Crl.Appeal No.1247-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1247-SB of 2000 Date of decision: 22.3.2011 Sunil Kumar … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Ajit Attri, Advocate, with Mr.Ashit Malik, Advocate, for the appellant. Mr.Raja Sharma, AAG, Haryana. … JORA SINGH, J. This is an appeal by Sunil Kumar to challenge the judgment of conviction dated 27.11.2000 and order of sentence dated 28.11.2000 passed by Additional Sessions Judge, Sonepat, in Sessions Case No.12 dated 5.2.2000, arising out of FIR No.61 dated 1.3.1999 under Sections 376/392/323/506 IPC, PS Rai. By the said judgment, he was convicted under Sections 376(g)/ 326/34 IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs.4,000/-, in default of payment of fine, to further undergo RI for 6 months under Section 376(g) IPC, and to undergo RI for 3 years and to pay a fine of Rs.1,000/- under Sections 326/34 IPC. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 1.3.1999, prosecutrix lodged report with ASI Ram Kishan on the allegation that she is resident of Crl.Appeal No.1247-SB of 2000 2 Village Pohta Kabulpur, District Bullandshehar (UP). Number of residents of Village Pahota Kabulpur were the devotees of Sri Sant Ashram, Nahri. On 1.3.1999, she came from Delhi to visit the Sant Ashram. At about 9.00 PM, she was in the area of Nahri, then a tall young boy of fair complexion met her. She had enquired about the way leading to the said Ashram. On the pretext of helping her, accused accompanied her. When they were near the Ashram, then accused told her that main gate of the Ashram had been closed with barbed wire and he would take her from the other way. Then she started following the accused, but she was taken towards the fields situated at the back side of the Ashram. Another young boy of dark complexion was present there. She was caught hold by that boy and made her to fall on the ground. She tried to raise raula, then she was given fist blows on her face as well as other parts of her body. After that, she was raped against her wish by both the accused. Due to fist blows, her two central incisor teeth were broken. While committing forcible sexual intercourse, accused threatened to eliminate the family members of the spiritual head of the Ashram. Silver paijeb along with Rs.500/- was snatched from her. With great difficulty, she managed to reach the back door of the Ashram. Door was locked. Then one of the devotees opened the door and she was taken inside the Ashram. At 2.30 AM on 1.3.1999, after making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Prosecutrix was produced before the doctor for medico legal examination. IO had gone to the spot and after inspection had lifted broken pieces of bangles, 3 bidis, a paper of Biri Mark Badshah and one rupee coin. Recovered articles were taken into police possession vide separate memo Crl.Appeal No.1247-SB of 2000 3 attested by the witnesses. Rough site plan with correct marginal notes was prepared. Clothes worn by the prosecutrix were taken into police possession vide separate memo attested by the witnesses. During the course of investigation, supplementary statements of prosecutrix and Sudhir Narain were recorded. On 9.3.1999, accused was arrested and was produced before the doctor for his medico legal examination. After completion of investigation, challan was presented in Court. Accused was charged under Sections 376/326/392/506/34 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr.Adrash Sharma and PW5 Dr.Manju Arora on 1.3.1999 had medico legally examined the prosecutrix and observed as under:- “1. Two central incisor teeth were missing in the lower jaw. No fresh bleeding in these teeth sockets. Teeth socket containing clotted blood (bright red). Injury was kept under observation for dental opinion. 2. A reddish bruise on front of neck just below chin in sub- mental area of the size of 4x1 cms. 3. She was complaining of pain in whole of the left side of chest. Externally no visible injury sign seen. X-ray was advised and injury was kept under observation. Gynae check up Menopausal for 6 years. Breasts were normal. No external injury was seen on genitalia. No internal mark of Crl.Appeal No.1247-SB of 2000 4 injury seen. No bleeding per vagina. Per speculum (P/S) examination: no mark of injury seen. No bleeding per vagina. Two vaginal swabs (one from clitoris and one from inside vagina) taken and sent for chemical examination in a sealed vial. Per vaginal examination: two fingers could be introduced easily into the vagina. Cervix upward, uterus retroverted, multiparous, fornices clear. No bleeding P.V. Present.” PW2 Dr. R. Sahai on 10.3.1999 had medico legally examined the accused and he was found fit to perform sexual intercourse. PW3 Om Parkash, Patwari, had prepared scaled site plan (Ex.PC). PW4 Ram Singh, UGC, had delivered special report to the Ilaqa Magistrate at 8.30 AM on 1.3.1999. PW6 HC Anoop Singh was the Incharge of Malkhana, with whom case property was deposited by the IO. PW7 ASI Mool Chand stated that on receipt of ruqa (Ex.PD/1), he had recorded formal FIR (Ex.PD). PW8 SI Rajinder Singh had recorded statements of the witnesses under Section 161 Cr.P.C. PW9 is the prosecutrix and she has reiterated