Tarlochan Singh vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Tarlochan Singh and has been directed against the judgment dated 29.8.1995 and order dated 30.8.1995, passed by the court of Addl. Sessions Judge, Ambala, who convicted the appellants u/s 376(2)(f), IPC, and sentenced him to undergo R.I. for a period of 10 years.

The case of the prosecution has emerged from the statement, Ex. PK, given by Surinder Kaur w/o Hakam Singh, resident of village Dhakola, Police Station Mullana, which reads as under :

She is having two children, i.e. one son and one daughter. Son (Jagtar Singh) is aged seven years and daughter Manpreet Kaur (prosecutrix) was aged 5 years at the time of the occurrence. Her husband was a truck driver. On 1.5.94, the marriage of the daughter of Sukhdev Singh was to be celebrated in the neighbourhood. Manpreet Kaur along with Jagtar Singh had also gone there. She waited for her. However, when she did not return, she reached near the `Pandal'' erected for celebrating th marriage and she was told by servant of Sukhdev Singh that a child is weeping inside the residential house of Tarlochan Singh alias Tochi, i.e. the appellant. The complainant went inside the house and found that the appellant was coming out of the house and when she went inside the room, she found her daughter Manpreet Kaur crying and was puzzled. She checked her clothes being worn by her and found that the same were smeared with blood and that the blood was also coming out of the vagina of her daughter. The occurrence took place at about 5 PM. Her daughter was in an unconscious condition and she was brought to her house. Surinder Kaur told the facts to the brothers of her husband; namely, Balbir Singh and Malkiat Singh. She left her daughter Manpreet Kaur in the supervision of the brother of her husband Malkiat Singh and went to the Police Post, Saha, along with the other brother of her husband; namely Balbir Singh, and lodged the present report at 6.45 PM, on the basis of which, formal FIR Ex. PK/1, was registered in Police Station, Mullana, at about 7.15 PM.

After that Pala Ram, ASI, who was the Incharge of the Police Post, Saha, along with a Head Constable and a Constable, reached the spot. He sent the prosecutrix with her mother and HC Rai Singh with a request Ex. PB, to the hospital for medical examination. HC Rai Singh along with the prosecutrix and her mother first went to Civil Hospital, Mullana. However, no lady doctor was available there. He, then, proceeded to Civil Hospital, Barara, where, again, no lady doctor was available. He, then took the prosecutrix to the Civil Hospital, Ambala Cantt. but there the lady doctor refused to examine her on the plea that the area did not fall within the jurisdiction of Civil Hospital, Ambala Cantt. Then, the Head Constable took the prosecutrix to Civil Hospital, Ambala city, where she was medically examined by Dr. Kusam Garg, Medical Officer, on the directions of the Chief Medical Officer. After examination one sealed small container containing vaginal swabs, one sealed envelope addressed to F.S.L. and sample seal used to seal the packets and the container was also handed over to the police and the same was taken into possession vide memo. Ex.PG.

During investigation, Tarlochan Singh was arrested by ASI Pala Ram from Saha Chowk on AmbalaJagadhri Road on 3.5.1994. On his request, Ex.PH, the appellant was medically examined by Dr. M.R. Passi of C.H.C., Mullana. He also prepared a packet of pubic hair and a packet of clothes being worn by the accused and the same along with specimen impression of seal used to seal the packets was handed over to ASI Pala Ram and the same was taken into possession vide memo, Ex. PE. The I.O. prepared the rough site plan of the place of occurrence. After receipt of the report of the F.S.L., Ex. PM and after completion of the investigation of the case, the appellant was challaned u/s 376, IPC in the court of the Area Magistrate, who supplied the copies of the documents and vide commitment order dated 20.8.1994 committed the accused to the court of Sessions. Vide orders dated 17.9.1994, the appellant was chargesheeted u/s 376, IPC. The charge was read over and explained to the appellant, who pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Dr. Kusum Garg, PW 1, who deposed that on 1.5.1994 at about 11.15 PM, the prosecutrix, aged five years was examined by her and on examination she found as follows :

"Child was wearing one pyjami and one underwear and one top. Pyjama and underwear were taken in possession and handed over to the police in a sealed parcel with five seals. There was no mark of injury on the person examined. On internal examination, child was having bleeding per vagina. There was injury to forchette and pareneum. Hymen was ruptured, fresh bleeding was present. Uterus admitted tip of finger. :

In my opinion, there was injury to the genitalia regarding intercourse. Final opinion was kept pending till the receipt of the report of the FSL."

