Ravinder Kumar vs State of Punjab

S.P. Bangarh, J.—Case of the prosecution is that the complainant Roshni along with her family was residing in a rented room bearing No. 429, Street No. 4, Gandhi Nagar, Gobindgarh. Her husband was working in a factory. The appellant was residing as a tenant in a room adjoining the room of the complainant. On 08.01.2006, complainant had gone to a nearby shop to purchase tea at about 04:30 p.m. When she returned, she heard the cries of her daughter, aged about six years from the room of the appellant. Thereupon, she entered that room and saw appellant committing rape on her daughter. On seeing her, appellant fled away from the spot after leaving his underwear at the spot. She raised alarm, which attracted persons from the neighbourhood. She reported this incident to the police vide her statement Ex. PW 6/A, that was recorded by Kulwant Singh, ASI, (PW 8), who later sent this statement to Police Station Gobindgarh through Sajjan Singh, HC, where formal FIR Ex. PW 8/B was recorded by Sewa Singh, HC. Thereafter, Kulwant Singh, ASI (PW 8) along with complainant visited the place of occurrence and prepared the site plan Ex. PW 8/C. He also seized underwear of the appellant, that was stained with blood vide recovery memo Ex. PA after making parcel, thereof, which was sealed by him with his seal bearing impression ''KS''. Recovery memo Ex. PA was signed by Dharampal, HC and Dalbir Singh, husband of the complainant. Later prosecutrix (daughter of the complainant), was taken to Civil Hospital, Gobindgarh for medical checkup and she was medicolegally examined there. After the medical examination, prosecutrix was handed over to her parents. Concerned doctor also handed over one parcel containing swabs and one underwear of the prosecutrix to Kulwant Singh, ASI, besides, envelop containing letter addressed to Chemical Examiner. Those were deposited by Kulwant Singh, ASI with MHC of Police Station on 09.01.2006. He also got x-rayed the prosecutrix at Civil Hospital, Gobindgarh. Kulwant Singh, ASI also arrested the appellant vide memo Ex. PW 8/D. Before arrest, the appellant was searched by ASI ibid who also prepared his personal search memo Ex. PW 8/E. Report of the Chemical Examiner Ex. PW 5/B was also received by the Investigating Officer.

After completion of investigation, Station House Officer of Police Station Gobindgarh, instituted police report u/s 173 of the Code of Criminal Procedure (''Cr.P.C.'' for short) before the learned Illaqa Magistrate to the effect that it appeared that the appellant has committed offence punishable u/s 376 IPC.

On presentation of police report, copies of documents, as required u/s 207 Cr.P.C. were furnished to the appellant and the case was committed to the Court of Session for trial, where charge u/s 376 IPC was framed against the appellant on 07.04.2006, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.

At the trial, prosecution examined Dharampal, HC as PW 1, Pawan Kumar as PW 2, Dr. Navdeep Singh Brar as PW 3, Dr. Jaideep Singh as PW 4, Dr. Neerja as PW 5, Roshni as PW 6, Dalbir Singh as PW 7, Kulwant Singh, ASI as PW 8, Sewa Singh as PW 9, Dr. Ravinder Pal Singh as PW 10 and HC Gurmit Singh as PW 11 and closed the evidence later.

After closure of the prosecution evidence, appellant was examined u/s 313 Cr.P.C., wherein, he denied the allegations of prosecution, pleaded innocence and false implication in this case. He gave his own version that he has been implicated falsely in this case.

Appellant was called upon to enter in defence but he closed the same without examining any witness in defence.

After hearing both the sides, learned trial Court vide impugned judgment and order of sentence, convicted the appellant for commission of offence punishable u/s 376(2)(f) of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 20,000/- and in default, thereof, to further undergo rigorous imprisonment for six months. Aggrieved, there against, the appellant, who was accused before the learned trial Court, has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of offence punishable u/s 376(2)(f) IPC.

Learned counsel for the appellant and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.

