Crl. Appeal No.309-DB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Crl. Appeal No.309-DB of 2003
Date of Decision : January 13, 2009
Sohan Lal .... Appellant
Vs.
State of Haryana .... Respondent
CORAM : HON’BLE MR. JUSTICE MEHTAB SINGH GILL
HON’BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. A. S. Virk, Advocate
and Mr. P. C. Chaudhary, Advocate
for the appellant.
Mr. S. S. Randhawa, Addl. A. G., Haryana.
* * * L. N. MITTAL, J. :
Sohan Lal in this appeal has challenged judgment and order
dated 06.01.2003 of learned Additional Sessions Judge, Kurukshetra
thereby convicting the appellant under Section 376 of the Indian Penal
Code (in short – IPC) and sentencing him to undergo rigorous
imprisonment for life.
Prosecution case may be narrated as under :-
On 06.05.2001, at about 08:30 P.M., the prosecutrix (name not
being mentioned), aged about 4 ½ years, was playing in the street outside
her house at Station Majri Mohalla, Shahbad Markanda, along with other
Crl. Appeal No.309-DB of 2003 2
children, whereas her mother Sunita-complainant was performing some
puja in the house. After 10-15 minutes, Sunita came out and found that the
prosecutrix was not there. On inquiry, the other children disclosed that the
accused Sohan Lal @ Popi had taken away the prosecutrix on the pretext of
giving her something. Complainant Sunita along with Rajesh, younger
brother of her husband, started searching the prosecutrix. At about 09:30
P.M., they reached near liquor vend on Station Road, where from the
opposite direction, accused Sohan Lal was seen coming along with the
prosecutrix in his lap. However, on seeing the complainant and Rajesh, the
accused threw the prosecutrix on the ground and fled away. The prosecutrix
was bleeding from vagina and legs and was unconscious. The accused had
committed rape on her. The complainant and Rajesh took the prosecutrix to
hospital, where on the road leading to the hospital, ASI Ramesh Kumar,
Incharge Police Post Shahbad, met them. Sunita-complainant made
statement Ex.P-Q to ASI Ramesh Kumar regarding the occurrence. Ramesh
Kumar made endorsement Ex.P-C on it and sent it to Police Station
Shahbad, where on its basis, FIR Ex.P-C/1 was registered. Dr. Rachna
Bansal PW-7 medico-legally examined the prosecutrix and found that she
was conscious, uncooperative and crying in pain. Clothes were not torn but
were stained with blood and mud. Following injuries were found on her
person :-
(1) Four abrasions each of approximately 1.5 cm
x .5 cm seen on the right side of the face.
(2) Small multiple abrasions on left cheek covering
area of 3 x 2 cm. Abrasions were red in colour.
(3) Abrasion of approximately 1 x .1 cm seen on the
left nostril.
(4) Patient complained of pain lower parietal and
occipital region of scalp in mid-line. Tenderness
was present. No bleeding. Advised X-ray.
Crl. Appeal No.309-DB of 2003 3
On local examination, it was found as under :-
(1) Perineal tear was present extending upto the anus.
(2) Fresh bleeding was present. Anterior wall of
rectum was protruding out. Patient was not
allowing her to examine properly. Oedema was
present around the perineal area. Blood stains
were present all over thighs and lower leg and
perineum. Hymen was absent.
Vaginal swabs, frock and nikkar of the prosecutrix were given
in sealed parcels to the police vide Memo Ex.P-L. Rough site plan Ex.P-S
of the place of occurrence was prepared. Scaled site plan was also prepared.
Statements of witnesses were recorded. On 10.05.2001, the accused was
arrested. Dr. R. L. Arya, on medico-legal examination of the accused, found
that there was nothing to suggest that he was not capable to perform sexual
intercourse. Underwear of the accused was handed over in a sealed parcel
to the police. Vide report Ex. P-F of Forensic Science Laboratory, blood
was detected on vaginal swabs and clothes of the prosecutrix and human
semen was also detected on her frock, but semen could not be detected on
nikkar and vaginal swabs. Blood or semen also could not be detected on
underwear of the accused. On completion of investigation, the accused was
sent for trial.
Charge under Section 376 IPC was framed against the accused,
who pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 14 witnesses.
Dr. R. L. Arya PW-1 stated about medico-legal examination of the accused.
