{"id":149798,"date":"2009-01-31T00:00:00","date_gmt":"2009-01-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chander-bhan-and-another-vs-the-state-of-haryana-on-31-january-2009-2"},"modified":"2016-04-03T23:56:07","modified_gmt":"2016-04-03T18:26:07","slug":"chander-bhan-and-another-vs-the-state-of-haryana-on-31-january-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chander-bhan-and-another-vs-the-state-of-haryana-on-31-january-2009-2","title":{"rendered":"Chander Bhan And Another vs The State Of Haryana on 31 January, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Chander Bhan And Another vs The State Of Haryana on 31 January, 2009<\/div>\n
                   Criminal Appeal No.785-SB of 2000.\n                            -1-\n\nIn   the High Court of Punjab and Haryana at Chandigarh.\n\n                           Criminal Appeal No.785-SB of 2000.\n\n                           Date of decision:31-1-2009.\n\nChander Bhan and another.\n\n                                                        ...Appellants.\n\n             Versus\n\nThe State of Haryana.\n\n                                                        ...Respondent.\n\n             ...\n\nCoram:       Hon'ble Mr. Justice K. C. Puri.\n\n             ...\n\nPresent:     Dr.Surya Parkash Advocate for the appellants.\n\n             Mr. Ranbir Singh Arya, DAG Haryana.\n\n             ...\n\nK. C. Puri, J.\n<\/pre>\n
Judgment.\n<\/p>\n
             The appellants have filed the present appeal for<\/p>\n
challenging the judgment and order dated 19.7.2000\/21.7.2000<\/p>\n
passed by Shri Harinder Singh Bhangoo, the then Additional<\/p>\n
Sessions Judge, Kaithal whereby they were acquitted under Section<\/p>\n
506 IPC but were convicted under Sections 452 and 376(2)(g) IPC
\n                 Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                         -2-<\/span><\/p>\n
and sentenced to undergo rigorous imprisonment for a period of<\/p>\n
ten years and to pay a fine of Rs.2,000\/- each under Section 376(2)<\/p>\n
(g) IPC. In default of payment of fine, they were ordered to<\/p>\n
undergo further rigorous imprisonment for one year. They were<\/p>\n
also sentenced to undergo rigorous imprisonment for three years<\/p>\n
and to pay a fine of Rs.5,000\/- under Section 452 IPC and in<\/p>\n
default of payment of fine, to undergo rigorous imprisonment for<\/p>\n
three months. Both the sentences have been ordered to run<\/p>\n
concurrently.\n<\/p>\n
            The prosecution version, as unfolded during trial, is as<\/p>\n
follows:-\n<\/p>\n
            On 22.2.1998 at about 11.00 P.M, both the accused and<\/p>\n
one other Constable, who was in uniform, at that time, reached the<\/p>\n
house of PW Ram Bhagat and knocked at the door of the Haveli.<\/p>\n
When PW Ram Bhagat opened the door, he was threatened by all<\/p>\n
the three and was asked to sit outside the house. Thereafter,all the<\/p>\n
three entered into the Haveli and then trespassed into the room<\/p>\n
occupied by prosecutrix        and her two children.   Her children<\/p>\n
started raising hue and cry on seeing three strangers in their room.<\/p>\n
The third person, who was in uniform, took both the children to the<\/p>\n
kitchen and asked them to sit there. Said third Constable remained
\n                   Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                           -3-<\/span><\/p>\n
with the children. Door of the room was then closed from inside by<\/p>\n
the two accused and thereafter they committed rape on the<\/p>\n
prosecutrix, turn by turn. When the accused and third Constable<\/p>\n
left from house of the prosecutrix, then she           narrated the<\/p>\n
occurrence to her husband Ram Bhagat and they went to one Raja<\/p>\n
Ram and narrated the entire occurrence to him.<\/p>\n
             On the next morning i.e. 23.2.1998, the prosecutrix and<\/p>\n
her husband were proceeding to the Police Station to lodge a<\/p>\n
report when on the way, they met Inspector Kiratpal Singh, SHO,<\/p>\n
Police Station Sadar Kaithal. Inspector. The Inspector recorded the<\/p>\n
statement of the prosecutrix and on the basis of same, formal FIR<\/p>\n
was registered.\n<\/p>\n
             Investigation, in the case, was conducted and on the<\/p>\n
completion of same, challan was presented against the accused in<\/p>\n
the Court.\n<\/p>\n
             The accused were charge-sheeted accordingly to which<\/p>\n
they pleaded not guilty and claimed trial.\n<\/p>\n
             In order to prove its case, the prosecution examined<\/p>\n
