Punjab-Haryana High Court
Upender Mato vs State Of Haryana on 1 April, 2021 208
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.D-735-DB of 2012 (O&M)
Date of Decision: April 01, 2021
Upender Mato
…Appellant
VERSUS
State of Haryana
…Respondent
CORAM: HON’BLE MS. JUSTICE RITU BAHRI
HON’BLE MRS. JUSTICE ARCHANA PURI
Present: Ms.Nupur Chaudhary, Legal Aid counsel
for the appellant.
Mr.Hitesh Pandit, Addl. Advocate General, Haryana
for the respondent-State.
****
ARCHANA PURI, J.
Challenge in the present appeal, is to the judgment of
conviction dated 03.02.2012 and order of sentence dated 04.02.2012 passed
by learned Additional Sessions Judge, Fatehabad, vide which, appellant
Upender Mato was held guilty and convicted for the offence under Section
376 IPC and sentenced to undergo imprisonment for life. Even, fine of
Rs.5,000/- was imposed, in default whereof, he was to further undergo
rigorous imprisonment for a period of three months.
Background facts in nutshell are as follows:-
That, complainant Khushbu wife of Mehar Chand was doing
labour work in village Kulan. Her husband had died about two years ago.
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She is having two daughters. One is aged about 10 years and younger
daughter (prosecutrix) is aged about 3 years. On 13.10.2010, at about 4.00
p.m., her elder daughter had gone out from the house for playing with
children and after some time, even her younger daughter (prosecutrix) had
gone out of the house for playing. However, when the prosecutrix had not
returned back, the complainant had gone in search of her. While in the
process of search, she reached the hut of Upender Mato, who belongs to
District Purnia and lived in her neighbourhood, she heard screams of her
daughter. She then went inside the hut and found Upender Mato to be
committing rape upon her younger daughter. On spotting the complainant,
Upender Mato had fled away. Blood was oozing from the private parts of
her daughter and she was not wearing any underwear but only wearing a
frock. The complainant raised hue and cry, upon which, several people had
collected at the spot.
Proceedings in the present case were initiated, on the basis of
the statement got recorded by the complainant. During the course of the
investigation, scene of crime was inspected. Even, on the day of occurrence
itself, at about 9.46 p.m., the medical examination of the prosecutrix was
got conducted. Accused Upender Mato was arrested on 14.10.2010. On
completion of investigation, challan was presented against Upender Mato
On presentation of challan, compliance of Section 207 Cr.P.C.
was made. On the basis of material coming forth, charge under Section 376
IPC was framed against Upender Mato, to which he pleaded not guilty and
claimed trial.
In endeavour to establish its case, the prosecution examined as
many as 10 witnesses, namely PW-1 EHC Satyawan, PW-2 Balwant Singh,
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Draftsman, PW-3 MHC Basau Ram, PW-4 EHC Ramesh Kumar, PW-5
Dr.Aradhana Ahuja, PW-6 Head Constable Mahavir Singh, PW-7
Dr.H.S.Sagoo, PW-8 SI Ganga Ram, PW-9 Khushbu and PW10 ASI
Virender Singh.
Even, learned Public Prosecutor tendered into evidence report
of FSL Ex.P19 and Ex.20.
On closure of the prosecution evidence, all the incriminating
circumstances, appearing in the prosecution evidence were put to accused-
appellant in his statement under Section 313 Cr.P.C. However, the accused-
appellant denied those allegations. In fact, he had taken the plea of false
implication, due to enmity and also pleaded that prosecutrix suffered
injuries, when she was playing with other children and that he has not
committed any rape upon the prosecutrix.
In defence, accused examined his wife Rekha Devi as DW-1,
who deposed that complainant Khushbu wanted to marry her husband, thus,
she had filed false case against her husband, as he had refused to marry the
complainant. Also, she stated about the prosecutrix to have suffered
injuries, while she was playing on swings in the plot and other children had
also suffered injuries, at that time. The mother of the prosecutrix was called
by her and her husband, at the spot. The complainant had taken away her
child and also extended threats to implicate Upender Mato, in a false case.
The point for determination formulated by learned trial Court in
the present case, reads as under:-
‘Whether on 13.10.2010, the accused committed rape on the
prosecutrix, aged about three years and thereby committed
the offence punishable under Section 376 of the IPC’.