Head Constable Nasib Singh PW-2 tendered his affidavit Ex.P-A being
formal witness. Constable Ram Parkash PW-3 stated that he delivered
special reports in this case to Illaqa Magistrate and police officers. SI
Chander Pal PW-4 stated that he prepared report under Section 173 of the
Code of Criminal Procedure (in short – Cr.P.C.). ASI Roshan Lal PW-5
Crl. Appeal No.309-DB of 2003 4
stated that he recorded formal FIR Ex.P-C/1. Constable Ashok Kumar
PW-6 tendered his affidavit Ex.P-E being formal witness. Head Constable
Mukesh Kumar PW-8 stated that he prepared scaled site plans Exs.P-J and
P-K of the place, from where the prosecutrix was taken away by the accused
and of the place where the prosecutrix was raped by the accused. Head
Constable Joginder Singh PW-9 stated he got the prosecutrix and the
accused medico-legally examined. ASI Maya Ram PW-10 partly
investigated the case and recorded statements of some witnesses. Sunita-
complainant PW-11 and Rajesh PW-12 have broadly stated according to the
prosecution version narrated herein above. The prosecutrix was also put in
the witness-box as PW-13, but in view of her tender age, she was found to
be not in a position to make statement on oath and was therefore discharged.
ASI Ramesh Kumar PW-14 stated about the investigation of the case
conducted by him.
The accused in his examination under Section 313 Cr.P.C.
denied all the incriminating circumstances appearing against him in the
prosecution evidence and alleged that on that day, he was returning to his
house and he saw the prosecutrix lying injured on the road and being
neighbour, he took her in his lap to hand her over to her parents. However,
no evidence was led by the accused in his defence.
Learned Additional Sessions Judge, Kurukshetra, vide his
impugned judgment and order dated 06.01.2003, convicted the accused
under Section 376 IPC and sentenced him to undergo rigorous
imprisonment for life. Feeling dissatisfied, the convict has preferred this
appeal.
We have heard learned counsel for the parties and examined the
case file with their assistance.
In this case, the FIR was lodged very promptly. The
prosecutrix was playing outside her house at about 08:30 P.M. After 15-20
minutes thereof, her mother came out of the house and found that the
Crl. Appeal No.309-DB of 2003 5
prosecutrix was not there. The mother was told by the other children that
the accused had taken away the prosecutrix on the pretext of giving her
something i.e. sweet etc. Sunita and Rajesh, mother and uncle respectively
of the prosecutrix, started searching for her. At about 09:30 P.M., they
found that the accused was bringing the prosecutrix in his lap, but on seeing
them, the accused threw the prosecutrix on the ground and fled away. The
prosecutrix was bleeding from vagina. She was taken to hospital. On the
road to hospital, statement Ex.P-Q was made and the said statement
concluded with police endorsement at 10:30 P.M. and FIR was registered at
10:45 P.M. Thus, FIR was lodged very promptly. Detailed version
narrating entire sequence of events was given in the FIR. The accused was
also named. FIR is thus a significant piece of evidence.
The prosecution version has been fully corroborated by Sunita
PW-11 and Rajesh PW-12, mother and uncle respectively of the prosecutrix.
The prosecution even brought the prosecutrix to the witness-box, but being
of tender age, she was not found to be competent to depose. The statements
of Sunita and Rajesh are sufficient to prove the guilt of the accused.
Commission of rape on the prosecutrix is fully proved from the medical
evidence. Hymen was found absent. Clothes were stained with mud and
blood. Injury found on the person of the prosecutrix, as already noticed
above, clearly establishes that she had been subjected to sexual intercourse.
Dr. Rachna Bansal had also opined that there was strong possibility of rape.
Other injuries were also found on the person of the prosecutrix. Perineal
tear extending up to anus was present. Oedema was present around the
perineal area. Blood stains were present all over thighs and lower leg and
perineum. Human semen was also detected on the frock of the prosecutrix.
Thus, there is ample evidence on record to establish that the prosecutrix had
been subjected to forcible sexual intercourse. The accused even in his
statement under Section 313 Cr.P.C. has admitted that he was carrying the
prosecutrix, who was in injured condition. However, there is no evidence in
Crl. Appeal No.309-DB of 2003 6
support of the defence version that the accused found the prosecutrix lying
in injured condition on the road and being neighbour, he was taking her in
his lap to hand her over to her parents. No such suggestion was even put to
prosecution witnesses Sunita and Rajesh in their cross-examination.
Moreover, if it had been so, there is no reason why the accused would have
thrown the prosecutrix on the ground on seeing her mother and uncle
coming. The accused has also not stated as to where he found the
prosecutrix on the road. On the contrary, the occurrence allegedly took
place at a place near pond. This is substantiated by the fact that clothes of
the prosecutrix were stained with mud as well besides blood. The accused
was named in the FIR which was lodged very promptly. There is also no
reason why Sunita and Rajesh would depose falsely against the accused.