PW-1 Dr.Jasmer Singh, PW-2 Dr. Sunita Jain, PW-3 HC Balbir<\/p>\n
Singh, PW-4 Constable Jai Bhagwan, PW-5 Raja Ram, PW-6 ASI<\/p>\n
Jaimal Singh, PW-7 Constable Ajmer Singh, PW-8 prosecutrix,
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -4-<\/span><\/p>\n
PW-9 Ram Bhagat, PW-10 Kiratpal Singh Inspector and PW-11<\/p>\n
Ram Niwas, Draftsman.\n<\/p>\n
           Both the accused were examined under Section 313<\/p>\n
Cr.P.C and all the incriminating material appearing in the<\/p>\n
prosecution evidence was put to them. They denied prosecution<\/p>\n
allegations and pleaded innocence.\n<\/p>\n
           In their defence, the accused examined DW-1 Hari<\/p>\n
Singh, Deputy Superintendent of Police, DW-2 Suresh Chand,<\/p>\n
DW-3 Sat Pal Sarpanch, DW-4 Pirthi, and DW-5 Kanshi Ram<\/p>\n
Nain, Notary Public, District Courts, Kaithal.<\/p>\n
           After the trial, the accused were convicted and<\/p>\n
sentenced as noticed earlier.\n<\/p>\n
           Feeling aggrieved, the accused have preferred the<\/p>\n
instant appeal in this Court.\n<\/p>\n
           The learned counsel for the appellants has submitted<\/p>\n
that the story of gang rape upon the prosecutrix is improbable.<\/p>\n
According to the prosecution, the husband of the prosecutrix was<\/p>\n
made to sit outside the house whereas two grown up children were<\/p>\n
taken to the kitchen and were allured of Rs.5\/- only for not raising<\/p>\n
noise. The alleged place of of occurrence is in the Haveli and is<\/p>\n
surrounded by other residential houses. According to the
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -5-<\/span><\/p>\n
prosecution version, the husband of prosecutrix opened the main<\/p>\n
gate of Haveli and thereafter the appellants accompanied him to the<\/p>\n
house of prosecutrix which was at a considerable distance from the<\/p>\n
gate of Haveli. The houses of other persons intervened. So, in these<\/p>\n
circumstances, the story of gang rape by the appellants is merely a<\/p>\n
pressure tactics upon the appellants. In fact, the prosecutrix and her<\/p>\n
husband were indulging in the sale of liquor. The appellants have<\/p>\n
told them not to indulge in those nefarious activities. The State of<\/p>\n
Haryana was declared a dry State and sale of liquor was totally<\/p>\n
banned at the time of alleged occurrence. The prosecutrix and her<\/p>\n
husband in order to make a quick profit were indulging in the<\/p>\n
smuggling of liquor. Since they were feeling that the appellants<\/p>\n
were hindrances in their trade of liquor so they have been falsely<\/p>\n
implicated on that count.\n<\/p>\n
           It has been further submitted by the counsel for the<\/p>\n
appellants that Raja Ram, the alleged witness of the prosecution<\/p>\n
has not supported the case of prosecution. So, there is no<\/p>\n
independent corroboration to the case of the prosecution.<\/p>\n
           It is further submitted that prosecutrix had sworn an<\/p>\n
affidavit to the effect that the appellants have been falsely<\/p>\n
implicated but she dis-owned the affidavit in order to extract
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -6-<\/span><\/p>\n
money from the appellants.\n<\/p>\n
           The learned counsel for the appellants has further<\/p>\n
submitted that the medical evidence does not corroborate the<\/p>\n
ocular evidence. There was no mark of external injury. Vaginal<\/p>\n
hair were present but were not matted. The prosecutrix was<\/p>\n
habitual to intercourse being a married woman. The sample of<\/p>\n
swabs does not prove the factum of sexual intercourse. According<\/p>\n
to the report of Chemical Examiner, semen was found on the<\/p>\n
Petticot but the prosecution has failed to prove the fact that semen<\/p>\n
was that of any of the appellants. DNA test would have revealed<\/p>\n
the fact that semen was that of any of the appellants but no such<\/p>\n
DNA test was got conducted. It is not possible that in case of gang<\/p>\n
rape, no injury was received by the prosecutrix on her private parts<\/p>\n
or on any part of her body.\n<\/p>\n
           It is further submitted that during the course of<\/p>\n
investigation, the DSP declared the appellants as innocent.<\/p>\n
           It has been further submitted that DW-3 Sarpanch of the<\/p>\n
village has supported the case of the accused regarding selling of<\/p>\n
illicit liquor by the prosecutrix and her husband.<\/p>\n
           DW-4 Prithi residing in the same locality has also stated<\/p>\n
that no occurrence has taken place.\n<\/p>\n
                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -7-<\/span><\/p>\n
