Dismissed

Amit v. State of Haryana

Punjab & Haryana HC4 Sept 2014CRA-S/2162/2009

Case brief

AI extract

What is this about?

In an appeal against conviction for kidnap and gang rape of a minor, the High Court of Punjab and Haryana upheld the trial court's verdict, finding the prosecutrix credible and distinguishing cited jurisprudence to reject the argument for below-minimum sentencing.

What did the court decide?

The appeal was dismissed, upholding the conviction and sentence of imprisonment with concurrent terms.

Amit Vs State of Haryana — Child Sexual Offences (POCSO) | Punjab & Haryana HC (2014)

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CRA-S-2162-SB-2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA-S-2162-SB-2009 (O&M)

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Date of Decision: September 4, 2014

Amit

…Appellant

Versus

State of Haryana

…Respondent

CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI

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Present: Mr. R.S. Sihota, Senior Advocate, with Mr. B.R. Rana, Advocate, for the appellant.

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None for the respondent-State

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NARESH KUMAR SANGHI, J. (Oral)

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Challenge in the present appeal is to the judgment of conviction and the order of sentence dated 8.5.2009, passed by the learned Additional Sessions Judge, Gurgaon, whereby the appellant, Amit, was held guilty for the offences punishable under Sections 363, 366 and 376(2)(g), IPC, and ordered to undergo the following sentences:-

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Under Section	Sentence (R.I.)	Fine (in `)	In Default
363, IPC	2 years	1,000/-	Imprisonment of 1 month
366, IPC	5 years	1,000/-	Imprisonment of 2 months
376(2)(g), IPC	10 years	2,000/-	Imprisonment of 3 months

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All the substantive sentences were ordered to run concurrently.

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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The brief facts of the case are that on 22.9.2007, Samun (PW8), brother of the prosecutrix (PW7)(name withheld), met SI Shish Ram (PW14) and submitted written complaint (Ex.PF) regarding kidnapping of his sister (prosecutrix) at about 9:00 a.m. on the same day, when she was going to the forest area for collecting fodder. Jamshed, Munfed and Jafru were named as accused, who had forcibly kidnapped the prosecutrix in a Maruti van. On hearing the cries of the prosecutrix, Rafiq (PW9), who was working in the nearby fields, got attracted to the spot and on seeing him, the kidnappers ran away from the spot in the Maruti van, which had no registration number plate. SI Shish Ram (PW14) made his endorsement (Ex.PF/1) and sent the complaint (Ex.PF) to the police station through Constable Ram Bilas, on the basis of which formal FIR (Ex.PF/2) was registered by ASI Ved Kumar (PW16) and made endorsement (Ex.PF/3) on the complaint (Ex.PF) in that regard. SI Shish Ram (PW14) proceeded to the place of occurrence and prepared the rough site plan (Ex.PN) of the place of occurrence.

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On 26.9.2007, SI Shish Ram (PW14) along with other police officials and Samun (PW8) and Irfan (PW11) was present at the drain of village Nizampur, when Jamshed, co-accused of the appellant, was seen coming on the motorcycle, bearing registration No. HR-26M-1614, with the prosecutrix and they were intercepted. The prosecutrix was recovered from Jamshed and recovery memo (Ex.PK) was prepared. In token of its correctness, the signatures of the witnesses available on the

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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spot, were obtained. The motorcycle was taken into possession vide memo (Ex.PJ), which was also got attested from the witnesses. Rough site plan (Ex.PO) of the place of recovery was prepared. After his arrest and personal search, Jamshed suffered his disclosure statement (Ex.PH) narrating the manner in which the prosecutrix was kidnapped at the instance of Bhuru son of Lal Khan.

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An application (Ex.PA) was presented before the Medical Officer, Primary Health Center, Tauru, for medico-legal examination of Jamshed. Dr. Satender Kumar Verma (PW1), medico-legally examined Jamshed. According to the opinion (Ex.PA/1) of Dr. Satender Kumar Verma (PW1), there was nothing to suggest that Jamshed was unable to perform sexual intercourse. The underwear (Ex.P1) of Jamshed was taken into possession and handed over to the police by Dr. Satender Kumar Verma.

