Sat Pal vs State of Haryana

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment dated 2.7.1987 and order dated 4.7.1987 passed by the learned Addl. Sessions Judge, Faridabad, who convicted the appellant Sat Pal of offence u/ss 363/366/376, IPC and sentenced him to undergo R.I. for a period of 7 years and to pay a fine of Rs. 500/ u/s 376 IPC; in default of payment of fine, he was further directed to undergo RI for six months. The appellant was further directed to undergo RI for a period of 3 years and to pay a fine of Rs. 300/ u/s 366, IPC; in default of payment of fine, he was directed to undergo RI for 3 months. He was also sentenced to undergo RI for 2 years u/s 363, IPC and to pay a fine of Rs. 200/; in default of payment of fine, he was directed to undergo R.I. for two months. The trial Court further held that all the substantive sentences shall run concurrently.

The brief facts of the case are that Miss Kamla, prosecutrix daughter of Puran Lal, aged about 9/10, resident of Village Golpiri, Police Station Nuh, District Gurgaon, presently residing at Indra Nagar, Faridabad, at the Jhuggi of her elder brother Tara Chand for the law few years, was a student of 5th class. She was sleeping in the courtyard in front of the Jhuggi of her brother Tara Chand on the night intervening 20/30.3.1987 whereas her brother Tara Chand and his wife Smt. Parwati, PW10, were sleeping inside the Jhuggi. After midnight, Satpal, appellant, residing in the same locality in Indra Nagar, Faridabad, forcibly lifted Kamla and took her in a nearby Jhuggi belonging to one Hoti Ram, PW8 which was lying vacant at that time. The appellant made Kamla to lie on the cot where Bichhona and Khes, Ex.P34 and 4, respectively were already lying and after removing her salwar, Ex. P1, the Katcha, Ex. P2, which Kamla was wearing at that time, committed rape upon her and when the prosecutrix cried, the appellant threatened her to kill and after committing the rape, the appellant left the prosecutrix in that Jhuggi and went away. Kamla came weeping to the Jhuggi of her brother Tara Chand at about dawn time and while weeping told the above incident to her brother''s wife Parwati. Her brother Tara Chand was also present in the Jhuggi at that time. At about 11.30 am, Parwati and her husband Tara Chand left their Jhugi in order to lodge the report with the police and when they reached at Y.M.C.A. crossing, in the area of Police Station Central Faridabad, Sub Inspector Narender Nath, PW11, Incharge of Police Post, Sector 7, Faridabad, met them where Parwati made her statement, Ex.PN, before him. SI Narender Nath recorded the police proceedings Ex.PN/1, underneath that statement, Ex.PN, and sent the same to the Police Station, Central, Faridabad, for the registration of the case against the appellant, on the basis of which formal FIR Ex. PN/2 was recorded by Inspector Mahinder Singh, SHO, Police Station Central, Faridabad. The special report was also sent to the Illaqa Magistrate who received the same at 2.30 pm on the same day, i.e. 30.3.1987 vide his endorsement Ex.PN/3. Thereafter, SI Narender Nath deputed a Constable to take Kamla to B.K. Hospital, Faridabad, and Parwati also accompanied them. Kamla was medically examined there at 1.30 PM on 30.3.1987 by Dr. (Mrs.) Neeru Kalra, PW1, who opined vide MLR, Ex.PA, that hymen of Kamla was fond ruptured and there small tags hanging and blood was coming through the ruptured hymen at the time of medicolegal examination, which showed that rape had been committed upon Kamla. This doctor further opined that Kamla was not more than 13 years of age in any case at that time. This doctor took into possession blood stained Salwar, Ex.P1 and Kachha, Ex.P2, from the person of Kamla and after turning them into a sealed parcel, handed them over to the police for obtaining the report of the Chemical Examiner. The doctor further opined that introitus of Kamla was tender to touch and one finger could be introduced in the vagina of Kamla with difficulty and she was not having menstruation prior to that date and even on that date. The doctor also prepared swabs from the vagina of Kamla and the same were sealed in a bottle and were handed over the police for obtaining report of the Chemical Examiner. This doctor further referred Kamla to Dental Surgeon for determination of her age.

