Crl. Appeal No. 452-DB of 2001 [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No. 452-DB of 2001
Date of Decision: Oct. 28,2009
Ram Phal and another ........................................................ Appellants
Versus
State of Haryana ................................................................ Respondent
Coram: Hon'ble Mr.Justice Ashutosh Mohunta
Hon'ble Mr. Justice Jitendra Chauhan
Present: Mr. H.S.Gill, Sr. Advocate with
Mr. Vivek Goyal, Advocate
for the appellants.
Mr. S.S.Goripuria, DAG, Haryana.
...
ASHUTOSH MOHUNTA, J.
The appellants-Ram Phal and Sanjay are aggrieved by the
judgment dated 16.7.2001 and the order of sentence dated 18.7.2001 vide
which they have been convicted under Section 376 (2)(g) IPC and have
been sentenced to undergo rigorous imprisonment for 12 years and also to
pay a fine of Rs.25,000/- each and in default of payment of fine, to further
undergo rigorous imprisonment for two years.
Briefly the case of the prosecution is that the prosecutrix Smt.
Santosh, wife of Dharambir, resident of village Dattaur, filed a complaint to
the police that on 30.3.1998 at about 12:00 noon, she along with her Jethani
(sister-in-law) Smt. Manto had gone to cut grass from the fields of Chand
Ram resident of village Ismaila, whose fields are situated adjacent to the
Crl. Appeal No. 452-DB of 2001 [ 2 ]
boundary line of village Dattaur. It was stated by her that in the fields, son
of Chand Ram, who was accompanied by another boy, asked them to give
their “Palli” (a piece of cloth type which was twisted and turned into a type
of rope was used for starting tractor) for starting their tractor. Both the
ladies went there and handed over the ‘Palli” to them and they got their
tractor started. In the meantime, the unknown boy caught the complainant
Santosh by her hand and took her forcibly near a dry water-course while the
son of Chand Ram caught hold of Smt. Manto and took her on the other side
of the tractor. Both the ladies were threatened that they would be killed if
they raised any hue and cry. The unnamed boy who had taken away the
prosecutrix Smt. Santosh broke open the string of her Salwar and committed
rape upon her against her wishes. Thereafter, the unnamed boy caught hold
of Manto and the son of Chand Ram also committed rape upon Smt.
Santosh against her wishes. The prosecutrix tried to save herself but was
unable to wriggle out of the clutches of both the men. She also gave a bite
on the hand of son of Chand Ram, but in vain. Thereafter both the accused
ran away on their tractor. Both the women raised hue and cry in the fields
but no body was attracted as there was no one else nearby. On returning
home, the prosecutrix narrated the entire incident to her mother-in-law Smt.
Murti Devi. Her husband, who was working in a factory, was also informed.
After he reached home, the prosecutrix along with other co-villagers came
to the police station to report the incident. The complainant also stated that
both the accused persons were young and their bodies were strongly built
and that she could identify them if they were produced before her. On the
basis of the statement of the prosecutrix (Ex.PA), formal FIR (Ex. PA/1)
was registered under Sections 376/506/34 IPC against the accused.
Crl. Appeal No. 452-DB of 2001 [ 3 ]
The Investigating Officer took Santosh to Civil Hospital,
Sampla, for her medical examination from where she was referred to Civil
Hospital, Rohtak, where she was medicolegally examined by Dr. Pushpa
Bishnoi. A packet containing Salwar, Kamiz and swabs containing vial was
also handed over by the Doctor to the Investigating Officer which was sent
to Forensic Science Laboratory Haryana, Madhuban. He also recorded the
statement of Smt. Manto and Smt. Murti Devi and inspected the spot and on
demarcation by Sanjay and Ram Phal a site plan (Ex.PJ) was prepared. The
Investigating Officer produced both the accused before the Illaqa Magistrate
and filed an application (Ex.PN) for conducting the Test Identification
Parade. The learned Magistrate recorded the statement of the accused
persons who refused to participate in the Test Identification Parade.
The case was investigated by ASI Nathu Ram (PW11). He tried
to search the accused in the village, but in vain. On 1.4.1998, about 4-5
persons along with the accused approached Krishan Kaushik, Sarpanch of
village Dattaur, and requested him to effect a compromise between the
accused and the complainant side. The Sarpanch took the accused to the
police station on 1.4.1998 where ASI Nathu Ram recorded the statement of
Krishan Kaushik and arrested the accused persons. The accused were taken
to the Civil Hospital, Sampla, where they were got medicolegally examined
vide application (Ex.PK). The Investigating Officer interrogated the accused
Sanjay and Ram Phal. The accused Sanjay made a disclosure statement
(Ex.PL) and Ram Phal also made a disclosure statement (Ex.PM) wherein
they admitted that they had committed rape upon Smt. Santosh and also
disclosed that they could point out the place where the rape was committed.