PW2 is SI Mange Ram, who deposed that on the completion of the investigation of the case, he prepared the final report u/s 173, Cr.P.C. PW3 is Ram Singh, Constable. He took the said report of this case. Constable Ishwar Singh appeared as PW4. He is a formal witness like PW5 Ram Saran, Draftsman. PW6 HC Rai Singh, explained the delay in the medical examination of the prosecutrix. PW7 Dr. M.R. Passi medically examined the appellant on 3.5.1994 and he stated as follows :

"On local examination, I observed that pubic hair were well developed, black in colour, penis was well developed, public hair were not metted. Smagma was present under profuse. No abnormality of the organ was seen."

The doctor further stated that in his opinion there was nothing to suggest that the person examined was incapable of performing sexual intercourse. He prepared the MLR, Ex. PJ, of the appellant.

Statement of PW8 Surinder Kaur is very material in this case because the criticism was made by the learned counsel for the appellant that this witness has improved upon her substantive statement in court from her first version, which was given before the police. Keeping this in view, I would like to quote the statement of Surinder Kaur in extenso so as to meet the contention of raised by the counsel for the appellant. According to this witness on 5.5.94, there was marriage in the family of accused in the village. Daughter of Sukhdev Singh was to be married. The residential house of accused present in the court was in front of her residential house. Her children were playing the house of the accused. She had two children. Her son was aged about 8 years and her daughter was about five years of age. It has also been stated by this witness that since the morning, both of her children and children belonging to other persons from neighbourhood and children of the family of the accused were playing in front of the house as marriage was to be celebrated. At about 4 PM, she prepared tea in her house for herself and her children. She went in front of the house of the appellant to bring her children so that they could take tea. Her son Jagtar Singh was present outside the house of the appellant there other children of the neighbourhood were also playing. She asked from her son Jagtar Singh as to where was Manpreet Kaur. Her son told that Manpreet Kaur was weeping but he could not tell as to where she was weeping. Upon this, she entered the residential house of the appellant and went to a room in that house. She also heard the cries of her daughter before entering the room. Upon entering the room she found that the accused present in the court was lying on her daughter on the bed and her daughter was crying. It has been further stated by this witness that none else was present in that room. In the whole house, nobody was present as all the family members had gone in the Shamiana which was put at some distance from the house for celebrating the marriage. Also, it has been stated by Surinder Kaur that the appellant was naked and her daughter was also naked. The accused had placed his penis on the vagina of her daughter and he was committing rape upon her. The clothes were having blood stains and the blood was coming from the vagina of her daughter. She was lying in a critical condition. After seeing her, the appellant ran away after coming out of the room and her daughter had already fallen unconscious. She took her daughter in her lap and brought her to her house. At that time, her daughter was wearing `Kachhi'' only. Further it has been stated by this witness that she put a `pyajami'' in the legs of her daughter which had already become blood stained. Her hands were also full of blood and when she reached in her house, her Devars were present. She narrated the whole facts to them. She left her daughter in the care of her Devar Malkiat Singh and she accompanied her other Devar Balbir Singh to Saha Chowk in order to lodge the report and the police met her. ASI Pala Ram appeared as PW9 and ASI Mool Chand appeared as PW10.

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 the accused. Accused denied those circumstances and stated that he was innocent and has been falsely implicated on account of enmity.

When called upon to enter into defence, the accused examined Sukhdev Singh AS DW1, Pala Ram son of Nanak Ram, DW2 and Natha Singh as DW3. In short, the defence of these witnesses is that Manpreet Kaur had a nasty fall on a Kundi and in that process she received the injuries in her vagina. This aspect of the case shall also be dealt by me as to whether the defence which has been offered by the appellant through the DWs has some grain of truth or that it was absurd.

The learned trial court believed the prosecution story and rejected the defence version and convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. Sunil Panwar, Advocate, on behalf of the appellant and Mr. J.S. Ahalawat, Advocate, appearing on behalf of the respondent and with their assistance have gone through the record of this case.

The primary contention of the learned counsel for the appellant was that the story which has been unfolded by Surinder Kaur, mother of the prosecutrix, at the trial is materially different from her first statement, Ex. PK, which was made before the police. According to the counsel, in her statement, Ex. PK, she was not the eye witness. Her statement was that she saw the accused coming out from his house and there was no allegation to the effect that the appellant had committed sexual intercourse with her daughter but at the trial she has improved upon material particulars by stating that the appellant had placed his penis upon the vagina of the prosecutrix and that she was bleeding. Moreover, it has been stated by Surinder Kaur at the trial that in the house only the appellant was present and nobody else was present there, is to exclude the possibility of any other person in committing the rape.