           It is further submitted that both the material witnesses<\/p>\n
PW-8 prosecutrix and PW-9 Ram Bhagat have made material<\/p>\n
improvements. In the original version, it is mentioned that Ram<\/p>\n
Bhagat remained present outside the house when the gang rape was<\/p>\n
being committed, but, later on , after the occurrence, he informed<\/p>\n
the matter to Raja Ram but that stand has been changed and Ram<\/p>\n
Bhagat has stated that he went to inform Raja Ram regarding the<\/p>\n
alleged rape when the rape was being committed. So, no reliance<\/p>\n
on the testimony of those witnesses can be placed.<\/p>\n
           The learned counsel for the appellants has relied upon<\/p>\n
the following authorities:-\n<\/p>\n
           1.Dinesh Versus State of Haryana, 2004(3) Cri.<\/p>\n
           C.C.383.\n<\/p><\/blockquote>\n
           2.Gurpal Singh Versus The State of Punjab, 2004(4)<\/p>\n
           Cri. C. C.39.\n<\/p><\/blockquote>\n
           3.Ram Nivas Versus State of Karnataka, 1994<\/p>\n
           Supreme Court Cases (Cri.) 503.<\/p>\n<\/blockquote>\n
           4.State of Rajasthan Versus Kishanlal, 2002(2)<\/p>\n
           R.C.R (Criminal) 852.\n<\/p><\/blockquote>\n
           5.Sadashiv      Ramrao        Hadbe      Versus   State   of<\/p>\n
           Maharashtra and another, (2006) 10 Supreme Court
\n                Criminal Appeal No.785-SB of 2000.
\n                        -8-<\/span><\/p>\n
           Cases 92.\n<\/p><\/blockquote>\n
           6.Piara Singh and others Versus State of Haryana,<\/p>\n
           1992(2) R.C.R (Criminal) 279.<\/p>\n<\/blockquote>\n
           7.Rajesh Kumar Versus State of Haryana, 2007(2)<\/p>\n
           R.C.R (Criminal) 689.<\/p><\/blockquote>\n
           The State counsel has supported the impugned<\/p>\n
judgment of the trial Court.\n<\/p>\n
           I have carefully considered the said submissions of both<\/p>\n
sides and have gone through the record of the case.<\/p>\n
           Almost same points which had been raised above by the<\/p>\n
counsel for the appellants have been argued before the trial Court.<\/p>\n
The learned trial Court in its judgment has elaborately dealt with<\/p>\n
these points and on re-appraisal of evidence, I do not find any fault<\/p>\n
with the appreciation of evidence by the trial Court. The<\/p>\n
prosecutrix and her husband are rustic villagers. According to the<\/p>\n
prosecution, three persons came in the house of prosecutrix, out of<\/p>\n
which one was in police uniform. Ram Bhagat was made to sit<\/p>\n
outside the house whereas the children were taken in the kitchen.<\/p>\n
The appellants committed gang rape upon the prosecutrix. General<\/p>\n
public has a fear psycho of police and nobody dares to defy the<\/p>\n
dictates of police official. The prosecutrix and her husband were
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -9-<\/span><\/p>\n
cross-examined at length and they with-stood the test of lengthy<\/p>\n
cross-examination. Normally, no person would level an allegation<\/p>\n
of rape against others, more so when the accused is a police<\/p>\n
official. In the conservative society like that of India, nobody<\/p>\n
would put the honour of a lady at stake by levelling false<\/p>\n
allegations unless there is a strong motive for the same. The<\/p>\n
accused have taken a stand that they have been falsely implicated<\/p>\n
on account of the fact that prosecutrix and her husband were<\/p>\n
indulging in the trade of illicit liquor. Not even single instance of<\/p>\n
smuggling against the prosecutrix and her husband has been<\/p>\n
brought on the file. Even not an FIR or any other documentary<\/p>\n
evidence has been brought on the file to show that the prosecutrix<\/p>\n
and her husband were indulging in the trade of illicit liquor. So,<\/p>\n
that stand has been taken just to save the skin of the accused.<\/p>\n
           So far as       submission of learned counsel for the<\/p>\n
appellants that the prosecution story is not probable as a husband<\/p>\n
would not keep quiet and that grown up children would not be<\/p>\n
allured by payment of Rs.5\/- each is concerned, the same is<\/p>\n
without any substance. Even today in the villages, the public at<\/p>\n
large, is afraid of the police officials. So, it cannot be said that the<\/p>\n
conduct of husband and children is unnatural. Similarly, the
\n                  Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                          -10-<\/span><\/p>\n
injuries on the person of prosecutrix could not be there as she also<\/p>\n
