High Court of Punjab and Haryana, Chandigarh
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Godhu @ Sunil son of Chanda, Resident of v. State of Haryana - CRA-S-326-SB-1994  RD-P&H 7279 (15 September 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A.No.326-SB OF 1994
Date of Decision:14-7-2006
Godhu @ Sunil son of Chanda, Resident of Village Farmana Badshahpur, Tehsil and District Rohtak
State of Haryana
CORAM:- HON'BLE MR.JUSTICE R S MADAN
PRESENT: Mr.Sunder Singh,Amicus Curiae
for the appellant.
Mr.SS Goripuria, Senior Deputy Advocate General, Haryana.
Appellant Godhu @ Sunil was convicted for the offence under Section 376(2)(f) by the Court of Additional Sessions Judge,Rohtak vide judgment dated 7-12-1993. He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.200/- and in default of payment of fine to further undergo imprisonment for two months.
The brief facts of the case are being taken from the file of the trial Court and are reproduced as under: "Prosecutrix Soni, daughter of Ishwar resident of Dariyapur, a person of 10-1/2 years or 11 years of Crl.A.No.326-SB OF 1994
age was residing with her maternal grandfather Chandu at Village Farmana Badshahpur. On 21.4.1992 at about 10.00 or 11.00 A.M., she had gone to a village pond known as Kukarjohdi for watering the buffaloes. Looking that the bufalloes had gone deep in to pond, she sat on the edge of the pond. Accused Godhu @ Sunil came there and finding the girl sitting alone and taking advantage of her loneliness, forcibly lifted her to a nearby Kotha. He took out her Salwar and committed rape on her and then ran away. Her woeful shriecks attracted Dharambir, who saw the accused running out of the Kotha. He then went inside the Kotha and found the prosecutrix lying naked without salwar and with blood stains on her body.
He took her to the house of her Nana Chandu. On coming to know that Soni had been hurt by Godhu, Chandu came back to his house and found that his grand-daughter was lying smeared with blood all over her body. She was crying with pain and was asking him for calling her mother and father. On being asked, Soni told that Sunil @ Godhu had committed rape upon her in the Kotha by the side of the village pond, which was known as
Faqirwala Kotha. She also told the material facts of the happening. Soni was shifted to Medical Crl.A.No.326-SB OF 1994
College and Hospital, Rohtak. Chandu reported the matter to the police at Gohana Road, where the police met him near Lakhan Majra Turning. On his statement Ex.PA, FIR Ex.PA/1 was recorded.
ASI Raj Kumar then went to the Medical College and Hospital, Police Post, where Satbir MHC presented the MLR (Ex.PG) of Soni and a parcel of wearing clothes and vaginal swab etc. duly sealed with the seal of doctor, which were taken into possession by the ASI vide memo Ex.PM. He then contacted the doctor in the ward, where Soni was admitted. The doctor opined vide her report Ex.PN that Soni was not capable of making statement at that time. Statements of other witnesses were recorded. The place of occurrence was inspected on the next day and a site plan Ex.PO was prepared. The patient Soni was not found fit for making any statement even on 22.4.1992, vide report of the doctor Ex.PP. Even on 23.4.1992, she was not fit to make statement as per report of the doctor Ex.PQ. However, Godhu accused was arrested on 23.4.1992. His wearing apparels were taken into possession vide memo Ex.PL and he was got medico legally examined at Civil Hospital, Meham. Statement of the
prosecutrix was, however, recorded on 24.4.1992, Crl.A.No.326-SB OF 1994
when she was declared by the doctor fit to make statement, vide report Ex.PD. The wearing apparels of the prosecutrix and of the accused and the vaginal swabs of the prosecutrix etc. were sent for forensic examination to the Forensic Science Laboratory, Haryana, Madhuban, whose report is at Ex.PT. Semen was not detected on the salwar or on the chunni or on the vaginal swab of the prosecutrix. However, human semen was detected on the shirt of the prosecutrix. All the clothes were also found stained with blood. Even the pyjama of the accused was found stained with human semen and also with blood stains. After completing other formalities of the investigation, the accused was sent to stand his trial." On appearance of the accused before the Court of the learned Additional Sessions Judge, Rohtak, a prima facie case under Section 376 of the Indian Penal Code was made out against him and he was charged thereunder. The said charge was read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial.
The prosecution in all examined fourteen witnesses.
PW1 Chandu, the complainant, who reiterated the story as mentioned in the FIR. PW2 Dr.JP Malik, he medico legally examined the accused and found him capable to perform the act of sexual intercourse. He proved his MLR Ex.PB. PW3 Dr.Nidhi Mittal examined the prosecutrix for ossification test and according to her opinion based on the ossification test, the prosecutrix Crl.A.No.326-SB OF 1994
was of the age of 10 to 12 years. PW4 Dr.Jaya Kalia stated that she declared the prosecutrix fit to make a statement on 24-4-1992. PW5 Dharambir draftsman proved his scaled site plan. PW6 Soni was the prosecutrix, who narrated the manner in which the accused had committed the act of sexual assault with her in the Kothra . She fully supported the case of the prosecution with respect to the aforesaid commission of sexual intercourse done by the accused. PW7 Dharambir is the witness, who heard the cries of Soni, prosecutrix from the Kothra at the side of a pond and saw the accused running from the Kothra after committing the crime. This witness found the prosecutrix lying in blood stained without wearing salwar. He took her to the hosue of her Nana-the present complainant. PW8 Sant Ram Constable is a formal witness, who tendered his affidavit Ex.PF. PW9 Dr.Gulshan Kumar examined the prosecutrix and proved the medicolegal report. PW10 Dr.Meenakshi examined the prosecutrix regarding her gentle parts as a Gyanacologist and on local examination, she found as under: "On local examination there was second degree perineal tear. A blood clot was present at the site of hymen.
