Banwari Lal vs The State
1986 Latest Caselaw 104 Del

JUDGMENT

G.R. Luthra, J.

(1) The present appeal is directed against a judgment dated February 27, 1985 convicting the appellant in respect of commission of an offence of rape with Kumari Sunita punishable under section 376 Indian Penal Code . and an order of even date sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 4000.00 , in default of payment of which, to undergo rigorous imprisonment for two years.

(2) The appellant was carrying on business of cloth at shop No. 146 Patparganj, Delhi. The case of the prosecution is as follows : "ON August 16, 1982 at about 10 am. Kumari Sunita (Public Witness 1) was pausing in front of the shop of the appellant. Kuman Sunita at that time was studying in Nagar Nigam Vidyalya, Patparganj, Delhi. It was on account of recess in the school that she happened to be passing near the shop of the appellant. The appellant called Kumari Sunita inside his shop. He then pulled down the shutter of the shop, untied the string of salwar of Kumari Sunita and after removing his dhoti and becoming naked laid himself on Sunita after making her to lic down on the floor of the shop. I hen be had penetration of his male organ in the female part of Kuroari Sunita. She cried Her cries attracted a crowd outside. Naresh Kumar Shaima (Public Witness 4) carrying on business as tailor nearby was attracted by those cries. He lodged a report with the police post Patparganj. Si Vir Singh (Public Witness J 6) and Si (then ASI) Hukam Singh (Public Witness 12) who happened to be posted at the aforesaid police post went to the place of occurrence. The shutter of the shop was above 2' from the bottom. The cries were still emanating from inside the shop. Si (then ASl) Hukam Singh (PW 12) lifted the shutter of the shop. The appellant was found lying naked on Kumari Sunita who was also naked. The appellant immediately got up and wrapped his body with dhoti. Dhoti of the appellant, salwar of Kumari Sunita and a piece of cloth (angochba) of the appellant were taken into possession. Some one out of crowd gave a salwar to Kumari Sunita which she wore."

(3) The investigation was conducted by Si Vir Singh (Public Witness 16). The dhoti and piece of cloth of the appellant and salwar of Kumari Sunita were sent to Central Forensic Science Laboratory for opnion. According to the report Ex. Pb of Central Forensic Science Laboratory, everyone of those clothes had human semen. After the completion of the investigation, a report under section 173 Cr. P.C. was submitted by Si Surinder Kumar (PW 13) who had taken over in 1983 as in charge of police post Patparganj.

(4) The plea of the appellant was one of denial. He stated that he had been falsely implicated by Si Vir Singh (Public Witness 16). His version is as follows. Si Vir Singh (Public Witness 16) purchased cloth from his shop on August 3, 1982. The value of the cloth was Rs 159.00 Si Vir Singh did not pay the said amount inspite of demands and rather threatened that he would be implicated in a false case. On August 16, 1982, the police came to his shop. He was told by Si Vir Singh to accompany the latter so that the account regarding price of the cloth purchased by the former could be settled, in the police post, he was arrested and falsely implicated.

(5) Kumari Sunita (Public Witness 1) supported the entire prosecution version. First of all she stated that when the appellant said over her naked, he did not do any thing. At the request of the prosecutor. He was allowed to ask such questions as can be asked in cross-examination. In reply to such questions, Kumari Sunita stated that after the appellant laid over her, he put his male organ in her female organ.

(6) The version of the prosecution as disclosed by Kumari Sunita finds support from the statement of Naresh Kumar Sharma (Public Witness 4). Puran Singh (PW 14), Si (then ASI) Hukam Singh (Public Witness 12) and Si Vir Singh (Public Witness 16) Naresh Kumar Sharma (Public Witness 4) stated that he lodged a report with the police post Patparganj because cries of the girl were coming out of the shop No. 146, Patparganj, Delhi, the shutter of which was down.

(7) Puran Singh (Public Witness 14) stated that he was present in his shop at Patparganj at about 10.45 or I lam. that he saw a crowd of people outside shop of Banwari Lal (appellant) that be went to that place, that in the meantime police came and lifted the shutter of the shop and that he saw the appellant lying in a naked condition over Kumari Sunita who was also naked. He also testified as to the taking into possession of dhoti and ongochha of the appellant and salwar of Sunita. The statements of Si (then (ISA Hukam Singh and Si Vir Singh are same as that of Puran Singh (PW 14).

(8) It is apparent that the appellant was caught red handed at the spot. The report of the Central Forensic Science Laboratory supports the prosecution. That report is Ex Pb and says that all the clothes (dhoti and angochha of the appellant and salwar of Sunita) had semen stains. That clearly means that there was semen discharge from the appellant which corroborates that the appellant had tried to have sexual inter course with Kumari Sunita

(9) Then there is another report of Central Forensic Science Laboratory which is Ex. Pc that report shows that blood of 'B' group was found on (he aforesaid clothes.

