Jitendra Chauhan, J.@mdashThe instant appeal as sails the judgment and order dated 02.03.2009, passed by the learned Addl. Sessions Judge, Narnaul, (for short, ''the trial Court''), whereby, the appellant has been convicted and sentenced as under:-
However, all the sentences were ordered to run concurrently. It was also ordered that out of the total amount of fine, Rs. 1,00,000/- shall be paid to the prosecutrix as compensation.
2. The brief facts of the case in hand, recorded by the learned trial Court, emanating from the FIR, are that the complainant, Rajbir, submitted written complainant dated 04.07.2008, stating therein that on 01.07.2008, he and his wife Saroj had gone to the fields at 9.00 a.m. for fetching grass, leaving behind their daughter, the prosecutrix, aged 14/15 years and grand daughter, aged 5/6 years, in the house. Accused Keshav, on finding their daughter alone in the house, committed rape upon her and threatened her that she will be eliminated in case she narrated the incident to her parents. At about 11.00 a.m., the complainant and his wife came back home and found the prosecutrix weeping. She told them the entire incident. Efforts were made for intervention of Panchayat but the appellant and his father threatened them for the consequences if they reported the matter to the police.
3. In this background, FIR No. 79 dated 04.07.2008, came to be registered at Police Station Satnali, under Sections 452/376 and 506 IPC. Upon investigation, site plan of the place of occurrence was prepared, the accused was arrested and the prosecutrix was got medico-legally examined from the Government hospital.
4. Upon completion of investigation, challan was presented. The appellant was supplied copies of the documents u/s 207 Cr.P.C. There after, upon committal of case by the learned II-laqa Magistrate before the Sessions Court, charges under Sections 452, 376 and 506 IPC were framed against the accused-appellant to which, he pleaded not guilty and claimed trial.
5. In order to substantiate the charges against the accused, the prosecution examined as many as 15 following witnesses:-
PW1, Dr. Rekha Yadav, medico-legally examined the prosecutrix with alleged history of sexual assault on 01.07.2008 at 10.00 a.m. She proved MLR, Ex. PW1/B. She further deposed that after seeing the FSL report, Ex. PW 1/C, along with the MLR, Ex. PW 1/B, the possibility of rape cannot be ruled out.
PW2, Satbir Singh, stated that on 07.07.2008, he was acting as Incharge, GGSS, Satnali. He proved certificate, Ex. PW2/A, which bears his signatures. He further stated that as per the school record, the prosecutrix has studied upto 8th Standard.
PW3, HC Rajbir Singh, tendered his affidavit, Ex. PW3/A, regarding depositing of samples in Malkhana on 04.07.2008 and in FSL Madhuban on 15.07.2008.
PW4, EHC Yudhvir Singh, deposed that on 04.07.2008, after medico-legal examination of accused, Keshav @ Joni, the doctor handed over him a sealed palanda, sample seal bearing impression KSC, copy of MLR and envelop containing some documents, which were taken into possession by SI Hosiyar, vide memo Ex. PW4/A, which bears his signatures.
PW5, Lady Constable Saroj, stated that she accompanied the prosecutrix to the Government Hospital, Namaul, on 04.07.2008, for getting her medically examined.
PW6, Dr. Kanwar Singh, Medical Officer, CHC, Mohindergarh, stated that on 04.07.2008, he had medico-legally examined the appellant and opined that there was nothing to suggest that the appellant was no capable of performing sexual intercourse.
PW7, Constable Vijender Singh is a formal witness, who tendered his affidavit, Ex. PW7/A.
PW8, HC Mahesh Kumar, deposed regarding preparation of scaled site plan, Ex. PW8/A.
PW9, The prosecutrix deposed about the entire incident.
PW10, Rajbir, the complainant, who is the father of the prosecutrix and PW11, Smt. Saroj, the mother of the prosecutrix, also deposed about the incident.
6. In his statement u/s 313 Cr.P.C., the accused-appellant denied all the allegations of the prosecution case and pleaded false implication. He took the plea that he was having friendly relations with the prosecutrix but the complaint, father of the prosecutrix lodged the false case in collusion with the police officials.
7. In defence, he examined DW1-Dev Karan Yadav. He also proved his middle examination certificate showing his date of birth as 15.10.1989, and letter of Sarpanch regarding selection of the appellant in the BSF, as Ex. DX and DY, respectively.
8. The learned trial Court, after hearing learned counsel for the parties and appreciating the evidence on record, convicted and sentenced the appellant as noticed at the outset of this judgment.
