Harish Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment dated 11.1.1997 and order dated 13.1.1997 passed by the court of Additional Sessions Judge, Jagadhri who convicted the appellant Harish Singh under section 376 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1000/. In default of payment of fine, he was further directed to undergo rigorous imprisonment for a period of three months.

The brief facts of the case can be noticed in the following manner :

Kumari Parvati (prosecutrix) is a daughter of Vaman and originally she hailed from Bihar. She lost her parents. Se started living in Balkunj Chhachhrauli. On account of poverty, she had been begging earlier. She was found begging at Faridabad in trains. She was brought to the office of the Deputy Commissioner, Faridabad who ordered that Kumari Parvati be kept in a rescue home i.e. Balkunj at Chhachhraui. The story of the prosecution goes that on 18.9.1995 at about 4.00 P.M. the prosecutrix was present in her cottage at Balkunj. Appellant Harish Singh during those days of the occurrence used to work as cook with that institution. He came to the prosecutrix by saying to prepare tea for him. At that time the other children were playing in the dining room. Kumari Parvati was not inclined to prepare tea for the appellant but upon his insistence she agreed. As a result Kumari Parvati prosecutrix went to other room of the institution in order to take sugar and tea leaves. When she was taking sugar and tea leaves from almirah, the appellant entered that room and bolted the room from inside. Appellant then forcibly took the prosecutrix to a bed and made her to fall. He opened the string of her salwar, took it off and open his pant and thereafter he committed rape upon the prosecutrix. When prosecutrix tried to raise alarm she was threatened that in case she raised noise she will be disgraced. The appellant also threatened the prosecutrix that she would be beaten if she raised alarm. On account of shame and fear the prosecutrix did not narrate the occurrence to anybody till 21.9. 1995 when this occurrence was narrated for the first time to Poonam who was other inmate of Balkunj. Poonam then told the alleged occurrence to Ahilya who brought the matter to the notice of Incharge of the Institution namely Kamlesh Girdhar. Thereafter matter was reported to the police who recorded statement of Parvati. Parvati was got medically examined and she was also got radiologically examined for determination of her age. S.I. Piare Lal who recorded statement of the prosecutrix took up investigation of this case. He came to Balkunj and took into possession salwar of the prosecutrix and bed sheet of the bed. He also prepared rough site plan of the occurrence. The appellant was arrested on 22.9.1995 and he was medically examined as to whether he was fit to perform sexual intercourse or not. His underwear was taken into possession and sealed parcel was prepared. The statement of the prosecutrix Parvati was recorded by the Chief Judicial Magistrate on 28.9.1995 under section 164 Cr.P.C. The sealed parcel was sent to the office of the Chemical Examiner who gave his report Ex.PO. On completion of the investigation of the case, the appellant was challaned under section 376 I.P.C. in the court of Area Magistrate who supplied copies of the documents to the accused and vide order 24.11.1995 committed the accused to the court of Sessions.

Vide order dated 1.3.1996 the appellant was chargesheeted on the allegations that on 18.9.1995 in the area of Chhachhrauli he allegedly committed rape upon Parvati a minor below than 16 years of age and thereby he allegedly committed an offence punishable under Section 376 of the Indian Penal Code. It was read over and explained to the accused who pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Kumari Parvati prosecutrix PW.1, Sanyogita Puri (PW.2), Karan Singh Head Constable as PW.3, Doctor Prem Chand Medical Officer who conducted ossification test of the prosecutrix as PW.4, Dr. V.K. Wadhwan as PW.5, Doctor Asha Wadhwan who medically examined prosecutrix as PW.6, Constable Ram Kumar as PW.7, Pardeep Singh Inspector who prepared final report under section 173 Cr.P.C. as PW.10 and the Investigating Officer S.I. Piare Lal as PW.11. The prosecution tendered in evidence the affidavits of the formal witnesses and also report of the Chemical Examiner. Kumari Poonam and Kamlesh were given up by the prosecution during trial as unnecessary.

On closure of the prosecution evidence, the statement of the assused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused and he denied those circumstances and stated that "I am innocent. I have been falsely implicated in this case at the instance of Ms. Kamlesh Girdhar who is Superintendent of Balkunj Chhachhrauli, as I had refused to work at her residence".

The learned Additional Sessions Judge relying upon the story of the prosecution and rejecting the defence version convicted and sentenced the appellant in the manner stated above and feeling aggrieved against his conviction and sentence, the present appeal.

I have heard Shri D.S. Bali, Senior Advocate on behalf of the appellant assisted by Mr. D.V. Gupta and Shri Aman Chaudhary Advocate appearing on behalf of the State and with their assistance gone through the record of this case.

Learned Senior Cousnel as usual has tried to convince this court that in this case the material witnesses namely Poonam, Ahilya and Kamlesh Girdhar have not been examined by the prosecution so as to lend corroboration to the testimony of Parvati who according to the learned counsel is not a reliable witness because of lack of corroborating evidence. Learned Senior Counsel then submitted that after alleged incident of rape Kumari Parvati narrated the incident to Poonam. Poonam brought the matter to the notice of Ahilya and Ahilya brought the matter to the notice of Kamlesh Girdhar but neither Poonam nor Ahilya nor Kamlesh have been examined. Learned counsel submitted that at the time of the medical examination one Neelofer was present with the prosecutrix but she has also not been examined and in these circumstances the trial court committed patent illegality by giving implicit reliance to the testimony of Parvati who is not a truthful witness in the light of the observations made by the Doctor. The learned counsel even went to the extent that the appellant has become scapegoat of the annoyance of Kamlesh Girdhar who was Superintendent of Balkunj Chhachhrauli. My attention has been invited to the medical evidence and the observations of the lady Doctor Asha Wadhawan (PW.6) who conducted medical examination of Kumari Parvati on 21.9.1995. On the contrary the submission of the learned counsel appearing on behalf of the State is that law does not require that there should be corroboration to the testimony of the prosecutrix. Her bald statement if it inspires confidence can be acted upon without any further corroboration. Mr. Aman Chaudhary also submitted that in this case medical evidence is to the extent that violence has been used qua prosecutrix and in these circumstances it was not incumbent on the part of the prosecution to produce either Poonam, Ahilya or Kamlesh Girdhar. Learned counsel for the respondent has also placed reliance upon the report of the Chemical Examiner in order to show that sexual intercourse took place as stains of semen had been found on the underwear of the appellant which was taken into possession by the Investigating Officer.

