Dinesh vs State Of Haryana on 3 November, 2017

CRA-S-2786-SB-2017 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.

CRA-S-2786-SB-2017 (OM)
Reserved on: 25th October, 2017
Pronounced on 3rd November,2017

Dinesh ..Appellant

versus

State of Haryana ..Respondent

CORAM: HON’BLE MR JUSTICE RAMENDRA JAIN

Present: Mr. Sushil Sheoran, Advocate, for the appellant.

Mr. Vikas Chopra, DAG, Haryana.

RAMENDRA JAIN, J.

1. The appellant, being aggrieved against the judgment of

conviction dated 3.6.2017 holding him guilty under sections 367/377, 506

IPC and section 6 of the Protection of Children from Sexual Offence Act,

2012 (hereinafter referred to as “the POCSO Act”) and order of sentence

dated 05.06.2017 by the learned court below:-

Under section 377 IPC To undergo RI for seven years and pay a fine

of Rs.2,000/-. In default thereof, further undergo

RI for six months.

Under section 367 IPC To undergo RI for five years and pay a fine

of Rs.1,000/-. In default thereof, further undergo

RI for three months.

Under section 506 IPC Simple imprisonment for one year and pay a fine

of Rs.500/-. In default thereof, further undergo

Simple imprisonment for one month

1 of 10
09-11-2017 01:54:22 :::
CRA-S-2786-SB-2017 (OM) 2

Under section 6 POCSO To undergo RI for ten years and pay a fine

Act. of Rs.3000/-. In default thereof, further undergo

RI for six months.

All the substantive sentences were ordered to run concurrently.

2. Briefly stated, on 21.6.2016 on receipt of a telephonic message at

Police Station Badhra regarding admission of a minor victim for treatment

being a sexually assaulted, from Community Health Centre (for short

“CHC) at village Gopi, ASI Jeet Ram along with his team reached there,

where maternal uncle and maternal grand father of the victim, namely,

Kuldeep and Ram Chander, respectively, met him and handed over a

medical ruqa, medico-legal report along with a written complaint of the

victim with the allegations that he was aged 14 years, studying in 10th

standard in Government School village Bhagina. Around 12.30/1.00 A.M

on the intervening night of 20/21.6.2016, when in the marriage function of

his maternal uncle, they were dancing on Disk Jockey (for short “DJ”), the

appellant-accused Dinesh asked to accompany him on his motorcycle and to

bring the motorcycle back after dropping him at his house and hand over

the same to his maternal uncle. Whereupon, the victim accompanied the

appellant-accused on his motorcycle, who took him to the fields near

Loharu canal situated at some distance from village Badhra. The accused-

appellant removed the cloth of the victim and committed carnal intercourse

with him. Thereafter the accused threatening him with dire consequences, in

case, he disclosed the incident to anyone, brought the victim back on his

motor cycle and left him near the house of his maternal uncle. On the basis

of the aforesaid complaint, criminal law was set into motion. During

investigation, the accused-appellant was arrested and after completion of

2 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 3

necessary investigation, a report under section 173 of the Code of Criminal

Procedure was submitted against the accused-appellant under sections

367/377/506 IPC and sections 3 of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and 6 of the POCSO Act.

3. The trial court, after conclusion of the trial, recorded conviction

and sentence of the appellant in the manner as narrated in the opening

paragraph of the judgment.

4. Learned counsel for the appellant inter alia contended that the

alleged carnal intercourse with the victim is not proved from the medical

evidence. The victim, in his initial written complaint Ex.PW-1/A

specifically named the accused-appellant, but in his statement under section

164, Code of Criminal Procedure, after two days on 23.6.2016 Ex.PW1/B

upon application of the police Ex.PW-11/A before the learned Magistrate,

he did not name the appellant, rather testified that a young man telling him

that he was a friend of his maternal uncle, took him away on the pretext of

leaving him at his house and then to bring back the motorcycle. However,

instead of going home, the appellant-accused took him to the fields, where

he removed his clothes at pistol point and did carnal intercourse with him.