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The prosecutrix was also produced before Dr. Renu Sharma (PW5) along with an application (Ex.PD/1) for getting her medico-legally examined. Dr. Renu Sharma (PW5) in the MLR (Ex.PD) found that there was a bruise of 5cm X 4cm over antro lateral aspect of upper 1/3rd of right arm which was reddish bluish in colour. No fresh injury was found on the private parts of the prosecutrix. For confirmation of the age, the prosecutrix was referred to the Safdarjang Hospital, Delhi, for radiological examination. Two swabs from introitus and posterior fornix of vagina were drawn. The copy of the MLR, the packet containing

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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the clothes of the prosecutrix and one plastic vial containing two swabs were handed over to the police, which were taken into possession vide memo (Ex.PP). After medico-legal examination, the custody of the prosecutrix was handed over to her relatives vide memo (Ex.PL).

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SI Shish Ram (PW14) recorded the statements of the witnesses and deposited the articles with the Moharrir Head Constable of the police station, for retaining the same in the Malkhana. ASI Girraj Singh (PW12) of Police Post, Khorikalan, attached with the Police Station, Tauru, arrested the appellant, Amit, on 8.1.2008, on the basis of the secret information received by him (ASI Girraj Singh). During interrogation, the appellant suffered disclosure statement (Ex.PM) disclosing that the prosecutrix was kidnapped on the instigation of one Bhuru. On 8.1.2008 itself, the appellant was taken to PHC, Tauru, where the doctor was not available and, as such, he was taken to the Government Hospital, Nuh, on 9.1.2008 and produced before the doctor along with an application (Ex.PG/1) for his medico-legal examination. Vide MLR (Ex.PG), Dr. T.R. Parasher (PW10) medico-legally examined the appellant, Amit, and thereafter he (Amit) was brought to the police station.

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The clothes of the prosecutrix and other material handed over to the investigating agency by the doctors were sent to the Forensic Science Laboratory, Madhuban, for examination. 8. After completion of the investigation, the charge-sheet for prosecution of the appellant, Amit, was presented before the

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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learned Area Judicial Magistrate by Inspector Dinesh Kumar (PW13) while separate charge-sheet was filed before the Juvenile Justice Board for the prosecution of Jamshed, since he was a juvenile.

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After following the procedure as enshrined under Section 207, Cr.P.C., the case was committed to the Court of Session by the learned Area Judicial Magistrate since the offence punishable under Section 376(2)(g), IPC, was exclusively triable by the Court of Session.

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Finding a prima facie case, charges for the offences punishable under Sections 363/34, 366/34 and 376(2)(g), IPC, were framed against the appellant, Amit, to which he pleaded not guilty and claimed trial.

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In order to substantiate its allegations, the prosecution examined the following witnesses:-

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PW1 Dr. Satender Kumar Verma, Medical Officer, ESI Hospital, Faridabad: On 26.9.2007, when he was posted at the Primary Health Centre, Tauru, he medico-legally examined Jamshed, a 19 years old man, and found that there was nothing to suggest that Jamshed was not able to perform the sexual intercourse.

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PW2 Naresh Kumar, Draftsman: On 15.12.2007, he had prepared the scaled site plan, photocopy of which was Ex. PB.

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PW3 Constable Hans Raj : He had delivered the special

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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reports to the learned Area Judicial Magistrate and Senior Police Officers on the same day without any delay on his part, after getting the same from Moharrir Head Constable Chander Bhan.

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PW4 HC Chander Bhan : He deposed that on 26.9.2007 when he was posted at Police Station, Tauru, then SI Shish Ram (PW14) had handed over to him one sealed parcel containing clothes of the prosecutrix, one envelop sealed with the seal ‘RS’ and one parcel containing the clothes of Jamshed, sealed with the seal of the doctor, for depositing in the Malkhana of the police station. On 16.10.2007, he handed over the said articles to Constable Ranbir Singh (PW15) for handing over the same to the officials of the Forensic Science Laboratory, Madhuban.

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PW5 Dr. Renu Sharma : She tendered her affidavit (Ex.PW5/A) to be read in evidence. According to the contents of the said affidavit, she had medico-legally examined the prosecutrix, aged about 13 years, on 26.9.2007 at CHC, Nuh. She was cross-examined at length and thereafter she was re-called on 3.1.2009 for further examination and cross-examination.

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PW6 ASI Ram Avtar : He was deputed by SI Shish Ram (PW14) to get the prosecutrix medico-legally examined from the doctor. He handed over the parcels received from the doctor to SI Shish Ram in the police station

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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vide memo (Ex.PE).