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After hearing learned Public Prosecutor as well as learned
defence counsel and on appraisal of the evidence brought on record, vide
impugned judgment, accused-appellant was held guilty, convicted and
sentenced, as already detailed in earlier portion of the judgment.
Feeling aggrieved by the aforesaid judgment of conviction and
order of sentence, appellant-convict has filed the present appeal.
In pursuance of notice, learned counsel made appearance. Even
the lower Court record was requisitioned.
We have heard learned counsel for the appellant as well as
learned State counsel and have perused the record.
In the light of the evidence, coming on record, it has been
vehemently submitted by learned counsel for the appellant that evidence, so
adduced in the present case, has not been appraised by learned trial Court, in
correct perspective. In fact, she submitted that the complainant, who is
mother of the prosecutrix, is the sole witness, who has been examined in the
present case and even, her testimony is not above board, as it contains
various discrepancies, which in itself, negates the prosecution version.
Rather, it is submitted that a false case has been registered against the
appellant, solely on the ground that complainant was nursing grievance
because of his not being inclined to marry her. As such, a prayer has been
for acceptance of the appeal and to set aside the judgment of conviction and
order of sentence and acquit the appellant.
In refutation, learned State counsel resisted the claim of the
appellant. He submits that the evidence, so adduced, in the present case, has
been rightly appraised by learned trial Court. The testimony of the
complainant is trustworthy. She has categorically deposed about the
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ravishment of her daughter, who was 3 years old, by the appellant-convict.
She has categorically deposed about the manner of occurrence. Even,
sufficient corroboration is lent to the version of the complainant from the
medical evidence, brought on record. Thus, it is submitted that learned trial
Court has rightly reached the conclusion about the appellant, having caused
the occurrence in question and has convicted him under Section 376 IPC.
Even, sentence so imposed, is just and reasonable. Therefore, learned State
counsel has made a prayer for dismissal of the appeal.
Throughout the arguments, much emphasis has been laid upon
the sole testimony of the complainant coming forth, with regard to the
sexual assault allegedly committed upon prosecutrix by the appellant. It is
submitted that statement of the complainant is not trustworthy and reliable.
However, the aforesaid submission is not tenable. Very true, as so pointed
by learned counsel for the appellant that PW-9 Khushbu is the sole witness,
examined vis-a-vis occurrence in question, but however, it is pertinent to
mention that victim girl is only 3 years old and looking at her age,
definitely, she would not have been in a position to depose about the
manner of occurrence and therefore, she has not been examined as a
witness. In fact, the complainant, who is mother of the prosecutrix, had
reached the spot and she has stated about having spotted the appellant,
while he indulged in ravishment of her daughter. The complainant, while in
the witness box as PW-9, besides deposing about her relationship with the
prosecutrix, has also categorically deposed about the manner, in which her
daughter had gone away from the house, in evening for playing. She has
also categorically stated that when her younger daughter did not return
back, she had herself gone out in search of her daughter and during this
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course, she had heard screams of her daughter, coming from the hut of the
appellant, which is situated in her neighbourhood. She then went inside and
found appellant committing rape upon her daughter. She further deposed
that on seeing her, appellant had fled away. She also stated that blood was
oozing out from the private parts of her daughter and frock worn by her was
also stained with blood. In her cross-examination, she has categorically
stated that wife of the appellant was not present in the hut, at that time. The
complainant has thus deposed categorically, in consonance with her
statement Ex.P2, on the basis whereof, proceedings were initiated in the
present case.
Though, now it is submitted that there is discrepancy coming
forth about the distance of house of the complainant from the hut of the
appellant and this discrepancy is of vital importance but however, it is not
so. Though, the complainant, while deposing in cross-examination, has
stated that hut of the appellant was situated at about 2 kms. away from her
house but however, it is pertinent to mention that PW-10 ASI Virender
Singh, Investigating Officer, in cross-examination, has categorically stated
that distance between the cottage of the appellant and residence of the
complainant, is about 1 acre. Even otherwise, this discrepancy, is not such,
which raises doubt about the truthfulness of the version, so put forth by the
complainant, who is mother of the prosecutrix. This discrepancy, otherwise
also, has to be considered in the backdrop of the other evidence, brought on
record. The complainant, as stated aforesaid, has deposed clearly and
specifically about the manner of occurrence caused by the appellant.
