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Jagat Singh vs State Of Haryana on 2 July, 2019

CRA-S-3232-SB-2015 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRA-S-3232-SB-2015 (OM)
Pronounced on:-July 02, 2019.
Jagat Singh

…..Appellant
Versus

State of Haryana

……Respondent

CORAM: HON’BLE MR. JUSTICE RAJ SHEKHAR ATTRI
****

Argued by:- Mr. Chandeep Singh, Advocate for the appellant.

Mr. Vikas Chopra, DAG, Haryana.

****

RAJ SHEKHAR ATTRI, J.

Rape with a tiny tot, aged about 7 years is always treated as

grievous and heinous crime.

The facts of this case as are folded by the minor prosecutrix

shocked the judicial conscious.

The family of the minor prosecutrix is from the lower strata of

society. They migrated from Uttar Pradesh for the purpose of better

livelihood in State of Haryana.

The minor prosecutrix, aged about 7 years was sleeping with

her mother on the roof of the house on 23.8.2014. The adjoining rooms

have been rented out to the different tenants and one of them happens to be

appellant – Jagat Singh.

While the minor was sleeping with her mother, she was

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stealthily picked up by the petitioner, who took her to his room, removed

her underwear (nicker) and put his male organ in her vagina which caused

unbearable pain and the child had shrieks.

The accused then left her on her mother’s bed and escaped

therefrom. The mother woke up immediately on hearing the cries of her

kid. On an inquiry, mother of the minor prosecutrix told that their

neighbor/tenant Jagat Singh had taken the minor prosecutrix and she was

subjected to sexual assault.

The mother reported the matter to the police in the morning.

Statement of the minor prosecutrix was recorded and on the basis of the

same, formal FIR was registered for the offence under Section 376 IPC

along with Section 4 of the The Protection of Children from Sexual

Offences Act, 2012. After issuance of FIR, the police came into action and

visited the place of occurrence. Minor prosecutrix was sent to Civil

Hospital for medical examination. There she was medico-legally examined.

Her underwear was taken into possession which was sent to Forensic

Science Laboratory for examination. It was detected that it contained

human semen. On 24.8.2014, the minor prosecutrix was produced before

the Judicial Magistrate, who recorded her statement under Section 164

Cr.P.C. wherein the minor prosecutrix has categorically stated that accused

appellant subjected her to sexual intercourse.

Accused was arrested and subjected to medical examination.

His underwear was taken into possession. The underwear recovered from

the accused and the underwear worn by the minor prosecutrix were sent to

Forensic Science Laboratory and it was reported that both the clothes were

having human semen. After completion of investigation, the final police
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report under Section 173 Cr.P.C. was submitted and the case was submitted

to the trial Court.

After completion of prosecution evidence, accused was

examined under Section 313 Cr.P.C. and all the incriminative evidence

appeared against him during the trial was put to him which he had denied

and took the plea of innocency and false implication. However, he did not

examine any witness in the defence evidence. On appreciation of evidence,

the accused was convicted and sentenced as under:-

Name of Offence under Period of Fine imposed Sentence
convict which accused (sentence) (Rs.) awarded in
held guilty default of fine
Jagat Singh 376 SectionIPC Rigorous 25,000/- Rigorous
Imprisonment imprisonment
ten years for one year
4 POCSO Act Imprisonment 10,000/- Rigorous
for seven years imprisonment
for six months

I have heard the learned counsel for the parties and have gone

through record.

Learned counsel for the petitioner submitted that prosecutrix

was not a competent witness due to her tender age; that no DNA test was

got conducted which caused prejudice to the defence of the petitioner, that

the evidence of the minor prosecutrix and her mother is not acceptable and

trial court has failed to properly appreciate the evidence placed on record.

In support of his contention, he placed reliance on the following Hon’ble the

Supreme Court’s judgments:-

1. Ms. Satwantin Bai Vs. Sunil Kumar and another

reported in 2015 Cri. L.R. 541.

