Surinder vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 13.11.1995 passed by the court of Additional Sessions Judge, Sonepat who convicted the appellant under section 376 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1000/. In default of payment of fine, he was directed to undergo rigorous imprisonment for a period of two months.

The brief facts of the case are that on 23.10.1994, Krishan Gopal son of Mohan Lal, resident of Panchsheel Colony, Milton Road, Sonepat and his brother Ashok Kumar were present on the Milton Road near bakery shop. Their house is also situated in the vicinity of that shop. They were busy in conversation with each other when they heard screams of a child coming from a room on the first floor of the bakery which was being occupied by Surinder accused Chhotu and Naushad for their residence. On hearing the screams, Krishan Gopal and his brother Ashok rushed towards the room from which the screams were coming through the stairs. On hearing the sound of their foot steps Surinder accused became panic stricken. They came across him in the stair case while he was rushing down stairs. Surinder accused gave a push to them and made good his escape when Krishan Gopal and Ashok went inside the room on the first floor of the bakery shop, they found Chetna seven months old daughter of Krishan Gopal lying on the cot with her underwear removed. She was bleeding from her private parts and wriggling with pain. The underwear and the bedsheet spread on the cot were blood smeared. They picked up the child and took her to Civil Hospital, Sonepat where she was medically examined by the Doctor. After medical examination, the Doctor handed over two sealed envelopes, medico legal report and the seal impression to Constable Angna Ram. Accompanied by Constable Angna Ram, they were going to the police post for lodging report when Sub Inspector Pritam Singh met them. Krishan Gopal made statement Ex.PA/1 to Sub Inspector Pritam Singh, wherein he narrated all these facts. He also told Sub Inspector Pritam Singh that his daughter had been raped by accused Surinder. S.I. Pritam Singh forwarded statement Ex.PA/1 with his endorsement Ex.PA/2 to the police station on the basis of which First Information Report No. 547 dated 23.10.1994 under section 376 I.P.C. was registered in Police Station City. Accused was arrested. On completion of the investigation, report under section 173 Cr.P.C. was prepared and forwarded to Chief Judicial Magistrate, Sonepat who supplied copies of the document to the accused as required under law and vide order dated 31.1.1995 committed the accused to the court of sessions to face trial. Vide orders dated 13.2.1995, the appellant was chargesheeted under Section 376 I.P.C. The charge was read over and explained to the accused to which he pleaded not guilty and claimed trial.

In order to prove its charge, prosecution examined Inspector Chaman Lal(PW.1), SHO, P.S. City, Sonepat, Shri Ram Diya Sub Inspector PW.2, Dr. R.N. Tehlan (PW.3) who medically examined the appellant a young boy of 18 years and declared him fit to perform sexual intercourse vide report Ex.PC. Doctor R.R. Mittal appeared as PW.4 and he medically examined Chetna a small child of seven months and stated as follows :

"There was abrasion on labia minora and majora. Lacerated wound was present on perinium size was 2cm x 1cm and was muscle deep. Fresh bleeding was present.

Contusions were present at 7th and 8th O''clock position of anus.

Hymen was intact and there was no injury on vaginal wall."

This Doctor issued M.L.R. Ex.PD and also sent ruqa Ex.PE to the Police Station. Further this Doctor took swabs from the vagina of the prosecutrix. A specific suggestion was put to this Doctor whether abrasion and contusion could be caused to the minor female baby while giving bath by her mother and putting a finger for cleaning the vagina. This suggestion was denied by the Doctor. The Doctor gave cogent reason that it is not normal that a mother giving bath to her baby putting her finger deep into the vagina. Krishan Gopal father of the girl appeared as PW.5 and he categorically stated that on the date of the occurrence he did not go to his shop and was present at the house. At about 5.00 P.M. he was talking with his brother outside the house. He and his brother heard shrieks of Chetna aged about 7 months coming from the first floor of the bakery building in front of the house across street. Workers of the bakery manufacturer were living in the room of the first floor of the building. When he and his brother rushed to the building from where shrieks were coming and when they were going upstairs, Surinder appellant was coming from the room on the first floor and he gave push to them and ran away. It is also stated by the witness that when they went inside the room that saw Chetna lying on the cot and her underwear had been removed and blood was coming from her private parts and also passed stools. She was weeping. The bed sheet was also blood stained and there was none in the room from where the appellant came out and ran away after giving them a push in the staircase. The statement of PW.5 Krishan Gopal has also been corroborated by Ashok Kumar (PW.6) who deposed that when he alongwith PW.5 Krishan Gopal were going upstairs, the appellant came across them and gave push to them and ran way through staircase. When they entered inside the room, they saw Chetna lying on the cot. She was bleeding from her private parts and she also passed stools on the bed sheet spread over the cot where she was lying. It has also been stated by this witness that bedsheet was blood stained and the blood stained underwear of the child was lying on one side of the cot. Ashok Kumar further stated that there was no body else in the room except the appellant who had earlier run away. The statements of PW.5 Krishan Gopal and PW.6 Ashok Kumar clinches the issue that near the place of the rape it was the appellant alone who was seen and his conduct is also very shaky. He ran away from the room on hearing approaching foot steps of Krishan Gopal and his brother Ashok Kumar through staircase. PW.7 is Satish Kumar who is simply a witness of the recovery like Anil Kumar (PW.8) who is a Draftsman. PW.9 Krishan Kumar deposed that he issued special report of this case. PW.10 Angna Ram delivered ruqa to Police Post Model Town Sonepat and alongwith ruqa he handed over parcel containing clothes and some documents to the police. PW.11 Kuldeep Singh deposed that he had taken the appellant Surinder to Civil Hospital, Sonepat for medical examined. Hans Raj PW.12 is the photographer who took photographs of the place of the occurrence while PW.13 Pritam Singh is the Investigating Officer.