I have compared both the statements, Ex.PK and the statement given in court by Surinder Kaur, while appearing as PW8. It is true that Surinder Kaur had made some improvements in her substantive statement but those improvements are not to the extent that she has twisted the main occurrence. Surinder Kaur is the mother of the prosecutrix who was a small child of five years and for that reason Manpreet Kaur has not been examined even without oath at the trial. But the point for consideration which has not been answered properly by the counsel for the appellant is for what reason Surinder Kaur will implicate the appellant with regard to the rape of her daughter aged about 5 years. Though the counsel of the appellant has made an effort by saying that the appellant has been falsely implicated on account of enmity with Hakam Singh, husband of Surinder Kaur as there was a dispute over a Bara and money between Tarlochan Singh and Hakam Singh, but I am not inclined to accept this explanation because there is no evidence at all that there was any dispute over land between the appellant and Hakam Singh, husband of Surinder Kaur nor there is any evidence so as to convince the mind of this court that there was any money dispute between these two persons. This defence has been taken at the appellate stage only for the sake of defence and this is not even borne out from the statement of the appellant u/s 313, Cr.P.C. It is true that the prosecution has to prove the charge beyond reasonable doubt by standing on its own legs and that the prosecution cannot rely upon the weakness of the defence, but in this case rape stands proved from the statement of Surinder Kaur, who was a natural and probable witness of the occurrence. On that evening, Surinder Kaur had prepared tea of herself and for her children. She wanted to give tea etc. to her daughter Manpreet Kaur and for that reason she came out from her house. She enquired about Manpreet Kaur from her son. Innocently, the son told to his mother that though he is listening to the cries of Manpreet Kaur but he was not in a position to locate from where those cries are coming. Upon this, Surinder Kaur entered inside the house of the appellant and she went in a room where Manpreet Kaur was lying in a bloody condition. Blood was coming out from her vagina. She was bleeding. She was unconscious. She was brought to her house where Surinder Kaur narrated the entire occurrence to her Devars. The prosecutrix was taken to the police and the police also made efforts for the medical examination of Manpreet Kaur on the same night. Even if Surinder Kaur has not seen the actual intercourse committed by the appellant, enough circumstances have been disclosed suggesting that the appellant alone had committed rape upon the prosecutrix. Surinder Kaur would be the last lady to tear the abdomen of her daughter and she would not implicate the appellant falsely irrespective of the fact that there was any dispute between her husband Hakam Singh and the appellant, but this fact has not been proved on the record. We all know that girls, ultimately, are to be married. Nobody will like to bring a stigma to the family by manipulating that his small daughter has been raped. Chances can always be there that the appellant who was a neighbour of Manpreet Kaur took the advantage of the situation when everybody was busy in celebrating the marriage in the lane. A close comparison of the statement, Ex.PK, and the substantive statement of Surinder Kaur made in court, (leaves ?) no manner of doubt that Surinder Kaur has not changed the fabric of the story. She has definitely improved her version here or there but so far as the evidence of rape on the part of the appellant is concerned, it is conclusively established not only from the testimony of Surinder Kaur but also from the medical evidence.

So far as the other defence which has been taken up by the appellant that Manpreet Kaur sustained injury on the vagina on account of a nasty fall over a `kundi'' is concerned, the same is absurd as I do not find any other injury on the front side of the face of Manpreet Kaur. This defence has been taken simply for the sake of defence and for that reason I do not intend to believe the testimony of Sukhdev Singh, DW1, Pala Ram, DW2 and Natha Singh, DW3. These witnesses have been produced by the appellant in order to create a defence for him but their testimony is neither probable nor reliable.

Thus, acting upon the statement of Surinder Kaur, mother of the prosecutrix, coupled with the statement of the doctor, I am inclined to maintain the judgment of conviction of the trial court for the reasons stated therein.

It was lastly submitted by the counsel for the appellant that the sentence awarded in this case is very excessive. I do not see any merit in this contention also. The appellant has committed rape upon a child of 5 years. His action falls under section 376(2)(g), where minimum sentence has been prescribed. Simply that the appellant is a young boy of 26 years and that he is married, is no ground to reduce his substantive sentence of 10 years.

Resultantly, I dismiss this appeal in toto. Let intimation about the dismissal of this appeal be sent to the CJM, Ambala.