might be afraid of putting resistance to the police official. This<\/p>\n
aspect has been discussed by the trial Court also. According to the<\/p>\n
prosecution witnesses, Haveli has no other resident. DW-4 Prithi,<\/p>\n
has only come forward just to help the accused. According to the<\/p>\n
prosecution witnesses, no one was residing in the houses<\/p>\n
intervening between the main gate of the Haveli and the house of<\/p>\n
prosecutrix. So, no person could be attracted, in those<\/p>\n
circumstances.\n<\/p>\n
           Mere fact that Raja Ram has not supported the case of<\/p>\n
the prosecution, does not create any dent in the prosecution<\/p>\n
version. No stranger would come forward to depose against the<\/p>\n
accused as it may create enmity between them. In the present case,<\/p>\n
one of the accused was a police official. So, in these<\/p>\n
circumstances, there was positive reason for Raja Ram for not<\/p>\n
supporting the case of prosecution. No doubt, the prosecutrix was a<\/p>\n
married woman and habitual to intercourse but it does not mean<\/p>\n
that the accused have a license to sexually assault the prosecutrix<\/p>\n
against her consent. Even, according to the report of Chemical<\/p>\n
Examiner, semen was found on the Petticot. So, that fact further<\/p>\n
lends support to the prosecution version. Mere fact that semen was
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -11-<\/span><\/p>\n
not found on the swabs does not dis-prove the case of the<\/p>\n
prosecution. The testimony of prosecutrix is not that of an<\/p>\n
accomplice but is that of an injured witness. Mere fact that DNA<\/p>\n
test in respect of semen of the accused and the semen found on the<\/p>\n
Petticot of the prosecutrix was not conducted, does not create any<\/p>\n
doubt in the prosecution version. The investigation in India is not<\/p>\n
fully scientific. There are reasons for the same. There are very few<\/p>\n
Laboratories where DNA test is conducted and the Court can take<\/p>\n
judicial notice of that fact. The investigation declaring accused<\/p>\n
innocent by the DSP is meaningless in the presence of ocular<\/p>\n
evidence and medical evidence. The accused cannot rely upon the<\/p>\n
alleged affidavit of the prosecutrix as the same was not put to her<\/p>\n
in her cross-examination. DW Sarpanch seems to be under the<\/p>\n
influence of police. Generally an office bearer does not defy the<\/p>\n
dictates of police officials. So, the testimony of DW-3 Sat Pal has<\/p>\n
been rightly discarded by he learned trial Court. No glaring fact<\/p>\n
has been brought on the file which creates a doubt in the<\/p>\n
prosecution version. Minor discrepancies are bound to occur due to<\/p>\n
passage of time. So, those discrepancies have to be ignored.<\/p>\n
           Authority in case Dinesh (supra) is distinguishable as in<\/p>\n
that case, it was found that it was a case of consent. In this ruling,
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -12-<\/span><\/p>\n
it has also been held that ordinarily a woman would not put her<\/p>\n
chastity at stake by making a false allegation of rape. However, it<\/p>\n
has been further held that exceptions may be there. The appellants<\/p>\n
have failed to make out that the present case falls within the<\/p>\n
exception of the above said relevant rule.\n<\/p>\n
            In authority in case Gurpal Singh (supra), it has been<\/p>\n
held that    false allegation of rape can destroy the name and<\/p>\n
reputation of an accused lowering him in the eyes of his family and<\/p>\n
the public. However,in that ruling also, it has been held that rape is<\/p>\n
a heinous offence and has the effect of destroying a woman not<\/p>\n
only physically but mentally as well. There is nothing on the file<\/p>\n
that the allegations levelled by the prosecutrix are false.<\/p>\n
            Authority    in    Ram       Nivas’s    case   (supra)   is<\/p>\n
distinguishable as in that case, the evidence of the prosecutrix was<\/p>\n
found to be highly untrustworthy.\n<\/p>\n
            Authority in Kishanlal’s case (supra), is distinguishable<\/p>\n
to the facts of the present case. In that case, the prosecutrix was<\/p>\n
offered Rs.20\/- for having sexual intercourse and it was also<\/p>\n
proved that another person will also pay Rs.20\/- for the same<\/p>\n
favour.\n<\/p>\n
            Authority in case Sadashiv Ramrao Hadbe (supra) is
\n                 Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                         -13-<\/span><\/p>\n
also distinguishable as in that case, it was alleged that the doctor<\/p>\n