During the intercourse and thereafter, the accused-appellant had threatened

him not to disclose anything to anybody, would, otherwise, kill him.

Thereafter, the said young man left him near the house of his maternal uncle

with repeated threats to him with dire consequences. The victim further

testified that later on, he came to know about the name of the accused-

appellant, i.e., Dinesh through his maternal uncle. Therefore, the identity of

the accused was doubtful and resultantly, both the courts below have

wrongly convicted and sentenced the accused-appellant. Even otherwise,

3 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 4

PW5 Dr. Rakesh Kumar Dhayal, while medico-legally examined the victim

on 21.6.2016 found no external injury/nail or bite mark on upper/lower

body of the victim. On perianal area examination, he found no history of

defecation, sexual assault and no sign of visible injury was seen in annal,

perianal or genital area in the medico-legal report, Ex.PW5/B. Even in the

FSL report, no semen was detected on the underwear or clothes of the

victim, therefore, the alleged intercourse by the accused-appellant with the

victim was also not proved by the prosecution beyond any shadow of doubt.

Thus, from this angle also, the conviction and sentence of the appellant is

wrong and illegal. The maternal grand father and maternal uncle, namely,

Ram Chander and Kuldeep PW3 and PW4, respectively, have given

contradictory depositions, detrimental to the prosecution story. PW-3 Ram

Chander, the maternal grandfather of the victim, deposed that they tried to

chase the accused-appellant after he left the victim, whereas PW4 Kuldeep,

the maternal uncle, deposed that the victim, after entering the house,

disclosed the incident and then he told the name of the accused to the

victim. Therefore, the above contradictory version in the statements of the

prosecution witnesses, entitles the accused for acquittal by giving him the

benefit of doubt. The appellant-accused is in custody since 25.6.2016 and

had already suffered a lot.

5. On the other hand, learned State counsel strongly refuted the

above submissions made by learned counsel for the petitioner contending

that both the learned courts below on appreciation of ocular as well as

documentary evidence on the record have rightly convicted and sentenced

the accused-appellant.

6. Having given thoughtful consideration to the submissions made

4 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 5

by learned counsel for the accused-appellant, being without any merit, is

liable to be dismissed for the reasons to follow:-

7. The entire case of the prosecution hinges on the statements of

the victim and his family members, who have been examined before the

trial court as PW1 victim, PW3 Ram Chander, the maternal grand father of

the victim and PW4 Kuldeep, the maternal uncle of the victim. PW1, the

victim, a minor boy of 14 years, deposed before the trial court, narrated the

entire version in the manner in which it had occurred and as such

corroborated the prosecution case in its entirety. This witness, in an

unequivocal term, testified before the trial court that the accused-appellant

committed carnal intercourse with him forcibly during the night time and

when he cried, accused-appellant gagged his mouth. His testimony could

not be shattered during lengthy cross-examination conducted by the learned

defence counsel. PW3 Ram Chander and PW4 Kuldeep also corroborated

the version of the prosecution. That apart, PW1, the victim has also proved

his statement recorded under section 164 of the Code of Criminal Procedure

before the magistrate. PW11 Shri Ramesh Kumar, the learned Judicial

Magistrate 1st Class, Charkhi Dadri, proved the statement of the victim

under section 164 Cr.P.C. Ex.PW1/B recorded on 23.06.2016 on the

application moved by the police Ex.PW11/A and his certificate appended at

the end of the statement.