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PW7 the prosecutrix : She fully supported the prosecution version and deposed that on 22.9.2007 at about 10:00 a.m., she was going to her fields to collect fodder. After crossing the populated area when she reached on the un-metalled path, one white colour Maruti van arrived there in which three persons were travelling. One of the occupants of the Maruti van was carrying a country-made pistol, which was placed on the temple of the prosecutrix. One motorcycle was already parked in the nearby area and Jamshed and the appellant, Amit, were standing near the said motorcycle. The occupants of the Maruti van asked the appellant, Amit, and Jamshed to pick-up and take away the prosecutrix with them. Amit and Jamshed took the prosecutrix on the motorcycle. After hearing the cries of the prosecutrix, Rafiq (PW9), who was working in the nearby fields, arrived there and witnessed the occurrence. The persons traveling in the Maruti van ran away from the spot. The appellant, Amit, and Jamshed took the prosecutrix to a room at Bhiwadi (Rajasthan) and thereafter Jamshed committed sexual intercourse after removing her clothes. Thereafter, the appellant, Amit, also committed forcible intercourse with the prosecutrix. The prosecutrix was confined in the said room for five

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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days, where she was repeatedly raped. On 26.9.2007, Jamshed took the prosecutrix on the motorcycle and dropped her near some drain where her brother Samun (PW8), her cousin Irfan (PW11) and 2-3 police officials met them and brought them to the police station. Thereafter, she was medico-legally examined at CHC, Nuh.

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PW8 Samun : He is the complainant. He reiterated the version scribed in the complaint (Ex.PF) and fully supported the prosecution version.

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PW9 Rafiq : He deposed that on 22.9.2007 at about 10:00 a.m., he was working in his fields and after hearing the noise of the prosecutrix for help, he reached the spot and witnessed that a white colour Maruti van, in which three persons were travelling, and one motorcycle was also parked there on which Jamshed and the appellant, Amit, were present. The appellant, Amit, and Jamshed forcibly took away the prosecutrix on their motorcycle and thereafter the Maruti van also went away. He informed Samun (PW8) regarding the incident.

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PW10 Dr. T.R. Parasher, Medical Officer, CHC, Nuh : He tendered his affidavit (Ex.PW10/A) to be read in evidence and the carbon copy of the MLR (Ex.PG) of the appellant, Amit. According to his opinion under normal circumstances, there was nothing to suggest

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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that the patient (Amit) could not perform sexual act. The underwear and other relevant things were not taken into possession as the alleged rape was committed about 3½ months ago.

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PW11 Irfan : In his presence, the prosecutrix and Jamshed were intercepted by the police on 26.9.2007. He identified his signatures on the memos (Exs.PK & PL) prepared on the spot where Jamshed was arrested and the prosecutrix was recovered from his possession.

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PW12 ASI Girraj Singh : He was entrusted with the investigation of the case on 23.11.2007 and thereafter on getting a secret information on 8.1.2008, he arrested the appellant, Amit, from his house at Tauru. The appellant suffered disclosure statement (Ex.PM) during investigation. The appellant was got medicolegally examined from Dr. T.R. Parasher (PW10) and thereafter he (appellant) was put behind the bars in the Judicial lockup.

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PW13 Inspector Dinesh Kumar : He was the Station House Officer of the Police Station, Tauru. He had prepared the report under Section 173, Cr.P.C., after completion of the investigation for prosecution of the appellant, Amit, and presented the same in the Court. The final report was also presented by him against the co-accused, Jamshed.

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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PW14 SI Shish Ram : He had investigated the case. The investigation conducted by him has been described in the initial part of the judgment.

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PW15 Constable Ranbir Singh : On 16.10.2007, after receiving the parcels from the Moharrir Head Constable Chander Bhan, he handed over the same to the official of the Forensic Science Laboratory, Madhuban, and after coming back to the Police Station, Tauru, handed over the receipt to the Moharrir Head Constable.

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PW16 ASI Ved Kumar : On 22.9.2007, after receipt of the police memo (Ex.PF) from SI Shish Ram (PW14), he registered the formal FIR (Ex.PF/2) and thereafter made his endorsement (Ex.PF/3) on the original complaint.

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The learned Public Prosecutor tendered the Forensic Science Laboratory report (Ex.PC), to be read in evidence and thereafter the prosecution case was closed on 3.1.2009.

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The statement of the appellant in terms of Section 313, Cr.P.C., was recorded, after recalling PW5 Dr. Renu Sharma for her further examination and cross-examination. The appellant denied the prosecution version in toto and in response to Question No. 31, to the effect that had he anything else to say, then he replied as under:-

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“I am innocent. I have been falsely implicated in this case due to enmity with the brother of the prosecutrix, namely, Samun, who had a quarrel with me earlier.”

