High Court of Punjab and Haryana, Chandigarh
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Shiv Kumar son of Sahdev v. The State of Haryana. - CRM-1222-SB-2003  RD-P&H 5394 (8 August 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Criminal Appeal No. 1222-SB of 2003.
Date of Decision: July 09, 2006.
Shiv Kumar son of Sahdev resident of Siki Taki Police Station Sirah (Nepal) presently Village Dahar Amli,. Police Station Naraingarh District Ambala.
The State of Haryana.
Coram: Hon'ble Mr.Justice R.S.Madan, J.
Present: Mrs.Anju Arora, Advocate, for the appellant.
Mr.S.S.Goripuria, Senior Deputy Advocate General, Haryana.
The above named accused-appellant on being challaned under Section 376 of the Indian Penal Code, by Police Station Naraingarh, was charged, tried and thereafter convicted vide order dated 19.04.2003 and sentence to undergo rigorous imprisonment, for a period of 10 years and to pay a fine of Rs.1000/- vide order dated 21.04.2003 passed by Additional Sessions Judge, Ambala in Criminal Case No. 11 of 2002. In default of payment of fine, he was ordered to undergo rigorous imprisonment for a period of one month.
2. It is pertinent to mention here that in this case the prosecutrix has not been named in the light of the observation made by the Apex Court in State of Karnataka Versus Puttaraja, 2004(1) RCR (Crl.) 113 (SC), in which their Lordships have observed that the name of the victim should not be indicated in the judgment. Hence, she would be referred to as the prosecutrix hereafter.
3. In brief the facts of the prosecution case are that on 30.03.2002 2 Criminal Appeal No. 1222-SB of 2003.
SI Karta Ram (PW-12) Station House Officer of Police Station, Naraingarh along with other police officials was present at Panjlasa Chowk, Naraingarh on account of examination duty when Mohinder Singh son of Narain, complainant (PW-11) along with his wife and daughter (the prosecutrix) met him and Mohinder Kumar got recorded his statement Ex.PB to the effect that he is the resident of Laraha Police Station, Siraha District Siraha (Nepal) and for the last two years he has come to India for work and has been residing at the tubewell kotha situated in the fields of Bhim Sain resident of Amli with his family, and is working under Bhim Sain. He has two sons and two daughters. His elder daughter resides with her maternal father and next to her is (the prosecutrix) and next to her are two sons. The prosecutrix is aged about 9/10 years. He next stated in the complaint that on 29.03.2002 his wife Ram Sunari had gone to Village Amli for some work and he has gone to the fields for his work. Around 2 P.M. when he reached near the tubewell he heard the shrieks of his daughter coming from the nearby fields.
He ran to the said direction and saw Shiv Kumar son of Sehdev resident of Village Simotoki Police Station and District Siraha (Nepal), who is working with Ram Kumar Saini, resident of Village Amli, present there and on seeing him he ran away from the fields of wheat. The complainant then went near to his daughter and saw the salwar of the prosecutrix having been removed and blood was oozing from her vagina. On inquiry she told him weepingly that Shiv Kumar had committed the wrong act with her. He took the prosecutrix to the kotha of the tubewell and waited for his wife to arrive at home and because of her late arrival, he could not lodge the complaint on the date of occurrence and further stated that when he was coming to lodge the report, the police party met him on the way and got recorded his statement. On the basis of the said statement Ex.PB, Karta Ram SI/SHO Police Station Naraingarh made his endorsement Ex.PB/2 thereupon and sent the same to the police station through Sohan Lal 3 Criminal Appeal No. 1222-SB of 2003.
UGC for registration of the case. On the basis of that endorsement, case FIR under Section 376 of the Indian Penal Code, was registered. The police took up the investigation of the case and arrested the accused. After the recording of statements of various witnesses, challan was submitted before the Court for the commission of offence punishable under Section 376 of the Indian Penal Code.
4. After the commitment of the case and appearance of the accused before the Court of learned Sessions Judge, Ambala, a prima facie case for the commission of offence under Section 376 IPC was made out against the accused and he was charged thereunder. The aforesaid charge was read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
5. To bring home the guilt of the accused, the prosecution in all examined 16 witnesses, consisting of Dr. Vinay Chaudhary, Radiologist, General Hospital, Yamuna Nagar (PW-1), who radiologically examined the prosecutrix and conducted ossification test and found the prosecutrix between 9/12 years; ASI Gurmit Singh, while appearing as PW2, proved the formal FIR Ex.PB/1; Head Constable Dhani Ram (PW-3), handed over the special report of this case to the Duty Magistrate at 7.50 P.M as is evident from the endorsement Ex.PC/2 made on the envelope containing the special report; Yashbir Singh, Patwari Halka, Indri, while appearing as PW-4, deposed that on the request made by the police Ex.PD before the Tehsildar, he prepared the site plan Ex.PD/2 with correct marginal notes; Head Constable Ram Singh, appearing as PW5, testified that on 30.3.2002 he was posted in Police Station Naraingarh and had got conducted the medical examination of prosecutrix and after her examination the concerned doctor handed over to Kartar Ram, a parcel containing the clothes of Prosecutrix, a bottle of swab, a sealed envelope and a sample seal which were taken into possession vide recovery memo Ex.PE attested by this witness; 4 Criminal Appeal No. 1222-SB of 2003.
