Sardul Singh vs State of Punjab

R.L. Anand, J. (Oral)

If the appellant or his counsel does not assist the Court, the Court has the power to dispense the justice on going through the grounds of appeal as well as the records itself and I am doing the same thing in the present case.

Sardul Singh son of Labh Singh, a man of 31 years when he was committed to the Court of Session and working as electrician was convicted under Section 376 IPC by the Court of Addl. Sessions Judge, Ludhiana on 28.3.1987 and was sentenced to undergo RI for a period of 8 years and to pay a fine of Rs. 1,000/. In default of payment of fine he was directed to further undergo RI for 3 months.

The brief facts of the case are that on 3.7.1986 at about 2.30/3.00 p.m. Jagir Singh PW6 was informed by his brother''s wife Smt. Jeoni PW7 that she heard the shrieks of Jasbir Kaur coming from the side of the Dera. On this Jagir Singh PW6 along with Smt. Jeoni PW7 went to the Dera and found the appellant committing rape upon Jasbir Kaur by placing his hand on her mouth. When Jagir Singh went near the room he saw that rape was being committed by the appellant and after that he ran away leaving the prosecutrix at the spot. It may be mentioned here that prosecutrix was granddaughter of Jagir Singh. It was further observed by the informant that the underwear of Jasbir Kaur had already been removed and blood was coming out from her vagina. Jagir Singh and Smt. Jeoni took Jasbir Kaur and started for the police station in order to lodge the report but on the way ASI Rama Shanker met them near the school of village Payal and he recorded the statement Ex.PG of Jagir Singh. It was sent to the police station for the registration of the case after making an endorsement Ex. PG/1 and formal FIR Ex.PG/2 was recorded by ASI Ajaib Singh. ASI Rama Shanker took Jasbir Kaur to the hospital for medical examination where the doctor referred the prosecutrix for medical examination from a lady doctor at Doraha. In the meantime, ASI Rama Shanker came to know that the appellant is present at the bus stand. Resultantly he was arrested and injury statement Ex.PD/2 was prepared. The appellant was found drunk at that time. He was sent for medical check up. He was got examined from Dr. Amarjit Singh PW3, who gave his report Ex.PD. He also found blood spots on the underwear Ex.P1 of the appellant. The underwear was sealed and it was sent to the office of Chemical Examiner. The doctor also certified that the appellant was fit to perform sexual intercourse and that he was under the influence of liquor. The Investigating Officer visited the place of occurrence and prepared rough site plan Ex.PH. Shri Nachhater Singh prepared scaled site plan Ex.PE. The prosecutrix was also got examined from Dr. Harcharan Singh for the purpose of determination of her age and this doctor gave report Ex.PC and the age of the prosecutrix was determined between 5 to 8 years. On completion of the investigation of the case, the appellant was challaned in the Court of Illaga Magistrate who supplied the copies of the documents to the appellant and vide commitment order dated 21.10.1986 committed the appellant to the Court of Session in order to face the trial under Section 376 IPC.

Vide order dated 30.10.1986 the appellant was chargesheeted under Section 376 IPC on the allegations that on 3.7.1986 at 2.30 p.m. in the area of Payal he committed rape upon Jasbir Kaur daughter of Mahnga Singh and thereby committed the offence punishable under Section 376 IPC. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Dr. Santosh Kataria, as PW1, who medically examined Jasbir Kaur prosecutrix on 3.7.1986 at 6.00 p.m. According to this lady doctor the prosecutrix was a child of 6 years. She was moderately developed and moderately nourished. But she was not wearing any underwear at that time. It was observed by the lady doctor that fresh laceration reddish in colour over the inner side of right and left labia minora was present and the hymen of the prosecutrix was intact and there was redness over the margins of the hymen. Vagina admitted nip of the little finger. There was no injury to the vagina and also there was no injury over the genitalia of the prosecutrix. The doctor further opined that the possibility of penetration of male penis could not be ruled out. The doctor issued Ex.PA, the correct copy of the report of medicolegal examination. To a Court question the doctor certified that possibility of blood oozing out from the vagina before her conducting examination could not be ruled out. Dr. Harcharan Singh PW2 xrayed the prosectrix in order to determine her age and after performing ossification test he came to the conclusion that the age of the prosecutrix was between 5 to 8 years. Ex.PC is the report of the radiologist. PW3 Dr. Amarjit Singh medicolegally examined the appellant and found the following four injuries on her person :

3/4 x 1/2 x 1/2 cm. lacerated wound just above the outer malleouls of left ankle joint. Bleeding was present.

