Shilla alias Shilender vs State of Haryana

V.S. Aggarwal, J.—This is an appeal filed by Shile alias Shilender (hereinafter described as the appellant) directed against the judgment and order of sentence passed by the learned Additional Sessions Judge, Sonepat dated 20-2-1992 and 22-2- 1992 respectively. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable u/s 376, Indian Penal Code. Vide subsequent order, the learned Additional Sessions Judge sentenced the appellant to undergo rigorous imprisonment of ten years and to pay a fine of Rs. 2,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for one year.

The prosecutrix/victim Kumari Asha was aged about 4 1/2 years. The appellant is also aged about 17 years at the time when the alleged offence is alleged to have been committed. On 26-2-1990 Satbir and Jai Singh were going toward their field at about 5 p.m. When they were near the field of Jai Singh, they heard cries of a small. Child from the mustard field of Jai Singh. On going near the field, they saw the appellant commit rape on Kumari Asha. On seeing Satbir and Jai Singh, the appellant ran away holding his pant in his hand. Earlier they noticed that the pant had been lowered and garments worn by Kumari Asha (Pajami.) were on her knees. Kumari Asha was crying helplessly and bleeding from her vagina. She was brought to her parents house and taken to General Hospital, Sonepat.

Dr. S. V. Sharma examined Kumari Asha and noticed that she was bleeding from the vagina. There was a lacerated tear in the perinium including vaginal muscosa.

Head Constable Dhanpat Rai obtained the medico-legal-report of Kumari Asha and recorded the statement of Satbir. On basis of that, formal First Information Report had been recorded. He obtained the clothes of Kumari Asha and another parcel containing the vaginal swabs. Site as such was inspected. The appellant was arrested on 5-3-1990. He was examined by Dr. S. S. Wadhwa. The articles were sent for the report of the Chemical Examiner. On receipt of the report, challan as against the appellant was filed.

The appellant as such had denied the assertions of the prosecution and had taken up the defence that he had falsely been implicated. He told the Court in his statement that he had falsely been implicated because of the quarrel with Satbir regarding turn of water. Learned Additional Sessions Judge, Sonepat vide impugned judgment concluded that merely because the prosecutrix has not been examined is no ground to reject the prosecution version. Learned trial Court believed the other evidence on record so as to conclude that it has been established beyond every shadow of doubt that the charge with respect to the offence punishable u/s 376 Indian Penal Code is proved. Subsequently, the order imposing the sentence mentioned above was passed. Hence, the present appeal.

There was no controversy about Kumari Asha being 4 1/2 years of age at the relevant time. It had been insisted that she was an important witness and non-examination of Kumari Asha should prove fatal to the prosecution case. While legal pleas are floated common sense cannot be left in cold store. The tender age of Kumari Asha who was aged about 5 years at the relevant time cannot be ignored. There is no controversy that in normal circumstances, in a case with respect to the offence punishable u/s 376, Indian Penal Code, the prosecutrix would be an important witness. But when the child is not in a position to depose properly as it is apparent in the facts of the present case, it would be travesty of facts to insist that she should have been produced as a witness. On that account the prosecution case cannot be thrown over board. This cannot be described as legal infirmity. The prosecution should examine all witnesses but not those who cannot depose properly. Reliance in this regard can very well be placed on the decision in the case of Mange Vs. State of Haryana, . In this appeal before the Supreme Court, the prosecutrix was deaf and dumb girl. She was only 13 years of age. The Supreme Court concluded that apart from being a child witness she was dumb and deaf and no useful purpose would have been served by examining her as a witness. The same appears to be the position in the present case, and the line of argument so adopted as the first assault must fail.

It was urged further that the appellant has falsely been implicated because he had a dispute with Satbir regarding turn of water. Contention so raised is totally devoid of any merit. There is no such basis to conclude that the dispute that had arisen had gone so far that it was thought appropriate that the appellant should be falsely implicated at the risk of Kumari Asha. It is difficult to comprehend such a suggestion that has been raised by the appellant. There is no logical basis in this regard to support the appellant about his having been falsely implicated.

Satbir PW 7 is the first eye-witness about Kumar Asha having been raped. In clear terms, he deposed and told the trial Court that along with Jai Singh, they were going towards the field when they heard cries of a child. They rushed to the field of Jai Singh and saw the appellant commit rape on the person of Kumari Asha. She was bleeding. The appellant escaped as such. Cross-examination though lengthy yielded hardly any result to permit the Court to draw in inference that the witness was not telling ! the truth. He finds himself in good company and his testimony is supported by that of Jai Singh PW 8. He also in like manner deposed that he had seen the appellant rape the prosecutrix Kumari Asha aged about 4 1/2 years. There is no ground to discredit the said oral evidence.

Said testimonies are even supported by the medical evidence. Dr. S. V. Sharma PW 3 had examined Kumari Asha on the date of the incident. As already pointed out, while enumerating the facts, there was fresh bleeding from the vagina. Undergarments of Kumari Asha and vaginal swabs taken. They had been sent for chemcal analysis. Semen had been found present in it. These factors lend complete support to the testimony of the oral witnesses that Kumari Asha as such had been raped, the the appellant.

It was high-lighted that there is delay in recording of the First Information Report. The occurrence is alleged to have taken place at 5 p.m. Kumari Asha was examined by Dr. S. V. Sharma PW 3 at about 8.15 p.m. The information had been sent to the concerned Police Station. It was around 1 a.m. on 27-2-1990 that the statement of Satbir was recorded by the Investigating Officer. First Information Report was recorded at 1.30 a.m. It is obvious from these statements that there is no inordinate delay in lodging of the First Information Report. Some delay is inherent because keeping in view the condition of the young child, she had to be removed to the hospital. It has transpired in evidence that she was bleeding and, therefore, it became necessary to attend to her first rather than to rush to the Police Station. In the absence of any inordinate delay, this particular plea was raised. Consequently, there is no hesitation in confirming the findings of the learned trial Court that the prosecution had successfully proved its case against the appellant with respect to the offence punishable u/s 376, Indian Penal Code.

Confronted with the position, learned counsel for the appellant high-lighted the fact that the appellant himself was aged about 17 years and, therefore, a lenient view for awarding sentence may be taken. It could be a relevant consideration but command of law in this regard cannot be ignored. Sub-section (2) to Section 376, Indian Penal Code is being reproduced below for the sake of facility :-

"(2) Whoever:-

(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 women''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 pregnant; or

(0 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 descrimption for a term less than ten years."

The case of the appellant would fall u/s 376(2) of the Indian Penal Code. The minimum punishment prescribed is often years. The same was awarded. Silver lining has been provided by proviso to Sub-section (2) to Section 376, Indian Penal Code provided that the Court can record special reasons for awarding lesser sentence.

But the crime and punishment as is known grow out of one stem. Punishment is a fruit that unsuspectedly ripens within the flower of pleasure which concealed it. Keeping in view the specific provisions of law, unsocial softness to any factor should not be shown. In fact, soft sentencing justice would be gross injustice where innocent five years old child is the victim. In the face of the aforesaid and the provisions of Section 376(2) of the Indian Penal Code, I find no reason that the sentence should be reduced.

For these reasons, the appeal being without merit fails and is dismissed.