Partly allowed

Manoj v. State of Haryana

Punjab & Haryana HC28 Jul 2014CRA-D/695/2009

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against conviction but modified the sentence. The court overturned the conviction under Section 376(2)(f) IPC due to lack of evidence of a relationship of trust, substituting it with Section 376(2)(i). Life imprisonment was reduced to ten years rigorous imprisonment.

What did the court decide?

Conviction reduced from Section 376(2)(f) IPC to Section 376(2)(i) IPC. Sentence of rigorous imprisonment reduced from life to ten years.

Manoj Vs State of Haryana — Punjab & Haryana HC (2014) — LawSathi Research

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CRA-D-695-DB of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA, AT CHANDIGARH

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CRA-D-695-DB of 2009

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Date of Decision:-28.07.2014

Manoj

.....Appellant

Versus

State of Haryana

.....Respondent

CORAM : HON’BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN

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Present: Ms. Geeta Sharma, Advocate for the appellant.

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Mr. Dhruv Dayal, Deputy Advocate General, Haryana, for the respondent-State.

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Whether Reporters of local papers may be allowed to see the judgment? Yes/No

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To be referred to the Reporter or not? Yes/No

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Whether the judgment should be reported in the Digest? Yes/No

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MAHAVIR S. CHAUHAN, J.

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Manoj, the appellant herein, a 27 years old youth, was tried by the

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Court of learned Additional Sessions Judge, Bhiwani (for short, 'trial Court') and vide judgment of conviction dated 29.04.2009/order of sentence dated

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04.05.2009 has been convicted and sentenced as under:-

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Under Section 363,	Rigorous imprisonment for seven years and
Indian Penal Code, 1860	a fine of Rs.500/- and in default of payment of fine to further rigorous imprisonment for a period of one month.
Under Section 366-A,	Rigorous imprisonment for a period of ten
Indian Penal Code,	years and a fine of Rs.500/- and in default of
1860	payment of fine to further rigorous imprisonment for a period of one month.

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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Under Section 450, Indian Penal Code, 1860	Rigorous imprisonment for a period of ten years and a fine of Rs.500/- and in default of payment of fine to further rigorous imprisonment for a period of one month.
Under Section : 376(2) (f), Indian Penal Code, 1860	Rigorous imprisonment for life and a fine of Rs.500/- and in default of payment of fine to further rigorous imprisonment for a period of one month.
Under Section : 3(1) (iii)(xi) of SC & ST Act, 1989	Rigorous imprisonment for a period of five years and a fine of Rs.500/- and in default of payment of fine to further rigorous imprisonment for a period of one month.

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To challenge the aforesaid judgment/order the appellant has

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brought this appeal, which the respondent-State is contesting.

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We have heard learned counsel for the appellant and learned Deputy Advocate General for the respondent-State.

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It is argued by learned counsel for the appellant that the impugned judgment/order cannot be allowed to sustain because statements of two witnesses, namely, Ram Chander (PW3) and Sunita (PW11), the so called eye witnesses, contradict each other on every material aspect of the case and, even otherwise, their evidence does not inspire confidence while, the prosecutrix, PW12, has stated nothing which could mean to have proved that she was kidnapped and subjected to coitus by the appellant.

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On the contrary on behalf of the respondent-State, it is argued that the evidence of the two witnesses, namely, PW3-Ram Chander and PW11Sunita, has proved the occurrence beyond any manner of doubt and the contradictions pointed out on behalf of the appellant are liable to be ignored being minimal in nature. Learned State Counsel also submits that when

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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statements of PW3-Ram Chander and PW11-Sunita is read in juxtaposition with that of the prosecutrix, PW12, the only conclusion that can flow therefrom is that the appellant kidnapped the prosecutrix, a minor girl of five years, with an intent to satisfy his lust for sex and did subject her to copulation. According to the learned State Counsel, oral account of the occurrence also finds support in medical evidence brought on record by examining Dr. Amrita Bhardwaj (PW10).

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Nothing more has been urged on either side.

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Let's have a survey of the case of the prosecution before embarking upon an in-depth scrutiny of the evidence to find out if the impugned judgment/order can be sustained or not.