1/2 x 1 cm. abrasion 4 cm. above outer malleolus of right ankle joint.

2 x 1 cm. abrasion at back of right elbow joint.

3 1/2 x 1/2 cm. abrasion at lower part of the back.

It was further certified by the doctor that blood stains were present on the underwear of the appellant where it touched the penis. The underwear of the appellant was taken into possession. Ex.PD is the report of this doctor.

Shri Nachhatar Singh, Draftsman PW4 is a formal witness and he prepared the scaled site plan Ex. PE of the alleged place of occurrence. Smt. Surinder Kaur PW5 had produced the original admission and discharge register of the school and according to its entry No. 8650 Jasbir Kaur''s date of birth was 1.4.1980. PW6 Jagir Singh is the complainant. This witness stated that on the date of occurrence at about 3.30 p.m. he was present in his house. Smt. Jeoni, wife of his brother, came to his house and she told him that their daughter Sheero was weeping in the Dera. As a result of that he along with Mrs. Jeoni went to the Dera and saw that Jasbir Kaur was standing naked and crying. This witness did not support the allegations of the prosecution and he was declared hostile. During the course of crossexamination conducted by the Addl. Public Prosecutor he admitted that his statement Ex.PG was recorded by the police. It was further stated by Jagir Singh that proscucutrix was not wearing any underwear and blood was oozing from her private parts. It was also stated by this witness that appellant Sardul Singh ran away from the spot. Further it was stated by this witness on oath that he had earlier seen the appellant committing rape upon the prosecutrix and he knew the appellant by name. The girl as well as the appellant had not muffled their faces. Smt. Jeoni PW7 also deposed that he informed Jagir Singh PW6 that Jasbir Kaur was weeping in the Dera and as a result of which she along with Jagir Singh went to the Dera and found that the accused was lying along with the prosecutrix and both were naked. On seeing them the accused ran away from the place of occurrence. Further it has been stated by Smt. Jeoni that the prosecutrix was bleeding from her private parts and the prosecutrix told her and PW6 Jagir Singh that the accused was scratching her private parts with his finger. This witness was also declared hostile by the Addl. Public Prosecutor. In the crossexamination of the Addl. Public Prosecutor this witness stated "My statement that the accused was doing sexual intercourse with the girl is correct."

Ms. Jasbir Kaur appeared as PW8. Being a child witness the trial Court put certain questions in order to come to the conclusion as to whether Jasbir Kaur was fit to give rational answers to the questions or not. She was examined, of course, without oath. She stated that on the date of occurrence she was playing. The appellant took her in the Dera. He opened her underwear as well as his underwear. She could not say what the appellant did with her. But she categorically stated that blood came out from her private parts. It was also stated by the prosecutrix that the blood got oozed by the appellant and that the appellant performed intercourse with her with his penis and when the intercourse was done she felt pain and wept and she narrated the entire occurrence to the police.

PW8 ASI Rama Shanker is the Investigating Officer, who recorded the statement of the informant and arranged the medical examination of the appellant as well as the prosecutrix. This Thanedar also earlier arrested the appellant when he was under the influence of liquor. The prosecution further tendered in evidence statements of the formal witnesses namely Constable Sadhu Singh and MHC Mohiner Singh besides the report Ex.PL of the Forensic Science Laboratory.

The statement of the appellant was recorded under Section 313 Cr.P.C and all the incriminating circumstances appearing in the prosecution evidence were put to him. He denied those circumstances and stated as follows :

"It is a false case. The complainant party was cultivating the land of Dera and when I took over Dera from Baba Santa Singh, I turned them out and I have been falsely implicated on account of that. I am a married man and have a small daughter of the age of prosecutrix."

In defence the appellant did not lead any evidence.

