Shiv Kumar vs State of Haryana

K.P.S. Sandhu, J. (Oral)

Shiv Kumar, son of Faqir Chand, aged 17 years, Student, resident of village Badshahpur, Tehsil and District Gurgaon, stands convicted and sentenced under Section 376 of the Indian Penal Code, to undergo rigorous imprisonment for seven years, for committing rape on Babita, aged 9 years.

Shorn of all the details, the prosecution story is that on April 14, 1980, the parents of Babita prosecutrix had gone to Delhi. The prosecutrix and her elder sister Sneh Lata were at home. The appellant was doing tailoring work at his house. None else was present in the house. At about 6. p.m. Babita was playing in the chowk of the house of Faqir Chand, father of the appellant. Finding an opportunity, the appellant took her to the room where he was doing the tailoring work. He removed her knicker and put his penis into her vagina and pressed the prosecutrix against himself. When he started crying out of pain he left her. The prosecutrix came out of the room crying hearing which her sister Saneh Lata came there. The prosecutrix narrated her tale of woe to her sister and Adeshwar Parshad. Meanwhile, the appellant slipped away. Saneh Lata brought the prosecutrix to their house. After sometime their mother Kamla Devi reached back home from Delhi, but their father who it seems, had to gone there in the company of his wife, however, on April 16, 1981 at night. He was apprised of what had happened, but even then the matter was not reported to the police for fear of disgrace.

Smt. Kamal Devi, mother of the prosecutrix, had got Babita treated by a private doctor Mrs. Mahajan of Gurgaon during the absence of her father, on whose arrival she was taken to Hindu Rani Hospital at Delhi on the night between 17/8.4.1980, and reached there at 10.15 a.m. on April 18, 1980. She was initial by examined by Dr. Ashok Kumar D.W. 1 and later by lady Dr. Miss Neeraji P.W.2 Dr. Kapur found from the history of the case given to him that the girl had been raped. He called P.W. 5 Gian Singh Constable and handed over the papers of medical examination etc. The said Constable reported the matter to police station Sabzi Mandi, Delhi, on telephone. This message was received by SubInspector Partap Singh P.W. 18 at 1.30 a.m. He recorded it in the daily diary and a copy of the report is Exhibit PP.S.1 Partap Singh P.W. 13 went to hospital. He obtained MLR Exhibit PD of Babita and recorded the statement Exhibit PN of her mother Kamla Devi and sent the same to Police Station, Sadar Gurgaon in whose jurisdiction the occurrence had taken place. At Gurgaon the investigation was taken up by S.I. Partap Singh P.W. 14, who on the basis of the Statement Exhibit PN of Kamla Devi, recorded formal F.I.R. Exhibit PN/1 on April 18, 1980 at 1 p.m. Then he proceeded to the spot and prepared site plan Exhibit PE. He took into possession knicker Exhibit P2, which the prosecutrix was wearing at the time of the incident and made it into a sealed parcel. He also recorded the statements of Sneh Lata and Adeswar Parshad. He searched for the appellant, but he was not traceable. Later on, on April 29, 1980, at 8.30 p.m. The appellant was produced before him by one Joginder Singh, whereupon he placed him under arrest and sent him up for medical examination which was subsequently perform by Dr. K.C. Goyal PW. 1, who found him capable of performing sexual intercourse. He found no injury on his person. A part of the investigation was conducted by ASI Sheodan Singh P.W. 12. He went to Hindu Rao Hospital at Delhi on April 19, 1980, after registration of case, and took into possession two sealed parcels containing vaginal smear and swab, from Head Constable Gian Singh. He also recorded the statement of Babita.

Lady Dr. (Miss) Neeraja P.W. 2 Hindu Rao Hospital Delhi examined the prosecutrix on April 18, 1980, at 1.30 a.m. and found that vagina was bleeding, hymen was turned and clots and blood were present in vagina. She further found that there was an irregular tear extending from hymen to vagina fornix on medio lateral wall of vagina on right side. There was small medial tear of posterior vaginal wall, near force. Vainna was full of clots of blood. Piece of tissue was removed from vagina. She further observed that the prosecutrix was looking ill. Pulse was a 100 p.m. and pailor was present. She did not rule out the possibility of the insertion of the penis into the Prosecutrix.

When examined under Section 313 of the Code of Criminal Procedure, the appellant pleaded false implication due to the fact that his uncle had been instrumental in getting the engagement of the elder sister of the prosecutrix cancelled.

In support of its case, the prosecution examined the prosecutrix P.W. 9, her sister Sneh Lata P.W. 11 Smt. Kamla Devi P.W. 10 and Adeshwar Parshad P.W. 4, apart from other evidence.

Mr. Harbans Singh, Senior Advocate learned counsel for the appellant in the first instance, has highlighted the delay in the lodging of the First Information Report. He has argued that the occurrence in this case took place on April 14, 1980 at 6 p.m. but the report about the same was lodged on April 18, 1980 at 1 p.m. The distance between the place of occurrence and the Police Station was only five miles. The explanation offered by the prosecution for this delay is that at the time of the occurrence the mother of the prosecutrix, namely Kamla Devi was away and her father had also gone to Delhi in connection with some business and returned only on April 16, 1980. During this period they had been waiting for the father of the prosecutrix to come and she was being medically treated by some local doctor, and on the arrival of her father she was taken to Hindu Rao Hospital, Delhi, when she did not show any signs of improvement and consequently the report came to be recorded.

I am fully satisfied with the explanation offered by the prosecutrix. It is such an abnormal type of case that the parents of the girl would be hesitant in the first instance to lodge a report about this incident and according to the evidence, they even were not present at the time of occurrence.

The second point raised by the learned counsel is that no injury was found on the penis of the appellant on his medical examination. But from the medical evidence, it is clear that the appellant was examined after 5 days of the occurrence. The possibility of the healing of an injury if any, within that period cannot be ruled out.

All the witnesses have fully supported the prosecution version although the names of Sneh Lata PW. 11 and Adeshwar Parshad P.W. 4 were not mentioned in the First Information Report. In such a case, even if their evidence is not attached much weight, the statement of the prosecutrix along would be sufficient to bring home the charge against the appellant. The medical evidence has clearly corroborated by the version of the prosecutrix. In this situation. I am of the view that the prosecution has succeeded in proving its case beyond a reasonable doubt.

All learned counsel has lastly prayed that appellant is a young boy 16/17 years and probably committed this heinous crime in a fit of perversion and insanity without knowing, the consequences of the same, and the sentences awarded to appellant in excessive.

I am inclined to agree with the learned counsel for the appellant that the sentence awarded to appellant is rather on the higher side and excessive. I, therefore, reduce the same from 7 years rigorous imprisonment to 3 years rigorous imprisonment. However, the appellant is further ordered to pay a fine of Rs. 2,000/. In default of payment of fine, he will undergo rigorous imprisonment for two years. The fine, if realized, wound be paid to the prosecutrix or her parents.

But for this modification in the sentence, this appeal fails and is dismissed.