2. Krishan Kumar Malik Vs. State of Haryanareportted in

2011 (7) SCC 130.

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3. K. Venkateshwarlu Vs. The State of Andhra Pradesh

reported in 2012 (3) R.C.R. (Criminal) 990.

On the other hand, learned State counsel vehemently contended

that minor prosecutrix was a kid of 7 years, her testimony inspired

confidence and she immediately narrated the facts to her mother who lodged

the FIR and her evidence is also acceptable. According to him, the

prosecution evidence is reliable, without any blemish and it inspires

confidence.

I have given my thoughtful consideration to the rival

contentions of learned counsel for the parties. There is no dispute with

regard to the age of the minor prosecutrix. Her mother as well as her

teacher have categorically stated that she was minor. PW-3 Smt. Rabiya,

the Principal of the school where the minor prosecutrix has studied and she

proved the date of birth of the prosecutrix as 19.09.2006. School certificate

(Ex.PB) of the minor prosecutrix has been prepared by the school

authorities in the discharge of the official duties and the same is reliable.

Apart from it, at the time of recording her deposition, learned trial court has

categorically given the observation the the minor prosecutrix was about 7

years of age. Thus, this Court is also satisfied that the age of the prosecutrix

was about 7 years at the time of occurrence and her date of birth is

19.9.2006.

Now coming with regard to the fact of sexual assault:-

Firstly minor prosecutrix was produced before the Judicial

Magistrate, who recorded her statement under the provisions of Section 164

Cr.P.C. wherein the prosecutrix has stated that accused lifted her and took

her to his own room where he removed her nicker and inserted his male
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organ into her private part.

The child used the word “sussu” (to denote the male organ) and

the same was inserted into her private part. This description given by the

minor prosecutrix is sufficient to establish that she was subjected to sexual

intercourse.

Immediately after the occurrence, the minor prosecutrix rushed

to her mother while crying and narrated these facts to her. This part of

narration to her mother is part of res gestae and is admissible into evidence.

Thus, on the analysis of the ocular evidence, it is well established that the

minor prosecutrix was subjected to the sexual intercourse by the accused.

Now coming to the medical evidence:-

Minor prosecutrix was medico legally examined by lady doctor

Ms. Rajni Chauhan (PW-7). She submitted her affidavit Ex.PW7/A and

therein she has stated that possibility cannot be ruled out that the minor

prosecutrix was subjected to sexual intercourse.

Learned counsel for the petitioner while relying on the cross-

examination submitted that there was no internal or external injury on the

private part of the minor prosecutrix, therefore, the prosecution story is to

be discarded on this score. This Court has considered this contention but it

carries no weight. This Court would like to reproduce the deposition of Dr.

Rajni Chauhan (PW-7) which is as under:-

“I tender into prosecution evidence my duly
sworn affidavit Ex.PW7/A which may be read as part
and parcel of my evidence, along-with copy of MLR of
victim/prosecutrix is Ex.PF which bears my signatures.
Police request in this context is Ex.PF/1.

XXXXX by S/Shri Anwar Khan and Rajesh Gautam,

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learned defence counsels.

It is correct that if a bodied person have an
sexual intercourse with a such type of minor girl aged
about 7 years there is possibility of injury in her vagina
and as per my MLR there was no any injury on the
private part of the prosecutrix. I have mentioned thee
redness around the vaginal introits which has been
mentioned in my affidavit. It is wrong to suggested that I
have not personally examined the witness.”

Doctor explained that there was redness around the vaginal

introits.

After examining the evidence, this Court is of the view that it

stands proved that the kid was stealthily lifted by the accused in sleeping

form from the cot and taken to his own room and when he had tried to insert

his penis into her private part but she started crying loudly and her shrieks

might have cautioned the accused, who then had left her in the room of her

mother.

