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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