On 6.4.1987, at 10.15 am, Kamla was examined by Dr. (Mrs.) Sushma Sharma, Dental Surgeon, B.K. Hospital, Fatehabad, in order to ascertain her age and after examination, she vide her report, Ex.PC, opined that Kamla was in between 10 to 12 years and that there cannot be any variation in ages of different persons on the basis of data emerging from dental examination. On 6.4.1987, Dr. Rajesh Gupta, Medical Officer, B.K. Hospital, Faridabad, PW4, radiologically examined Kamla and opined vide his Xray report, Ex.PF, based on skiagram Ex.PF/1 that Kamla was less than 14 years of aged on that date. The prosecution also placed on record the school leaving certificate Ex.PG of Kamla wherein her date of birth was recorded as 15.4.1977 and the same was got proved from Shri Kanwar Pal, ExHeadmaster, Janta Modern Public School, Mujesaw, PW5, where Kamla used to study. During the course of investigation, evidence was also collected that on 31.3.1987 at about 6.30 AM, appellant approached Manphool Singh, PW7, resident of Indra Nagar, Faridabad, and made an extrajudicial confession of his guilt and requested him to produce him before the police, who accordingly produced him before SI Narender Nath at 8 AM in Police Post Sector 7, Faridabad on that day and the S.I. arrested the accused, who was got medically examined from Dr. Ram Chander, PW3, on 31.3.1987 at 5.45 PM, who vide his report, Ex.PD, opined that there was nothing to suggest that the accused was incapable of committing sexual intercourse and that there were some marks on Kachha, Ex.P7, which the accused was wearing at that time and as such, the doctor took the same in his possession in a sealed parcel and handed it over to the police for getting it examined from the Chemical Examiner.

The sealed parcel containing Salwar Ex.P1 and Kachha, Ex.P2, of the prosecutrix and other sealed parcel containing Bichhona, Ex.P3, and Khes, Ex.P4 and another sealed parcel containing Kachha, Ex.P7 of the accused and another sealed parcel containing swabs taken from the vagina of the prosecutrix were sent to the Chemical Examiner for analysis who vide his reports, Ex. PU and Ex. PU/1, opined that Bichhona, Ex.P3 and Khes, Ex.P4, Salwar, Ex.P1 and Kachha, Ex.P2 of the prosecutrix were stained with human blood and so were the vaginal swabs, Ex.P6 and kachha, Ex.P7, of the accused. The Chemical Examiner further opined that said Bichhona, Khes, Vaginal swabs and Kachha of the accused were all stained with human semen. SI Narender Singh went to the spot and prepared the rough site plan, Ex.PQ of the place of occurrence. He also recorded the statements of the witnesses and after the completion of the investigation of the case, the appellant was challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 6.5.1987, the Addl. CJM committed the appellant to the court of Sessions to face trial u/ss 363/366/376, IPC. Vide orders dated 18.5.1987, the charges were framed against the appellant u/ss 363/366/376, IPC. The charges were read over and explained to the appellant to which the appellant pleaded (not) guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Dr. (Mrs.) Neeru Kaira, and the material portion of her observations have already been incorporated by me in the earlier portion of this judgment. PW2 Dr. (Mrs.) Sushma Sharma, medically examined prosecutrix in order to determine her age after taking note of the growth of the teeth and this doctor opined that the prosecutrix was 10/12 years of age vide her report, Ex.PC. Dr. Ram Chander, PW3, examined the appellant in order to determine whether he was fit to perform sexual intercourse or not and vide opinion, Ex.PD, opined that there was nothing to suggest that the appellant was not in a position to perform sexual intercourse. PW4 Dr. Rajesh Gupta, radiologically examined the prosecutrix and vide report, Ex.PF, certified that the prosecutrix was 14 years of age. PW5 Kanwar Pal, ExHead Master, Janta Modern Public School, Mujesar, deposed that Kamla, prosecutrix had read upon 5th class in his school and her name was later on struck off on 31.3.1987 and when she was a student of 5th class, according to the school record, the Date of Birth of the prosecutrix was 15.4.1977. Ex.PG is the relevant certificate. PW6 Sohan Lal simply prepared the scaled site plan, Ex.PH. PW7 Manphool is a witness of extra judicial confession and he stated that on 31.3.1987, the accused came to him in the early hours of the morning and woke him up and made a confession that the police was after him and that he should produce him before the police as he had committed rape with a girl. It has also been certified by this witness that after that he produced the appellant before the police at 8 AM, in Police Post, Sector 7, Faridabad. PW8 Hoti Ram is the witness to the effect that his Jhuggi was situated close to the Jhuggi of Tara Chand, brother of the prosecutrix. He hails from U.P. and he had gone to U.P. on 15.3.1987 along with his ailing wife and returned after about 17 days. While leaving for U.P., he left his Jhuggi situated in Indra Nagar, Faridabad, as vacant, which had no shutters but he had put a lock on the temporary cover. PW9 Kamla is the prosecutrix who appeared on oath and deposed that on the night intervening 20/30.3.1987 when she was sleeping in the courtyard in front of the Jhuggi of her brother and when her brother and his wife were sleeping inside the Jhuggi, the appellant at about midnight came and he forcibly lifted her from her bed and took her to a nearby vacant Jhuggi and made her to like on a cot, which had a bedding including a Khes; it has been further deposed by this witness on oath that the appellant committed rape by putting his private part in her private part as a result of which she raised hue and cry but the appellant did not hear anything and he went away after committing rape with her. It has also been stated by this witness that she returned to her house weepingly and told the above occurrence to her Bhabi Parwati. Besides that, she further proved that she was wearing a salwar and Kachha at the time of the occurrence and both those clothes became blood stained. Also she certified that Bichhona and Khes were lying on the cot upon which rape had been committed. PW10 Parwati, Bhabi of the prosecutrix corroborated the allegations of the prosecution so far as the factum of rape is concerned and so far as the prosecutrix told the story to her. PW11 SI Narender Nath is the I.O. who conducted the investigation of this case. The report of the Chemical Examiner is that blood was found on the Bichhona, Khes, Salwar and underwear and vaginal swabs of the prosecutrix. Human semen was detected on the Bichhona, Kachha, vaginal swabs and underwear. However, semen could not be detected on the salwar and underwear of the prosecutrix.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated that he has been falsely implicated in the present case due to strained relations with Tara Chand PW.

