Ramesh vs State of Haryana

Harphul Singh Brar, J.

Criminal Appeals No. 110SB of 1995 and 117SB of 1995 filed by Ramesh and Gutiya alias Raj Kumar, respectively, shall be decided by a common judgment as these appeals have been filed against the same judgment/order dated 18.1.1995/19.1.95, of the learned Additional Sessions Judge, Bhiwani. Vide the aforesaid judgment/order, both the appellants Ramesh and Gutiya alias Raj Kumar, were convicted under Sections 376/34 IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/ each. In default of payment of fine both the accused were ordered to undergo further rigorous imprisonment for a period of six months.

Briefly stated, the prosecution story is that Sakina, daughter of Jai Lal, caste Jat, resident of village Matani aged 14/15 years had come to his maternal uncle''s village Bidola about one month back before the occurrence. On 18.11.1992, at about 7.00 a.m. she along with her maternal aunt Smt. Roshni wife of Sajjan, Surinder, her maternal uncle and Dharam Singh, grandmaternal uncle had gone to cut gwar crop in the field. Then at about 2.00 p.m. her maternal aunt (Mami) asked her to fetch some water from the house. When she had covered a distance of three acres near a tiba beside the field of Mangal Kumhar, both the accused persons came out from the bushes. Ramesh accused caught hold of her hand and asked not to raise noise otherwise they would kill her and by putting his hand on her mouth dragged her towards Sarkandas bushes and then by breaking open the string of Salwar he committed rape upon her and she raised raula and bit his hand with her mouth. Gutiya alias Raj Kumar remained standing on the path. Then on hearing raula, her maternal uncle Surender and grandmaternal uncle Dharam Singh rushed to the spon. The accused persons fled away. Then she told about the incident to her grand maternal uncle. Upon her statement made to the police, FIR Ex.PD was registered against the accused persons under Sections 376/506/34 IPC. The salwar and shirt which were worn by the prosecutrix at the time of occurrence were taken into possession vide memo Ex.PA attested by Dharam Singh and Surender Singh. Site plan Ex.PR was prepared by the police. Since the date of birth of the prosecutrix was not found entered in the record maintained by the office of Civil Surgeon, certificate Ex.PL of Bajender, brother of prosecutrix, was taken into possession by the police. Trousers of Ramesh accused were taken into possession by the police vide memo Ex.PQ. The prosecutrix was got medicolegally examined vide medicolegal report Ex.PH on 13.11.1992; itself. Sealed parcel, vaginal swab, vaginal slide and forwarding letter were taken into possession by the police vide memo Ex.PF. On 15.11.1992, both the accused were arrested and got medicolegally examined vide medicolegal report Exs.PA and Ex.PC. The concerned doctor vide opinion Ex.PB opined that the injury on the right index finger on the person of Ramesh was due to teeth injury. Radiological report of Sakina for determining her age was obtained as Ex.PG.

The case was committed by the Judicial Magistrate 1st Class, Bhiwani, to the Court of Session, on 16.1.1993. The accused were chargesheeted and claimed trial.

The prosecution has produced 9 witnesses and has tendered into evidence affidavits Exs.PN and PO of H.C. Ram Singh and constable Shyam Sunder, respectively, in order to prove the prosecution story.

When examined under Section 313 Cr.P.C., Gutiya alias Raj Kumar accused denied the allegations made against him and stated that he was innocent. He also stated that he was falsely implicated due to enmity and he was not present with accused Ramesh at the time of occurrence.

Accused Ramesh, when examined under Section 313 Cr.P.C. denied all the allegations put to him and in the last question when he was asked what you have to say, he answered as under :

"I am quite innocent, I have committed no rape on Sakina. The present case has been planted over me due to caste rivalry and political pressure. Prosecutrix has lodged the report at the pressure and instance of her Nana and Mami falsely."

The accused produced DW1 Ram Kumar, Headmaster, Govt. Middle School, Bidola, District Bhiwani.

The learned Additional Sessions Judge, Bhiwani convicted and sentenced both Rakesh and Gutiya alias Raj Kumar accused, as stated above.

PW1 Dr. U.K. Lamba, R.M.O., Community Health Centre, Tosham medicolegally examined Ramesh and Raj Kumar alias Gutiya accused and opined that they were competent to commit sexual intercourse and proved their medicolegal reports Ex.PA and PC respectively. Sealed parcel containing the trousers of Ramesh which he was wearing at the time of occurrence, were also handed over by him to the police. The doctor vide his opinion Ex.PB opined that injury on the person of Ramesh was due to teeth biting.