her stand before the police. PW10 Mahant Sudhir Narain stated that at about 11.30 PM on 28.2.1999, he received a message that some devotees had brought the prosecutrix in the Ashram. After that, he had contacted the prosecutrix. Prosecutrix had disclosed about the incident. After 1-2 hours, police officials came and the prosecutrix was taken away by them. On 4.3.1999, Crl.Appeal No.1247-SB of 2000 5 he along with the prosecutrix had gone to Delhi in a car. They were present in front of the shop where accused was found present. Prosecutrix told that accused is the same person, who had raped her. On seeing them, accused had gone towards the lane situated towards the right side of the shop. PW11 SI Ram Kishan is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that Mahant Sudhir Narain had rivalry in Village Nahri. He was falsely implicated in this case. In defence, DW1 Inderjeet Singh stated that he was the Sarpanch of Village Nahri from 1987 to 1995. On 2.3.1999, police officials came to Village Nahri in connection with the investigation of a rape case registered against Sunil Kumar. On 3.3.1999, Panchayat was convened. Mahant of the Ashram was also requested to participate in the Panchayat but he did not attend the meeting. Panchayat came to this conclusion that accused was falsely implicated in this case. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that the prosecutrix was 50 years' old, whereas appellant was 21 years' old. Prosecutrix was the resident of Village Pohta Kabulpur, District Bullandshehar (UP) and was not known to the appellant. So, appellant had Crl.Appeal No.1247-SB of 2000 6 no motive to commit the crime. Prosecutrix was medico legally examined but no injury was noticed. After occurrence, prosecutrix stayed in the Ashram for about 4-5 days but no information to her relatives. Appellant was not named in the FIR. Test identification parade was not arranged. According to the story, two persons had raped the prosecutrix but only the appellant was challaned. In fact, Mahant of the Ashram had a rivalry in Village Nahri. Due to this reason, appellant was falsely implicated in this case. Learned State counsel argued that occurrence was on the intervening night of 28.2/1.3.1999 between 9.00 PM to 11.30 PM. Prosecutrix came from Delhi and was going to the Ashram but on the way near Village Nahri, appellant had met her. She had enquired about the passage leading to the Ashram. After that, appellant started accompanying the prosecutrix. Prosecutrix was taken towards the back side of Ashram by saying that main gate had been closed with barbed wire. Another boy was present in the fields. Both had raped the prosecutrix against her wish. When the prosecutrix raised objection, then appellant had given fist blows. Injuries were noticed by the doctors on the person of the prosecutrix. Injuries cannot be self suffered or self inflicted. Appellant was not known to the prosecutrix. Without enmity, there was no reason to self suffer or self inflict injuries simply to implicate the appellant. On 4.3.1999, the prosecutrix along with Mahant of the Ashram was going to Delhi but on the way, appellant was noticed while present near the shop. Prosecutrix had identified the appellant and informed the Mahant that appellant was the same person, who had raped her against her wish. Appellant was arrested on 9.3.1999 but no request to arrange test identification parade. From 9.00 Crl.Appeal No.1247-SB of 2000 7 PM to 11.30 PM, appellant remained with the prosecutrix. Appellant was rightly identified by the prosecutrix while appeared as prosecution witness. If the appellant was sure that he was falsely implicated, then he could easily request the Court to arrange test identification parade but no request. According to defence version, Mahant of the Ashram had a dispute with the villagers of Village Nahri. So, due to this reason, appellant was falsely implicated. But nothing on the file that Mahant had a dispute with the villagers of village Nahri. If Mahant had a dispute with the villagers, then there was no reason to implicate the appellant because he had no enmity with the appellant. Clothes worn by the prosecutrix were sent to the laboratory. Human semen was detected. Broken pieces of bangles were recovered from the place of occurrence. Occurrence was on the intervening night of 28.2/1.3.1999 between 9.00 PM to 11.30 PM. Report was lodged with the police at 2.30 AM during night time. Special report was delivered to the Ilaqa Magistrate at 8.30 AM on 1.3.1999. When appellant had no enmity with the Mahant of the Ashram, then the prosecutrix was not expected to name the appellant, particularly when her reputation was at stake. First submission of learned defence counsel for the appellant was that injuries were not noticed on the person of the prosecutrix. In case, rape was in the fields, then some injuries were expected to be noticed on the person of the prosecutrix. Prosecutrix was 50 years' old, whereas appellant was 21 years' old. Appellant was not expected to rape the prosecutrix but after going through the evidence on the file, I am not in a position to agree with the submission of learned defence counsel for the appellant. Prosecutrix, resident of Village Pohta