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As per case of the prosecution, PW11-Sunita, daughter of Ram Chander (PW-3), accompanied by her four children, including the prosecutrix, came to complainant's place 5-7 days before the occurrence. On 28.06.2008, the complainant (PW-3), his wife Savatri Devi, younger daughter Saroj, Sunita (PW11) and her four children, including the prosecutrix, slept in the courtyard of the house after bolting the main door from inside. The prosecutrix and her elder sister, namely, Meena, aged about 12 years slept on a cot adjoining that of their mother. On being awakened by Saroj at about 11:30 p.m., the complainant found that the prosecutrix was missing from her cot. The entire family went out in search of the prosecutrix but without any success. Complainant and his daughter Sunita (PW11) went towards the water tank and found in the light of the torch that a person came out from the bushes. When they reached near that person, they identified him as the present appellant, who on seeing them ran

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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away. The prosecutrix was lying on the ground and was weeping. PW11-Ram Chander and PW3-Sunita found that the appellant had raped the prosecutrix after taking her from the house.

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During investigation, the appellant was arrested. The prosecutrix and the appellant were medico-legally examined. Statements of witnesses were recorded and the appellant was challaned. Learned trial Court charged the appellant for the offences punishable under Section 363, 366A, 450 and 376 of the Indian Penal Code, 1860 (for short 'IPC') and Section 3(1)(iii)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act').

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Appellant pleaded not guilty and claimed trial.

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Prosecution examined Dr. Amrita Bhardwaj (PW10) to bring on record medico-legal report (Exhibit PK) and her opinion that the prosecutrix was subjected to sexual intercourse; Dr. Devender Kaur (PW18) to prove that the prosecutrix was operated upon for complete perineal tear repair and to bring on record her Bed Head Ticket (Exhibit PR); Dr. Naresh Kumar (PW17) to prove medico-legal report (Exhibit PQ/1) to show that there was nothing to suggest that the appellant was incapable of performing the sex act; Ram Chander (PW3), the complainant, to reiterate on oath what was stated by him in his statement (Exhibit PC) on the basis of which First Information Report was recorded; Sunita (PW11) to corroborate evidence of PW3-Ram Chander; the prosecutrix (PW12) to give an oral count of the occurrence; ASI Lila Ram (PW16) and DSP Amrik Singh (PW19) to bring on record various stages of the investigation. In addition thereto, formal witnesses, namely, HC Ranbir Singh

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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(PW1), Lady Constable Neelam (PW2), Constable Sunil Kumar (PW4), Umender Singh (PW5), Pehlad Singh (PW6), Dharampal Singh (PW7), EHC Ishwar Singh (PW8), ESI Jagdish Chander (PW9), Sumir Kumar (PW13), Inspector Babu Lal (PW14) and SI Dharam Chand (PW15), were also examined.

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All the incriminating circumstances appearing in the evidence of prosecution witnesses were put to the appellant in terms of Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C., for short). He denied all these circumstances and reiterated plea of his innocence and false implication but did not lead any evidence in his defence.

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Learned trial court, on appraisal of the evidence available on record in the light of submissions made at the bar, concluded that the prosecution was able to prove appellant's guilt beyond any manner of doubt and, therefore, convicted and sentenced him as here-in-before stated.

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There is no dispute as regards the age of the prosecutrix, on the day of occurrence, being five years as also her ravishment. Still, according to Dr. Amrita Bhardwaj (PW10), when brought to her, the prosecutrix was conscious and on her person following injuries were found:-

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“ 1. Linear abrasion were present over left side of chest wall and upper abdomen of 4 cm length x .25 cm width reddish in colour.

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2. Linear abrasions were present over medical part of left forearm.

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3. Multiple abrasion of varying sizes 5 cm x .25 cm present over left thigh on lateral part.

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4. On right buttock multiple linear abrasion were present reddish in colour and superficial.

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On genital examination: on vulva blood was present. Leaf of Babool tree present.

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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Injuries : 1. Lacerated wound present on right side, inner side of vulva of 4 cm x 1 cm edges irregular, muscle deep, bleeding present. Wound extending deep inside.

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2. Lacerated wound present on left side inner side of vulva deep in vagine of 3x1.5 c.m. edges tender, irregular. Old bleeding was present.

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3. Posterior commissure and hymen torn, posterior tear extending deep into vagina rectum analsphincter torn. Posterior vaginal wall torn. Rectal mucosa and vagina mucosa one passage. Rectal tear, vaginal wall was edimetuour. Vaginal swab collected.

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On per vaginal examination: Uterus nodular. During within 24 hours. Advised x-ray for confirmation of age and dental surgeon opinion for age determination.

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On per vaginal examination: Uterus nodular. Duration within 24 hours. Advised x-ray for confirmation of age and dental surgeon opinion for age determination. As per her opinion, sexual intercourse being done and leading to grievous injury to rectum and vagina. ”

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Dr. Amrita Bhardwaj (PW10) has also stated that the prosecutrix

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was subjected to sexual intercourse which had resulted in grievous injury to rectum and vagina. According to PW18-Dr. Devender Kaur, the prosecutrix was operated for complete perineal tear repair on 28.06.2008. According to Dr. Naresh Kumar-PW17, he medico-legally examined the appellant and found nothing to suggest that he was incapable in performing sexual intercourse. From these parts of the evidence, it is established beyond any manner of doubt that the prosecutrix was subjected to rape.

