Kanwaljit Singh Ahluwalia, J. (Oral)
Ram Niwas son of Gugan Dhanak, was aged 56 years when he was put to trial. He was named as an accused in case FIR No. 71 dated 20.4.1995 registered at Police Station Sampla, under Sections 452 and 376 IPC.
Additional Sessions Judge, Rohtak, in the impugned judgment, came to the conclusion that charge under Section 366-A IPC has been inadvertently framed. However, he found appellant to be guilty of offence under Sections 452 and 376 IPC and sentenced him to undergo seven years rigorous imprisonment and a fine of Rs. 1,000/-under Section 376 IPC. Appellant was also sentenced under Section 452 IPC to undergo rigorous imprisonment for two years and a fine of Rs. 200/- In default of payment of fine, on both the counts, appellant was ordered to undergo rigorous imprisonment for four months.
Aggrieved against the judgment, appellant has filed present appeal.
It is not disputed that the appellant is neighbourer as his house adjoin the house of prosecutrix. In the present case, FIR Ex.PL/1 was recorded on the basis of statement Ex.PL made by the prosecutrix. The name of prosecutrix is not being mentioned in the present judgment as the per the observations of Hon'ble the Apex Court. Therefore, hereinafter she will be called “Prosecutrix” The statement made by the prosecutrix can be translated as under:-
“Stated that my parents are labourers. I have got two sisters and a brother. I am the youngest. My parents had gone to the fields for harvesting the crop. I was alone at home when my neighbourer Ram Niwas son of Gugan Dhanak, at about 4.00 P.M, came to our house. At that time, I was sitting at the door of my house. Ram Niwas, when came, had once caught hold of me, dragged me inside the house, put me on the cot and gagged my mouth, thereafter opened string of my salwar and started to commit rape with me forcibly. At that time, daughter of my Uncle (Chacha) came, and Ram Niwas leaving me, decamped from the spot on his cycle. I told the entire incident to my Aunt (Chachi) Reshma wife of Azad. Ram Niwas had forcibly committed rape with me and I am having pain in my uterus. I was coming to lodge report with my Aunt (Chachi) when you had met us. I have got recorded my statement and heard the same which is correct. Sd/- Sushila”.
This statement was recorded by Inder Singh, Assistant Sub Inspector, PW.16 The matter was investigated. Police presented a report under Section 173 Cr.P.C and the accused was put to trial.
On 22.8.1995, Additional Sessions Judge, Rohtak, framed charges against the petitioner. Petitioner was charged for offence under Sections 452 IPC for committing the offence of trespass on 20.4.1995 He was also charged for the offence under Sections 366-A and 376 IPC. The accused pleaded not guilty and claimed trial.
Prosecution examined PW.1 Inder Singh, Assistant Sub Inspector, (not the one who had recorded statement). He has stated that on 1.6.1995 he was posted as Station House Officer, at Police Station Sampla and after completion of investigation he had submitted report under Section 173 Cr.P.C
PW.2 Surinder Singh, Constable, stated that on 20.4.1995, he accompanied Inder Singh, Assistant Sub Inspector, to hospital but the doctor was on leave. Therefore, on 21.4.1995 they again went for medical examination of prosecutrix at Civil Hospital, Rohtak. After medical examination, the doctor had handed over a sealed parcel containing salwar and frock and two vials of swab and a sealed envelope which was taken into possession vide memo Ex.PA In cross-examination he had admitted that parents of prosecutrix were with police party and they had spent about half-an-hour in the Civil Hospital.
PW.3 Naresh Kumar, Constable, had taken the clothes of prosecutrix, with one envelope and pyjama of Ram Niwas, appellant, to Forensic Science Laboratory, Madhuban. In cross-examination he admitted that case property has not been shown to him in the Court on the day of his deposition.
