Dona alias Rishi Kapur vs State of Punjab

J.B. Garg, J.

Dona alias Rishi Kapur, a boy aged 15/16 years has been convicted by Sh. S.S. Tiwana, Additional Sessions Judge, Patiala, for an offence punishable under Section 376 of the Indian Penal Code on October, 1985 and he was given the benefit of the East Punjab Children Act 1949 and sent to a certified School for a period of two years or till he attained the age of majority. Aggrieved against this finding of guilt, the present appeal has been attempted.

Briefly, the story of the proseuction is that on April 4, 1985, at about 10 a.m., Sonu a girl aged 5 years was enticed away by Dona alias Rishi Kapur their adjoining neighborer on the pretext that she would be given some eatables and thereafter the accused committed sexual intercourse with Sonu who raised shrieks which were heard by her mother Smt. Krishna Devi, who immediately rushed to the place of occurrence and her self saw the accused committing rape on her daughter and the accused suceeded in making good his escape. The mother proceeded to the shop known as Bhatia Cloth House where, her, husband Manohar lal had been working as a tailor for the last : several years. However, the husband was not available there and after waiting and describing the occurrence to the proprietor of the shop, she proceeded to Police Station, Sirhind and on the way Sh. Hari Parkash ASI met her and recorded her statement which took the shape of First Information Report and it reached Sirhind Police Station at 4.45 p.m.

The story of the prosecution has been supported by PW1 Dr. Gurpreet Kaur, Medical Officer, Patiala, who examined Sonu daughter of Manohar Lal. PW2 Dr Romesh Chand Gupta, Senior Medical Officer, of Civil Hospital, Fatehgarh Sahib, who examined Dona alias Rishi Kapur and has specifically stated that there was nothing to suggest that the accused was not capable of performingsexual intercourse. PW4 Smt. Krishna Devi the mother. PW5 Sh. Dinesh Kumar Head Constable of Police Station, Sirhind, PW6 Rajinder Kumar, Draftsman, PW7 Avtar Singh Constable, PW10 Joginder Pal Bhatia, Proprietor of Bhatia Cloth House, where the complainant had gone first of all and narrated the occurrence.

The relevant lines of the statement of PW1 Dr. Gurpreet Kaur, are as under :

"Hymen was ruptured. There was slight blood stained discharge. Fresh bleeding spots were visible. No other make of injury was present on vulva."

"It was on account of some penetration that there was rupture of the hymen. Sonu PW now called from outside the Court is the same girl whom I had medically examined."

PW 4 Smt. KrishnaDevi has described the entire occurrence which took place at about 10 A.M. on April 4, 1985 and the relevant lines of her satement are as under :

"The house of Dona accused present in the Court adjoins our house and he on the pretext of giving some eatables took Sonu inside his house. I heard the shrieks of Sonu and rushed to the house of Dona who was committing rape with her. Donaaccused on seeing me managed to escape despite of the efforts made by me to catch hold, of him. Sonu was found lying on the ground in one of the rooms and her panty was found torn and her privateparts were bleeding and she was in a bad shape when I picked her up. It was at the place where I found Sonu lying that Dona accused was found, committing rape with her. I first carried Sonu to my house and thereafter carried her to the shop where my husband works as tailor master. My husband was not available at the shop. I kept waiting for him for about two three hours. Jagdish Bhatia the owner of that shop was however available at the shop and narrated the whole of the incident to him. Bhatia advised me to go to the police and to lodge a report of the occurence. I carried Sonu with me to the police post, Sirhind Mandi. I made my statement there before the police which was read over and explained to me and after admitting the same to be correct, I thumb marked thereunder."

"I saw the accused lying over Sonu on the bare ground itself through the window that was lying open. That window Opens in the lane. I saw this act through the window and then entered the door ways and banged at the doors of the room."

