SUBHASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Subhash son of Bindeshwari resident of village Begusarai (Bihar), was convicted and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 5,000.00 and in default thereof to undergo further R.I. for 21/2 years in case FIR No. 356 dated 29-6-1997 of Police Station, Civil Lines, Rohtak (Sessions case No. 8 of 1997) by the Additional Sessions Judge, Rohtak vide order dated 16/20-7-1999. Through this appeal, he has challenged his conviction and sentence and has prayed for acquittal.

(2.) The prosecution case, in brief, is that Sohan Singh was residing along with his wife and two daughters in new 12-J, PGIMS, Rohtak. It was under construction. Of the daughters, Chiku was elder aged about 3 years. During day time, he and his wife Madina had to be in Ward No. 14 (old) which was being repaired. They used to take both their daughters with them. Children used to play nearby while they were at work in the repair of ward No. 14 (old). On 29-6-1997, he, his wife Madina and other labourers were working in ward No. 14, PGIMS, Rohtak. Among them, there were 4 masons working. Subhash was one of them working there. At about 9 a.m. Chiku and her younger sister were playing in the adjoining room with other small children. Subhash mason told Sohan singh to prepare concrete mixture and he was just coming after urinating. After a little while, he heard the cries of a child emanating from the latrine/bath room side. Sohan Singh and Shanker Beldar ran in the direction from which cries of the child were emanating and when they reached near the condemned latrine/bath room, they saw Subhash accused coming running out of that latrine/toilet closing the zip of his pants. They tried to apprehend him and raised alarm "catch hold of him". On hearing the alarm, his wife Madina, Ram Phal Chowkidar and other labourers came running to the spot. Subhash, however, succeeded in escaping. Chiku was weeping. Her vagina was bleeding and there were stains of blood on her pyjami and frock suggesting that Subhash has raped Chiku. Sohan Singh accompanied by his daughter Chiku reached Police Post PGIMS, Rohtak. He made statement Ex. PT before ASI Nathu Ram, on the basis of which, case FIR No. 356 was registered at Police Station Civil Lines, Rohtak on 29-6-1997. Chiku was medically examined by Dr. Anil Raheja, who was posted as Medical Officer in PGIMS, Rohtak on 29-6-1997. There was no external evidence of injury but alleged history of rape at 9 a.m. was given to him. For local examination, he referred Chiku to Gynaecologist after admitting her in Ward No. 2. He took into possession the frock and pyjami, which Chiku was wearing at that time. He put his signatures on frock Ex. P-5 and pyjami Ex. P-6. He put that frock and pyjami into a sealed packet. He handed over that sealed packet to the police. Dr. Nita Seth, Senior Resident Gynae Department, Ward No. 2, PGIMS, Rohtak performed local examination of Chiku. There was no external evidence of injury over the thigh, perineum and parianal area. The labia majora was normal, but there was presence of small laceration over left labia minora of 4 x 11/2 mm in size. Labia minora was slightly congested. She took swabs of the secretion over the hymen and vagina. There was no evidence of the presence of blood stains on her frock and pyjami. There was no evidence of external injury and redness around the parianal area. She gave the swab and the envelop to casualty Medical Officer Dr. Raheja on 29-6-1997. The police moved an application Ex. PL before Dr. Nita Seth for her opinion on 26-7-1997 on Chiku. Dr. Nita Seth gave her opinion. According to Dr. Nita Seth, possibility of rape on Chiku could not be ruled out. Dr. P.D. Garg, Medical Officer, examined Subhash on 30-6-1997 and found that there was nothing to suggest that he was unable to perform intercourse. There was laceration at the frenulum of penis. Crematrix reflect was present. He took into possession pant Ex. P-4 and handed over the same to the police.

(3.) After investigation, accused was challaned. Case was committed to the Court of Session by the Chief Judicial Magistrate, Rohtak vide order dated 11-8-1997.