Criminal Appeal No.785-SB of 2000.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Appeal No.785-SB of 2000.
Date of decision:31-1-2009.
Chander Bhan and another.
...Appellants.
Versus
The State of Haryana.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Dr.Surya Parkash Advocate for the appellants.
Mr. Ranbir Singh Arya, DAG Haryana.
...
K. C. Puri, J.
Judgment.
The appellants have filed the present appeal for
challenging the judgment and order dated 19.7.2000/21.7.2000
passed by Shri Harinder Singh Bhangoo, the then Additional
Sessions Judge, Kaithal whereby they were acquitted under Section
506 IPC but were convicted under Sections 452 and 376(2)(g) IPC
Criminal Appeal No.785-SB of 2000.
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and sentenced to undergo rigorous imprisonment for a period of
ten years and to pay a fine of Rs.2,000/- each under Section 376(2)
(g) IPC. In default of payment of fine, they were ordered to
undergo further rigorous imprisonment for one year. They were
also sentenced to undergo rigorous imprisonment for three years
and to pay a fine of Rs.5,000/- under Section 452 IPC and in
default of payment of fine, to undergo rigorous imprisonment for
three months. Both the sentences have been ordered to run
concurrently.
The prosecution version, as unfolded during trial, is as
follows:-
On 22.2.1998 at about 11.00 P.M, both the accused and
one other Constable, who was in uniform, at that time, reached the
house of PW Ram Bhagat and knocked at the door of the Haveli.
When PW Ram Bhagat opened the door, he was threatened by all
the three and was asked to sit outside the house. Thereafter,all the
three entered into the Haveli and then trespassed into the room
occupied by prosecutrix and her two children. Her children
started raising hue and cry on seeing three strangers in their room.
The third person, who was in uniform, took both the children to the
kitchen and asked them to sit there. Said third Constable remained
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with the children. Door of the room was then closed from inside by
the two accused and thereafter they committed rape on the
prosecutrix, turn by turn. When the accused and third Constable
left from house of the prosecutrix, then she narrated the
occurrence to her husband Ram Bhagat and they went to one Raja
Ram and narrated the entire occurrence to him.
On the next morning i.e. 23.2.1998, the prosecutrix and
her husband were proceeding to the Police Station to lodge a
report when on the way, they met Inspector Kiratpal Singh, SHO,
Police Station Sadar Kaithal. Inspector. The Inspector recorded the
statement of the prosecutrix and on the basis of same, formal FIR
was registered.
Investigation, in the case, was conducted and on the
completion of same, challan was presented against the accused in
the Court.
The accused were charge-sheeted accordingly to which
they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined
PW-1 Dr.Jasmer Singh, PW-2 Dr. Sunita Jain, PW-3 HC Balbir
Singh, PW-4 Constable Jai Bhagwan, PW-5 Raja Ram, PW-6 ASI
Jaimal Singh, PW-7 Constable Ajmer Singh, PW-8 prosecutrix,
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PW-9 Ram Bhagat, PW-10 Kiratpal Singh Inspector and PW-11
Ram Niwas, Draftsman.
Both the accused were examined under Section 313
Cr.P.C and all the incriminating material appearing in the
prosecution evidence was put to them. They denied prosecution
allegations and pleaded innocence.
In their defence, the accused examined DW-1 Hari
Singh, Deputy Superintendent of Police, DW-2 Suresh Chand,
DW-3 Sat Pal Sarpanch, DW-4 Pirthi, and DW-5 Kanshi Ram
Nain, Notary Public, District Courts, Kaithal.
After the trial, the accused were convicted and
sentenced as noticed earlier.
Feeling aggrieved, the accused have preferred the
instant appeal in this Court.
The learned counsel for the appellants has submitted
that the story of gang rape upon the prosecutrix is improbable.
According to the prosecution, the husband of the prosecutrix was
made to sit outside the house whereas two grown up children were
taken to the kitchen and were allured of Rs.5/- only for not raising
noise. The alleged place of of occurrence is in the Haveli and is
surrounded by other residential houses. According to the
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prosecution version, the husband of prosecutrix opened the main
gate of Haveli and thereafter the appellants accompanied him to the
house of prosecutrix which was at a considerable distance from the
gate of Haveli. The houses of other persons intervened. So, in these
circumstances, the story of gang rape by the appellants is merely a
pressure tactics upon the appellants. In fact, the prosecutrix and her
husband were indulging in the sale of liquor. The appellants have
told them not to indulge in those nefarious activities. The State of
Haryana was declared a dry State and sale of liquor was totally
banned at the time of alleged occurrence. The prosecutrix and her
husband in order to make a quick profit were indulging in the
smuggling of liquor. Since they were feeling that the appellants
were hindrances in their trade of liquor so they have been falsely
implicated on that count.
It has been further submitted by the counsel for the
appellants that Raja Ram, the alleged witness of the prosecution
has not supported the case of prosecution. So, there is no
independent corroboration to the case of the prosecution.
It is further submitted that prosecutrix had sworn an
affidavit to the effect that the appellants have been falsely
implicated but she dis-owned the affidavit in order to extract
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money from the appellants.
