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2009(3) Supreme 33
SUPREME COURT OF INDIA
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Satyapal — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 664 of 2009
[Arising out of SLP (Crl.) No. 3855 of 2007]
Decided on : 08-04-2009
Facts of the Case :
Present appeal has been filed against order of conviction passed against appellant Under section 376 of IPC.
Findings of the Court :
Indisputably, the prosecutrix was examined medically after a long time. The explanation offered by PW-5 aunt of victim who had witnessed incident in this behalf, was clear and sufficient. Not only the father of the prosecutrix was not in the village, he had to be sent for and came back to the village only on the next day. Evidently, for good reasons, they did not want to lodge a First Information Report immediately. A panchayat was convened and only when it did not yield any fruitful result, the First Information Report was lodged. The evidence of the doctor appeared to be wholly insufficient. Even she could not complete the medical examination. Despite passage of a long time, an injury on private parts of prosecutrix was found. The doctor at least testified that there had been an attempt to commit rape .While saying so, she found the hymen absent which having regard to the medical jurisprudence was of some significance. The prosecution case must be considered having regard to evidence of PW-5 . She detected the accused while committing the offence. It was not complete. Appellant is said to have fled away, hearing her voice. Prosecutrix, therefore, may not be correct when she made her statements that she did not change her garments which does not appear to be probable as sufficient time had elapsed and it is unthinkable that a little girl would continue to wear her cloth for 80 hours or she would not wash herself .Ordinarily family of victim would not intend to get a stigma attached to the victim .Delay in lodging the First Information Report in a case of this nature is a normal phenomenon. Both the courts below apart from relying on a part of the testimony of the prosecutrix found the evidence of PW-5 to be absolutely reliable. There was some time gap between the occurrence and the examination of the witnesses. Some lapse of memory on the part of the child witness, therefore, was possible. Impugned judgment did not warrant any interference by Court. Appeal, having no merit was dismissed.
Result : Appeal dismissed.
JUDGMENT
S.B. Sinha, J.—
1. Leave granted.
2. Appellant was accused of a charge of commission of an offence under Section 376 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 20,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for two years.
3. The prosecution case is as under:
The prosecutrix was a minor. She was aged about 11 years. Appellant was a co-villager. As per the First Information Report, on 5.02.1993 at about 8.00 a.m., she went to the fields to bring fodder. When she reached near the fields of one Nihala, the appellant came near her and forcibly lifted her. She raised an alarm but the appellant gagged her mouth and started sexually assaulting her. After hearing the voice of her aunt, the appellant left her and ran away.
The learned trial Judge found the appellant guilty of commission of the offence under Section 376 of the Indian Penal Code. Aggrieved thereby 0and dissatisfied therewith, the appellant filed an appeal before the Punjab and Haryana High Court, which has also been dismissed by reason of the impugned judgment.
4. Mr. Brijender Chahar, learned senior counsel would, in support of the appeal, raise the following contentions:
(i) Having regard to the evidence of prosecutrix (PW-4), the courts below committed a serious error in rejecting the medical evidence as also the report of the Forensic Science Laboratory.
(ii) The materials brought on record, even if given face value, would clearly establish that the appellant who had land dispute with the family of the prosecutirx had been falsely implicated.
(iii) The ingredients of Section 376 of the Indian Penal Code having not been established, the impugned judgments are liable to be set aside.
5. Mr. Rajeev Gaur ‘Naseem’, learned counsel appearing on behalf of the respondent, on the other hand, would urge:
(i) The land dispute between the parties cannot be a ground for false implication of a relation for commission of an offence of this nature.
(ii) The evidence of the prosecutirx, who is a child witness, having been found to be convincing and her evidence having been corroborated by her aunt Khazani (PW-5), no interference with the impugned judgments is warranted.
(iii) The prosecutrix having been examined after 80 hours, the medical report as also the evidence must be considered in the factual context brought on record.
6. The occurrence took place on 5.02.1993 at about 8 a.m. The prosecutrix went to the field to bring fodder. She was admittedly a minor. The learned Judge was satisfied that she was competent to depose. In her examination-in-chief, she supported the accusations made against the appellant in the First Information Report.
7. Our attention, however, was drawn to the following statements made by her in her cross-examination:
“There was no string of cloth of my underwear. My underwear was that of elastic and it was not broken. I was wearing the same underwear and salwar, which were smeared with blood, after reaching home. My underwear and salwar were got changed in Bhiwani after reaching the hospital. The accused got discharged when performed the sexual intercourse and that discharged material had smeared my body at the relevant place. I had not taken a bath when I was brought to Civil Hospital, Bhiwani. Some blood had fallen on the ground where the accused had performed the sexual intercourse with me...”
8. Khazani, her aunt (PW-5) witnessed a part of the occurrence. She, in her deposition, stated:
“Nirmala prosecutrix P.W. is my real sister’s daughter. She resides in Khaparwas. About six months and a week ago, I had gone to bring grass in the fields at about 8.00 or 8.30 a.m. When I reached in the field of Nihala, Satyapal accused had removed salwar and underwear of Nirmala and had shut her mouth and the accused was performing sexual intercourse with Nirmala and while Nirmala had been laid down in the crop of gram in the side of a Tibb
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