{"id":35967,"date":"2009-10-28T00:00:00","date_gmt":"2009-10-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-phal-and-another-vs-state-of-haryana-on-28-october-2009"},"modified":"2018-12-08T01:34:59","modified_gmt":"2018-12-07T20:04:59","slug":"ram-phal-and-another-vs-state-of-haryana-on-28-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-phal-and-another-vs-state-of-haryana-on-28-october-2009","title":{"rendered":"Ram Phal And Another vs State Of Haryana on 28 October, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ram Phal And Another vs State Of Haryana on 28 October, 2009<\/div>\n
Crl. Appeal No. 452-DB of 2001                                              [ 1     ]\n\n IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH\n\n\n                                                Crl. Appeal No. 452-DB of 2001\n                                                Date of Decision: Oct. 28,2009\n\n\n\nRam Phal and another ........................................................ Appellants\n\n                                   Versus\n\nState of Haryana ................................................................ Respondent\n\n\n\nCoram: Hon'ble Mr.Justice Ashutosh Mohunta\n       Hon'ble Mr. Justice Jitendra Chauhan\n\n\nPresent:       Mr. H.S.Gill, Sr. Advocate with\n               Mr. Vivek Goyal, Advocate\n               for the appellants.\n\n              Mr. S.S.Goripuria, DAG, Haryana.\n\n                                                ...\n\nASHUTOSH MOHUNTA, J.\n<\/pre>\n
                The appellants-Ram Phal and Sanjay are aggrieved by the<\/p>\n
judgment dated 16.7.2001 and the order of sentence dated 18.7.2001 vide<\/p>\n
which they have been convicted under Section 376 (2)(g) IPC and have<\/p>\n
been sentenced to undergo rigorous imprisonment for 12 years and also to<\/p>\n
pay a fine of Rs.25,000\/- each and in default of payment of fine, to further<\/p>\n
undergo rigorous imprisonment for two years.\n<\/p>\n
                Briefly the case of the prosecution is that the prosecutrix Smt.<\/p>\n
Santosh, wife of Dharambir, resident of village Dattaur, filed a complaint to<\/p>\n
the police that on 30.3.1998 at about 12:00 noon, she along with her Jethani<\/p>\n
(sister-in-law) Smt. Manto had gone to cut grass from the fields of Chand<\/p>\n
Ram resident of village Ismaila, whose fields are situated adjacent to the
\n Crl. Appeal No. 452-DB of 2001                              [ 2   ]<\/p>\n
boundary line of village Dattaur. It was stated by her that in the fields, son<\/p>\n
of Chand Ram, who was accompanied by another boy, asked them to give<\/p>\n
their “Palli” (a piece of cloth type which was twisted and turned into a type<\/p>\n
of rope was used for starting tractor) for starting their tractor. Both the<\/p>\n
ladies went there and handed over the ‘Palli” to them and they got their<\/p>\n
tractor started. In the meantime, the unknown boy caught the complainant<\/p>\n
Santosh by her hand and took her forcibly near a dry water-course while the<\/p>\n
son of Chand Ram caught hold of Smt. Manto and took her on the other side<\/p>\n
of the tractor. Both the ladies were threatened that they would be killed if<\/p>\n
they raised any hue and cry. The unnamed boy who had taken away the<\/p>\n
prosecutrix Smt. Santosh broke open the string of her Salwar and committed<\/p>\n
rape upon her against her wishes. Thereafter, the unnamed boy caught hold<\/p>\n
of Manto and the son of Chand Ram also committed rape upon Smt.<\/p>\n
Santosh against her wishes. The prosecutrix tried to save herself but was<\/p>\n
unable to wriggle out of the clutches of both the men. She also gave a bite<\/p>\n
on the hand of son of Chand Ram, but in vain. Thereafter both the accused<\/p>\n
ran away on their tractor. Both the women raised hue and cry in the fields<\/p>\n