Constable Harinder Singh, appearing as PW6, deposed that on 30.3.2002 he was joined in the investigation of this case and on that day the medical examination of Shiv Kumar was got conducted by SI Karta Ram and after the examination, the concerned doctor handed over a parcel containing the underwear of the accused, envelope and sample seal to SI Karta Ram, which were taken into possession vide recovery memo Ex.PF and attested by him as an attesting witness; Constable Bani Singh, appearing as PW-7 tendered his sworn affidavit Ex.PF regarding deposit of two parcels containing clothes, one bottle of swab pertaining to the prosecutrix and two sample seals bearing initials AVG and another sample seal bearing initial KR, in the Malkhana of the Police Station, which were entrusted to him by SI Karta Ram on 30.3.2002. PW8 Head constable Kaka Ram, PW-9, Head Constable Manoj Kumar are the formal witnesses regarding lodging of the first information report, handing over the special report to the Duty Magistrate, preparation of scaled site plan and conducting of medical examinations of the prosecutrix as well as of Shiv Kumar accused-appellant, handing over of the parcels containing clothes for transporting to the FSL Madhuban for examination, respectively. PW-10 Bhim Saini is the employer of Mohinder (complainant). PW-11, Mohinder is the complainant himself who has re-iterated the statement as described in the earlier part of the judgment while narrating the facts of the case. PW-12, SI Karta Ram is the investigating officer and also recorded the statement of the complainant Mohinder, when he was present on examination duty. He also got the prosecutrix medico legally examined from Civil Hospital, Naraingarh, by moving an application. He also after the completion of the investigation, arrested the accused and got him medico legally examined . PW-13 is Ram Saran, who on the request of the police prepared the scaled site plan Ex.PO on the pointing of Mohinder and the prosecutrix. PW-14 Dr.Shanta Gupta, Medical Offricer General 5 Criminal Appeal No. 1222-SB of 2003.
Hospital, Mandi Khera District Gurgaon stated that on police request Ex.PW14/1 on 30.3.2002 medico legally examined the prosecutrix daughter of Mohinder, aged 9 years, and found that she was raped. PW-15 is the prosecutrix who reiterated the manner in which the occurrence took place. PW-16 Dr.A.K.Gupta, Medical Officer, General Hospital, Mandi Khera deposed that on 30.3.2002 he medico legally examined Shiv Kumar accused and opined that there was nothing to suggest that he was unable to commit the act of coitus. Thereafter, the prosecution evidence was closed.
6. After the closure of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, and all the incriminating evidence appearing against him, was put to him, to which he pleaded innocence and denied having committed the offence. He, however, took up the plea that his father had borrowed some money from the complainant and when he demanded the money back from him, a false case was foisted upon him.
7. After considering the prosecution version and hearing the learned counsel for the parties, the learned Sessions Judge, sentenced the accused as mentioned above.
8. Aggrieved against the order of conviction and sentence, the accused-appellant has preferred this Criminal Appeal in this Court.
9. I have heard the learned counsel for the parties and have gone through the record carefully.
10. At the very out-set, the learned counsel for the appellant, Mrs.Anju Arora, contended that so far as the order of conviction of the appellant, passed by the learned Sessions Judge, Ambala, is concerned, she is not challenging the same. However, she contested the case only on the point of sentence awarded by the learned Additional Sessions Judge, Ambala.
6 Criminal Appeal No. 1222-SB of 2003.
11. I have gone through the judgment of the trial court minutely and found that the learned trial court has recorded a well reasoned judgment.
Although, the judgment has not been assailed by the learned counsel for the appellant, on merits, no infirmity could be pointed out by the counsel in the prosecution case. Consequently, the conviction recorded by the learned trial court is up-held.
12. Now coming to the point of quantum of sentence, the learned counsel for the appellant has referred to the judgment reported as State of Karnataka Versus Krishnappa, AIR 2000 SC 1470, where their Lordships of the Hon'ble Supreme Court while dealing with sentence part, under Section 376(2) of the Indian Penal Code, have observed in para 11 of the judgment as under:- "A perusal of the above provisions shows that the legislative mandate is to impose a sentence, for the rape on a girl under 12 years of age, for a term which may not be less than 10 years, it may extend to life and also to fine.
The proviso to Section 376(2) of the I.P.C., of course, laid down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years RI though in exceptional case "for special reasons and adequate reasons", sentence of less than 11 (10 years) RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The 7 Criminal Appeal No. 1222-SB of 2003.
Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. When there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf for universal application".
13. The occurrence in the instant case has taken place in the year 2002 and the accused-appellant is stated to have already undergone four years of sentence, out of the sentence awarded by the learned trial court. The learned counsel for the appellant stated that the sentence of 10 years awarded by the learned Additional Sessions Judge, Ambala may be modified to the period of sentence already undergone by the accused-appellant.
14. I am not in agreement with the submissions made by the learned counsel for the appellant. It is a case where the prosecutrix of the age of 9/10 years has been sexually assaulted by the accused-appellant. The minimum sentence provided in the Indian Penal Code, for such an offence is 10 years, unless for the special and adequate reasons to be recorded, the court comes to the conclusion that the case of the accused falls under the proviso. In this case no cogent and convincing reasons have been high-lighted by the counsel for the appellant to substantiate her contention for reducing the sentence of 10 years to the period already undergone by the accused-appellant.
15. Resultantly, there is no force in this appeal and the same is hereby dismissed.
July 09, 2006. (R.S.Madan)
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