Patient did not let her examined because of pain and she was too young. She was administered anaesthesia and examination was carried out. On examination, a 1.25 cm long second degree perineal tear was present. On removal of blood clot from hymen, hymen was found torn. Bilateral vaginal tears were present in both lateral vaginal walls reaching uptil vault, .5 cm away from cervix. Profuse bleeding started on removal of clot and no swab can be taken from vagina. The only swab was Crl.A.No.326-SB OF 1994
taken from the urethra. Since the girl was not developed the injury was due to the forceful penetration. The vaginal mucosa was stitched."
PW11 Brahma Nand is a neighbour and cousin of Chandu. In his presence, the accused was arrested and his clothes were taken by the police into possession. PW12 ASI Raj Kumar has conducted the investigation of the case. PW13 Prem Sagar an official of the Chief Medical Officer proved the birth entry of the prosecutrix from the records of the births and deaths at Ex.PR. PW14 Satbir Singh Constable was a formal witness, who tendered his affidavit Ex.PS. Thereafter, the report of the Forensic Science Laboratory was tendered as Ex.PT and evidence of the prosecution was closed.
After the case of the prosecution was closed, the accused was examined under Section 313 of the Code of Criminal Procedure in which the entire version of the prosecution was put to the accused, to which he pleaded innocence and stated that Chandu and Baldev were inimical towards his family for the last so many years. A nephew of Baldev had killed the son of Bundi a few years ago. Bundi was his grandfather. All the Jogi community of the village was the supporter of Sh.AS Dangi, a minister in Haryana, whereas his family was opposing Shri Dangi. He further stated that some unknown person had committed the bad act with the prosecutrix and since the family members of Soni-prosuecutrix were not aware of the real culprit, they falsely involved him in this case because of enmity. He, however had not produced any evidence in his defence.
After going through the prosecution evidence and hearing the learned counsel for the appellant, the learned Additional Sessions Crl.A.No.326-SB OF 1994
Judge,Rohtak passed the impugned order of convicting and sentence as mentioned above.
I have heard the learned counsel for the parties.
At the very outset, learned counsel for the appellant contended that he does not challenge the order of conviction passed by the learned Additional Sessions Judge except on the sentence, but he then prays that a lenient view be taken. Hence the conviction recorded in the trial Court is upheld.
Learned counsel for the appellant contended that the accused has been sentenced by the Additional Sessions Judge, Rohtak under Section 376(2)(f) of the Indian Penal Code, which is not permissible under the law. It was incumbent upon the trial Court that while passing the sentence the Court has not taken into consideration the radiological test according to which the prosecutrix was found to be 10 to 12 years of age on the date of ossification test conducted by Dr.Nidhi Mittal PW3. As per catena of authorities of various High Courts as well as of our own High Court, the age determined through ossification test permits concession of 3 years either side. If that is taken into account, the age of the prosecutrix comes to 15 years on the date of ossification test. In that situation, the case of the present petitioner falls in the proviso of Section 376 IPC. Section 376 IPC is reproduced as under:
"376 Punishment for rape-(1) Whoever, except in the cases provided for by sub-section (2) commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall Crl.A.No.326-SB OF 1994
also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b)being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c)being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d)being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e)commits rape on a woman knowing her to be Crl.A.No.326-SB OF 1994
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
The learned counsel states that the accused in the present case has remained in custody for a period of two years and four months i.e.
From 23-4-1992 to 19-7-1994. On the date of commission of offence, the accused was aged 16 years. This fact is fully evident when the Court framed the charge. The accused has no past history of criminal antecedents nor after the decision of the case, he has committed any crime.
Learned counsel further states that keeping in view the age of the appellant on the date of commission of crime, as 16 years as well as the circumstances changed after his conviction and sentence, he got married and has two minor children to support coupled with the fact that a devil in him surfaced when he committed the offence, his sentence may be modified to the period already undergone.
In support of his arguments, a reference was made to Rabu Vs. State of NCT of Delhi 2005(2) RCR(Crl.) 480 and a reference was also made to Keshar Singh Vs. State of Haryana 2005(2) RCR(Crl.) 933 where in the similar circumstances of the case, the Hon'ble High Courts of Delhi and Punjab & Haryana have altered the sentence passed under Crl.A.No.326-SB OF 1994
Section 376 IPC to already undergone.
Thus keeping in view the facts and circumstances appearing in the case that the accused was 16 years of age on the date of commission of crime and the prosecutrix could be between 12 to 15 years on the date of commission of crime as is evident from ossification test, the case of the prosecution does not fall within the mischief of Section 376(2)(f) IPC.
In the case in hand, the sword of Damocles has been hanging on the head of the appellant for more that 14 years including the period of appeal. He is not a previous convict. During this period,he has not committed any offence and has led peaceful life. The accused and the prosecutrix have by now settled in their lives.
The ends of justice would be met if the sentence of 10 years ordered by the learned Additional Sessions Judge, Rohtak is reduced to the period already undergone by him.
With this modification in the order of sentence, this appeal fails and the same is hereby dismissed.
(R S MADAN)
July 14, 2006 JUDGE
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