PW 1 Dharampal, HC deposed that on 08.01.2006, he joined the police party headed by Kulwant Singh, ASI and the latter recorded the statement of complainant in his presence and sent the same to Police Station for registration of FIR through Sajjan Singh, HC. He also deposed that then he went to place of occurrence with Kulwant Singh, ASI, where the latter prepared the site plan of the place of occurrence and from the spot, one underwear, stained with blood, and semon was recovered and that was made into a parcel, which was sealed with the seal bearing impression ''KS'' of Kulwant Singh, ASI and later this parcel was seized vide recovery memo Ex. PA, that was signed by him and Dalbir Singh, father of the prosecutrix. He further deposed that he had deposited one parcel duly sealed with seal of doctor in the office of Chemical Examiner, Patiala and other parcel containing underwear in the office of Forensic Science Laboratory, Punjab, Chandigarh. He also tendered in his evidence his affidavit Ex. PB.

PW 2 Pawan Kumar deposed that he is care taker of residential house No. 429, street No. 4, Gandhi Nagar, Mandi, Gobindgarh belonging to his friend Ujjagar Singh, who resides in Calcutta for the last about 7/8 years. He also deposed that in this house, Dalbir Singh, resident of Jind (Haryana) has been residing as a tenant for the last about four years in one of the rooms of this house and in another room, appellant was also residing as a tenant. He further deposed that he learnt that appellant present in the Court had committed rape on the daughter of Dalbir Singh, aged about 6/7 years, and his statement was recorded by the police.

PW 3 Dr. Navdeep Singh Brar deposed that on 11.01.2006, on the basis of application Ex. P3/A moved by Kulwant Singh, ASI, he medicolegally examined Ravinder Kumar appellant and opined that there was nothing to suggest that Ravinder Kumar was not able to do sexual intercourse. He gave his report Ex. PW 3/B.

PW 4 Dr. Jaideep Singh Chahal deposed that on 10.01.2006, an application Ex. PW 4/A was moved by Kulwant Singh, ASI for medical examination of Ravinder Kumar and he examined him, as also, sought opinion of the medical specialist. He further deposed that on his examination and after going through the opinion of medical specialist Ex. PW 3/B, he gave his opinion that there was nothing to suggest that Ravinder Kumar appellant was not able to do sexual intercourse.

PW 5 Dr. Neeraj deposed that on 08.01.2006, she medicolegally examined the prosecutrix, aged about six years. She was conscious and cooperative. There was no violence mark on face, breast, thigh or any other part of the body. There was no injury mark on external genitalia, hymen was absent. Vagina admitted tip of finger. There was no external mark of injury on the anal region. The vaginal and anal swabs were taken and sent to Chemical Examiner for chemical examination. White and brown stripped payjami blood stained was sent for chemical examination, which was handed over to Kulwant Singh, ASI. PW 5 also advised x-ray for age verification and for dental check up. She brought the original medicolegal report in the Court and proved its carbon copy Ex. PW 5/A. She also deposed that the mother of the girl child also thumb marked the medical report. She deposed that on receipt of report of the chemical examiner Ex. PW 5/B, spermatoza was detected in the contents of exhibit 1 (clothes), no spermatozoa detected in the contents of exhibits II and III (vaginal swabs and anal swab). On the basis of the chemical examiner report Ex. PW 5/B, she opined that possibility of sexual assault cannot be ruled out.

PW 6 mother of the prosecutrix namely Roshni also deposed as per her statement Ex. PW 6/A, which was suffered by her before Kulwant Singh, ASI, that has been reproduced in the earlier parts of this judgment.

PW 7 Dalbir Singh also deposed that the appellant was residing as a tenant in a room adjacantto his house and on the day of occurrence, he came as usual to his house at about 10:00 p.m. and at that time, he was alone in the house and then his wife arrived in the house alongwith 2/3 police officials and told him that appellant present in the Court had committed rape on his daughter. He further deposed that underwear of the appellant was recovered by the police from his room in his presence, that was taken in possession vide recovery memo Ex. PA and the same was stained with blood and his statement was recorded.

PW 8 Kulwant Singh, ASI deposed on the lines of investigation, that has been reproduced in the earlier parts of this judgment.

PW 9 Sewa Singh prepared the scaled map Ex. PW 9/A on 28.01.2006 in the presence of Kulwant Singh, ASI and Roshni complainant.

PW 10 Dr. Ravinder Pal conducted x-ray upon the prosecutrix and gave his report Ex. PW 10/A to the effect that as per dental opinion, age of the prosecutrix appeared to be approximately six years.

PW 11 Gurmeet Singh, HC tendered in evidence his affidavit Ex. PW 11/A.