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In proof of kidnapping of the prosecutrix and subjecting her to sexual intercourse by the appellant, the prosecution has examined two witnesses, namely, Ram Chander-PW3 and Sunita-PW11. Though, both these witnesses have attempted to state on oath the case of the prosecution as contained in Exhibit PC, statement of PW3-Ram Chander made by him before

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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the Investigating Officer. However, when evidence of these two witnesses is read together, it is found to be far from being confidence inspiring. PW3-Ram Chander has stated that he was awakened by his younger daughter Saroj at about 11:30 p.m. but according to PW11-Sunita, at about 12:30 p.m., she came to know of disappearance of the prosecutrix and informed the complainant. PW3-Ram Chander has gone on record to state that he had noticed the appellant and the prosecutrix near the water tank but the appellant had skipped away from the spot. In cross-examination, he has further added that they (members of the complainant party) had reached near diggy (water tank) at about 1:00/1:30 a.m. in the night and appellant was noticed there at about 1:30 a.m. At the same time, the two witnesses, namely, PW3-Ram Chander and PW11-Sunita have stated that it was at 5:00 a.m. that the appellant and the prosecutrix were spotted by them near the bushes. According to both of them, when they reached the spot, the prosecutrix was lying unconscious but according to Dr. Amrita Bhardwaj (PW10), when brought to the hospital, the prosecutrix was conscious. It has not been explained by them why they continued searching for the appellant and the prosecutrix till 5:00 a.m. when both of them were spotted by them at 1:00/1:30 a.m. during night. It has also remained unexplained why these witnesses did not chase the appellant when he 'skipped' away from the spot. In view of these circumstances, we find it a bit difficult to rely upon statements of these two witnesses.

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In the circumstances, we are left with the evidence of the prosecutrix (PW12) alone. She being of tender age, the learned trial Court

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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questioned her to find out if she was capable of making a statement before the court and on having been satisfied, it proceeded to record her statement, wherein she identified the appellant as the person who had taken her away from the house (of the complainant) during night. She has also stated that the appellant had put off his clothes and that he had escaped after leaving her in the bushes. However, when called upon to explain the occurrence further, the prosecutrix is stated to have kept mum out of shame/shyness. The silence of the prosecutrix speaks volumes as regards the occurrence. Statement made by the prosecutrix before the Court when read in conjunction with the medical evidence, it leaves nothing to doubt that she was subjected to sexual intercourse by the appellant.

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In view of the circumstances discussed above, we do not find any reason to interfere with the judgment of conviction passed by the learned trial Court. However, conviction of the appellant deserves to be converted from under Section 376(2)(f) to Section 376(2)(i), IPC, because there is no evidence available on record to show that the appellant is relative, guardian or teacher, or a person in a position of trust or authority towards the prosecutrix whereas it has come on record that the prosecutrix, on the day of occurrence, was under sixteen years of age.

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We, however, cannot be oblivious of the fact that when arrested in this case, the appellant was 27 years of age and is in custody since then. To put it otherwise, the appellant has spent best part of his youthful years in jail. He seems to be a person of no means and nobody is coming forward to pursue the

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRA-D-695-DB of 2009

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case on his behalf, as is evident from the fact that before the learned trial Court as also before this Court, he was represented and is being represented by legalaid counsel. No criminal history of the appellant before and after the occurrence in question has been brought to our notice. In these circumstances, we find that award of imprisonment for life to the appellant under Section 376 (2)(f) IPC is excessive and deserves to be scaled down. We, therefore, modify the order of sentence and award punishment of rigorous imprisonment for a period of ten years to the appellant under Section 376(2)(i), IPC, while maintaining the sentence of fine and default clause as well as conviction and sentence awarded to the appellant under other Sections of the IPC and Section 3(i)(iii)(xi) of the Act.

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With the afore-stated modification in the order of sentence, the appeal fails and is dismissed.

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[Satish Kumar Mittal] Judge

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[Mahavir S. Chauhan] Judge

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July 28, 2014 adhikari

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Virendra singh adhikari 2014.08.21 15:31 I attest to the accuracy and integrity of this document High Court Chandigarh

Manoj v. State of Haryana

Case brief

What is this about?

What did the court decide?

Manoj v. State of Haryana

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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