Thus, the prosecution evidence is sufficient to establish the guilt of the
accused beyond reasonable doubt.
Learned counsel for the appellant contended that the case is
based on circumstantial evidence and there is no eye-witness of the alleged
occurrence of rape. Relying on two judgments of Hon’ble Supreme Court in
Baldev Singh vs. State of Haryana reported as 2009 (1) R.C.R.
(Criminal) 252 and State of U.P. vs. Ram Balak and another reported as
2008 (4) R.C.R. (Criminal) 845, it was contended that in the case of
circumstantial evidence, following tests have to be satisfied :-
(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established ;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused ;
(3) the circumstances, taken cumulatively should form
a chain so complete that there is no escape from
the conclusion that within all human probability
Crl. Appeal No.309-DB of 2003 7the crime was committed by the accused and none
else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of
the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused
but should be inconsistent with his innocence ;
(5) if the evidence relied on is reasonably capable of
two inferences, the one in favour of the accused
must be accepted.
In the instant case, however, all these tests are fully satisfied
and there is complete chain of circumstances to prove the guilt of the
accused and to exclude his innocence.
Learned counsel for the appellant contended that there is only
hear-say evidence of the children that the accused had taken away the
prosecutrix while she was playing outside the house, but the said children
have not been examined as witnesses. The contention cannot be accepted.
The children also could be of the age group of the prosecutrix and could not
have been competent witnesses. However, they could certainly tell the
mother of the prosecutrix that the accused had taken away the prosecutrix.
The said evidence is relevant and admissible and it was so mentioned in the
prompt FIR that the children told the complainant that the accused had
taken away the prosecutrix. Moreover, a little while thereafter, the accused
was found bringing the injured prosecutrix in his lap and on seeing the
mother and uncle of the prosecutrix, the accused fled away throwing the
prosecutrix on the ground. In the small interval, the accused had committed
rape on the prosecutrix. Since the accused had taken away the prosecutrix
and was also bringing her back after a short while, the only inference can be
that it was the accused and not anybody else, who had committed rape on
Crl. Appeal No.309-DB of 2003 8
the prosecutrix because commission of rape is fully established even from
medical evidence.
Learned counsel for the appellant emphatically argued that
Sunita and Rajesh have made improvements in their statements in the Court.
It was pointed out that Sunita deposed that the prosecutrix was playing
along with the accused, but it was not so stated by her in the FIR, with
which she was confronted. Similarly, Rajesh stated in the witness-box that
he was sitting on cot outside the house and the accused had taken away the
prosecutrix and that the prosecutrix told her that the accused had committed
rape on her, but Rajesh had not so stated before the police in his statement
Ex.D-A under Section 161 Cr.P.C., with which he was confronted.
However, even if these improvements in the statements of these two
witnesses are ignored or excluded from consideration being improvements,
the other prosecution evidence is more than sufficient to bring home the
charge against the accused. Learned counsel for the appellant contended
that the mere circumstance that the accused was bringing the injured
prosecutrix is not sufficient to hold him guilty of the offence of rape. The
contention is devoid of merit because this is not the solitary circumstance
proved by the prosecution. It has also been proved that a short while earlier,
it was the accused, who had taken away the prosecutrix and thereafter, he
was seen bringing the prosecutrix and in the mean time, she had been
subjected to sexual intercourse and it has also been proved that the accused,
on seeing the mother and uncle of the prosecutrix, fled away throwing the
prosecutrix on the ground. All these circumstances complete the chain to
nail the accused.
From the aforesaid discussion, it emerges that guilt of the
accused-appellant has been proved beyond reasonable doubt. Learned
counsel for the appellant submitted that the case is based on circumstantial
evidence and therefore, maximum sentence of life imprisonment provided
for the offence, as awarded by the trial court, should be reduced. We have
Crl. Appeal No.309-DB of 2003 9
carefully considered the submission. Keeping in view all the circumstances
of the case, we feel that the ends of justice would be met if the appellant is
awarded rigorous imprisonment for 14 years, instead of life imprisonment.
We order accordingly and reduce the sentence of the appellant to rigorous
imprisonment for 14 years.
The appeal stands disposed of accordingly with aforesaid
modification in sentence.
The appellant, if on bail, shall surrender to bail bonds or shall
be arrested to undergo the remaining part of his sentence.
( L. N. MITTAL )
JUDGE
January 13, 2009 ( MEHTAB SINGH GILL )
monika JUDGE