but no body was attracted as there was no one else nearby. On returning<\/p>\n
home, the prosecutrix narrated the entire incident to her mother-in-law Smt.<\/p>\n
Murti Devi. Her husband, who was working in a factory, was also informed.<\/p>\n
After he reached home, the prosecutrix along with other co-villagers came<\/p>\n
to the police station to report the incident. The complainant also stated that<\/p>\n
both the accused persons were young and their bodies were strongly built<\/p>\n
and that she could identify them if they were produced before her. On the<\/p>\n
basis of the statement of the prosecutrix (Ex.PA), formal FIR (Ex. PA\/1)<\/p>\n
was registered under Sections 376\/506\/34 IPC against the accused.\n<\/p>\n
 Crl. Appeal No. 452-DB of 2001                              [ 3   ]<\/p>\n
            The Investigating Officer took Santosh to Civil Hospital,<\/p>\n
Sampla, for her medical examination from where she was referred to Civil<\/p>\n
Hospital, Rohtak, where she was medicolegally examined by Dr. Pushpa<\/p>\n
Bishnoi. A packet containing Salwar, Kamiz and swabs containing vial was<\/p>\n
also handed over by the Doctor to the Investigating Officer which was sent<\/p>\n
to Forensic Science Laboratory Haryana, Madhuban. He also recorded the<\/p>\n
statement of Smt. Manto and Smt. Murti Devi and inspected the spot and on<\/p>\n
demarcation by Sanjay and Ram Phal a site plan (Ex.PJ) was prepared. The<\/p>\n
Investigating Officer produced both the accused before the Illaqa Magistrate<\/p>\n
and filed an application (Ex.PN) for conducting the Test Identification<\/p>\n
Parade. The learned Magistrate recorded the statement of the accused<\/p>\n
persons who refused to participate in the Test Identification Parade.<\/p>\n
            The case was investigated by ASI Nathu Ram (PW11). He tried<\/p>\n
to search the accused in the village, but in vain. On 1.4.1998, about 4-5<\/p>\n
persons along with the accused approached Krishan Kaushik, Sarpanch of<\/p>\n
village Dattaur, and requested him to effect a compromise between the<\/p>\n
accused and the complainant side. The Sarpanch took the accused to the<\/p>\n
police station on 1.4.1998 where ASI Nathu Ram recorded the statement of<\/p>\n
Krishan Kaushik and arrested the accused persons. The accused were taken<\/p>\n
to the Civil Hospital, Sampla, where they were got medicolegally examined<\/p>\n
vide application (Ex.PK). The Investigating Officer interrogated the accused<\/p>\n
Sanjay and Ram Phal. The accused Sanjay made a disclosure statement<\/p>\n
(Ex.PL) and Ram Phal also made a disclosure statement (Ex.PM) wherein<\/p>\n
they admitted that they had committed rape upon Smt. Santosh and also<\/p>\n
disclosed that they could point out the place where the rape was committed.<\/p>\n
            After completing the investigation, the case was committed to
\n Crl. Appeal No. 452-DB of 2001                               [ 4    ]<\/p>\n
the Court of Sessions by the Judicial Magistrate Ist Class, Rohtak, vide<\/p>\n
order dated 13.6.1998.\n<\/p>\n
             After perusal of the record, the accused persons were charged<\/p>\n
under Sections 376 (2)(g), 506, 34 IPC to which they pleaded not guilty and<\/p>\n
claimed trial.\n<\/p>\n
             In order to prove its case, the prosecution relied on the<\/p>\n
testimony of the prosecutrix Smt. Santosh as PW1, Dr. Puran Singh<\/p>\n
Gautam, Sr. Medical Officer, Community Health Centre, Sampla, as PW2,<\/p>\n
Dr. Pushpa Bishnoi, Medical Officer, CHC, Jhajjar, as PW5, Smt. Murti<\/p>\n
Devi as PW7, Smt. Manto, who was an eye-witness, as PW10, ASI Nathu<\/p>\n
Ram as PW11 and Krishan Kaushik, Sarpanch of village Dattaur, as PW13.<\/p>\n
Apart from the above, several other formal witnesses were also examined.<\/p>\n