As per the amended provision of Section 375 IPC (substituted

by the SectionCriminal Law (Amendment) Act, 2013) the wider connotation has

been given to legal term “rape”. Relevant part of this provision reads as

under:-

375. Rape. – A man is said to commit “rape” if he –

(a) penetrates his penis, to any extent, into the
vagina, mouth urethra or anus of a woman or makes her
to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with
him or any other person; or

(c) manipulates any part of the body of a woman
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so as to cause penetration into the vagina, urethra, anus
or any part of body of such woman or makes her to do so
with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra
of a woman or makes her to do so with him or any other
person, under the circumstances falling under any of the
following seven descriptions:- XXXX-XXX-XXX”

Thus, a bare perusal of the above quoted provisions of Section

375 IPC shows that the penetration is not necessary. But herein there is

evidence of penetration as the doctor opined that there was the redness on

the introits.

After medical examination, the underwear of the victim as well

as the accused was sent to the Forensic Science Laboratory and human

semen was detected thereon. Thus, the ocular evidence is supported by

medical evidence.

The petitioner was also medically examined and it has been

reported that he was capable of performing sexual intercourse. This further

strengthens the prosecution case.

Learned counsel for the petitioner relied on the judgment of

Hon’ble Supreme Court in Ms. Satwantin Bai Vs. Sunil Kumar and

another (supra). The facts of that case are distinguishable. In that case,

there was no identification of the accused who was an unknown person,

who committed rape upon the prosecutrix and no identification parade was

conducted. But in the case in hand, the prosecutrix was well known to the

appellant who was her neibour and tenant. She knew him by name.

Similarly the facts of the case relied by the learned counsel for

the appellant in K. Venkateshwarlu Vs. The State of Andhra Pradesh

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(supra) are also distinguishable. In that case, Hon’ble the Supreme Court

observed that evidence of child witness is subject to closet scrutiny. It has

been observed in para No.9 as under:-

“9. Several child witnesses have been relied
upon in this case. The evidence of a child witness has to
be subjected to closest scrutiny and can be accepted only
if the court comes to the conclusion that the child
understands the question put to him and he is capable of
giving rational answers (see Section 118 of the Evidence
Act). A child witness, by reason of his tender age, is a
pliable witness. He can be tutored easily either by threat,
coercion or inducement. Therefore, the court must be
satisfied that the attendant circumstances do not show
that the child was acting under the influence of someone
or was under a threat or coercion. Evidence of a child
witness can be relied upon if the court, with its expertise
and ability to evaluate the evidence, comes to the
conclusion that the child is not tutored and his evidence
has a ring of truth. It is safe and prudent to look for
corroboration for the evidence of a child witness from
the other evidence on record, because while giving
evidence a child may give scope to his imagination and
exaggerate his version or may develop cold feet and not
tell the truth or may repeat what he has been asked to
say not knowing the consequences of his deposition in
the court. Careful evaluation of the evidence of a child
witness in the background and context of other evidence
on record is a must before the court decides to rely upon
it.”

But in the case in hand, the evidence of the minor prosecutrix is

corroborated by her mother which is part of res gestae and also supported

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by medical evidence

Similarly the facts of the case relied by the learned counsel for

the appellant in Krishan Kumar Malik Vs. State of Haryana (supra) are

also distinguishable. In that case, the prosecutrix did not know the name of

the accused and name of the accused was missing from the FIR. She only

gave description of the accused as gittha (short structured). It was held that

identification of the accused was not properly proved and in this situation,

mere detection of the semen is of no benefit unless corroborated by DNA

test.