PW.4 Dr. Sunita Siwach, Medical Officer, General Hospital, Rohtak, medicolegally examined prosecutrix on 21.4.1995 at 12.15 A.M According to her, as disclosed, age of prosecutrix was 14 years. Medicolegal examination conducted by the doctor read as under:
“Menarche started two years back. She was well oriented in time and space. Pulse rate was 90 per minute. Pallor was (++) plus plus. There was no mark of injury on the body. Both breasts were well developed. Areola hyperpigmented. Milk could be expressed from breasts. Axillary and pubic hair were well developed. There was history of bleeding one week back. On abdomenal examination, abdomen was distanded. Uturus was enlarged to 30 weeks pregnant uterus size. Fetus could be felt with cephalic presentation. Fetal heart sound were present and its rate was 140 per minute regular. Local examination, there was no mark injury on one vulva. Hymen was ruptured (old healed hymen marginals). Two fingers would be easily put into vagina. Cervix felt soft and backward. Uterus was enlarged and as felt (per abdomen 28 to 30 weeks). Two swabs were taken; one from clitoris and labia and another from vagina. Pubic hair were taken and sent for chemical analysis. She changed her clothes (pink salwar, kamij, bra and white baniyan). In my presence, while I was preparing MLR. I advised xray for verification of age and ultra sonography for fetal maturity and to rule out plencenta praevia”
PW.5 Dr. S.P Kataria, Medical Officer, Primary Health Center, Hasangarh, medicolegally examined accused on 21.4.1995 and opined that there was nothing suggestive of the fact that accused is incapable of doing sexual intercourse.
PW.6 Krishan Kumar, Constable, had taken accused Ram Niwas, appellant for medicolegal examination.
PW.7 Hari Singh, Assistant Sub Inspector, is a witness of formal nature as he had taken into possession pyjama and clothes of the accused.
PW.8 Raju, Constable, had prepared a scaled site plan. In cross-examination he admitted that he has not mentioned the surroundings of the spot regarding the houses of prosecutrix and accused/appellant.
Udeyvir Singh, Moharrir Head Constable, tendered his affidavit into evidence Ex.PJ and was given up as unnecessary.
PW.9 Jai Parkash, Head Constable, had delivered the special report.
PW.10 Jai Parkash, Sub Inspector, had produced Sushila before the Illaqa Magistrate for recording of her statement under Section 164 Cr.P.C In cross-examination, he admitted that appellant was arrested on 21.4.1995 at 10.30 P.M
Prosecutrix appeared as PW.11 and given her age as 13/14 years. Her statement made in the Court is not different from what was stated in the FIR which was reproduced above. She stated that her sister is elder to her and she is youngest child of her parents. She also admitted that she had studied upto 3rd standard at Government School at Kheri Sampla and many years had elapsed when she left her studies. She also stated that her house was situated in thickly populated area and wife of accused is alive. She denied that her eldest sister Rajwanti was present in the house. She admitted that her statement was recorded in the Court of Illaqa Magistrate and that was her first statement. She further admitted that there was litigation between her father and the appellant and on the request of the appellant the encroachment made by her father was removed. She also admitted that her father and accused had quarreled with each other many times and they were not on visiting terms with accused. She denied that she was pregnant at the time when the rape was committed.
Meena, aged 10-11 years, cousin of the prosecutrix appeared as PW.12 She corroborated the version given by the prosecutrix. She admitted in the cross-examination that the name of elder sister of prosecutrix was Ishwanti and house of the accused and the prosecutrix are situated in a thickly populated area. She further admitted that on the day her deposition was recorded she was tutored by the police and also by the counsel.
Father of prosecutrix Om Parkash appeared as PW.13 He stated that he had gone to the office of Chief Medical Officer to collect the certificate regarding the age of her daughter Sushila but he was handed over the birth certificate of her eldest daughter Ishwanti. In cross-examination, he admitted that there was litigation between him and accused/appellant. He divulged no reason as to why prosecutrix was not allowed to undergo ultrasound examination as advised by the doctor. However, he denied that prosecutrix was pregnant.