(10) OP. Shashidharan (Public Witness 15) Record Clerk of Lnjpn Hospital brought a medico-legal report relating to the medical examination of Sunita by Dr. Salil Kumar Gupta. That Mlc is Ex. Public Witness 15/A. It is stated in the Said report that hymen was intact and that vagina admitted one finger with great difficulty. Counsel for the appellant contended that that report did not support the prosecution and rather showed that Sunita was not subjected to sexual inter-course.

(11) In my opinion, the appellant does not get any help from the same. We must not forget that Sunita was of very tender age. It has come in the statement of Smt. Sarswati Devi (Public Witness 6), Head mistress of the school in which Sunita was studying that the date of birth of Sunita was 1st July, 1973. That means that on the date of the offence, Sunita was a little more than nine years of ago. Obviously penetration in the vagina of a girl of such tender age is difficult. A youngman can successfully penetrate after doing lot of damage to vagina. But in the present case, the appellant was over 65 years of ago. He could not have such erection as to be able to cause full penetration. It appears that he had been trying to have penetration but the same was to very little extent. As he was old enough, his semen was discharged soon. The net result was that the hymen of Sunita remained intact.

(12) The appellant examined one Shiv Sarup Sharma (DW 1). He stated that the owners of the shop No. 146, Patparganj were Thelu and Jagwat, that the appellant was having a litigation with the said owners and that Puran Singh is a collateral of the said owners. That statement was intended to show that Pooran Singh (Public Witness 14) had come to testify on account of enmity against the appellant.

(13) The statement of Dw I further is that Si Vir Singh purchased certain cloth from the appellant on credit and did not pay the price of the same inspite of demands ; that on the other band he bad extended a threat to the appellant the appellant would meet dire consequences for having dared to demand the price of the cloth. The said witness added that on 16th August 1982 Si Vir Singh after having arrested the appellant, paraded him in the bazar in the evening. The appellant has also placed on record a bahi account with a view to support his case that curtain cloth had been Purchased by Vir Singh, Si (Public Witness 16) and the price of the same was still outstanding.

(14) The learned trial court has rightly disbelieved Dw I as well as the case of the appellant. It is not known if the statement of Dwi to the effect that Puran Singh is collateral of the owners of the shop occupied by the appellant is correct or not. Dw I did not explain the exact relationship. However, even if it is taken for granted for the sake of arguments that Puran Singh (Public Witness ) is a collateral of the said owners, there is hardly any justification to believe that he must be inimical to the appellant.

(15) It is hardly believable that Si Vir Singh would have implicated the appellant in such a serious case on account of vengeance for the appellant having dared to demand the price of the curtain cloth from the former. Further, it is not possible that the parents of Kumari Sunita would have become tools in the hands of Si Vir Singh for propping up of a false case. This case involves the honour of a minor girl and no parent will put the said honour at stake. Then it is also not possible that Si (then ASI) Hukam Singh (Public Witness 12) and Naresh Kumar Sharma (Public Witness 4) should have supported a false case.

(16) I am, therefore, of the considered view that the appellant had been rightly convicted. Now it has to be considered if the sentence awarded is appropriate or not. I agree to this extent that whenever there is a case of rape of a minor girl, very strict view should be taken in the matter of sentence. In fact, section 376 Ipc, as it stands after the Criminal Law (Second Amenment) Act, 1983 prescribes a punishment of at least ten years for such an offence of rape.

(17) We have to consider the peculiar facts of this case also. The appellant is about 70 years of age. Learned counsel for the appellant has placed on record a certificate of Dr. T. Jhumat, Medical Officer, Central Jail Hospital, Tihar, New Delhi which shows that the appellant is suffering from Chronic BronchIT is and it is suspected that he has also Pulmonary Tuberculosis. The Medical Officer has recommended that the appellant needs to be treated in a well equipped respiratory units of good hospital where there is specialised nursing care. Under these circumstances, in my view, the sentence already undergone which, including the period the appellant has been under trial, is little more than one year, will be sufficient in the ends of justice.

(18) Having regard to the aforesaid circumstances, I maintain the conviction but reduce the sentence of imprisonment to one already undergone. However, the sentence of fine shall remain and the amount of fine, if realised, shall be paid to Kumari Sunita through her natural guardian. However, I direct that in the event of default of payment of the said amount of Rs. 4,000/. the appellant shall undergo simple imprisonment for one year. As soon as the payment is made, in the court of the learned trial court, the appellant shall be released.

(19) A copy of this order shall be sent to the learned Additional Sessions Judge immediately and also to Superintendent Jail

(20) Criminal Appeal No 51 of 1935 stands disposed of.