Om Prakash vs State Of Haryana

The two accused Om Prakash (hereinafter referred as `the appellant') and Jai Prakash were committed to the Court of Additional Sessions Judge at Jagadhri vide order dated 30th September, 1994 to face trial in the case of Jai Prakash under Sections 363, 366 and 376(2)(g) of the Indian Penal Code, 1860 (in short the `IPC') and in the case of appellant under Sections 368 and 376(2)(g) IPC. Both these accused pleaded not guilty to the charge and faced trial. The prosecution -

examined as many as nine witnesses to bring home the guilt of the accused in response to the questions posed by the Court disclosing incriminating evidence against the accused under 2 Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The appellant denied the incident and stated that he had never known either Jai Prakash or the prosecutrix. Jai Prakash took the stand that he used to visit the house of one Bhagwan Dass and there was enmity between Bhagwan Dass and the father of the prosecutrix. Fufa of the prosecutrix, Jeet Ram, was posted at the Yamuna Nagar police station and because of personal animosity, he has been falsely implicated.

The trial court vide a detailed judgment dated 30th January, 1996 recorded a finding that all the essential ingredients constituting offence for which the accused were charged were fully proved and subsequently convicted both the accused of 3 the said offences. After hearing them on the quantum of sentence and noticing the antecedents and the family background of the accused, the trial court took a lenient view and sentenced Jai Prakash to undergo rigorous imprisonment for five years under Section 363 of the IPC and to pay a fine of

Rs.250/- and in default of payment of fine, to undergo further rigorous imprisonment for four months. The Court also convicted him under Section 376 (2)(g) IPC with a sentence of rigorous imprisonment for ten years and fine of Rs.500/- and in default of payment of fine to undergo further rigorous 4 imprisonment for six months. However, the Court awarded sentence of five years rigorous imprisonment to appellant under Section 368 IPC and a fine of Rs.250/- and in default of payment of fine to further undergo rigorous imprisonment for four months and/or for the offence under Section 376(2)(g) of the IPC awarded him R.I. for seven years and fine of Rs.500/-

Complainant Ram Pal (PW-6) is a resident of House No. 115 in Vijay Colony and is a labourer in paper mill, Yamunanagar. He has five daughters and one son aged about three years. On the evening of 2nd January, 1994, one of his daughters the prosecutrix, aged about 14 years, went out of the house to throw rubbish but she did not return. The complainant searched for her but she could not be traced. On 7 3rd January, 1994, his son-in-law - Bali Ram (PW-7) came from Village Topra and told him that Jai Prakash had taken the prosecutrix on his cycle the previous night and then dropped her to Bali Ram's House that morning. After receiving this information he brought his daughter from the village Topra; she did not tell anything to the complainant at that time but after 2-3 days, she narrated the entire incident. She informed that she had been taken away by Jai Prakash-

accused at knife point and he raped her in the house of the appellant in his presence. Ram Pal (PW6), father of the prosecutrix lodged the report with the police on 6th January, 1994. Thereafter, as already noticed, Jai Prakash and the 8 appellant were tried by the court of competent jurisdiction and convicted. In terms of the statement of the prosecutrix, Jai Prakash, accused threatened to kill her if she did not accompany him. She was taken on his cycle to Gulab Nagar after crossing the railway line. He took her to the house of the appellant and talked secretly with him to arrange space and a cot. Both the accused slept in the same room in which she was raped. It has also come in evidence that Jai Prakash had intercourse with her twice after threatening her with a knife and the appellant did not come to her rescue despite her cries for help. The appellant slept in that very room near the door to guard against entry of any other person as well as to 9 prevent her from going out. Jai Prakash threatened to kill the prosecutrix with his knife if she raised alarm and at about 3-4 A.M., Jai Prakash-accused took her away to village Topra on cycle and left her at the house of her brother in law namely Bali Ram.

(g) commits gang rape, 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:

rape by each and every accused forming group.

For the reasons afore-recorded, we partially accept the present appeal. The judgment of the trial court convicting the accused under Section 376(2)(g) of the IPC is set aside and he is acquitted of the said charge. However, his conviction under Section 368 of the IPC and the sentence awarded by the High Court is maintained. Therefore, the accused shall undergo rigorous imprisonment for five years with fine of ` 37 5000/-, in default of payment of fine to undergo rigorous imprisonment for four months.

The appeal is accordingly disposed of.

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