In the case of Shyam Narain Vs. State of NCT of Delhi R.C.R

(Criminal) 102, the facts are similar to the facts of the case in hand. In that

case, a victim of 8 years was subjected to sexual assault. Her testimony was

accepted. Hon’ble the Supreme Court has observed in para 22 as under:-

“22. Keeping in view the aforesaid
enunciation of law, the obtaining factual matrix, the
brutality reflected in the commission of crime, the
response expected from the courts by the society and the
rampant uninhibited exposure of the bestial nature of
pervert minds, we are required to address whether the
rigorous punishment for life imposed on the appellant is
excessive or deserves to be modified. The learned
counsel for the appellant would submit that the appellant
has four children and if the sentence is maintained, not
only his life but also the life of his children would be
ruined. The other ground that is urged is the background
of impecuniousity. In essence, leniency is sought on the
base of aforesaid mitigating factors. It is seemly to note
that the legislature, while prescribing a minimum
sentence for a term which shall not be less than ten

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years, has also provided that the sentence may be
extended upto life. The legislature, in its wisdom, has left
it to the discretion of the Court. Almost for the last three
decades, this Court has been expressing its agony and
distress pertaining to the increased rate of crimes
against women. The eight year old girl, who was
supposed to spend time in cheerfulness, was dealt with
animal passion and her dignity and purity of physical
frame was shattered. The plight of the child and the
shock suffered by her can be well visualised. The torment
on the child has the potentiality to corrode the poise and
equanimity of any civilized society. The age old wise
saying “child is a gift of the providence” enters into the
realm of absurdity. The young girl, with efflux of time,
would grow with traumatic experience, an unforgettable
shame. She shall always be haunted by the memory
replete with heavy crush of disaster constantly echoing
the chill air of the past forcing her to a state of
nightmarish melancholia. She may not be able to assert
the honour of a woman for no fault of hers. Respect for
reputation of women in the society shows the basic
civility of a civilised society. No member of society can
afford to conceive the idea that he can create a hollow in
the honour of a woman. Such thinking is not only
lamentable but also deplorable. It would not be an
exaggeration to say that the thought of sullying the
physical frame of a woman is the demolition of the
accepted civilized norm, i.e., “physical morality”. In
such a sphere, impetuosity has no room. The youthful
excitement has no place. It should be paramount in
everyone’s mind that, on one hand, the society as a
whole cannot preach from the pulpit about social,
economic and political equality of the sexes and, on the

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other, some pervert members of the same society
dehumanize the woman by attacking her body and
ruining her chastity. It is an assault on the individuality
and inherent dignity of a woman with the mindset that
she should be elegantly servile to men. Rape is a
monstrous burial of her dignity in the darkness. It is a
crime against the holy body of a woman and the soul of
the society and such a crime is aggravated by the
manner in which it has been committed. We have
emphasised on the manner because, in the present case,
the victim is an eight year old girl who possibly would be
deprived of the dreams of “Spring of Life” and might be
psychologically compelled to remain in the “Torment of
Winter”. When she suffers, the collective at large also
suffers. Such a singular crime creates an atmosphere of
fear which is historically abhorred by the society. It
demands just punishment from the court and to such a
demand, the courts of law are bound to respond within
legal parameters. It is a demand for justice and the
award of punishment has to be in consonance with the
legislative command and the discretion vested in the
court. The mitigating factors put forth by the learned
counsel for the appellant are meant to invite mercy but
we are disposed to think that the factual matrix cannot
allow the rainbow of mercy to magistrate. Our judicial
discretion impels us to maintain the sentence of rigorous
imprisonment for life and, hence, we sustain the
judgment of conviction and the order of sentence passed
by the High Court.”

On the independent analysis of the evidence, this Court is of the

view that prosecution evidence is acceptable and it is without any blemish.

The ocular evidence is supported by the medical evidence and, thus, the

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prosecution has been able to bring guilt to the home of the accused.

On the critical examination of the evidence, this Court is of the

view that this appeal is devoid of merit and deserves dismissal. The

sentence imposed by the trial court is maintained.

Dismissed.

(RAJ SHEKHAR ATTRI)
JUDGE
July 02, 2019.

sandeep

Whether speaking/reasoned:- Yes / No
Whether Reportable:- Yes / No.

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