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Gurpreet Singh @ Mithu vs State Of Punjab on 21 November, 2017

CRA-S-3360-SB of 2012 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRA-S-3360-SB of 2012 (OM)
Date of decision : November 21, 2017

Gurpreet Singh @ Mithu …..Appellant

Versus
State of Punjab ….Respondent

CORAM:- HON’BLE MRS. JUSTICE LISA GILL

Present: Ms. Gurnam Kaur Turka, Advocate
for the appellant.

Mr. Rahul Rathore, DAG, Punjab.

***
LISA GILL, J.

The appellant is aggrieved of judgment dated 25.09.2012

passed by the learned Sessions Judge, Patiala whereby he has been

convicted of the offence punishable under Sections 376 (2)(f) IPC. By a

separate order of even date, he has been sentenced to undergo rigorous

imprisonment for ten years besides, pay a fine of `5,000/- and in default

thereof undergo rigorous imprisonment for a period of one month.

Brief facts of the case are that FIR No. 204 dated 24.07.2011

was registered on the statement of the victim’s father (Ex.PA). The

complainant stated that he is Mason by profession. On 22.07.2011, he had

gone with his wife and son to the market at Bahadurgarh for purchasing

household items. They had left their 3½ years old daughter with his mother

at their residence. When they came back at about 7.00 p.m. they found that

their daughter was not present at home. The complainant asked his mother

about his daughter, who revealed that their daughter had gone to the house

of the appellant for playing. The complainant proceeded to the residence of

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the appellant. He saw the appellant carrying out obscene acts and outraging

the modesty of the victim. The appellant fled on seeing the complainant. It

is stated that the complainant brought his daughter home but could not

muster the courage to lodge a report with the police to avoid ignominy.

However, the victim being unwell was brought to the Community Health

Centre, Model Town, Patiala on 23.07.2011. Dr. Sirat Kaur, Medical

Officer, who conducted the medical examination of the victim at

Community Health Centre, Model Town, Patiala opined (Ex. PG/1) that

local external examination of genitalia showed evidence of sexual assault.

The patient was thereafter referred for expert gynaecological opinion. MLR

in this regard is Ex. PF. The condition of the victim was critical, therefore,

she was referred to Rajindra Hospital, Patiala, where she was admitted on

24.07.2011. Thereafter, statement (Ex. PA) of the complainant was recorded

on 24.07.2011 on the basis of which formal FIR (Ex. PJ/1) was registered.

The appellant was arrested on 26.07.2011. His medical examination was

conducted. Investigation was carried out by ASI Jarnail Singh (PW11).

Rough site plan at the instance of the complainant was prepared (Ex. PK).

As per chemical examiner’s report (Ex.PE), spermatozoa were detected on

the vaginal and anal swabs of the victim. Opinion of the doctor after the

receipt of the chemical examiner’s report was obtained.

Final report under Section 173 Cr.P.C. was presented on

completion of investigation. Charge against the appellant was framed on

01.02.2012. The appellant pleaded not guilty and claimed trial. The

prosecution examined eleven (11) witnesses to prove its case.

The appellant in his statement under Section 313 Cr.P.C. denied

all incriminating evidence put to him. He pleaded innocence and false

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implication. The appellant stated that no such incident as alleged took place

on 22.07.2011. He has been falsely implicated due to enmity with the

complainant regarding his labour wages. DW1 Kuldip Singh was examined

in defence, who testified that the appellant was earlier working with the

complainant.

PW1 – complainant, the father of the victim, reiterated the

version as narrated by him in his statement (Ex.PA). PW2 – mother of the

victim disclosed that their daughter aged about 3½ years was left with her

mother-in-law at their residence as she alongwith her husband and son went

to the market for purchasing some household articles. When they returned

home and inquired about their daughter, her mother-in-law informed that the

victim had gone out for playing with the appellant. After a few minutes her

husband went to the house of the appellant. She alongwith her mother-in-

law came out of the house in the street. They saw the appellant running out

of his house while carrying his clothes in his hands. Soon after, her husband

came out of the appellant’s house with their daughter in his arms.