8 So far as the identity of the accused-appellant that it was

doubtful on account of discrepancies coming out in the statements of PW1,

PW3 Ram Chander, the maternal grand father and PW4 Kuldeep, the

maternal uncle of the victim, as pointed out by the learned counsel during

the course of arguments, is concerned, the accused-appellant was identified

5 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 6

by the victim in the open court. In addition to this, it does not lend credence

to the argument of the defence that the victim was not aware of the name of

the accused-appellant. It hardly makes any difference if the victim came to

know the name of the accused-appellant only after he entered the house of

his maternal uncle before whom he narrated the entire episode of carnal

intercourse committed with him and he told him the name of the accused-

appellant as Dinesh, inasmuch as the appellant had told the victim that he

was the friend of his maternal uncle, which fact was sufficient to find out

the identity of the appellant and to connect him with the commission of

crime. Moreso, no suggestion was put to the victim during his examination

that he was a tutored witness or that he had given his statement before the

court under the pressure of his maternal grand father or his maternal uncle

on account of the fact that there was a political rivalry between both the

sides, though the accused-appellant had taken up a plea in defence that the

case was registered on account of party faction in the election of panchayat.

He did not lead any evidence to the above stated effect in defence and

closed the same without leading any evidence.

9 The question that posed for consideration is, can honour of a

child of 14 years be put at stake for all future prospects by the members of

his family by foisting a false case of carnal intercourse upon the accused-

appellant merely for the reason that there was a petty political rivalry in

between the parties in the panchayat elections. It is not believable that the

family members of the victim for their axe to grind, would ruin the career of

a minor child by getting a case of sodomy registered against the accused-

appellant against whom, they had no personal enmity by involving him in a

false case. Such a drastic step cannot be taken by a child of tender age

6 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 7

without rhyme or reason, unless a serious crime, in reality, is committed.

10 The next question that arises in the mind of the court – can a

child of tender age forget the face of a person, who had committed such a

heinous crime? Even if for the sake of arguments, it be presumed for a short

while that the victim was not aware of the name of the accused-appellant, a

friend of his maternal uncle, but at the same time, he identified him at the

very first glance in the open court. If in the opinion of the accused party that

offence had not been committed by the accused-appellant, they must have

moved an application before the higher authorities of the police or even

before the court for conducting test identification parade, but no such step

was taken by the accused-appellant. It has been established on the record on

the strength of the testimony of the prosecution witnesses that after the

shameful act was committed by the accused-appellant, immediately, medical

examination of the victim was got conducted by the family members of the

victim from the Community Health Centre, village Gopi on the intervening

night of 20/21.6.2016 at 12.30/1.00 A.M. As per the testimony of PW9 ASI

Jeet Ram, on 21.6.2016, he received complaint Ex.PW1/A from the victim,

whereupon he made his endorsement Ex.PW9/A and sent it to the police

station for registration of the case. In my considered opinion, there was no

delay on the part of the complainant in reporting the matter to the police.

Therefore, the contention of the learned counsel that there was unexplained

delay in registering the FIR, cannot at all be accepted.

11 The contention of the learned counsel that identity of the accused-

appellant has not been established can not at all be accepted, especially

when the victim, in clear cut terms, lodged a report by submitting his

complaint to him Ex. PW1/A at around 5.45 P.M. against the accused-

7 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 8

appellant with the police on 21.6.2016, who on 23.6.2017, informed PW7

DSP Kuldeep Singh in the morning that the complainant party were present

at their house, whereupon, he visited Badhra. He along with DSP Kuldeep

Singh reached the house of Ram Chander, maternal grandfather of the

victim, where many neighbourers were present. The statements of the

concerned witnesses were recorded. On 24.6.2016 the victim was produced

before the Magistrate for recording his statement under section 164 of the

Code of Criminal Procedure. On 25.6.2016 the accused-appellant was

arrested by DSP Kuldeep Singh, who produced the motor-cycle in question

along with its registration certificate. The sequence of events clearly shows

that there was promptness not only in registering the FIR against the

accused-appellant, but even in completion of the investigation by the

prosecution as well.