Besides the same, Investigating Officer has also categorically deposed about
the manner of initiation of proceedings in the present case and about
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conducting of medical examination of the prosecutrix.
The ocular evidence, so coming forth, also finds corroboration
from the medical evidence, brought on record. The prosecution has
examined PW-5 Dr.Aradhana Ahuja, Medical Officer, who had medico-
legally examined the prosecutrix, on the day of occurrence only i.e.
13.10.2010. She has categorically deposed that on examination of the
prosecutrix, who was having alleged history of rape, she observed following
injuries:-
1. There was laceration of vagina. Blood was found in the
vagina.
2. There were injury marks on the bilateral thighs of the
baby.
Furthermore, she has also stated that vaginal swabs were taken
and sent for analysis. Even, she had deposed about the parcel bearing seal
of FSL, opened during the course of examination and she found the same to
be containing dirty greenish small size baby frock and stated that frock was
the same, which was worn by the prosecutrix, at the time of medico-legal
examination. Besides the same, it is evident from the FSL report Ex.P19,
that blood was detected on vaginal swabs. Even, FSL report Ex.P20 states
that baby frock was stained with few medium and small blood stains. The
medical evidence, as such, also lends credence to the prosecution version,
about the ravishment of the prosecutrix by the appellant.
A faint attempt has also been made to secure acquittal, on the
ground that appellant, who has been falsely implicated in the present case,
in his statement under Section 313 Cr.P.C., had taken the plea that false case
has been registered against him due to enmity and had also taken the plea
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that prosecutrix had suffered injuries, when she was playing with other
children. To so substantiate this plea, even the appellant, in his defence, has
examined his wife Rekha Devi as DW-1. She has also stated that
complainant wanted to marry her husband and complainant had filed false
case, as her husband had refused to marry her. She also stated that
prosecutrix suffered injuries, while she was playing on swings in the plot
and other children also suffered injuries. She further stated that mother of
the prosecutrix was called by her and her husband, at the spot and while
taking away her daughter, the complainant had extended threats to implicate
her husband, in a false case. However, it is pertinent to mention that in his
statement under Section 313 Cr.P.C., no reason, as such, has been assigned
by the appellant himself, thereby giving inkling about his false implication.
Simply, he had stated about his false implication due to enmity but the
reason for the animosity, as such, has not been given. No witness of any
kind qua animosity, existing between the complainant and appellant, as
such, has been examined. Even though, wife of the appellant, while
appearing as DW-1, had stated about the complainant to be interested to
marry her husband and on refusal to marry the complainant, she had got
registered false case against her husband but however, this plea is very
vague. There is nothing, as such, coming on record, as to when such
interest was expressed by the complainant and when refusal was made by
the appellant. This is all the more important to consider when appellant is
aged about 42 years and is already married, having seven children. Even,
plea has been taken that prosecutrix had sustained injuries, while playing.
The wife of the appellant, while deposing as DW-1 had also stated that
other children had also sustained injuries but no evidence, to so substantiate
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this plea of sustaining injuries by other children, during the course of
playing, as such, has been produced. In the given circumstances, the plea of
false implication also appears to be hollow one, which has been raised, only
to escape from the criminal liability.
The cumulative effect of aforesaid discussion is that
prosecution has successfully established, as per the demanding degree of
proof, about the appellant to have committed rape upon the prosecutrix, who
is 3 years old girl child. Thus, learned trial Court has rightly held the
accused guilty and convicted him under Section 376 IPC. Keeping in view
the age of the appellant, who is married man, having seven children, as
gathered from the evidence and also considering the age of the prosecutrix,
the sentence, so imposed upon the appellant is just and reasonable. As such,
impugned judgment of conviction and order of sentence, calls for no
interference.
Resultantly, present appeal stands dismissed.
(RITU BAHRI) (ARCHANA PURI)
JUDGE JUDGE
April 01, 2021
Vgulati
Whether speaking/reasoned Yes
Whether reportable Yes
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