The learned counsel for the appellants has further
submitted that the medical evidence does not corroborate the
ocular evidence. There was no mark of external injury. Vaginal
hair were present but were not matted. The prosecutrix was
habitual to intercourse being a married woman. The sample of
swabs does not prove the factum of sexual intercourse. According
to the report of Chemical Examiner, semen was found on the
Petticot but the prosecution has failed to prove the fact that semen
was that of any of the appellants. DNA test would have revealed
the fact that semen was that of any of the appellants but no such
DNA test was got conducted. It is not possible that in case of gang
rape, no injury was received by the prosecutrix on her private parts
or on any part of her body.
It is further submitted that during the course of
investigation, the DSP declared the appellants as innocent.
It has been further submitted that DW-3 Sarpanch of the
village has supported the case of the accused regarding selling of
illicit liquor by the prosecutrix and her husband.
DW-4 Prithi residing in the same locality has also stated
that no occurrence has taken place.
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It is further submitted that both the material witnesses
PW-8 prosecutrix and PW-9 Ram Bhagat have made material
improvements. In the original version, it is mentioned that Ram
Bhagat remained present outside the house when the gang rape was
being committed, but, later on , after the occurrence, he informed
the matter to Raja Ram but that stand has been changed and Ram
Bhagat has stated that he went to inform Raja Ram regarding the
alleged rape when the rape was being committed. So, no reliance
on the testimony of those witnesses can be placed.
The learned counsel for the appellants has relied upon
the following authorities:-
1.Dinesh Versus State of Haryana, 2004(3) Cri.
C.C.383.
2.Gurpal Singh Versus The State of Punjab, 2004(4)
Cri. C. C.39.
3.Ram Nivas Versus State of Karnataka, 1994
Supreme Court Cases (Cri.) 503.
4.State of Rajasthan Versus Kishanlal, 2002(2)
R.C.R (Criminal) 852.
5.Sadashiv Ramrao Hadbe Versus State of
Maharashtra and another, (2006) 10 Supreme Court
Criminal Appeal No.785-SB of 2000.
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6.Piara Singh and others Versus State of Haryana,
1992(2) R.C.R (Criminal) 279.
7.Rajesh Kumar Versus State of Haryana, 2007(2)
R.C.R (Criminal) 689.
The State counsel has supported the impugned
judgment of the trial Court.
I have carefully considered the said submissions of both
sides and have gone through the record of the case.
Almost same points which had been raised above by the
counsel for the appellants have been argued before the trial Court.
The learned trial Court in its judgment has elaborately dealt with
these points and on re-appraisal of evidence, I do not find any fault
with the appreciation of evidence by the trial Court. The
prosecutrix and her husband are rustic villagers. According to the
prosecution, three persons came in the house of prosecutrix, out of
which one was in police uniform. Ram Bhagat was made to sit
outside the house whereas the children were taken in the kitchen.
The appellants committed gang rape upon the prosecutrix. General
public has a fear psycho of police and nobody dares to defy the
dictates of police official. The prosecutrix and her husband were
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cross-examined at length and they with-stood the test of lengthy
cross-examination. Normally, no person would level an allegation
of rape against others, more so when the accused is a police
official. In the conservative society like that of India, nobody
would put the honour of a lady at stake by levelling false
allegations unless there is a strong motive for the same. The
accused have taken a stand that they have been falsely implicated
on account of the fact that prosecutrix and her husband were
indulging in the trade of illicit liquor. Not even single instance of
smuggling against the prosecutrix and her husband has been
brought on the file. Even not an FIR or any other documentary
evidence has been brought on the file to show that the prosecutrix
and her husband were indulging in the trade of illicit liquor. So,
that stand has been taken just to save the skin of the accused.
So far as submission of learned counsel for the
appellants that the prosecution story is not probable as a husband
would not keep quiet and that grown up children would not be
allured by payment of Rs.5/- each is concerned, the same is
without any substance. Even today in the villages, the public at
large, is afraid of the police officials. So, it cannot be said that the
conduct of husband and children is unnatural. Similarly, the
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injuries on the person of prosecutrix could not be there as she also
might be afraid of putting resistance to the police official. This
aspect has been discussed by the trial Court also. According to the
prosecution witnesses, Haveli has no other resident. DW-4 Prithi,
has only come forward just to help the accused. According to the
prosecution witnesses, no one was residing in the houses
intervening between the main gate of the Haveli and the house of
prosecutrix. So, no person could be attracted, in those
circumstances.