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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In his defence, the appellant produced Islam (DW1), who deposed that he knew Amit and his father Sant Ram very well, who were labourers. From 1.8.2007 to 30.9.2007, Amit was working as a labourer at the site of construction work. His presence was marked in the register (Mark D1) by his son. Thereafter, the defence evidence was closed.

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After hearing learned counsel for the parties, the learned Trial Court held the appellant guilty and passed the order of sentence, as has been discussed in the earlier part of the judgment.

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Learned senior counsel for the appellant argued that the prosecutrix was not radiologically got examined in spite of the fact that Dr. Renu Sharma (PW5), who had medico-legally examined her, had advised the police to get her (prosecutrix) age determined from Safdarjang Hospital, Delhi; since the prosecution had failed to substantiate that the prosecutrix was less than 16 years of age, therefore, it should be presumed that she was major and a consenting party; the name of the appellant, Amit, did not find mention in the FIR, therefore, his name was introduced at a later stage just to falsely implicate him; three persons present on the spot in a Maruti van were neither arrested nor put to trial and, as such, the whole case of the prosecution becomes doubtful from the said fact; and that Jamshed, coaccused of the appellant, who was declared as a juvenile, was tried by the Juvenile Justice Board, Nuh, and acquitted vide judgment dated 18.10.2011, therefore, by no stretch of

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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imagination, it can be said that the appellant had committed the gang rape, attracting the mischief of Section 376(2)(g), IPC. He further argued that the medical evidence as well as the report received from the Forensic Science Laboratory, Madhuban, did not co-relate with the oral evidence of commission of sexual intercourse by the appellant. It has also been contended that no implicit reliance can be placed on the deposition of the prosecutrix and if the same is ruled out from consideration, then there is no other material to say that the rape was committed on her. In the last, he submitted that in view of special circumstances of this case, this Court is competent to award less than the minimum prescribed sentence of 10 years for the offence punishable under Section 376(2)(g), IPC. In support of his submissions, learned counsel for the appellant has placed reliance on the judgment of Hon'ble the Supreme Court delivered in the case of Abbas Ahmad Choudhary v. State of Assam, 2010 (2) R.C.R. (Criminal) 120 .

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In spite of the fact that the office of the learned Advocate General, Haryana, was informed telephonically by the Court staff yesterday as well as today with regard to the on-going arguments in the case, no Law Officer bothered to appear on behalf of the respondent State of Haryana in the present case. 18. I have heard learned counsel for the appellant and with his able assistance gone through the material available on record.

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The first argument of the learned counsel for the

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CRA-S-2162-SB-2009 (O&M)

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appellant with regard to the age of the prosecutrix does not appear to be sound. In her deposition, the prosecutrix specifically mentioned that she was 14 years of age. Even in the FIR (Ex.PF/2) lodged immediately after the occurrence, the complainant, Samun (PW8) the brother of the prosecutrix, stated to the police that the prosecutrix was 13/14 years old. During the lengthy cross-examination, the defence has not put even a single question with regard to the age of the prosecutrix or disputed the age of the prosecutrix. Therefore, this Court holds that the prosecutrix was about 13/14 years of age in the month of September, 2007, when the rape was committed on her.

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Once this Court holds that the prosecutrix was less than 16 years of age, in that eventuality, there is no need to discuss the issue with regard to the consent of the prosecutrix for having sex with the appellant and his co-accused. 21. The submission of the learned counsel for the appellant that the name of the appellant was not mentioned in the FIR, would also not extend any benefit to the appellant. As per the contents of the FIR, Samun (PW8) complained to the police that he was informed by Rafiq (PW9) that the prosecutrix was abducted by three persons in a Maruti van and one motorcycle was also parked there. Admittedly, Samun (PW8) was not an eye-witness. He had lodged the FIR on the basis of the information supplied to him by Rafiq (PW9), a person having fields nearby the place of kidnapping of the prosecutrix. In fact, the best witness to name the appellant was the prosecutrix and

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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she did disclose the name of the appellant to the police at the first available opportunity, i.e. on 26.9.2007, after her recovery from the possession of Jamshed. Therefore, no benefit can be extended to the appellant on this score as well.

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The submission of the learned counsel for the appellant that three persons in a Maruti van were available on the spot and they were not arrested and put to trial, is also of no help to the appellant. The point for determination before this Court is - as to whether the appellant had abducted/kidnapped the prosecutrix and committed rape on her. The arrest of the three persons available on the place of kidnapping would not have added anything in favour of the prosecution or would have gone against or in favour of the appellant.