Kabulpur, District Crl.Appeal No.1247-SB of 2000 8 Bullandshehar (UP), was 50 years' old. On the day of occurrence, she came from Delhi and was going towards the Ashram but on the way, she was taken towards the back side of the Ashram, where she was raped against her wish. According to story, the prosecutrix was made to fall on the ground and was given injuries. After that, she was raped against her wish. Statement of the prosecutrix was recorded at 2.30 AM on 1.3.1999 and on the same day, the prosecutrix was medico legally examined by the Board of Doctors. Injuries were noticed on the person of the prosecutrix. Two central incisor teeth were found missing. Clotted blood was noticed. No suggestion was given to PW1 Dr. Adrash Sharma that injuries noticed could be self suffered or self inflicted. Dr. Adrash Sharma was not cross- examined, whereas PW5 Dr. Manju Arora was cross-examined. Doctor admitted that no injury was noticed on the lips or face of the prosecutrix. No external injury was noticed on the private part of the prosecutrix. Doctor did not state a word that injuries could be self suffered or self inflicted. Clotted blood was noticed. Prosecutrix was married lady, aged about 50 years. If no external injury, except the injuries noticed at the time of medico legal examination, then nothing to presume that story is not natural one. As discussed earlier, appellant was 21 years' old, whereas prosecutrix was 50 years' old but no bar to rape 50 years' old lady. But when the prosecutrix was not earlier known to the appellant, then the prosecutrix was not expected to name the appellant, particularly when her reputation was at stake. Statement of the prosecutrix was not to be ignored simply on the ground that no external injury was noticed. Without enmity with the appellant, the prosecutrix was not expected to self suffer or self inflict the injuries with a motive to implicate him. No allegation that the prosecutrix Crl.Appeal No.1247-SB of 2000 9 was under the control of Mahant of the Ashram and at the instance of Mahant of the Ashram, she named the appellant. No suggestion to the Mahant of the Ashram that he was inimical towards the appellant. If Mahant had enmity with some body of Village Nahri, then question is why the prosecutrix named the appellant at the instance of Mahant, when Mahant had no enmity with the appellant. Occurrence was on the intervening night of 28.2/1.3.1999 between 9.00 PM to 11.30 PM. During night time, at 3.20 AM, report was lodged with the police. Appellant was not named. Only description was given. If appellant was to be named, then prosecutrix could easily name the appellant because the prosecutrix being the devotee used to visit the Ashram 2-3 times in a year. For the last 10-15 years, the prosecutrix had been visiting the Ashram as a devotee. She could easily state that appellant was known to her because she used to visit the Ashram 3-4 times in a year, but the appellant was not named in the FIR. Only description was given. Next submission of learned defence counsel for the appellant was that after occurrence, prosecutrix stayed in the Ashram for 4-5 days. No information was given to her relations. That means, statement of the prosecutrix is not correct one. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellant is without any force. Admittedly, after the occurrence, prosecutrix stayed in the Ashram for 4-5 days. On 4.3.1999, the prosecutrix along with Mahant of the Ashram had gone to Delhi in the car of the Mahant. On the way, appellant was seen while standing near the shop. Appellant was identified by the prosecutrix and intimation was given to the Mahant that the boy standing near the shop is the same boy, who had Crl.Appeal No.1247-SB of 2000 10 raped her against her wish. On seeing them, appellant had gone into the street. Mahant of the Ashram appeared as PW10 and stated that at about 11.30 PM, he received a message that some devotees had brought the prosecutrix inside the Ashram. After that, he had gone to the room where the prosecutrix was present. Then prosecutrix disclosed about the entire incident. On 4.3.1999, he along with the prosecutrix was going towards Delhi. On the way, near the shop, appellant was seen. Prosecutrix had informed him that the person present near the shop was the same boy who had raped her against her wish. Then on seeing them, appellant had gone towards the street. When married lady, aged about 50 years, was raped by two persons, then she was not to inform her relatives immediately. Prosecutrix was expected to think twice to lodge report with the police because her reputation was at stake. In the present case, after the occurrence, prosecutrix stayed in the Ashram for 4-5 days. After that, she along with Mahant of the Ashram was going to Delhi. Statement of the prosecutrix was not to be ignored simply on the ground that she failed to inform about the incident to her relations. Next submission of learned defence counsel was that according to story, appellant along with another boy had raped the prosecutrix but second accused was not challaned. Appellant was not named in the FIR. Test identification parade was not arranged. Occurrence was at about 9.00-10.00 PM in the month of February. There was no