The victim was initially examined by PW7 Dr. Sirat Kaur,

Medical Officer, CHC Model Town, Patiala. She proved the MLR (Ex.PF)

as well as her opinion (Ex.PG/1) whereby the victim was referred for expert

gynaecological opinion. PW6, Dr. Bimla Rani, Senior Resident, Department

of Obstretics and Gyanic, Rajindra Hospital, Government Medical College,

Patiala examined the victim on 24.07.2011. She has proved Bed Head

Ticket (Ex. PD). She specifically opined that in view of the chemical

examiner’s report, sexual assault on the person of the victim cannot be ruled

out. PW8, Dr. Deepander Singh Rathore, Junior Resident, Rajindra

Hospital, Patiala produced skiagrams and x-ray and opined the radiological

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age of the victim to be between 4 to 5 years.

Learned trial Court on considering the evidence on record,

concluded that the prosecution had proved its case beyond the shadow of

reasonable doubt against the appellant thereby convicted him for the offence

punishable under Sections 376 (2)(f) IPC and sentenced him as detailed

above.

Aggrieved from his conviction and sentence by the learned

Sessions Judge, Patiala vide impugned judgment and order dated

25.09.2012, the appellant has preferred this appeal.

Learned counsel for the appellant vehemently argues that no

offence punishable under Sections 376 (2)(f) IPC is made out against the

appellant. It is submitted that as per the medical evidence on record, the

so-called injuries on the person of the victim are not necessarily due to a

sexual assault. Reference is made to the cross examination of PW7, Dr. Sirat

Kaur, who stated that the possibility of the injuries can be due to scratches

on the skin around the genitalia from frictional cause like rubbing,

scratching with fingers or clothes. It is further submitted that DW1 Kuldeep

Singh specifically deposed that the appellant, appellant’s father Shamsher

Singh and DW1 used to work for the complainant. DW1 has stated that the

complainant is yet to pay for the labour done by him as well as the appellant

and his father for about 22 days. When they demanded their wages, the

complainant had threatened them. The defence has not been considered.

Learned counsel for the appellant further argues that, if at all,

an offence is indeed made out, it would be a lesser offence punishable under

Section 354 IPC and not under Section 376 IPC. It is, thus, prayed that this

appeal be allowed and the appellant be acquitted of the charges against him

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or in the alternate, he be punished for a lesser offence punishable under

Section 354 IPC.

Learned counsel for the State has, however, submitted that

there is clear and cogent evidence on record to prove the guilt of the

appellant in this case. Therefore, this appeal be dismissed and the well

reasoned judgment and order dated 25.09.2012 should be maintained.

I have heard learned counsel for the parties and have gone

through the record with their assistance.

The complainant (PW1), in this case, is the father of the victim.

He is in fact an eye witness of the occurrence in question. A clear and

cogent narration of sequence of events has been given by the complainant,

in this case. It is specifically stated that the complainant alongwith his wife

and son had gone to the market of Bahadurgarh on 22.07.2011 in the

evening to make purchases of certain household items. They left their minor

daughter with the complainant’s mother at home. When they returned home,

they did not find their daughter present at home. It was revealed by the

complainant’s mother that she had gone to play in the appellant’s house. It is

the most natural conduct that at night, the father proceeded to the appellant’s

home to bring back his daughter. He was witness to the horrific scene where

his minor child was being subjected to sexual assault. It is a very normal and

probable reaction that being shaken and perplexed, they did not immediately

proceed to the police authorities. When the child complained of pain, she

was ultimately taken to the Community Health Centre, Model Town, Patiala

on the next day in emergency.