Mere fact that Raja Ram has not supported the case of
the prosecution, does not create any dent in the prosecution
version. No stranger would come forward to depose against the
accused as it may create enmity between them. In the present case,
one of the accused was a police official. So, in these
circumstances, there was positive reason for Raja Ram for not
supporting the case of prosecution. No doubt, the prosecutrix was a
married woman and habitual to intercourse but it does not mean
that the accused have a license to sexually assault the prosecutrix
against her consent. Even, according to the report of Chemical
Examiner, semen was found on the Petticot. So, that fact further
lends support to the prosecution version. Mere fact that semen was
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not found on the swabs does not dis-prove the case of the
prosecution. The testimony of prosecutrix is not that of an
accomplice but is that of an injured witness. Mere fact that DNA
test in respect of semen of the accused and the semen found on the
Petticot of the prosecutrix was not conducted, does not create any
doubt in the prosecution version. The investigation in India is not
fully scientific. There are reasons for the same. There are very few
Laboratories where DNA test is conducted and the Court can take
judicial notice of that fact. The investigation declaring accused
innocent by the DSP is meaningless in the presence of ocular
evidence and medical evidence. The accused cannot rely upon the
alleged affidavit of the prosecutrix as the same was not put to her
in her cross-examination. DW Sarpanch seems to be under the
influence of police. Generally an office bearer does not defy the
dictates of police officials. So, the testimony of DW-3 Sat Pal has
been rightly discarded by he learned trial Court. No glaring fact
has been brought on the file which creates a doubt in the
prosecution version. Minor discrepancies are bound to occur due to
passage of time. So, those discrepancies have to be ignored.
Authority in case Dinesh (supra) is distinguishable as in
that case, it was found that it was a case of consent. In this ruling,
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it has also been held that ordinarily a woman would not put her
chastity at stake by making a false allegation of rape. However, it
has been further held that exceptions may be there. The appellants
have failed to make out that the present case falls within the
exception of the above said relevant rule.
In authority in case Gurpal Singh (supra), it has been
held that false allegation of rape can destroy the name and
reputation of an accused lowering him in the eyes of his family and
the public. However,in that ruling also, it has been held that rape is
a heinous offence and has the effect of destroying a woman not
only physically but mentally as well. There is nothing on the file
that the allegations levelled by the prosecutrix are false.
Authority in Ram Nivas’s case (supra) is
distinguishable as in that case, the evidence of the prosecutrix was
found to be highly untrustworthy.
Authority in Kishanlal’s case (supra), is distinguishable
to the facts of the present case. In that case, the prosecutrix was
offered Rs.20/- for having sexual intercourse and it was also
proved that another person will also pay Rs.20/- for the same
favour.
Authority in case Sadashiv Ramrao Hadbe (supra) is
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also distinguishable as in that case, it was alleged that the doctor
committed rape in the clinic where there were number of persons
present. In the present case, there is nothing on the file that other
persons were present in the locality near the place of occurrence.
Authority in case Piara Singh and others (supra), is
distinguishable as in that case, prosecutrix went on foot through
thickly populated business places like bazaars and thereafter rape
was alleged to have been committed. There is no such fact in the
present case.
Authority in case Rajesh Kumar (supra), is
distinguishable as in that case, the prosecutrix was only 15 years
old and according to the prosecution, four persons raped her. There
was no injury on the person of the prosecutrix. In the present case,
the prosecutrix was a married woman. One of the accused was a
police official. So, in these circumstances, even if there was no
injury on the person of prosecutrix, it does not dis-prove the case
of the prosecution.
In the last, the counsel for the appellants has submitted
that the prosecutrix is a married woman and fully settled in her life.
It is submitted that the Punjab and Haryana High Court and the
Hon’ble Apex Court in various authorities have reduced the
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sentence where the prosecutrix was married. He has further
contended that the occurrence relates to the year 1998 and the
appellants are undergoing the agony of trial since then. As such, a
prayer has been made for reduction of sentence.
In support of his submissions, the learned counsel for
the appellants has relied upon authorities in cases Sandip Kumar
Versus State of Punjab, 2007(2) RCR (Criminal) 758, Ram
Kumar Versus State of Haryana, 2007(2) RCR (Criminal) 305
and Raghuvir Desai Versus State, 2007(2) RCR (Criminal) 319.
I have carefully considered the said submission and
have gone through the record of the case.
In Sandip Kumar’s case (supra), the accused was
sentenced under Section 376 IPC and not under Section 376(2)(g).
The Parliament in its wisdom has given enhanced punishment
under Section 376(2)(g).
In Ram Kumar’s case (supra) also, the accused was
convicted and sentenced under Section 376 IPC. However, keeping
in view the fact that the prosecutrix got married and was living
with her husband, his sentence was reduced.
So far as authority in case Raghuvir Desai (supra), is
concerned,it seems that the said authority has been cited in respect
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of DNA test. However, as discussed above, non-conducting of
DNA test, it not fatal to the prosecution.
The occurrence relates to the year 1998. Keeping in
view the submissions made by the learned counsel for the
appellants to the effect that the prosecutrix is a married woman and
also the above mentioned authorities, the sentence of the appellants
under Section 376(2)(g) stands reduced to rigorous imprisonment
for seven years. The sentence of fine under Section 376(2)(g) IPC
and the other sentence awarded by the trial Court under Section
452 IPC stands confirmed. However, all the substantive sentences
shall run concurrently.
This appeal stands disposed of in the above terms.
A copy of this judgment be sent to the trial Court for
strict compliance.
January 31st,2009. ` ( K. C. Puri ) Jaggi Judge