             The Prosecutrix Smt. Santosh appeared as PW1 and deposed<\/p>\n
that on 30.3.1998 at about 12:00 noon when she had gone with her Jethani<\/p>\n
Smt. Manto for cutting grass in the fields of Chand Ram, Ram Phal, son of<\/p>\n
Chand Ram, along with Sanjay asked for “Palli” from Manto. They told<\/p>\n
them that they are unable to start their tractor and that the “Palli” would help<\/p>\n
in doing so. Manto gave them the “Palli”. Thereafter, both the accused also<\/p>\n
asked the prosecutrix to give “Palli” to which she initially refused but<\/p>\n
ultimately gave it to the accused. “Palli” is used for tying grass and the same<\/p>\n
can also be coiled and turned into a kind of rope for starting the tractor also.<\/p>\n
Thereafter, the accused Sanjay caught hold of the hand of the prosecutrix<\/p>\n
and put her in a dry water-course (Nala) and forcibly opened the string of<\/p>\n
her Salwar and committed rape upon her against her wishes. The prosecutrix<\/p>\n
also stated that she caused resistance and also shouted, but there was no one<\/p>\n
around to help her. Smt. Manto had been caught by the other accused Ram
\n Crl. Appeal No. 452-DB of 2001                             [ 5    ]<\/p>\n
Phal and she had also been threatened with dire consequences in case she<\/p>\n
shouted. Sanjay, after raping the prosecutrix, went and held Smt. Manto.<\/p>\n
Thereafter, the other accused Ram Phal also committed rape upon the<\/p>\n
prosecutrix. The entire incident was witnessed by Smt. Manto also. The<\/p>\n
matter was reported by the prosecutrix and Smt. Manto to Murti Devi (their<\/p>\n
mother-in-law) on reaching home and after the husband of Smt. Santosh<\/p>\n
returned home from work, the matter was reported to the police on the day<\/p>\n
of occurrence itself.\n<\/p>\n
             Smt. Manto, who appeared as PW10, has also given a detailed<\/p>\n
account of the manner in which rape was committed upon the prosecutrix by<\/p>\n
both the accused Sanjay and Ram Phal. She stated that the accused asked<\/p>\n
Smt. Santosh to give “Palli” which could be made into a rope for starting<\/p>\n
the tractor and thereafter Sanjay caught hold of the prosecutrix, put her in a<\/p>\n
dry drain and committed rape upon her. Later on, Ram Phal also committed<\/p>\n
rape upon the prosecutrix Smt. Santosh. She also stated that both the<\/p>\n
accused had caught hold of her and threatened to kill her in case she shouted<\/p>\n
or raised any hue and cry. This witness identified both the accused in Court.<\/p>\n
             Smt. Murti Devi (mother-in-law of the prosecutrix) appeared<\/p>\n
as PW7 and had deposed that on 30.3.1998 at about 1:00 P.M. the<\/p>\n
prosecutrix while weeping, narrated the entire incident and the manner in<\/p>\n
which the accused had committed rape upon her. The prosecutrix also stated<\/p>\n
that she would die.\n<\/p>\n
             Dr. Pushpa Bishnoi appeared       as PW5 and stated that on<\/p>\n
31.3.1998 at about 1:15 A.M. she examined Smt. Santosh, wife of<\/p>\n
Dharambir, who was brought before her by the police and found that there<\/p>\n
was an abrasion on the nose of the prosecutrix measuring .5cm, 1 cm away
\n Crl. Appeal No. 452-DB of 2001                              [ 6    ]<\/p>\n
from midline at the level of right eye. She took two vaginal swabs and<\/p>\n
handed them over to the police for FSL examination. She also opined that<\/p>\n
the possibility of intercourse with the prosecutrix cannot be ruled out.<\/p>\n
            As per the FSL report (Ex.PE) human semen was detected on<\/p>\n
the Salwar. Dr. Pushpa Bishnoi (PW2) who had medicolegally examined<\/p>\n
the accused Sanjay and Ram Phal and opined that both were capable of<\/p>\n
doing intercourse. Mrs. Shalini Nagpal, JMIC Rohtak, appeared as PW12<\/p>\n
