Criminal Appeal No. 72-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 72-SB of 2001 Date of decision : November 02, 2011 Major Singh ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Harish Mehla, Advocate for Mr. PC Chaudhary, Advocate, for the appellant Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) Convict Major Singh has filed the instant criminal appeal to assail his conviction and sentence ordered by learned Additional Sessions Judge, Sirsa vide judgment and order dated 8.1.2001 thereby convicting the accused-appellant under sections 376 and 506 IPC and sentencing him to undergo rigorous imprisonment for seven years and to pay fine of Rs 1000/- and in default thereof, to undergo further rigorous imprisonment for six months for offence under section 376 IPC and also to undergo rigorous Criminal Appeal No. 72-SB of 2001 -2- imprisonment for one year for offence under section 506 IPC but both the sentences have been ordered to run concurrently. FIR in this case was lodged on 4.6.1999 by prosecutrix (name not being mentioned) alleging that the prosecutrix is native of Bihar. She along with her husband Bir Chand and children was living in village Vaidwala District Sirsa. They were growing vegetables in land of Sanjha Ram Kamboj on contract and were staying in his kotha tubewell. About a month prior to lodging of FIR, the prosecutrix, her husband and children were present in front of kotha tubewell. At about 10.00 PM, an unknown person (later on found to be accused Major Singh) came there and demanded water. Bir Chand served water to him. The accused then threatened Bir Chand and forcibly took away the prosecutrix to some distance from the kotha. The accused threatened the prosecutrix and forcibly committed sexual intercourse with her twice. While going away, the accused told that he would come again. Next morning the prosecutrix and her husband informed their landlord Sanjha Ram about the occurrence, but the matter was not reported to the police as name and address of the culprit was not known and also to save family honour. The occurrence was, however, also narrated to other Biharis living nearby. Again on 3.6.1999 (a day prior to lodging of FIR), the prosecutrix, her husband and children were present in the kotha tubewell when at about 8/8.30 PM, the accused came there under the influence of liquor and under threat, tried to commit rape on the prosecutrix. Her husband Bir Chand called Kashmir Chand Criminal Appeal No. 72-SB of 2001 -3- from nearby. They came to the spot alongwith other persons. On seeing them, the accused tried to run away, but he was over-powered and beaten. The accused told his name as Major Singh. Sanjha Ram landlord of the prosecutrix was not available during the night. On his return to the village next morning, the matter was reported to the police. Thereupon FIR was registered and investigated. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. Prosecutrix was got medico legally examined. The accused was arrested. He was also got medico legally examined. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, 'Cr.P.C'.) for prosecution of the accused under sections 376, 451, 506 and 511 IPC. Charge under sections 376 and 506 IPC was framed against the accused. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined ten witnesses. Satish Kumar, Patwari, PW1 stated that he prepared scaled site plan of the place of occurrence. SI Rajinder Singh, PW2 stated that he prepared report under section 173 Cr.P.C. Head Constable Ram Murti, PW3, Constable Ranbir Singh, PW4 and Constable Dharam Chand, PW9 tendered their respective affidavits in evidence being formal witnesses. Dr. S.L. Aggarwal, PW5 stated that he medico-legally Criminal Appeal No. 72-SB of 2001 -4- examined the accused and found seven simple injuries (mainly contusions) on his person. There was nothing abnormal to prevent him from performing sexual intercourse. Dr. Minaxi Goyal, PW6 stated that she medico legally examined the prosecutrix. Prosecutrix as PW7 and her husband Bir Chand as PW8 broadly stated according to the prosecution version. ASI Jagdish Rai, PW10 stated about investigation of the case conducted by him. The accused in his examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that he was living in Dera Sacha Sauda where Bir Chand quarrelled with him and after some days, Bir Chand alongwith Kashmir Chand and Sanjha Ram had beaten him near the Dera and to create defence for the injuries caused to him, this false case was got registered against him. No evidence was led by the accused in his defence. Learned Additional Sessions Judge vide impugned judgment and order dated 8.1.2001 convicted and sentenced the accused as already noticed hereinbefore. Feeling dissatisfied, the convict has filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Criminal Appeal No. 72-SB of 2001 -5- Testimony of the prosecutrix is corroborated by the testimony of her husband Bir Chand PW8. The accused was apprehended at the spot and was even thrashed resulting in injuries to him as found on his medico legal examination. There is no reason why the prosecutrix and her husband would implicate the accused in false case and that too of committing rape on the prosecutrix. It is highly improbable and unlikely that the prosecutrix and her husband levelled false allegation of rape against the accused. The defence version that he had a quarrel with Bir Chand and consequently he had been beaten by Bir Chand and his companions and false case was registered to create evidence for defence of the said injuries caused to the accused, remains completely unsubstantiated. There is not even an iota of material on record to support this version of the accused. Even otherwise, merely for causing simple injuries to the accused, the prosecutrix and her husband would not level false allegation of rape causing stigma to their own family. Counsel for the appellant contended that the prosecution version is improbable because it is unlikely that the accused could have taken away the prosecutrix in the presence of her husband about a month prior to lodging of the FIR. The contention cannot be accepted in the absence of any material on record. The prosecution version cannot be said to be improbable or intrinsically and inherently unreliable. On the other hand, this type of version is rather guarantee of the truthfulness of the version. If the prosecution and her husband were to implicate the accused Criminal Appeal No. 72-SB of 2001 -6- in a false case, they could have alleged commission of rape on 3.6.1999 itself. However, the prosecutrix alleged that she was raped by the accused twice about a month prior to the lodging of the FIR whereas on 3.6.1999 i.e. a day prior to the lodging of the FIR, the accused tried to commit rape on her but did not succeed. This entire version cannot be said to be manipulated or improbable. Counsel for the appellant contended that from the medico legal report of the prosecutrix, it cannot be said that the accused committed rape on the prosecutrix and rather the prosecutrix might have had sexual intercourse with her own husband. The contention is misconceived and untenable. It is not the prosecution case that the accused had committed rape on the prosecutrix on 3.6.1999. On the other hand, the accused had committed rape on the prosecution about a month prior to it and therefore, the same could not have been detected on medico legal examination of the prosecutrix a month after the commission of rape. Counsel for the appellant also contended that the alleged occurrence which took place about a month earlier was not reported to the police. However, sufficient explanation for the same has been furnished by the prosecution. It has been stated in the FIR itself that at the time of first occurrence, matter was not reported to the police because name and address of the culprit i.e. accused was not known. Secondly honour and prestige of the family was involved. Consequently, the prosecution case cannot be discarded merely because the earlier occurrence was not reported Criminal Appeal No. 72-SB of 2001 -7- to the police immediately. At the risk of repetition, it has to be observed that there is no reason why the prosecutrix or her husband would implicate the accused in a false case of rape which would cast stigma on the prosecutrix herself. For the reasons aforesaid, I find that the prosecution evidence is cogent and credible and is sufficient to prove guilt of the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. As regards quantum of sentence, offence under section 376 IPC is punishable with minimum sentence of imprisonment for seven years which has been awarded to the accused by the trial court and the same, therefore, does not warrant any reduction. Even otherwise, custody certificate of the appellant already placed on record reveals that the appellant was released from jail on 25.2.2005 on completion of sentence after remaining in custody for 5 years 8 months and 21 days and earning remission of 1 year 3 months and 9 days. Consequently, the quantum of sentence is now of academic importance only. In view of the aforesaid, I find no merit in the instant criminal appeal which is accordingly dismissed. ( L.N. Mittal ) November 02, 2011 Judge 'dalbir'