After completing the investigation, the case was committed to
Crl. Appeal No. 452-DB of 2001 [ 4 ]
the Court of Sessions by the Judicial Magistrate Ist Class, Rohtak, vide
order dated 13.6.1998.
After perusal of the record, the accused persons were charged
under Sections 376 (2)(g), 506, 34 IPC to which they pleaded not guilty and
claimed trial.
In order to prove its case, the prosecution relied on the
testimony of the prosecutrix Smt. Santosh as PW1, Dr. Puran Singh
Gautam, Sr. Medical Officer, Community Health Centre, Sampla, as PW2,
Dr. Pushpa Bishnoi, Medical Officer, CHC, Jhajjar, as PW5, Smt. Murti
Devi as PW7, Smt. Manto, who was an eye-witness, as PW10, ASI Nathu
Ram as PW11 and Krishan Kaushik, Sarpanch of village Dattaur, as PW13.
Apart from the above, several other formal witnesses were also examined.
The Prosecutrix Smt. Santosh appeared as PW1 and deposed
that on 30.3.1998 at about 12:00 noon when she had gone with her Jethani
Smt. Manto for cutting grass in the fields of Chand Ram, Ram Phal, son of
Chand Ram, along with Sanjay asked for “Palli” from Manto. They told
them that they are unable to start their tractor and that the “Palli” would help
in doing so. Manto gave them the “Palli”. Thereafter, both the accused also
asked the prosecutrix to give “Palli” to which she initially refused but
ultimately gave it to the accused. “Palli” is used for tying grass and the same
can also be coiled and turned into a kind of rope for starting the tractor also.
Thereafter, the accused Sanjay caught hold of the hand of the prosecutrix
and put her in a dry water-course (Nala) and forcibly opened the string of
her Salwar and committed rape upon her against her wishes. The prosecutrix
also stated that she caused resistance and also shouted, but there was no one
around to help her. Smt. Manto had been caught by the other accused Ram
Crl. Appeal No. 452-DB of 2001 [ 5 ]
Phal and she had also been threatened with dire consequences in case she
shouted. Sanjay, after raping the prosecutrix, went and held Smt. Manto.
Thereafter, the other accused Ram Phal also committed rape upon the
prosecutrix. The entire incident was witnessed by Smt. Manto also. The
matter was reported by the prosecutrix and Smt. Manto to Murti Devi (their
mother-in-law) on reaching home and after the husband of Smt. Santosh
returned home from work, the matter was reported to the police on the day
of occurrence itself.
Smt. Manto, who appeared as PW10, has also given a detailed
account of the manner in which rape was committed upon the prosecutrix by
both the accused Sanjay and Ram Phal. She stated that the accused asked
Smt. Santosh to give “Palli” which could be made into a rope for starting
the tractor and thereafter Sanjay caught hold of the prosecutrix, put her in a
dry drain and committed rape upon her. Later on, Ram Phal also committed
rape upon the prosecutrix Smt. Santosh. She also stated that both the
accused had caught hold of her and threatened to kill her in case she shouted
or raised any hue and cry. This witness identified both the accused in Court.
Smt. Murti Devi (mother-in-law of the prosecutrix) appeared
as PW7 and had deposed that on 30.3.1998 at about 1:00 P.M. the
prosecutrix while weeping, narrated the entire incident and the manner in
which the accused had committed rape upon her. The prosecutrix also stated
that she would die.
Dr. Pushpa Bishnoi appeared as PW5 and stated that on
31.3.1998 at about 1:15 A.M. she examined Smt. Santosh, wife of
Dharambir, who was brought before her by the police and found that there
was an abrasion on the nose of the prosecutrix measuring .5cm, 1 cm away
Crl. Appeal No. 452-DB of 2001 [ 6 ]
from midline at the level of right eye. She took two vaginal swabs and
handed them over to the police for FSL examination. She also opined that
the possibility of intercourse with the prosecutrix cannot be ruled out.
As per the FSL report (Ex.PE) human semen was detected on
the Salwar. Dr. Pushpa Bishnoi (PW2) who had medicolegally examined
the accused Sanjay and Ram Phal and opined that both were capable of
doing intercourse. Mrs. Shalini Nagpal, JMIC Rohtak, appeared as PW12
and stated that on 2.4.1998, ASI Nathu Ram produced the accused Ram
Phal and Sanjay before her and filed an application (Ex.PW) for getting the
Test Identification Parade of the accused conducted. Accordingly, she
recorded the statement of both the accused by which they refused to join the
Test Identification Parade. The statement (Ex.PO) was duly signed by both
the accused persons and thereafter an order (Ex.PO/1), vide which the
application was disposed of, was passed. She has also categorically stated
that both the accused were produced before her in muffled faces.