and stated that on 2.4.1998, ASI Nathu Ram produced the accused Ram<\/p>\n
Phal and Sanjay before her and filed an application (Ex.PW) for getting the<\/p>\n
Test Identification Parade of the accused conducted. Accordingly, she<\/p>\n
recorded the statement of both the accused by which they refused to join the<\/p>\n
Test Identification Parade. The statement (Ex.PO) was duly signed by both<\/p>\n
the accused persons and thereafter an order (Ex.PO\/1), vide which the<\/p>\n
application was disposed of, was passed. She has also categorically stated<\/p>\n
that both the accused were produced before her in muffled faces.<\/p>\n
            The prosecution examined Krishan Kaushik, Sarpanch of<\/p>\n
village Dattaur, Distt. Rohtak, as PW13 who stated that on 1.4.1998, 4-5<\/p>\n
persons belonging to village Ismaila had brought both the accused before<\/p>\n
him and all the persons had asked him to get a compromise effected<\/p>\n
between the accused and the complainant side as he was the Sarpanch. The<\/p>\n
Sarpanch produced the accused before the police on 1.4.1998.<\/p>\n
            After examining other formal witnesses, the evidence on behalf<\/p>\n
of the prosecution was closed.\n<\/p>\n
            The accused in their statements under Section 313 Cr. P.C.<\/p>\n
stated that they are innocent and they have been falsely implicated in the<\/p>\n
present case due to party fraction. They further stated that they were kept
\n Crl. Appeal No. 452-DB of 2001                              [ 7   ]<\/p>\n
in police station and were shown to the witnesses in the lock-up of the<\/p>\n
police station and were subsequently asked by the police to refuse the Test<\/p>\n
Identification Parade as and when produced.\n<\/p>\n
            The trial Court by placing reliance on the testimony of the<\/p>\n
prosecutrix and the statement of PW10 Smt. Manto, who was an eye-<\/p>\n
witness, and other evidence led by the prosecution, convicted both the<\/p>\n
accused under Section 376 (2)(g) IPC and sentenced them to undergo RI for<\/p>\n
12 years and to pay a fine of Rs.25,000\/- each. In default of payment of fine,<\/p>\n
to further undergo RI for two years. Both the accused were, however,<\/p>\n
acquitted under Sections 506\/34 IPC.\n<\/p>\n
            Mr. H.S.Gill, learned Senior counsel for the appellants, has<\/p>\n
contended that both the accused refused to participate in the Test<\/p>\n
Identification Parade as they had already been shown to the complainant in<\/p>\n
the police station and, hence, to participate in the same would have been a<\/p>\n
complete farce. This argument is without any merit. Smt. Shalini Nagpal,<\/p>\n
JMIC, Rohtak, (PW12) has stated that the faces of both the accused were<\/p>\n
muffled when they were brought before her. However, the accused refused<\/p>\n
to join the Test Identification Parade. As per statement (Ex.PO) dated<\/p>\n
2.4.1998 it was never alleged by the accused persons in their statements<\/p>\n
before the Judicial Magistrate that they have been shown to the witnesses by<\/p>\n
the police. Apart from the above, the Test Identification Parade was<\/p>\n
immediately got conducted after the arrest of the accused persons on the<\/p>\n
next day i.e. on 2.4.1998 and, hence, an adverse inference regarding the<\/p>\n
non-joining of the accused can be taken against them. Apart from the above,<\/p>\n
both the accused, namely Ram Phal and Sanjay, were identified in Court by<\/p>\n
the prosecutrix Smt. Santosh as well as by Manto (PW10), who was an eye-\n<\/p>\n
 Crl. Appeal No. 452-DB of 2001                              [ 8    ]\n\nwitness.\n\n<\/pre>\n
            Counsel for the appellants has further contended that the<\/p>\n
accused were not named in the complaint (Ex.PA) by the prosecutrix and,<\/p>\n
hence, the prosecution has not proved its case against the accused. This<\/p>\n