6A. The learned counsel for the appellant has argued that the evidence of Smt. Krishna Devi the mother should not have been considered sufficient by the trial Court for recording the conviction of the accused inasmuch as she did not go straight to the Police Station and why she waited for some time at the shop where her husband was employed and the accused has been falsely implicated merely, because Manohar Lal the husband of the complainant had allegedly obtained a loan of about Rs. 1000/ from the father of the accused, who, is a painter and, he was unable to repay it. This contention is not acceptable. It was quite natural that after the occurrence, Smt. Krishna Devi, proceeded to the place of work of her husband alongwith her daughter and when her husband an ordinary tailor working on the shop of a Cloth Merchant was away and not available, she rightly proceeded towards the Police Station and the report was lodged as described above.

The learned counsel for the appellant has next argued that Sonu had no injury and had she been subjected to a sexual intercourse, it was, probable that there should have been some injury on her person. This contention is not acceptable as such. There is a specific answer by Dr. Gurpreet Kaur that hymen was found returned and there was discharge of blood stains. This Medical Officer has identified Sonu in the Court Room as well and she has specifically deposed that it was on account of penetration that there was rupture of the hymen. The contention raised here was hymen could rupture on account of some fall on the ground is not accept able in the circumstances of the case. No mother, would like to lodge a false report of this nature merely if the girl had fallen on the ground.

The learned counsel for the appellant has argued that Sonu the girl has not been examined on oath in the trial Court though, her statement was recorded under Section 161 of the Code of Criminal Procedure by the police. The girl was produced in the Court as a witness but after her examination, the Presiding Officer came to the conclusion that this girl was scarely five years old and was not fit, for examination on oath and making a statement in the Court and, therefore, her statement was not recorded. Besides this, the story has been corroborated by PW10 Shri Jagdish Chand Bhatia, proprietor of Bhatia Cloth House. Who has deposed that when Suit. Krishna Devi came to his shop along with her daughter Sonu, he tried to locate her husband Manohar Lal tailor, but he was not available. He also specifically corroborated that Smt. Krishna Devi had described that Dona who lives in her neighbourhood had committed rape on Sonu. He further stated that the mother also showed blood oozing out from the vagina of Sonu. He advised her to, proceed towards police post for lodging a report. It has come in later part of the evidence that Manohar Lal the father came back at about 4 p.m. and thereafter, he had reached home. PW11 ASI Hari Parkash the Investigating Officer has stated that blood stained panty of Sonu was taken into possession vide recovery memo, Ex. PO and as per the report of Serologist Ex. PM, human blood was found on the panty of the prosecutrix.

The statement of the accused recorded under Section 313 of the Code of Criminal Procedure is as under :

"The father of Sonu namely Manohar Lal took a loan from my father which he failed to repay about four months prior to the occurrence. The relations between the family of Manohar Lal and my family became strained on account of the nonreturn of the loan. Sonu sustained injury on her, private parts on account of fall and taking advantage of such a situation, I have been falsely implicated in this case."

The accused was not traceable on April 4, 1985 itself when the Investigating officer PWI 1. Sh. Hari Parkash, ASI, Incharge of Police Post, Sirhind Mandi, tried to locate him, nor he was found even on the following morning.

In Manga v. State of Haryana, AIR 1979 Supreme Court 1194, the "examination of the girl who was 13 years of age but was deaf and dumb, was not considered fatal to the prosecution case if the occurrence was supported by a fullfledged eyewitness to the act of a rape as in the case now in hand. In Krishan Lal v. State of Haryana, AIR 1980 Supreme Court 125, also it was observed that the injury on the person of the victim especially her private parts has corroborative value. The present one was not at all a case of false implication and the finding of fact does not call for interference.

The evidence of PW1 Dr. Gurpreet Kaur, the Resident Medical Officer, who had 10 years of experience in government service together with the evidence of PW4 Smt. Krishna Devi, the complainant as well as an eye witness, the case against the accused was established beyond doubt. There is corroboration from the evidence of PW 10 Joginder Pal Bhatia, notwithstanding that his name does not find mention in the First Information Report Exhibit PF/1. The plea that the accused has been falsely implicated on account of an alleged minor loan does not appear to be plausible in the circumstances of the case.

It is observed that the accused has attained majority and it shall be deemed that sentence imposed has been satisfied in this case.

The conclusion is that the appeal it dismissed.