PW.14 Bijender Singh, Clerk from the office of Civil Surgeon, Rohtak, proved Birth Register of Police Station Sampla for the year 1980 and copy of the birth entry Ex.PM, which according to this witness, was a true copy of the register.
PW.15 Kaptan Singh, Assistant Sub Inspector, proved formal FIR Ex.PL/1.
PW.16 Inder Singh, Assistant Sub Inspector, proved the statement of prosecutrix recorded by him. He further stated that he had gone to the spot, inspected the same and prepared a rough site plan Ex.PN He proved other facets of the investigation. Defence failed to elicit any meaningful answer in the cross-examination, which could help the accused.
Statement of accused was recorded under Section 313 Cr.P.C All incriminating evidence was put to him. He denied all the material questions and stated as under:-
“I am innocent and have been falsely implicated by the police in this case in connivance with the complainant party due to some dispute over a chabutra and wall, which took place before this very occurrence. On the date of occurrence alleged by the prosecution, I had gone for labour work with Sultan Singh at the house of Laxman Bania r/o Kheri Sampla and from there I came back later 5 p.m and then police took me to Police Station and thereafter arrested me there in this false case. I am an old person having grand sons and grand daughters”.
In defence, accused examined Om Parkash, official from the Judicial Record Room of Sessions Court, Rohtak, as DW.1 He proved file of Civil Suit No. 11 of 1993 titled as “Om Parkash v. Ram Niwas etc.” According to him, case was decided on 17.1.1994 He proved certified copy of judgment Ex.DB A perusal of Ex.DB reveal that on 17.1.1994 suit filed by father of the prosecutrix against the appellant was dismissed in default.
DW.2 Ranbir Singh, Record Keeper, from the office of Deputy Commissioner, Rohtak, proved two execution applications titled as “Ram Niwas v. Om Parkash etc.” decided on 18.7.1995 and another case titled as “Ram Niwas v. Om Parkash etc.” decided on 15.6.1989 He further stated that from execution application, it was apparent that letter was sent by the Deputy Commissioner Rohtak to Superintendent of Police, Rohtak, on 8.6.1993 for providing police help for delivery of possession. It was suggested that father of the prosecutrix had encroached the land and due to intervention of the revenue authorities possession was delivered to him.
DW.3 Tek Ram stated that both Ram Niwas accused and Om Parkash, father of the prosecutrix are his nephews. He further stated that the appellant has got two sons and two daughters, all are married and he was having grand children. He further stated that Om Parkash and Ram Niwas had quarreled many times over the wall blocking the street and the matter had been referred to the police. However, in cross-examination, he admitted that they had not made complaint to anybody in writing that the accused has been falsely implicated.
DW.4 Dharam Singh also stated that both Ram Niwas, appellant, and Om Parkash, father of the prosecutrix, are his nephews. There was a litigation which ended into compromise. However, in cross-examination, he has not been able to give particulars as to when he had made the statement to any authority. However, he admitted that accused is son of his real brother.
Additional Sessions Judge, Rohtak, while convicting the appellant, noticed the facts that there was a litigation between father of prosecutrix and the appellant and prosecutrix was pregnant, held that there was no justification for the appellant to commit rape upon the prosecutrix.
I have heard Mr. J.R Mittal, Senior Advocate, assisted by Mr. Kashmir Singh and Mr. Lalit Sharma, Advocates, appearing for the appellant and Mr. Deepak Jindal, Deputy Advocate General, Haryana.
