denial of the occurrence by the accused cannot be accepted because Karam Chand is an independent witness who was aligned with the accused and not favourably inclined towards the prosecution or the complainant, but still Karam Chand has supported the prosecution case that the accused had brought the prosecutrix to his house and they stayed there for the night. The accused disclosed that the prosecutrix was his wife. Thus prosecution case is fully corroborated by the testimony of Karam Chand PW-11. In these circumstances, the contention of the counsel for the Appellant that the Appellant has been falsely implicated because he had a fight with the complainant 3-4 days before the occurrence as admitted by the prosecutrix, cannot be accepted. On the contrary, the altercation between the accused and the complainant might have been on account of the inclination of the accused towards the prosecutrix to which the complainant, being father of the prosecutrix, might be objecting. Be that as it may, the fact remains that the prosecutrix was taken away by the accused as proved from the statements of the prosecutrix and her father and also from the statement of Karam Chand PW-11. Even otherwise, the complainant would not have staked the reputation and future life of his young unmarried daughter only to implicate the accused in a false case.

Learned Counsel for the Appellant contended that age of the prosecutrix is not proved to be less than 18 years. Reference in this regard was made to statement of Dr. J.K. Bishnoi PW-8 who opined radiological age of the prosecutrix to be between 17 and 18 years. However, Dr. Bishnoi also stated that there can be error of two years on either side in assessment of age by ossification test. The prosecutrix and the complainant have stated that age of the prosecutrix at the time of occurrence was about 14 years. In the FIR, her age was stated to be 16 years. Consequently age determined by the ossification test is not inconsistent with the age of the prosecutrix being 16 years as alleged by the prosecution. Taking as overall view of the evidence on record, the prosecutrix is proved to be minor at the time of alleged occurrence.

Learned Counsel for the Appellant also contended that according to Dr. Meenaxi Goel, who had medically examined the prosecutrix, hymen was intact and there was No. redness or congestion nor there was any injury mark and, therefore, sexual intercourse of rape is not proved. The contention although apparently attractive cannot be accepted. The prosecutrix was examined on 20.02.1999, whereas she had allegedly been raped on 14.02.1999 i.e. six days ago. Consequently, No. injury mark could have been found after six days. On the other hand, report of forensic science laboratory Exhibit PT depicts that human semen was found on salwar of the prosecutrix. This is a very strong circumstance to depict that the prosecutrix had been subjected to sexual intercourse. There is also testimony of the prosecutrix that she was raped by the accused in the house of Karam Chand. Even Karam Chand has stated that the accused and the prosecutrix stayed in his house for the night. The prosecution version about rape is, therefore, fully proved.

Learned Counsel for the Appellant also contended that Revati who had allegedly taken the prosecutrix to the house of the complainant has not been examined as witness. However, mere non-examination of Revati as witness would not be fatal to the prosecution case when the prosecution has led other sufficient evidence to bring home the charge against the accused beyond reasonable doubt. Moreover, Revti could not have stated anything against the accused.

For the reasons aforesaid, I find that the prosecution has proved the guild of the accused beyond reasonable doubt. Accordingly the impugned judgment of conviction is affirmed.

As regards quantum of sentence, perusal of the custody certificate filed today in Court by State Counsel reveals that the accused was released from jail on 09.06.2010 on completion of sentence including remission for 1 year 4 months 9 days. Consequently, question of quantum of sentence is of academic interest only. Even otherwise, minimum sentence of imprisonment for 7 years for offence u/s 376 Indian Penal Code does not warrant reduction as there is No. adequate and special reason for imposing sentence of imprisonment for less than 7 years. Consequently sentence also does not warrant reduction or intereference.

Inevitable result of the discussion aforesaid is that there is No. merit in this appeal, which is accordingly dismissed.