Piara Singh Vs. State of Punjab - (High Court of Punjab and Haryana) (19 Mar 2018)

A conflict or contradiction between ocular and medical evidence has to be direct and material

MANU/PH/0205/2018

Criminal

The instant appeal has been filed against the impugned judgment/order passed by the trial Court in FIR registered under Sections 363-A, 376 of Indian Penal Code, 1960 (IPC) whereby, the Appellant has been convicted and sentence to undergo rigorous imprisonment of 3 years and to pay fine of Rs. 1000 under Section 363 of IPC and to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 3000 under Section 376(2)(f) of IPC.

A reading of the complaint as well as statement of the witnesses goes to show that, the occurrence took place in the evening of 23rd October, 2007 at about 7.00 p.m., and immediately thereafter, the victim was admitted to the hospital and in the morning of next day i.e. 24th October, 2007, the matter was reported to the police. It was explained by the complainant (PW2) that, after the occurrence, they took the victim to their residence and after arranging some transport, they took the victim to civil hospital. Under the circumstances, it cannot be said that, there is a delay in lodging of the FIR. After chemical examination report, PW7 has opined that, the possibility of an attempt to have sexual intercourse cannot be ruled out.

It is a settled principle of law that, a conflict or contradiction between the ocular and the medical evidence has to be direct and material and only then the same can be pleaded. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that, every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. In light of the settled canon of criminal jurisprudence, present Court does not find any merit in the contention raised on behalf of the Appellant with regard to discrepancy in the medical and the ocular evidence.

In the case, in hand there is a direct link of Appellant with the commission of the crime and such conclusion is well established by statement of the complainant, witnesses and medical/FSL report. Though penetration itself proves offence of rape, but contrary is not true i.e. even if there is no penetration, it does not necessarily mean that, there is no rape. Penetration may not always result in tearing of hymen and same will always depend upon facts and circumstances of a given case. There may be limited penetration due to which probably hymen of victim girl was not ruptured. In view of the facts and circumstances of the present case, presence of element of mens rea on the part of Appellant cannot be denied. Further, it is well settled that on the sole testimony of the victim, an accused can be convicted and there is no bar in the same, whereas, in the in instant case, the testimony of the victim has been corroborated by three other witnesses.

The victim and her sister being child witnesses, the trial Court, during the course of recording of their statements, put certain questions to them to assess their ability to understand to which they properly replied and were declared fit to make the statement. It is settled proposition of law that, testimonies of the relatives are equally credible as any other person. Further, during their cross-examination, nothing has come on record, which could point out that they were deposing falsely. More so, no such material discrepancies, which would lead this court to discard the testimony of the witnesses, has been pointed out in this case.

The Appellant has been, apart from Section 363 of IPC, has been convicted for the commission of offence under Section 376(2)(f) of IPC, which envisages that whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Meaning thereby, the Appellant-accused has been convicted for the minimum statutory period of ten years under that section. However, proviso attached that section provides that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. In the present case, the Appellant-accused has been found guilty of committing rape of minor girl, who was aged about 05 years at the time of occurrence. In view of the age of the minor victim and other factors of the case, no adequate and special reasons are made out in instant case, to reduce the sentence of the appellant, to the period already undergone by him and this argument of the learned counsel for the appellant is rejected. Present Court does not find any illegality or irregularity in the judgment passed by the trial court. Consequently, the appeal is dismissed.

Tags : CONVICTION VALIDITY EVIDENCE CREDIBILITY