9. Hence, the present appeal, which was admitted by this Court on 17.03.2009.
10. The learned counsel for the appellant asserts that no rape, as asserted by the prosecution, had taken place. The learned counsel refers to the statement of Dr. Rekha Yadav, PW-1, and states that on examination, hymen was found patulous. The doctor recommended for the ossification test. Despite the recommendation, no ossification test was conducted. Thus, the learned counsel contends that in the absence of the ossification test, the prosecutrix was major and the school leaving certificate relied upon by the prosecution is of no consequence. It is next argued that there is an unexplained delay of three days in lodging the FIR. The incident in question took place on 01.07.2008, whereas the FIR was lodged on 04.07.2008. No explanation has come on record except the bald statement of the complainant that some panchayat deliberations were going on. Therefore, the entire story has been concocted to frame the appellant. The learned counsel next contends that in the examination-in-chief, the prosecutrix has specifically stated that her apparels were taken into possession by the doctor, whereas, in the cross-examination, she has not supported this version so much so that the prosecutrix was declared hostile. The learned counsel lastly submits that the appellant was a young boy of 18 years plus, and he continued his studies and has completed Graduation and M.B.A. degrees, during the period of his in carceration. He is in custody for the last five years. Keeping in view the young age of the appellant and the fact that he has obtained specialized qualification to serve the society at large and the prosecutrix having been already married and settled happily in her matrimonial family, a lenient view be taken.
11. On the other hand, the learned State counsel, vehemently argued that the prosecutrix was minor. After scanning the record pertaining to the Registrar of Births and Deaths, her age was correctly noticed to be 03.09.1992. Rupture of hymen is not a precondition for rape. No adverse inference can be drawn if the ossification test was not carried out.
12. I have heard the learned counsel for the parties and gone through the record with their able assistance.
13. Hon''ble the Supreme Court in
"15. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
14. In the instant case, statement of the prosecutrix is trustworthy and in view of her consistent stand, minor contradictions, if any, deserve to be ignored.
15. There is no dispute with regard to the fact that the incident took place on 01.07.2008, whereas, the present FIR was recorded on 04.07.2008. However, the prosecution has successfully explained the cause of said delay. In the FIR, the complainant has specifically stated that the delay is on account of the threat extended to him by the accused. Moreover, in such like cases, delay is not of much consequence.
16. As far as the mitigating circumstances in favour of the accused are concerned, admittedly, no injury was noticed on the person of the prosecutrix. The medical evidence shows that the hymen was patulous. PW1, Dr. Rekha Yadav, who medico-legally examined the prosecutrix opined that the possibility of sexual assault cannot be ruled out. From the statement of PW-1, Dr. Rekha Yadav, it emerges that she advised for ossification test to be conducted on the prosecutrix, however, despite her specific observation, there is no explanation as to why no ossification test was carried out upon the prosecutrix.
17. The school certificate depicts her date of birth as 15.01.1993, whereas, the date of birth relied upon by the learned trial Court is 03.09.1992. Thus, there is inconsistent view with regard to the date of birth of the prosecutrix in the absence of the ossification test. As per the statement of the prosecutrix, she left the school three years prior to the incident, at that time, she was student of VIII standard. Therefore, it can be inferred that the prosecutrix was a grown up lady. It has also come on record that the child named Sapna, who is the niece of the prosecutrix, was also present in the room. This child witness, for the reasons best known to the prosecution, has not been examined. The accused-appellant also tendered in evidence letter of the Sarpanch regarding his selection in the BSF, as Ex. DY. The appellant lost this job on account of the present case.
18. Keeping in view the cumulative effect of the above facts and circumstances, this Court is inclined to take a lenient view in the matter of sentence, while maintaining the judgment of conviction for offences under Sections 452, 376 and 506 IPC.
19. The sentence of imprisonment of 10 years, awarded to the appellant u/s 376 IPC, is reduced to 07 years. The fine shall remain intact. However, he shall have to pay a sum of Rs. 1,00,000/-, as compensation to the complainant, over and above the amount of fine already imposed by the learned trial Court, within three months from the date of receipt of certified copy of this judgment, failing which the appeal shall be deemed to have been dismissed. The sentences under Sections 452 and 506 IPC, along with fine and default clause shall remain intact.
20. Accordingly, the present appeal is partly allowed and the impugned judgment/order dated 02.03.2009, is modified to the extent indicated above. The Chief Judicial Magistrate, Narnaul, shall ensure that this judgment is complied with within the period prescribed, under intimation to the Registry of this Court.