As per testimony of Dr. Ravinder Pal (PW 10), age of the prosecutrix at the time of occurrence, was six years. His testimony, during cross examination, could not be shattered, therefore, it can be safely relied upon and on the basis, thereof, it can be safely held that the prosecutrix was about six years of age, at the time of occurrence. Learned trial Court rightly held so in its finding that the prosecutrix was six years of age at the time of commission of offence.

Learned counsel for the appellant contended that the latter has been implicated falsely in this case and PW 6, being mother of the prosecutrix, is an interested witness, therefore, her testimony should not be believed and benefit of doubt should be accorded to the appellant.

We find no merit in the contention raised by the learned counsel for the appellant, as no motive can be ascribed to PW 6 to depose falsely in this case. Indeed, mother will be a last person to put the honour of the family at stake by levelling false accusation of rape with her daughter. PW 6 in candid words deposed that she saw the appellant committing rape on her daughter in a rented room occupied by him as a tenant, which adjoins her room, that, too, was taken on rent. She also deposed that on seeing her, appellant ran away after leaving his blood stained under wear at the spot.

Later, this underwear was sent to the Forensic Science Laboratory, Punjab, Chandigarh and the latter vide its report found the same to be stained with blood. In view of the testimony of PW 6, it can be safely held that the blood oozed out of the vagina of the prosecutrix and that established commission of rape upon her. If the underwear would not have been stained with blood, then, it could be held that the rape had not taken place. But once, it is established that the blood was found on the underwear of the appellant, then it follows that the same appeared on the underwear because of commission of rape upon the prosecutrix.

Evidence of PW 6 could not be shattered in the cross examination. Even, her husband while appearing as PW 7 deposed that his wife told her on the day of occurrence when he returned from work at about 10 p.m., that she saw the appellant committing rape upon the prosecutrix. No motive can be ascribed to PW 7 to depose falsely in this case. Even PW 5 deposed that possibility of sexual assault could not be ruled out. Spermatoza was detected in the payjamai of the prosecutrix that was sent to the Chemical Examiner for examination. Even, PW 5 Dr. Neerja deposed that hymen was absent and vagina admitted tip of the finger. This evidence also indicates rape on the prosecutrix.

Ocular evidence of PW 6 has been corroborated by the medical evidence of Dr. Neerja PW 5. From the evidence of PW 2, it stands established that the appellant was residing in a room, where the incident took place. From the evidence of PW 2, it is also established that father of the prosecutrix was also residing in a room adjacent to the room of the appellant. Both the rooms of the appellant and prosecutrix were located in House No. 429, Street No. 4, Gandhi Nagar, Gobindgarh, that belongs to Ujagar Singh and PW 2 was taking care of this residential house. The possession of the appellant over a room, where, the incident took place stands established from the testimony of PW 2, which could not be shattered during cross examination.

PW 1, PW 8 and PW 9 handled the case property during investigation till deposit, thereof, in the offices of the chemical examiner and the Forensic Science Laboratory. These witnesses were cross examined, but the cross examination could not shatter their testimonies. So, it stands established from the testimonies of these witnesses that, so long as, they kept the case property in their possession, no one tampered, therewith. Link evidence is, thus, is complete.

The case against the appellant falls in clause sixthly of Section 375 IPC, according to which, where a man commits sexual intercourse with a woman with or without her consent, when she is under 16 years of age, he is guilty of commission of rape. Learned trial Court, thus, rightly convicted the appellant for commission of offence punishable u/s 376(2)(f) IPC. There is, thus, no illegality or impropriety in the impugned judgment of conviction and that is, hereby, upheld and affirmed. Learned counsel for the appellant then contended that the latter is not a previous convict and, therefore, lenient view regarding imposition of sentence may be taken. Keeping in view the age of the appellant, circumstances of the case and antecedents of the appellant, who is not a previous convict, we are of the view that minimum sentence prescribed u/s 376(2)(f) IPC can meet the ends of justice, that shall be a condign punishment. Accordingly, the impugned order of sentence is modified and the impugned sentence of imprisonment of life imposed upon the appellant by learned trial Court is reduced to rigorous imprisonment for ten years.

Resultantly, except for this modification in the impugned order of sentence, appeal fails and is, hereby, dismissed.