PW2 Sakina, prosecutrix at the trial gave her age as 13/14 years and deposed at the trial that about 5 months back from the date of recording of her statement on 24.3.1993, she was going to her maternal uncle''s house to fetch water. Accused persons came out from the cluster of Sarkandas. Ramesh accused caught hold of her by hand and broke open the string of her salwar and tore the salwar and committed rape upon her while accused Gutiya remained standing on path. She raised a raula and then Dharam Singh her grandmaternal uncle and Surinder her maternal uncle came there. Accused fled away from the spot and then she came to the house along with her grandmaternal uncle and she changed her clothes and made her statement Ex.PD before the police and thereafter, she was medicolegally examined by Doctor at Bhiwani. She further stated at the trial that Vinod and Vijender her brothers are elder to her. Vijender was one year older to her and Vinod was one year older to Vijender. PW Dharam Singh corroborated the statement of Sakina by deposing at the trial that on hearing the cries of Sakina, he and Surinder rushed towards the place of occurrence and found the accused persons running away. Then Sakina told them about the commission of rape with her by Ramesh. He further deposed about handing over Sakina''s clothes to the police and taking into possession the parcel, slide etc. vide memo Ex.PF. PW Surinder was given up as unnecessary.

Dr. V.B. Dixit, PW4, Medical Officer, General Hospital, Bhiwani conducted the radiological examination of Sakina to determine her age while posted in Medical College/Hospital, Rohtak. He stated at the trial that radiological examination of Sakina was done according to Hapworth''s as given in Modi''s Medical Jurisprudence and finally opined that her age could have been between 15 and 17 years vide his report Ex.PG. Suggestion put to the doctor that Sakina was more than 18 years old was denied by him.

PW5 Dr. Kamla Bhardwaj, medicolegally examined Sakina, the prosecutrix, on 13.11.1992 at 10.00 p.m. and opined that the examination of external genitalia revealed that discharge was present over the introitus. Dark coloured blood was present around the labia majora. Hymen was torn. Margins were lacerated. There were bleeding points present, and vagina admitted two fingers. Swabs were taken from the vagina, introitus. Slide was made and matted hair were taken into possession. She further stated that prosecutrix was examined within 24 hours. She then deposed at the trial that after having seen the report of Forensic Science Laboratory, Madhuban, Ex.PK she was of the opinion that possibility of sexual intercourse was there.

PW6 Smt. Kamla, the mother of the prosecutrix, gave the age of Sakina as 14 years. She stated that Sakina was born to her after 1 or 2 years after the birth of Vijender and also proved the photo copy of date of birth of Vijender Ex.PL showing that he was born on 4.2.1978.

PW7 Dalbir Singh, Patwari Halqa Bidola, proved site plan Ex.PM. Affidavits of Head Constable Ram Singh and constable Shyam Sunder, Exs.PN and P.O. respectively were tendered in evidence. PW8 Head Constable Risal Singh deposed at the trial about taking into possession trousers of the accused Ramesh into a sealed parcel vide memo Ex.PQ. PW9 Ramesh Kumar was S.I./SHO of Police Station Tosham, who conducted the investigation, deposed about the various proceedings conducted by him.

The learned counsel for the appellant has submitted that the accused appellant has been falsely implicated due to enmity. Rameshaccused was not present at the time of alleged occurrence and he relied upon the statement of DW1 Ram Kumar to that extent. The learned counsel then contended that in case it is held that rape was committed it was with the consent of Sakina prosecutrix who was more than 18 years of age at the time occurrence.

The learned counsel for the appellants has relied upon Paramjit Singh v. State of H.P., 1987(1) Recent C.R. 247 , Arun Malhotra v. The State of Haryana, 1990(3) Recent C.R. 662 and Om Parkash alias Mitha alias Prem v. State of Haryana, 1997(1) Recent C.R. 741 to substantiate his arguments.

The learned counsel for the appellant has relied upon the evidence of Dr. V.B. Dixit (PW4) who after radiological test of the prosecutrix opined that the prosecutrix''s age could be between 15 years and 17 years. About the variation of two years on one or the other side, he pleaded ignorance as he stated that he was not a Radiologist.

PW6 Smt. Kamla mother of the prosecutrix deposed at the trial that Sakina was born to her 1/2 years after the birth of Vijender, whose date of birth, she has proved vide Ex.PL, who according to his birth certificate which was proved by her as Ex.PL, was born on 4.2.1978. Sakina PW herself gave her age as 14/15 years.

In view of this factual position that Vijender, elder brother of Sakina prosecutrix was born on 4.2.1978, Sakina''s age, on the day of occurrence comes to about 13/14 years and this stands corroborated by the opinion of the doctor PW4 Dr. V.B. Dixit, who opined that Sakina''s age was between 15 and 17 years. There cannot be any dispute with this proposition of law there is always a variation of 2 to 3 years of age on either side. This, from the evidence on record it is proved that Sakina prosecutrix was below 16 years of age at the time of occurrence.