light near the place of occurrence. So, in the absence of test identification parade, identity of the appellant is doubtful. But submission of learned defence counsel for the appellant seems to be not correct one. No doubt, occurrence was in the month of February at about 9.00-10.00 PM and there Crl.Appeal No.1247-SB of 2000 11 was no light but in Village Nahri, appellant had met the prosecutrix. Prosecutrix had enquired about the way leading to the Ashram. In the village, there was light. Appellant started accompanying the prosecutrix. From 9.00 PM to 11.30 PM, appellant remained with the prosecutrix. On 9.3.1999, appellant was arrested and if appellant was sure that crime was not committed by him, then he could easily cover his face and request the Court to arrange test identification parade. In Court, the prosecutrix categorically stated that appellant present in Court had raped her against her wish. Mahant of the Ashram also appeared as PW10 and stated that when they were going towards Delhi, then appellant was seen near the shop but on seeing them, he had gone towards street. Prosecutrix had disclosed to him that the boy present near the shop was the same person, who had raped her against her wish. In the absence of test identification parade, no ground to opine that identity of the appellant is doubtful. Next submission of learned defence counsel for the appellant was that Mahant had a rivalry in Village Nahri. Due to this reason, appellant was falsely implicated in this case. Submission of learned defence counsel for the appellant is without any force. No suggestion to the Mahant of the Ashram that he had enmity in Village Nahri. In case, Mahant had enmity in village Nahri, then there was no reason to choose the appellant, when no evidence on the file that appellant was the supporter of opposite party inimical towards the Mahant. If the appellant was the supporter of the opposite party inimical towards the Mahant, then there was some possibility to implicate the appellant. Suggestion was given to the prosecutrix that appellant was falsely implicated at the instance of Mahant Sudhir Narain but no suggestion to Mahant Sudhir Narain when appeared as PW10 that he was Crl.Appeal No.1247-SB of 2000 12 inimical towards the appellant. Appellant when examined under Section 313 Cr.P.C., then stated that he was falsely implicated because Mahant of the Ashram had a rivalry in village Nahri. No evidence either oral or documentary on the file that there was party faction in Village Nahri. Appellant was the supporter of one party, who was inimical towards the Mahant. If there was party faction in Village Nahri, then the prosecutrix had no reason to name the appellant at the instance of Mahant because she was not under the control of Mahant. Prosecutrix was married lady. Eldest daughter of the prosecutrix was about 25-26 years' old. Husband of the prosecutrix was also alive. Prosecutrix was the follower of Sri Sant Ashram but as follower of the Ashram, there was no reason for the prosecutrix to name the appellant. Prosecutrix was medico legally examined on 1.3.1999. Injuries were noticed on her person. Doctor did not state a word that the prosecutrix was not raped. Clothes of the prosecutrix along with vaginal swabs were sent to the laboratory. Report of the laboratory (Ex.PF) is to the effect that human semen was detected in case of petticoat. Statement of the prosecutrix alone is sufficient to convict the appellant if statement inspires confidence and there is independent corroboration. Statement of Mahant, recovery of broken bangles from the place of occurrence, report of laboratory and MLR show that no reason to ignore the statement of the prosecutrix. Last submission of learned defence counsel for the appellant was that appellant was 21 years' old at the time of occurrence and is the first offender. He has already undergone 3 years, 1 month and 1 day out of actual sentence. Requested that sentence be reduced. Admittedly, occurrence was on the intervening night of Crl.Appeal No.1247-SB of 2000 13 28.2/1.3.1999. At that time, appellant was 21 years' old and is the first offender. Appellant belongs to poor family. Prosecutrix was 50 years' old. Appellant has already undergone 3 years, 1 month and 1 days out of actual sentence. In 2009(2) RCR (Crl.) 26, Zinder Ali S.K. vs. State of West Bengal and another, conviction was under Section 376 IPC. Appellant was directed to undergo RI for 10 years and to pay a fine of Rs.5,000/- - Incident 6 years old- Sentence reduced to already undergone ( 5 years). In the present case, appellant is the only earning member of his family. He has old parents to support. Appellant is unmarried and is the first offender. So, keeping in view the circumstances of this case, sentence is reduced from 10 years to 7 years under Section 376(g) IPC. Fine maintained. In view of all discussed above, there is no infirmity or illegality in the impugned judgment and the same is upheld. For the reasons recorded above, appeal without merit is dismissed with modification on the point of sentence. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Sonepat, to issue re-arrest warrants to undergo the remaining period of sentence. 22.3.2011 (JORA SINGH ) pk JUDGE