Naresh vs State of Haryana

K.K. Srivastava, J.

Appellant Naresh was tried in the Court of Additional Sessions JudgecumSpecial Judge, Bhiwani under Section 376 of Indian Penal Code read with Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short to be referred as the Act 1989) for committing rape on Kumari Sunita, aged about 12 years on 15.2.1993 at 11.00 A.M. in the field of Munshi, situated within the limits of village Riwasa, Police Station Tosham in the District of Bhiwani. The learned Additional Sessions Judge has convicted Naresh for the offence of rape punishable under Section 376 of Indian Penal Code read with Section 3(2)(v) of the Act 1989 and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for six months.

The case of the prosecution, in short, is as under:

Kumari Sunita daughter of Chander Bhan, Dhanak, aged about 12 years. resident of village Riwasa had gone to fields on 15.2.1993 to bring grass. She was accompanied by her younger sister Kumari Vinod, aged about 7 years. At about 11.00 A.M. appellant Naresh caught hold of Sunita and took her to a nearby Kacha Nala. Naresh had earlier slapped Kumari Vinod at her face and told her to go to her house. Sunita was made to lie on ground and after breaking the string the salwar and removing it Naresh committed rape on her who cried and shouted for help. The cries of Sunita attracted her father Chander Bhan Dhanak and sisterinlaw Smt. Bimla wife of Hawa Singh to the place of occurrence. On hearing the voices of Chander Bhan and Smt. Bimla, Naresh stood up and seeing them he ran away from the place of occurrence. Sunita was brought home by her father and sisterinlaw Smt. Bimla. This occurrence was then disclosed to the village people. Sunita was taken by her father Chander Bhan and sisterinlaw Smt. Bimla to the police station for lodging the report when the police party headed by ASI Partap Singh met them at Hansi Chowk, Tosham. The statement of Sunita was recorded at 4.50 P.M. and sent for registration of a formal FIR with the endorsement of the said ASI. The formal FIR was registered the same day at 5.00 P.M.

Sunita was sent for medical examination to General Hospital, Bhiwani where Dr. Mrs. Poonam Bawa, Medical Officer (PW1) medically examined her at 8.50 P.M. The prosecutrix Sunita was brought by the Police. Dr. Poonam Bawa found the hymen ruptured having two radial tears in 2''O clock and 11''O clock. The edges were red and swollen, tender and bleeded on touch. Posterior forchette and commissure were found intact. The vaginal swabs were taken from posterior forchette and survial oss and sent for chemical examination. Pervaginum examination, however, could not be done as the same ways very painful. According to the opinion of Doctor Poonam Bawa, Sunita was subjected to forcible sexualintercourse. Some stains could come on the Salwar during the forcible sexual intercourse. The Salwar Exhibit P1 had been taken out and sent for chemical analysis to Forensic Science Laboratory. Kumari Sunita was referred to the Radiologist for determination of her radiological age. Dr. Jayotsana Sain (PW6), Lecturer, Radiology Department, Medical College, Rohtak got the xray of Sunita taken and after persual of the xray report and skiagram prepared by Dr. S.K. Anand (PW7), Medical Officer, General Hospital, Bhawani, the age of the prosecutrix was assessed more than 10 years and less than 14 years. The case was investigated by ASI Partap Singh (PW11) who recorded the statements of the witnesses Chander Bhan, Kumari Vinod and Smt. Bimla. He arrested accused Naresh and got him medicolegally examined at Tosham. Dr. Ram Phal, Medical Officer, Civil Hospital, Tosham examined Naresh on 17.2.1993 at 4.00 P.M. The age of Naresh was assessed about 2022 years. He was a man of normal physical build. All secondary characters of adult male were present. In the opinion of the Doctor nothing was found to suggest that Naresh could not do normal sexual intercourse with a female. The underwear of Naresh was taken and sealed. After completion of investigation, a challan was submitted under Section 173 of Code of Criminal Procedure against the accused for trial under Section 376 of Indian Penal Code read with Section 3(2)(v) of the Act 1989. The trial of accused Naresh took place before the Additional Sessions JudgecumSpecial Judge, Bhiwani who was authorised specially under the Act, 1989 to try the offences under the said Act.

The accused was chargesheeted and the prosecution led evidence against him and examined 11 witnesses, namely, Dr. Mrs. Poonam Bawa PW1, Dr. Ram Phal PW2, Constable Subhash Chander PW3, Kumari Sunita PW4, Kumari Vinod PW5, Dr. Jayotsana Sain PW6, Dr. S.K. Anand PW7, SHO Rameshwar Kumar PW8, Smt. Bimla PW9, Ram Kumar Patwari PW10 and ASI Partap Singh PW11.

Accused Naresh was examined under section 313 of Code of Criminal Procedure. He denied his involvement in this occurrence and stated that Kumari Sunita was a labourer and grass cutter. She used to visit the fields of Munshi many a time for cutting the grass. The said field was taken by him on Batai. He along with the sons of Munshi, who had died, was cultivating the land together. Sunita used to damage the crop of the field and also the field of one Ganpat. She was warned several times and asked to refrain from damaging the crop but she did not listen to the same and would cause heavy damage to the crop. A Panchayat was also held and the matter was compromised. He has been falsely implicated in order to blackmail him so that he may not prevent Sunita for cutting the grass.