When called upon to enter defence, the accused did not lead any evidence and closed the case.

The learned trial convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. Sanjeev Sheoran, Advocate, appearing on behalf of the State of Haryana, as the appeal was filed through jail and even after filing the appeal nobody has given the assistance from the side of the appellant.

The first point for determination in this case would be the age of the prosecutrix. Inspite of the fact that there is oral and direct evidence that the girl was between 10 to 12 years, still there is documentary and medical evidence on the record which shows that the girl was definitely less than 14 years at the time of the date of commission of the office. PW1 Dr. Neeru Kalra has stated that Kamla was a young girl of about 10 years, moderately built and unmarried. Her secondary sexual characters were not developed. Pubic or exillary hair were not developed. Small breast buds were formed. There was no history of menstruation. All these observations clinch that Kamla was less than 14 years at the time of the incident. The statement of PW1 stands corroborated even by the statement of Dr. Sushma Sharma, PW2, who stated that in her opinion, the age of the prosecutrix was not between 10 to 12 years. Even the radiologist says that the prosecutrix was less than 14 years of age. As per the statement of Head Master, the prosecutrix had read only upto 5th class and her name was struck off on 31.3.1987. All these factors conclusively establish that the prosecutrix was less than 16 years of age on the date of the commission of the offence. With regard to the evidence of rape, the following factors have been that close to the Jhuggi of the brother of the prosecutrix, a Jhuggi of one Hoti Ram was lying vacant; that on the date of the occurrence, Hoti Ram had gone to his village in U.P. with his wife. The prosecutrix has deposed that on the night of the occurrence, she was sleeping in front of the Jhuggi of her brother and her brother and his wife were sleeping inside the Jhuggi. We all know that in a small Jhuggi, there is only one apartment. In these circumstances, it was very natural that Tara Chand and his wife Parwati, being married, might have slept inside the Jhuggi and this small girl must have slept outside the Jhuggi. It has been categorically stated by the prosecutrix that during midnight, the appellant forcibly lifted her and took her to the vacant Jhuggi of Hoti Ram where a bedding was already there and he committed rape upon her and after committing the rape, he fled away. It has also been testified by the prosecutrix that her Salwar and underwear became blood stained on account of bleeding. Blood must have fallen even on the bedding, which was lying on the cot. The conduct of the prosecutrix was very natural. She narrated the entire occurrence to her Bhabi who told the occurrence to her husband Tara Chand and without any wastage of time, the prosecutrix and her brother and his wife went to the police station in order to lodge the report where the appellant was named. The testimony of the prosecutrix has to be read like that on an injured witness because she was the direct victim of the assault. Her statement inspires confidence. There is not an iota of evidence from which it can be established that there was enmity between Tara Chand and the accused. Tara Chand would be the last person to put forward his unmarried small sister in order to implicate the appellant. The testimony of the prosecutrix is corroborated by the testimony of PW1, who categorically stated that sexual intercourse had been committed upon the prosecutrix. Then, there is an evidence of extra judicial confession made by the appellant before the President of the Jhuggi Union. The police was after the appellant and, in these circumstances, the appellant must have suffered an extra judicial confession by appearing before the President of the Union so that the police may not torture him. No circumstance has been brought in the statement of Manphool, PW7, from which I can conclude that Manphool is inimical with the appellant. When the appellant was taken into custody, his clothes were removed and human semen was found on the underwear. All the above circumstances go to only one pointer that it was the appellant who committed rape with Kamla by taking the advantage of her loneliness. It is well settled that conviction can be based even on the bald statement of the prosecutrix if it inspires confidence but in the present case, there is much evidence on the record from which it can be safely concluded that Kamla was subjected to rape by the present appellant. Not only there is a direct evidence but also evidence of res gastae; medical evidence; school leaving certificate evidence; ossification test; dental opinion and extra judicial confession voluntarily made by the appellant before Manphool. The appellant does not even deserve sympathy in the matter of sentence as he has committed rape with a minor girl by taking the advantage of her loneliness when the girl was sleeping alone in front of the Jhuggi of her brother. The appellant his violated the virginity of a small girl of 10 to 12 years. He does not deserve any concession in the matter of sentence.

Resultantly, I do not see any merit in this appeal and maintain the conviction of the appellant u/s 363/366/376, IPC, and dismiss the appeal is toto.