Statement of the accused was recorded under section 313 Cr,P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated as follows :

"I am innocent. I was on visiting terms to the house of Krishan Gopal. His wife had friendly relations with me which was disliked by her husband. When Krishan Gopal started protesting against my visit to his house I stopped my visits. Krishan Gopal suspected me of having illicit relations with his wife and in order to get me punished on the ground of suspicion, he got this case registered against me on false allegation. I do not know as to how Chetna came to suffer injury. I did not carry Chetna to the room where she was alleged found sexually assaulted and I was never seen by the witnesses coming down from the stairs of the house in which that room is situated. The witnesses had deposed against me owing to illwill."

In defence the accused did not examine any witness.

The learned Trial Court for the reasons given in paras 10 and 11 of the judgment convicted and sentenced the appellant. Paras 10 and 11 are quoted as under :

"10. It has been contended by Shri R.D. Sharma, learned defence counsel that the bakery on which the accused was employed is in the vicinity of the house of Krishan Gopal. The accused was on visiting terms at the house of Krishan Gopal who suspected that the accused was having illicit sexual relations with his wife. The injuries were suffered by the child in the process of cleaning the vagina of the child by her mother at the time of giving bath to her and the accused has been falsely implicated in the case by Krishna Gopal in order to take revenge as Krishan Gopal suspected the accused as having intimate physical relations with his wife. He has further contended that there is no evidence of semen found on the underwear of the accused or that of child or on the vaginal swabs taken by the doctor and allegedly sent to Forensic Science Laboratory which negatives the rape of the child. He has further contended that hymen of the child was found intact and no injury was found on the vaginal walls by Dr. R.R Mittal when he examined the child which also shows that no rape was committed upon the child. It has been further contended that had the accused committed rape his clothes should also have been blood smeared as the child was found bleeding from her private parts and since the clothes of the accused were not found blood smeared it shows that the accused did not commit rape. In support of these contentions, Shri R.D. Sharma, learned defence counsel has drawn my attention to Balwan Singh v. The State of Haryana, 1991 Criminal Courts Judgment 212. In that case, a six years old girl was allegedly raped. There were fourfive shops situated near the place of occurrence. Doctor reported no injury on the private parts of the prosecutrix. The evidence of the father of the child and another witness was not found reliable. The child witness was also held to be belonging to dangerous class of witnesses. In these circumstances, the conviction was set aside.