In defence, the accused examined Dalip Singh son of Munshi Singh as DW1.

The learned trial Judge believed the prosecution evidence and held Naresh guilty of the offence punishable under Section 376 of Indian Penal Code read with Section 3(2)(v) of the Act 1989 as the prosecutrix belonged to the member of Scheduled caste while the accused did not belong to the said caste. The accused felt aggrieved against his conviction and sentence awarded by the learned trial Judge and he has filed this appeal.

We have heard the leaned counsel for the appellant and learned State counsel for the respondent. We have been taken through the evidence on record and have perused the judgment of the trial Judge.

So far as the occurrence of rape is concerned, there is overwhelming evidence on record to prove the same. The prosecutrix Sunita has categorically stated about her being raped by Naresh, the appellant. The statement of the younger sister Kumari Vinod (PW5) corroborates the statement of the prosecutrix regarding the accused Naresh taking Sunita forcibly towards the watercourse in the field of Munshi where Sunita was pushed on the ground and was subjected to rape. Smt. Bimla (PW9) wife of Hawa Singh, real brother of Sunita and Vinod reached the place of occurrence accompanied by her fatherinlaw Chander Bhan and was Naresh running away from the driedbed of the watercourse and Sunita was found lying naked and her Salwar was lying by her side. The medical evidence of Dr. Poonam Bawa amply corroborates the statement of the prosecutrix and the internal examination showed forcible sexual intercourse. The hymen was found ruptured having radial tears at two places. The edges were red and swollen, tender and bleeded on touch. Due to extreme pain, examination per vagina could not bedone. The statement of Dr. Bawa could not be demolished despite searching crossexamination. We are, therefore, of the considered opinion that the prosecutrix Sunita was subjected to forcible sexual intercourse by the appellant Naresh.

Shri R.S. Cheema, the learned Senior Advocate appearing for the appellant contended that the question of age of the prosecutrix Sunita is of considerable importance. He pointed out that the father Chander Bhan of the prosecutrix did not enter the witness box to state about the age of Sunita. Smt. Bimla, wife of the brother of Sunita has no knowledge about the age of Sunita. There was no documentary evidence such as the extract of the birth register placed on record. According to the submission of the learned counsel for the appellant, this evidence would have corroborated the radiological age determined against the test of ossification of bones. The statement of Dr. S.K. Anand (PW7) shows that xray of Sunita was taken under the supervision and guidance of Dr. Jayotsana Sein (PW6) for determination of the age radiologically. On the basis of the xrays and according to the guidance radiological age of Sunita was found to be more than 10 years and less than 14 years. He proved his report Exhibit PW6/B and proved xray films as Exhibits PW6/14. In crossexamination, he ruled out giving any margin of 2 to 3 years on either side of the age because the radiological age was determined from 10 to 14 years. Sunita herself gave her age as about 12 years before Dr. Mrs. Poonam Bawa. While referring to the case history regarding the prosecutrix Dr. Bawa (PW1) stated that menstrulistic age of menarchemenses had not yet started. Sunita was unmarried at the time of the occurrence and her medical examination. According to the statement of Dr. Bawa mensruting usually starts at the age of 12 to 14 years. Smt. Bimla (PW8) stated the age of Sunita as 12 years. In her crossexamination, she stated that she did not know the year and month in which Sunita, was born. After carefully perusing the statements of Smt. Bimla and Kumar Sunita we have no hesitation in holding that Sunita was aged less than 16 years at the time of the occurrence. The maximum age to the advantage of the accusedappellant can be taken as 14 which is the outer limit mentioned by Dr. S.K. Anand and Dr. Jayotsana Sain. That being so, Sunita was a minor aged below 16 years and not capable of giving her consent to sexual intercourse with the appellant Naresh and thus, the question of the prosecutrix being a consenting party to the sexual intercourse will not arise in this case.

Shri Cheema, learned Senior Advocate lastly submitted that the provisions of the Act 1989 will not be attracted in this case inasmuch as the sexual assault on Sunita was not done by the appellant Naresh with a view to cause injury, insult or annoyance to any member of the scheduled caste or scheduled tribe. It cannot be said that Naresh committed rape i.e. an offence punishable under Section 376 of Indian Penal Code upon Sunita on the ground that she was a member of scheduled caste or scheduled tribe and, therefore, the provisions of Section 3(2)(v) of the Act 1989 could not be attracted in this case.

The learned trial Judge has awarded the sentence of imprisonment for life under Section 376 of Indian Penal Code in view of the provisions contained under Section 3(2)(v) of the Act 1989 which provides as under:

"3(2)(v). Whoever, not being a member of a Scheduled Caste or a Schedule Tribe commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."

In view of the foregoing discussion, the appeal is partly allowed. The conviction of appellant Naresh under Section 376 of Indian Penal Code is maintained but his conviction with the aid of Section 3(2)(v) of the Act 1989 is set aside. The sentence of life imprisonment awarded under Section 376 of Indian Penal Code read with Section 3(2)(v) of the said Act is set aside and instead he is sentenced to suffer rigorous imprisonment for seven years with fine of Rs. 1,000/ and in default of payment of fine to undergo further rigorous imprisonment for six months.