Mr. Mittal has specifically contended that the prosecution has failed to establish the age of prosecutrix. He has submitted that prosecutrix had admitted that she had studied upto Class 3 and, therefore, no School/Birth Certificate was produced. He has further submitted that ossification test of prosecutrix was conducted and in the report under Section 173 Cr.P.C age of the prosecutrix mentioned was 18/19 yeas. Report of ossification test has been withheld from the Court. He has referred to the medicolegal examination where the doctor had advised X-ray for verification of age and ultra-sonography for fetal maturity. It has been further submitted that no implicit reliance can be placed on the testimony of prosecutrix and her father as they have, in categoric terms, stated in the Court that prosecutrix was not pregnant and, therefore, their ocular version is in contradiction with medical evidence which conclusively prove that prosecutrix was 30 weeks' pregnant. Therefore, counsel has submitted that taking into consideration long standing enmity, litigation between the parties and the fact that they had quarreled many times, the statements of prosecution witnesses should be discarded. It has been further submitted that Reshma (Chachi) to whom immediately the occurrence was narrated had not come forward to depose against the appellant. Counsel has further contended that this Court should not ignore the fact that there was no external mark of injury on the person of prosecutrix. It has been further contended that Meena was a child witness aged 10-11 years and she admitted in the Court that she was tutored by the police officials and counsel. Counsel has further stated that statements of prosecutrix is also not different on this score. She has also admitted that police officials had told her what was to be stated in the Court and she was also asked by the counsel to make statement in the Court.
Counsel for the State has contended that no family will put a child to disrepute for the reason that there was litigation between the parties over the alleged encroachment.
Mr. Mittal has forcefully submitted that once the pregnancy was known to the family, in order to save the honour and hide the same, complainant party had made the appellant scapegoat, due to the pendency of the litigation. He has further submitted that had prosecutrix resisted there would have been drag marks, some injury or abrasion, or contusion on her person. According to Mr. Mittal, on the very next day, prosecutrix was examined and no injury was found on her person. Furthermore, he has contended that accused was also arrested on the very next day i.e on 21.4.1995 and his medical examination was conducted and on the person of accused also there was no nail mark or abrasion to show that the prosecutrix had attempted to save herself. Mr. Mittal, senior counsel, has forcefully urged that entire prosecution version is improbable, unnatural and unconvincing. It is stated that once the prosecutrix was 30 weeks' pregnant, the pregnancy was known to everybody and the delivery was imminent, therefore, to save the reputation of the family, story of rape had to be coined, as it was the necessity of prosecutrix to find any person on whose shoulders blame could be made to rest. It has been further submitted that accused was 56 years old and was having two sons and two daughters, all married and he is having grand children, therefore, it was not expected that the appellant would commit the offence of rape. It is further submitted that Investigating Agency had made no attempt to disclose to the Court regarding delivery of child and, therefore, investigation is tainted.
I have given my thoughtful consideration to the rival submissions made.
In a case of rape, standards of appreciation are entirely different. It has surfaced in the testimony of defence witnesses that both accused/appellant and father of the prosecutrix are closely related. According to DW.3 Tek Ram and DW.4 Dharam Singh, both accused/appellant and father of the prosecutrix are their nephews, they belong to same caste and they are neighbourers. In present times, child abuse is not unheard. The Court has also to take into consideration the fact that when occurrence took place, prosecutrix was alone at home and accused/appellant knew that her parents had gone to the fields. He wanted to gain advantage of the prosecutrix being alone. The very fact that prosecutrix was pregnant was known to all, can also be the reason for the accused to abuse and exploit the child knowing fully well the fact that she is suffering from the blemish of unwed pregnancy. The prosecutrix was to be married. Nobody will put the reputation of the family on stake by falsely implicating the person due to litigation which had ensued due to alleged encroachment. According to defence witnesses, the litigation had ended into compromise.
I am in agreement with the reasoning given by the trial Court that even though the prosecutrix was pregnant it gave no right to the appellant to commit rape upon the child. The statement was made to the police at the earliest. Otherwise also, the defence had made no efforts to cross-examine the doctor regarding the result of X-ray examination. If an ossification test was conducted, the defence was not alert to prove the same. Even if it was held that the prosecutrix was 18/19 years, it is not a case of consent. Once the version of false implication is not believed, there is no alternative except to hold that the appellant has been rightly convicted.
Therefore, there is no merit in the present appeal and the same is dismissed.
(Kanwaljit Singh Ahluwalia)
Judge January 6, 2010
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