The facts of the case in hand are distinguishable from the facts of Balwan Singh''s case (supra) and the authority cited by the learned defence is hardly of any help to the accused. The defence plea that the father of the victim child suspected the accused of having illicit relation with his wife and that he got the accused falsely implicated in the case has also no force in it. Shri Krishan Gopal complainant is a shopkeeper and a respectable person. No respectable person will use his child daughter for fabricating a false charge of rape against a man whom he allegedly suspected as having illicit relations with his wife. The abrasion on the labia minora and majora and the lacerated wound on the perinium 2cm x 1cm muscle deep and contusion on the anus of 7 months old child cannot be inflicted during the process of cleaning the vagina by the mother of the child when she gives bath to the child. Dr. R.R. Mittal PW.4 has ruled out the possibility of the injuries found on Chetna being the result of her mother putting a finger in the vagina for cleaning the vagina while giving bath to her. It has been stated by him that it is not normal that a mother giving bath to her baby would be putting her finger deep into the vagina. He also stated that the abrasion and the contusion cannot be caused to the minor female baby while giving bath by her mother. Shri Krishan Gopal father and Shri Ashok Kumar uncle of the child were attracted to the room on hearing the screams of the child and the child was found lying on a cot and bleeding from the vagina when they reached in the room. The room where the child was found immediately after she was sexually assaulted did not belong to Krishan Gopal. The bedsheet spread upon the cot on which child was found lying and the underwear of the child victim of the offence were found blood smeared. The blood smeared bedsheet and the under wear of the child were taken by the Investigating Officer in his possession in the presence of Satish Kumar PW.7 from the room where the offence was committed. Satish Kumar had no illwill or enmity against the accused. The accused was occupying the room in which the offence was committed for his residence. If the child had suffered injuries while her mother was giving bath to her, how the child could have been found lying in the room occupied by the accused in a different building. The accused was all alone with the child in the room and immediately after the sexual assault, the accused was found running down stairs from that room by Krishan Gopal and Ashok Kumar. He was panic stricken and he ran away after pushing aside Krishan Gopal and Ashok Kumar on the stairs. All these circumstances incontrovertible lead to an inference that the accused had sexually assaulted the child and ran away when he heard sound of steps of Krishan Gopal and Ashok Kumar who were rushing upstairs on hearing of screams of the child. It is true that no evidence has been produced by the prosecution that the vaginal swabs and the underwear of the child had the presence of human semen on it but merely from the absence of human semen on the vaginal swabs and the underwear of the child it cannot be said that she was not raped. The offence was committed on 23.10.94 at 5 P.M. The accused fled away after committing the offence. He was arrested by the police on 24.10.1994 as per statement of Inspector Pritam Singh. The accused had enough time with him to wash his clothes. The absence of blood on the clothes of the accused in such circumstances does not lead to the inference that the accused did not commit the offence of rape. Shri Ajay Garg, learned counsel who has assisted the Public Prosecutor has drawn my attention to Madan Gopal Kakkad v. Naval Dubey and another,1992(2) Criminal Court Judgments 545 wherein it was held by the Hon''ble Supreme Court that penetration however slight is sufficient for constituting the offence of rape."

I have heard Shri Vishal Sharma Advocate on behalf of the appellant and Shri J.S. Ahlawat, Advocate appearing on behalf of State of Haryana and with their assistance have gone through the record of this case.

The point for determination is whether the appellant committed rape upon Chetna or not ? It is true that prosecutrix had not appeared in this case nor she could appear to make a statement because she was child of seven months. She had hardly learnt how to speak. She could not express her feelings. She could only cry with pain and exactly this has happened in the present case. Accused was a young person and his male organ must have been fully developed. Chetna could not tolerate pain. She might have felt pain on account of penetration. That is why there was lot of blood from her private parts and blood was oozing and spread on the bedsheet which was lying on the cot as depicted from various photographs which are on the record. It is equally true that no body has seen the appellant committing rape upon Chetna but the circumstances in this case are glaring and convincing and only reasonable inference can be drawn that the appellant was guilty for the damage which has been caused to the person of Chetna. Story of the prosecution is very natural. The appellant at that time alone was occupant of the room which was on the first floor of the building. The house of the complainant is opposite to the bakery. Appellant was working in the bakery. On hearing screams of Chetna it was natural anxiety on the part of Krishan Gopal and Ashok Kumar to rush to that place. While going to the place of occurrence, they came across the appellant who was trying to run away from the place of occurrence in order to screen himself from punishment. Krishan Gopal and Ashok Kumar could not physically apprehend the appellant for the obvious reason firstly they must be interested to secure the safety of Chetna and secondly they were not sure as to what damage had actually been caused to Chetna by the appellant and thirdly the appellant was a young boy and he must have given pushes to the witnesses so as to run away from the place of incident. There is no motive why Krishan Gopal and Ashok Kumar would like to implicate the appellant in this charge though a false defence has been taken by the appellant that he was having illicit relations with the wife of Krishan Gopal. No sane father would like to tear the abdomen of her daughter. He has to marry her ultimately when the child will attain marriageable age. It is not believable that Krishan Gopal would cause injuries on the private part of his daughter through her mother. The damage which has been caused to the private part of the child is indicative of the fact that violence must have been caused to her. The statement of Krishan Gopal coupled with the statement of Ashok Kumar, statement of the Doctor and circumstantial evidence on the record shows that it was the appellant who committed rape upon a child of seven months and thus I do not want to differ with the reasons adopted by the learned Trial Court. Even the sentence which has been awarded to the appellant is not excessive rather it is minimum as prescribed by law. Resultantly I do not see any merit in this appeal and dismiss the same.