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The further argument of the learned counsel for the appellant that Jamshed has since been acquitted by the learned Juvenile Justice Board, Nuh, on 18.10.2011, therefore, the finding of the learned Trial Court holding the appellant guilty with the aid of Section 34, IPC, for the offences punishable under Sections 363 and 366 and further for gang rape, as enshrined in Section 376(2) (g), IPC, would not be sufficient to exonerate him of such grave charges. It is apposite to mention here that the impugned judgment of conviction and the order of sentence were passed on 8.5.2009 while the learned Juvenile Justice Board, Nuh, had delivered the judgment on 18.10.2011, the date given by the learned counsel for the appellant. It is further relevant to mention here that no such judgment of the learned Juvenile

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CRA-S-2162-SB-2009 (O&M)

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Justice Board, Nuh, has been placed on the record of this case. This Court is of the considered view that the learned Trial Court had to decide the issue with regard to the involvement and commission of the offences by the appellant on the basis of the material available on record. In her deposition, the prosecutrix (PW7) had clearly deposed that Jamshed and Amit (appellant) abducted her and took her to Bhiwadi and confined her in a room and after removing her clothes, they committed rape on her. The deposition of the prosecutrix is sufficient to hold that it was a case of gang rape since more than one person were involved in commission of rape on the prosecutrix.

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The argument of the learned counsel for the appellant that medical evidence and the report of the Forensic Science Laboratory, Madhuban, were not supporting the oral evidence, is also not tenable. With regard to medical evidence, learned counsel contended that there was no injury on the private parts of the prosecutrix and, as such, it cannot be said that there was forcible intercourse with her and the report of the Forensic Science Laboratory, Madhuban, had not found any semen on the clothes of the prosecutrix, therefore, no rape was committed on the prosecutrix. The said argument is not tenable because it has not come in the evidence that after confining the prosecutrix in a room at Bhiwadi, she was in a position to resist the ingression of the appellant and his co-accused. Moreover, it was not expected from a young girl of 13/14 years that in such a situation she would resist the illegal activities of two matured boys. So far as

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PRASHANT KAPOOR 2014.09.19 11:06 I attest to the accuracy and authenticity of this document

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CRA-S-2162-SB-2009 (O&M)

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the report of the Forensic Science Laboratory, Madhuban, is concerned, it has come in the examination-in-chief of the prosecutrix (PW7) that her clothes were removed and thereafter she was sexually assaulted by the appellant and his co-accused, Jamshed. Therefore, there was no question of finding the semen spots on her clothes.

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It is true that in every case, the conviction of the accused cannot be sustained while relying upon the deposition of the prosecutrix alone. But it all depends on the facts and circumstances of each case. In this case, the prosecutrix is aged about 13/14 years and there is nothing on the record to show that she had any malice against the appellant or his co-accused. Though the appellant while making statement in terms of Section 313, Cr.P.C., in answer to Question No. 31, stated that the appellant had a quarrel with the brother of the prosecutrix, namely, Samun (PW8) and, as such, he (appellant) was falsely implicated. But it was never put to the prosecutrix during her cross-examination and even the said fact has not been put to Samun (PW8), brother of the prosecutrix and, as such, the belated defence of the appellant that he was falsely implicated on account of the enmity with the complainant, would not be sufficient to disbelieve the deposition of the prosecutrix. After perusing her statement and the attending circumstances, this Court places full reliance on her statement.

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This Court also does not find any reason to reduce the minimum sentence prescribed under Section 376(2)(g), IPC,

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which has been awarded by the learned Trial Court.

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The law cited by the learned counsel for the appellant in the case of Abbas Ahmad Choudhary (supra) would not come to the rescue of the appellant since in para No. 5 of the judgment it was held that there can be no presumption that the prosecutrix would always tell the entire story truthfully. This Court has no other view in mind than what has been held by Hon'ble the Supreme Court in the said case. The question which was waiving in the mind of this Court was whether the prosecutrix could be believed in the case in hand or not.

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As a sequel to the above discussion, the present appeal sans merit and the same is hereby dismissed.

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(NARESH KUMAR SANGHI) JUDGE

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September 4, 2014 Pkapoor

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Amit v. State of Haryana

Case brief

What is this about?

What did the court decide?

Amit v. State of Haryana

Case brief

What is this about?

What did the court decide?

What the court decided

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