The prosecution examined Krishan Kaushik, Sarpanch of
village Dattaur, Distt. Rohtak, as PW13 who stated that on 1.4.1998, 4-5
persons belonging to village Ismaila had brought both the accused before
him and all the persons had asked him to get a compromise effected
between the accused and the complainant side as he was the Sarpanch. The
Sarpanch produced the accused before the police on 1.4.1998.
After examining other formal witnesses, the evidence on behalf
of the prosecution was closed.
The accused in their statements under Section 313 Cr. P.C.
stated that they are innocent and they have been falsely implicated in the
present case due to party fraction. They further stated that they were kept
Crl. Appeal No. 452-DB of 2001 [ 7 ]
in police station and were shown to the witnesses in the lock-up of the
police station and were subsequently asked by the police to refuse the Test
Identification Parade as and when produced.
The trial Court by placing reliance on the testimony of the
prosecutrix and the statement of PW10 Smt. Manto, who was an eye-
witness, and other evidence led by the prosecution, convicted both the
accused under Section 376 (2)(g) IPC and sentenced them to undergo RI for
12 years and to pay a fine of Rs.25,000/- each. In default of payment of fine,
to further undergo RI for two years. Both the accused were, however,
acquitted under Sections 506/34 IPC.
Mr. H.S.Gill, learned Senior counsel for the appellants, has
contended that both the accused refused to participate in the Test
Identification Parade as they had already been shown to the complainant in
the police station and, hence, to participate in the same would have been a
complete farce. This argument is without any merit. Smt. Shalini Nagpal,
JMIC, Rohtak, (PW12) has stated that the faces of both the accused were
muffled when they were brought before her. However, the accused refused
to join the Test Identification Parade. As per statement (Ex.PO) dated
2.4.1998 it was never alleged by the accused persons in their statements
before the Judicial Magistrate that they have been shown to the witnesses by
the police. Apart from the above, the Test Identification Parade was
immediately got conducted after the arrest of the accused persons on the
next day i.e. on 2.4.1998 and, hence, an adverse inference regarding the
non-joining of the accused can be taken against them. Apart from the above,
both the accused, namely Ram Phal and Sanjay, were identified in Court by
the prosecutrix Smt. Santosh as well as by Manto (PW10), who was an eye-
Crl. Appeal No. 452-DB of 2001 [ 8 ] witness.
Counsel for the appellants has further contended that the
accused were not named in the complaint (Ex.PA) by the prosecutrix and,
hence, the prosecution has not proved its case against the accused. This
argument also is without merit as the prosecutrix had specifically mentioned
in her complaint (Ex.PA) that one of the persons who committed rape upon
her was the son of Chand Ram and the person who committed rape upon her
could be identified if produced before her. The occurrence in the present
case had taken place on 30.3.1998 at 12:00 noon. The complainant had seen
the accused in broad day light and could easily identify them. Moreover, the
entire incident was also witnessed by Smt. Manto, Jethani of the
prosecutrix, and she had categorically named Ram Phal to be one of the
persons who had committed rape upon the prosecutrix and had also
identified the accused Sanjay. Krishan Kaushik (PW13), Sarpanch of village
Dattaur, has also deposed that 4-5 persons belonging to village Ismaila had
come to his house along with both the accused for effecting a compromise
with the complainant side. He is the person who had handed over the
accused to the police. It is, thus, amply clear that it was the accused persons
who had committed rape upon the prosecutrix.
Lastly, a perusal of the disclosure statements (Ex.PL and
Ex.PM) also shows that the accused had admitted before the witnesses that
they had committed rape upon the prosecutrix. In their disclosure
statements, they had also identified the place of occurrence. The statement
of the prosecutrix and the eye-witness Smt. Manto have been duly
corroborated by the medical evidence and the FSL report. The Doctor, who
medicolegally examined the prosecutrix, has categorically stated that the
Crl. Appeal No. 452-DB of 2001 [ 9 ]
possibility of sexual intercourse having been committed with the prosecutrix
cannot be ruled out. As per the FSL report (Ex.PE), human semen was
detected from the Salwar of the prosecutrix. Thus, the testimony of the
prosecutrix Smt. Santosh has been duly corroborated by the statement of
Smt. Manto (PW10), Smt. Murti Devi (PW7) and the medical evidence
tendered by Dr. Pushpa Bishnoi (PW5) as well as the FSL report (Ex.PE).
In view of the aforementioned facts, we are of the considered
opinion that it was the accused Ram Path and Sanjay who had committed
the offence of gang rape on the prosecutrix Smt. Santosh on 30.3.1998 and
they have committed the offence punishable under Section 376 (2)(g) IPC.
Resultantly, we find no merit in the appeal filed by the accused
and the same is dismissed and the judgment passed by the trial Court is
upheld.
In case the appellants are on bail, than their bail bonds are
cancelled and they be taken into custody forthwith to serve out the
remaining portion of their sentence.
( ASHUTOSH MOHUNTA )
JUDGE
28.10.2009 ( JITENDRA CHAUHAN )
Rupi JUDGE