It is observed by PW7, Dr. Sirat Kaur that the victim aged 3½

year old was brought by the parents with alleged history of attempted sexual

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assault upon the child. The child’s mother complained of her excessive

crying with micturition and pain in the genitalia. The following injuries

were found present:-

(1)Red abraded area measuring 4 cm x 1 cm noted over labia

majora on the right side;

(2)Skin over clitoral area also shows red abrasions measuring 2

cm x 1 cm;

(3)Labia majora on left upper side shows redness measuring 2

cm x 1 cm. No fresh bleeding seen.

(4)Anal area shows abrasion measuring 1 cm x 0.5 cm at 6

o’clock position. No fresh bleeding seen.

The victim was referred to Rajindra Hospital, Patiala for

gynaecological examination. The victim was thereafter taken to Rajindra

Hospital, where she was examined by Dr. Bimla Rani (PW6). Swabs from

the victim’s person were taken. The police was informed, statement of the

complainant was recorded and prosecution set in motion.

It is not in dispute that as per the chemical examiner’s report

(Ex. PE), spermatozoa were found present on the vaginal and anal swabs of

the victim. Reference to cross examination of PW7, Dr. Sirat Kaur by

learned counsel for the appellant to submit that injuries present on the

victim’s person could be due to other causes, is of no avail. This is so,

because it is specifically mentioned by PW7 that the child was under fear.

Though it is mentioned that possibility of the injuries could be due to

scratches on the skin etc., it is specifically opined by PW7 that site of the

injuries reflects them to be of the nature of sexual assault. PW7 has proved

her opinion (Ex. PG/1) that local external examination of genitalia shows

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evidence of sexual assault. Moreover, the chemical examiner’s report,

reflecting the presence of spermatozoa on the vaginal and anal swabs of the

victim, clinches the issue. Therefore, the said argument raised by learned

counsel for the appellant is untenable, hence rejected.

Contention on behalf of the appellant that the defence evidence

proves false implication of the appellant is equally devoid of any merit. It is

to be noted that even if the defence version is accepted, it is highly

improbable that any parent would subject his child to such a trauma merely

because of a petty money dispute i.e. labour wages for 22 days. At this

stage, it is relevant to note that DW1, in his cross examination, has

specifically stated that he did not know whether the appellant is actually

involved in the alleged incident or not, as at the time of occurrence, he was

not present at his residence. DW1 did not produce any document or any

other evidence to show that he or the appellant had ever worked with/for the

complainant.

It is relevant to note at this stage that DW1 has admitted that

Shamsher Singh (father of the appellant) is his father-in-law, meaning

thereby that DW1 is married to the appellant’s sister. In the circumstances as

above, testimony of DW1 is of no avail to the appellant.

A perusal of the record reveals clear and cogent evidence in the

shape of a graphic ocular version given by the complainant, which is duly

corroborated by the medical evidence on record. Offence punishable under

Section 376(2)(f) IPC is duly proved on record. It cannot by any stretch of

imagination be said that the offence in question is a lesser offence

punishable under Section 354 IPC.

In the facts and circumstances of the case, there are no

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mitigating circumstances to reduce the sentence imposed upon the appellant

as urged by learned counsel for the appellant. The appellant has been

convicted for the offence punishable under Section 376 (2)(f) (un-amended

provision) which reads as under:-

376 (2) Whoever, —

xxx xxx

(f) commits rape on a woman when she is under twelve years of
age;

xxx xxx
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 description for a term of less than ten
years.

The victim, in this case, was a child of the tender age of about

three and a half years (3½). The act of the appellant is unquestionably

depraved and inhuman. There are no special reasons, which call for

reduction of the minimum sentence stipulated by the statute.

Learned counsel for the applicant is unable to point out any

illegality, infirmity or perversity in the impugned judgment and order dated

25.09.2012 passed by the learned Sessions Judge, Patiala, which calls for

any interference by this Court.

Accordingly, this appeal being devoid of any merit is

dismissed.

(Lisa Gill)
November 21, 2017 Judge
rts
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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