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
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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
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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,
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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
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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
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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
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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-
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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
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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,
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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
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