The fact that when a doctor after the ossification test opines about the age of the prosecutrix, there is always a margin of 2 to 3 years on either side, is fortified by a judgment of this Court in Om Parkash''s case (supra), cited by the learned counsel for the appellant himself. Arun Malhotra''s case (supra) is not helpful to the accused because in that case it was held that prosecutrix was 21 years of age and she was a consenting party. In the case in hand the prosecutrix has not been proved as consenting party and an injury due to teeth bite was also found on the person of appellant and the age of the prosecutrix is also held to be below 14 years of age at the time of occurrence.

Thus, in the case in hand in view of the overall evidence produced at the trial a view can be taken even on the basis of ossification test that the age of the prosecutrix was certainly lower than 16 years at the time of occurrence.

The other authority cited by the learned counsel for the appellant (Paramjit''s case (supra)) is also of no help to the appellant because the benefit of error cannot be given to the accused in view of the statement of Kamla PW6, the mother of the prosecutrix, when she deposed at the trial that Sakina was born to her 1 years after the birth of Vijender whose date of birth she has proved as 4.2.1978 vide certificate Ex.PL and Sakina prosecutrix herself has deposed at the trial that her age was 1415 years at the time of occurrence.

Even otherwise, it is amply proved on the record that Ramesh accused committed rape on the prosecutrix Sakina PW2. Sakina prosecutrix has deposed at the trial that on the asking of her maternal aunt she was going to the house to fetch water. Ramesh accused was hiding in the cluster of Sarkandas. Ramesh accused caught hold of her by hand and thereafter broke open the string of her Salwar and also tore off the Salwar and thereafter, Ramesh accused fell upon her and committed rape. When she raised cries her maternal grandfather (PW3) and maternal uncle reached the place of occurrence and thereafter the accused fled away from the place. Thereafter, she along with her maternal grandfather and maternal uncle came to the house and then they went to the Police Station where FIR was lodged by her. Dharam Singh PW3 the maternal grandfather of the prosecutrix also corroborated the version of the prosecutrix to the extent that as soon as they reached near the place of occurrence Ramesh accused escaped from there and when crossexamined he stated that when he reached the spot Sakina was wearing a Salwar.

PW5 Dr. Kamla Bhardwaj, deposed at the trial that sexual intercourse was committed on the prosecutrix Sakina. Report Ex.PK of Forensic Science Laboratory, Madhuban detected the presence of seman on Salwar and shirt of the prosecutrix. PW1 Dr. U.K. Lamba who examined Ramesh Kumar has stated at the trial that Ex.PB was his opinion to the effect that injury on the person of Ramesh was due to teeth biting.

Having regard to the testimony of prosecutrix Sakina PW2, the deposition of her grandmaternal uncle Dharam Singh PW3 and the medical evidence discussed above, it is proved on the record that accused Ramesh committed rape on Sakina who at the time of occurrence was about 14 years of age.

In the end, the learned counsel for Rameshappellant has cited Hari Ram v. State of Haryana, 1992(1) Recent C.R. 326 , and on the basis of this ruling he has stated that some leniency may be taken. He submitted that the sentence awarded to Ramesh be reduced to that already undergone as he has already undergone about 3 years of substantive sentence. He is the only earning member in the family and has got old parents and three children to support. It was further submitted by the learned counsel that prosecutrix has been married immediately after the occurrence and residing peacefully thereafter.

I do not agree with the learned counsel that sentence of Rameshappellant should be reduced to that already undergone by him but taking into consideration the over all circumstances of the case including the plea taken by the learned counsel, in my considered view, the ends of justice shall be met if the sentence of Rameshappellant is reduced from ten years to seven years and the fine is enhanced from Rs. 1,000/ to Rs. 5,000/. I order accordingly. Out of the amount of fine of Rs. 5,000/ if realised, Rs. 4,000/ shall be given to the prosecutrix by way of compensation.

So far as the case of other accused Gutiya alias Raj Kumar is concerned, I have my doubts that he committed rape on the prosecutrix. PW2, Sakina prosecutrix has simply stated regarding Gutiya alias Raj Kumar accused that when she was going towards the house, Gutiya was also hiding in the cluster of Sarkandas along with Ramesh. In the latter part of her deposition, she simply stated that Gutiya accused kept standing on the path when Ramesh committed sexual intercourse upon her and he fled away after Ramesh committed sexual intercourse with her. No overt act has been attributed by the prosecutrix to Gutiya alias Raj Kumar accused. PW3 Dharam Singh has also simply stated in his statement that when they came to the place where Sakina was standing, she told the whole story about the commission of intercourse with her by Ramesh and they were unable to catch hold of both the accused who ran away.

In these circumstances, Gutiya alias Raj Kumarappellant is given the benefit of doubt. Resultantly, Criminal Appeal No. 117DB 1995, is allowed; conviction and sentence qua Gutiya alias Raj Kumarappellant is set aside and he is acquitted of the charge framed against him.

Except with the modification made above, Criminal Appeal No. 110SB1995, filed by Rameshappellant is dismissed.