So far as the position of the law is concerned, it is well settled that conviction can be based on the uncorroborated testimony of prosecutrix provided it inspires confidence in the mind of the court and that the testimony of the prosecutix has to be read like the statement of injured witness and therefore the statement of the prosecutrix requires better weight than that of an ordinary witness. First of all I would like to refer to the statement of Kumari Parvati who appeared as PW.1 when she categorically stated that rape was committed upon her by the appellant on the date of the occurrence. To quote precisely the statement of Parvati is as follows :

"It was 4.00 P.M. at that time. Harish came to me and asked me to prepare two or three cups of tea. I went to the middle room to bring sugar and tea leaves. Harish follows me to that room. He bolted the room from inside. He forcibly laid me on the bed. He had taken off my clothes. He had pressed my mouth, to prevent me from making noise. Then he forcibly had sexual intercourse with me. He then threatened me of being beaten if I disclosed it to anybody. He then went away to his room. I had told Poonam about this incident about twenty days after the occurrence as I was afraid. Poonam told about this incident to Ahilya on the day I told her about this. I was taken to the Police Station by Kamlesh Rani. I narrated the incident to the police. Ex. PA bears my signatures."

Thus a reading of the above statement would show that except for one faulty line to the extent that she narrated this incident to Poonam after 20 days otherwise the statement of Parvati is consistent to the effect that it was the appellant who committed rape upon her. I cannot lose sight of the fact that Poonam is not educated girl. Her background is very poor. She was neglected child of her parents. She was found roaming on the Railway Station. She was brought to Balkunj as destitute. Equally it is possible that when she appeared in the court she must be a girl of 15/16 years. A matured woman can well depose if a rape is committed upon her. She categorically names and implicates the appellant who had the occasion to commit sexual intercourse with her as the appellant was employed as a cook in that very institution. As against the testimony of Kumari Parvati the stand of the appellant is very poor and fable (feeble). Rather I say that his stand is very poor when he stated that he became target of this prosecution at the instance of Kamelsh Girdhar as he refused to work at her residence. The defence cannot be accepted. It is highly improbable that Kamlesh Girdhar who was Superintendent of the institution would try to implicate the appellant in a false charge of rape. The appellant was a young boy of 28 years when he was medically examined while prosecutrix''s age was 16 to 17 as is the opinion of the Radiologist Dr. Prem Chand who appeared as PW.4. If sexual intercourse is committed upon a young girl of 16/17 years and she may have feared while performing the sexual intercourse much evidence of violence cannot be expected on the body of the prosecutrix yet there are indications that violence was used upon the prosecutrix as Dr. Asha Wadhawan (PW.6) had stated that posterior wall of vagina was inflamed and tender. It hardly admitted two fingers tightly and was painful. In this view of the matter indication can be that there was penetration of the male organ of the appellant though the extensive damage was not done to labia majora and labia minora. As I have stated earlier that bald testimony of the prosecturix can be believed and there is no convincing reason why Kumri Parvati would toe line of Kamlesh Girdhar or Poonam or Ahilya for implication of the appellant who was totally unrelated person qua prosecutrix. In this view of the matter I am inclined to sustain the conviction of the appellant under section 376 I.P.C.

Faced with this difficulty learned Senior counsel Mr. Bali then submitted that appellant may be visited with leniency in the matter of sentence and there are special and adequate reasons for awarding lesser sentence on the appellant. He had highlighted reasons that there is faulty statement of Kumar Parvati when she stated that the incident had taken place 20 days prior to the actual date of the occurrence 18.9.95, that the appellant was young boy of 28 years and he might have committed mistake to have sexual urge with the prosecutrix and that most material witnesses namely Poonam, Ahilya and Kamlesh Girdhar have not been examined and that the appellant is in custody for the last more than 31/2 years. Section 376 I.P.C. lays down that whosoever commits rape shall be punished with imprisonment of either description which is not less than seven years but the court for the adequate reasons can impose sentence of imprisonment for a term less than seven years. In view of this court the reasons which have been given by the learned Senior counsel for reduction in the sentence are cogent and convincing. The present is an act not on account of vengeance or vandalism though it is equally true that the appellant committed rape upon destitute lady of the institution like Balkunj but this circumstance alone is not enough to award maximum sentence that has been awarded to him by the learned trial court. In this view of the matter, I reduce substantive sentence of the appellant under section 376 I.P.C. to four years. With the above modification in the matter of sentence, the appeal stands dismissed. Let intimation of reduction of the sentence be sent to Superintendent, Central Jail, Ambala so that the appellant may be informed the result of his appeal. The State of course shall take into account and would award the benefit of remissions if earned by the appellant during the period when he remained under custody.