12 The ocular testimony of PW1, the victim, PW3 Ram Chander,

the maternal grand father and PW4 Kuldeep, the maternal uncle of the

victim, are corroborated by the medical evidence. PW5 Dr. Rakesh Kumar

Dhyal, deposed that on 21.6.2016 he medico-legally examined the victim

who was 14 years old, was brought before him with alleged history of

sexual assault. On examination, he observed that the patient complained of

pain in right cheek and there was an abrasion of approximately 04×0.2 cm

with surrounding edema on right cheek. He further deposed that from

perusal of MLR Ex. PW5/B, he was of the view that possibility of carnal

intercourse upon the person of victim could not be ruled out. PW6 Dr. Ravi

Sehrawat deposed that on 25.6.2016, he medico-legally examined the

accused-appellant aged 24 years who was brought by ASI Jeet Ram with

alleged history of sexual assault on 21.6.2016 at 12.30 A.M. at Badhra. On

8 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 9

examination, he observed that patient was conscious, cooperative and well

oriented to time, place and person. Blood Pressure was 110/70 mm of Hg

and pulse was 78/min. On examination of the whole body, it transpired that

patient was moderately built young male with well developed sexual

secondary character. No scars or fresh injury was seen. Smegma was absent.

Penile shape was normal. According to this witness, there was nothing to

suggest that patient was unable to do sexual intercourse. It is no doubt true

that according to the report of FSL, semen has not been detected on the

clothes/swab/pubic hair of the victim, whereas semen has been detected

only on the underwear of the accused, but even then this fact is not

sufficient to rule out the possibility of carnal intercourse. In the considered

opinion of this court, the mere absence of spermatozoa by itself cannot put a

question mark on the veracity of the prosecution case. As per the testimony

of PW6 Dr. Ravi Sehrawat, the accused-appellant was found to be capable

of performing sexual intercourse. Even otherwise, penetration is sufficient

to constitute the carnal intercourse to prove the offence under section 377

IPC.

13 From the testimony of PW1, the victim, corroborated by the

medical evidence, as discussed above, it can easily be inferred that the

victim was subjected to unnatural intercourse by the accused-appellant.

Arguments raised by the learned counsel before the trial court that there

was delay in lodging the FIR; the testimony of the prosecution witnesses

are discrepant against each other in material particulars and that according

to the report of the FSL, no semen was detected on the underwear of the

accused, all have been discussed and dealt with by the court below

elaborately giving sound reasoning therein. Thus, in my considered view,

9 of 10
09-11-2017 01:54:24 :::
CRA-S-2786-SB-2017 (OM) 10

the carnal intercourse, on the strength of testimony of ocular as well as

medical evidence is established on the record beyond shadow of reasonable

doubt. The contention of the learned counsel that the statement of a child of

the tender age, who is a tutored witness, cannot be believed as by that time,

he must have been prepared for recording his statement before the

Magistrate, has no legs to stand, especially when the victim had already

submitted his application on the intervening of night of 20/21.6.2016 at

around 12.30/1.00 A.M. to the police narrating therein the entire incident

that took place with him. That apart, the statement of the child witness has

been closely scrutinised and on the basis of some minor discrepancies in his

deposition, if not in material particulars, would lend credence to the

testimony of the child. Therefore, the findings recorded by the learned court

below with respect to reliability of the statement of the child do not call for

interference. From the testimony of the ocular as well as medical evidence

on record, this court has no hesitation in holding that the prosecution has

been able to prove beyond doubt that the accused-appellant was capable of

committing rape and as such, he did carnal intercourse with the victim.

14 In view of the reasons recorded hereinabove, this court does not

find any illegality or perversity in the impugned judgment of conviction and

order of sentence recorded by the court below and as such, the findings

recorded therein are affirmed. Consequently, the appeal, being without any

merit, fails and is dismissed.

3rd November, 2017 ( RAMENDRA JAIN )
VK JUDGE

1. Whether speaking/reasoned Yes/No

2. Whether Reportable; Yes/No

10 of 10
09-11-2017 01:54:24 :::

Leave a Comment

Your email address will not be published. Required fields are marked *