The learned trial Court convicted and sentenced the appellant in the manner as stated above for the reasons as contained in paragraphs No. 9 and 10 of the judgment which I would like to requote as under :

"9. This is a case where about 8 years old girl Jasbir Kaur PW8 has been raped. The contention of the learned counsel for the accused is that blood was not found on the private parts when Dr. Santosh Kataria PW1 examined her and there is no injury on vagina and over the genitalia. He further argued that there was no laceration present on the penis which shows that accused has not committed rape, has no force. For committing rape it is not necessary that penis should fully be inserted in the private part of the prosecutrix, who was very minor. The doctor (PW3), who examined the accused few hours after rape, found blood spots on the underwear adjacent to the penis and vide report Ex.PL of Forensic Science Laboratory the blood stains on the underwear was of human blood. The witnesses and the prosecutrix have stated that the blood was coming out from her private parts. If the accused had not committed rape, there was no reason why the blood was found on his underwear, near the penis, and on the private parts of the prosecutrix. No doubt the doctor, who has examined the prosecutrix, has not stated about blood, but on Court question, it is stated by her that possibility of blood oozing out from the vagina before conducting her examination could not be ruled out. The doctor PW1 also found fresh laceration redish in colour over the inner side of right and left labia minora. No doubt hymen was intact. But the fact cannot be ignored that she was small girl of about 8 years old and accused was caught committing rape soon after her shrieks were heard and this shows that the accused was found committing rape, and full penetration was not possible on account of the minority of the prosecutrix. Moreover, PW1 Dr. Santosh Kataria has stated that the possibility of penetration of male penis cannot be ruled out. Therefore, the evidence of the doctor as discussed above coupled with the statement of Jagir Singh complainant, Jeoni eye witness and prosecutrix fully prove that accused has committed rape on this minor girl.

The further submission of the learned counsel for the accused is that mother and father of the girl have not been examined, but this is no ground to discard the testimony of witnesses discussed above. The last submission of the learned counsel for the accused is that the accused has been falsely implicated on account of the land having been taken out from the control of the complainant, is no argument because there is no evidence that any land was taken by the accused from Jagir Singh (PW6) and same was later on given to someone else. I, accordingly, find that prosecution has been fully able to prove its case against the accused beyond all reasonable doubt and I convict him u/s 376 IPC."

Aggrieved by his conviction and sentence, the present appeal by the appellant which I am disposing of with the assistance rendered by the learned Deputy Advocate General, who appeared on behalf of the State of Punjab. I have also gone through the records of this case carefully.

The first point for determination in this case would be about the age of the prosecutrix and it has not taken me long to come to the conclusion that Jasbir Kaur was a small child of about 8 years at the time of the occurrence. The prosecutrix had stated so before the Court. She was medico legally examined by the doctor and the doctor gave her age as 8 years. The ossification test also certifies that the prosecutrix was aged between 5 to 8 years. The ossification test was based on account of the development of various bones. Even the Court has examined Jasbir Kaur as a child witness. There is no evidence to conclude that the prosecutrix in this case could ever be a consenting party.

As to whether the appellant was convicted rightly for the offence of rape, we have to rely upon the testimony of Jasbir Kaur, Smt. Jeoni and Jagir Singh. No doubt, Jagir Singh and Jeoni could not come forward in a straight manner in order to support the allegations but when they were crossexamined by the Additional Public Prosecutor they vomited out the truth. Jasbir Kaur though is a child witness but she is a competent witness. If her statement has to be looked with care and caution the only requirement of law is that before acting upon the testimony of a child witness there should be a sufficient corroboration. The corroboration in this case has come from the oral testimony of Jagir Singh and Jeoni, who were attracted to the Dera on hearing the cries of Jasbir Kaur. They had to state under the stress of cross examination by the Addl. Public Prosecutor that the appellant was naked and he was lying over the person of Jasbir Kaur. The testimony of Jasbir Kaur finds corroboration from the medical evidence. The blood was oozing from her private part and the part of the blood smeared the underwear of the appellant and human blood was confirmed by the Forensic Science Laboratory. The appellant when arrested on the day of occurrence was under the influence of liquor. Perhaps this was the cause that the appellant committed a heinous offence upon a child of 8 years in order to satisfy his lust. Liquour played its mischief in this case. It compelled the appellant to lose his reasoning and he became a devil. Hardly there is any cogent reason on the record to disbelieve the testimony of Jasbir Kaur, Jeoni and Jagir Singh. The defence which has been taken by the appellant is totally false. No sane person would like to tear the abdomen of his/her own daughter in order to involve a person in a criminal case. Young daughters are supposed to be married when they become of marriageable age. Nobody would like to invite a stigma for his family.

The reasons which have been advanced by the learned trial Court in convicting the appellant are cogent and this Court does not see any infirmity in the impugned judgment. Even the sentence which has been awarded to the appellant in this case cannot be held to be excessive. Thus I do not see any merit in this appeal and dismiss the same.