committed rape in the clinic where there were number of persons<\/p>\n
present. In the present case, there is nothing on the file that other<\/p>\n
persons were present in the locality near the place of occurrence.<\/p>\n
           Authority in case Piara Singh and others (supra), is<\/p>\n
distinguishable as in that case, prosecutrix went on foot through<\/p>\n
thickly populated business places like bazaars and thereafter rape<\/p>\n
was alleged to have been committed. There is no such fact in the<\/p>\n
present case.\n<\/p>\n
           Authority      in   case     Rajesh       Kumar   (supra),   is<\/p>\n
distinguishable as in that case, the prosecutrix was only 15 years<\/p>\n
old and according to the prosecution, four persons raped her. There<\/p>\n
was no injury on the person of the prosecutrix. In the present case,<\/p>\n
the prosecutrix was a married woman. One of the accused was a<\/p>\n
police official. So, in these circumstances, even if there was no<\/p>\n
injury on the person of prosecutrix, it does not dis-prove the case<\/p>\n
of the prosecution.\n<\/p>\n
           In the last, the counsel for the appellants has submitted<\/p>\n
that the prosecutrix is a married woman and fully settled in her life.<\/p>\n
It is submitted that the Punjab and Haryana High Court and the<\/p>\n
Hon’ble Apex Court in various authorities have reduced the
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -14-<\/span><\/p>\n
sentence where      the prosecutrix was married. He has further<\/p>\n
contended that the occurrence relates to the year 1998 and the<\/p>\n
appellants are undergoing the agony of trial since then. As such, a<\/p>\n
prayer has been made for reduction of sentence.<\/p>\n
           In support of his submissions, the learned counsel for<\/p>\n
the appellants has relied upon authorities in cases Sandip Kumar<\/p>\n
Versus State of Punjab, 2007(2) RCR (Criminal) 758, Ram<\/p>\n
Kumar Versus State of Haryana, 2007(2) RCR (Criminal) 305<\/p>\n
and Raghuvir Desai Versus State, 2007(2) RCR (Criminal) 319.<\/p>\n
            I have carefully considered the said submission and<\/p>\n
have gone through the record of the case.\n<\/p>\n
           In Sandip Kumar’s case (supra), the accused was<\/p>\n
sentenced under Section 376 IPC and not under Section 376(2)(g).<\/p>\n
The Parliament in its wisdom has given enhanced punishment<\/p>\n
under Section 376(2)(g).\n<\/p>\n
           In Ram Kumar’s case (supra) also, the accused was<\/p>\n
convicted and sentenced under Section 376 IPC. However, keeping<\/p>\n
in view the fact that the prosecutrix got married and was living<\/p>\n
with her husband, his sentence was reduced.\n<\/p>\n
           So far as authority in case Raghuvir Desai (supra), is<\/p>\n
concerned,it seems that the said authority has been cited in respect
\n                Criminal Appeal No.785-SB of 2000.\n<\/p>\n
                        -15-<\/span><\/p>\n
of DNA test. However, as discussed above, non-conducting of<\/p>\n
DNA test, it not fatal to the prosecution.\n<\/p>\n
           The occurrence relates to the year 1998. Keeping in<\/p>\n
view    the submissions made by the learned counsel for the<\/p>\n
appellants to the effect that the prosecutrix is a married woman and<\/p>\n
also the above mentioned authorities, the sentence of the appellants<\/p>\n
under Section 376(2)(g) stands reduced to rigorous imprisonment<\/p>\n
for seven years. The sentence of fine under Section 376(2)(g) IPC<\/p>\n
and the other sentence awarded by the trial Court under Section<\/p>\n
452 IPC stands confirmed. However, all the substantive sentences<\/p>\n
shall run concurrently.\n<\/p>\n
           This appeal stands disposed of in the above terms.<\/p>\n
           A copy of this judgment be sent to the trial Court for<\/p>\n
strict compliance.\n<\/p>\n
January 31st,2009.                 `          ( K. C. Puri )\nJaggi                                            Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Chander Bhan And Another vs The State Of Haryana on 31 January, 2009 Criminal Appeal No.785-SB of 2000. -1- 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-149798","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nChander Bhan And Another vs The State Of Haryana on 31 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chander-bhan-and-another-vs-the-state-of-haryana-on-31-january-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chander Bhan And Another vs The State Of Haryana on 31 January, 2009 - 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