argument also is without merit as the prosecutrix had specifically mentioned<\/p>\n
in her complaint (Ex.PA) that one of the persons who committed rape upon<\/p>\n
her was the son of Chand Ram and the person who committed rape upon her<\/p>\n
could be identified if produced before her. The occurrence in the present<\/p>\n
case had taken place on 30.3.1998 at 12:00 noon. The complainant had seen<\/p>\n
the accused in broad day light and could easily identify them. Moreover, the<\/p>\n
entire incident was also witnessed by Smt. Manto, Jethani of the<\/p>\n
prosecutrix, and she had categorically named Ram Phal to be one of the<\/p>\n
persons who had committed rape upon the prosecutrix and had also<\/p>\n
identified the accused Sanjay. Krishan Kaushik (PW13), Sarpanch of village<\/p>\n
Dattaur, has also deposed that 4-5 persons belonging to village Ismaila had<\/p>\n
come to his house along with both the accused for effecting a compromise<\/p>\n
with the complainant side. He is the person who had handed over the<\/p>\n
accused to the police. It is, thus, amply clear that it was the accused persons<\/p>\n
who had committed rape upon the prosecutrix.\n<\/p>\n
            Lastly, a perusal of the disclosure statements (Ex.PL and<\/p>\n
Ex.PM) also shows that the accused had admitted before the witnesses that<\/p>\n
they had committed rape upon the prosecutrix. In their disclosure<\/p>\n
statements, they had also identified the place of occurrence. The statement<\/p>\n
of the prosecutrix and the eye-witness Smt. Manto have been duly<\/p>\n
corroborated by the medical evidence and the FSL report. The Doctor, who<\/p>\n
medicolegally examined the prosecutrix, has categorically stated that the
\n Crl. Appeal No. 452-DB of 2001                             [ 9   ]<\/p>\n
possibility of sexual intercourse having been committed with the prosecutrix<\/p>\n
cannot be ruled out. As per the FSL report (Ex.PE), human semen was<\/p>\n
detected from the Salwar of the prosecutrix. Thus, the testimony of the<\/p>\n
prosecutrix Smt. Santosh has been duly corroborated by the statement of<\/p>\n
Smt. Manto (PW10), Smt. Murti Devi (PW7) and the medical evidence<\/p>\n
tendered by Dr. Pushpa Bishnoi (PW5) as well as the FSL report (Ex.PE).<\/p>\n
             In view of the aforementioned facts, we are of the considered<\/p>\n
opinion that it was the accused Ram Path and Sanjay who had committed<\/p>\n
the offence of gang rape on the prosecutrix Smt. Santosh on 30.3.1998 and<\/p>\n
they have committed the offence punishable under Section 376 (2)(g) IPC.<\/p>\n
             Resultantly, we find no merit in the appeal filed by the accused<\/p>\n
and the same is dismissed and the judgment passed by the trial Court is<\/p>\n
upheld.\n<\/p>\n
             In case the appellants are on bail, than their bail bonds are<\/p>\n
cancelled and they be taken into custody forthwith to serve out the<\/p>\n
remaining portion of their sentence.<\/p>\n
\n\n\n\n                                         ( ASHUTOSH MOHUNTA )\n                                                  JUDGE\n\n\n\n28.10.2009                                ( JITENDRA CHAUHAN )\nRupi                                              JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ram Phal And Another vs State Of Haryana on 28 October, 2009 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 ………………………………………………………. […]<\/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-35967","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nRam Phal And Another vs State Of Haryana on 28 October, 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\/ram-phal-and-another-vs-state-of-haryana-on-28-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Phal And Another vs State Of Haryana on 28 October, 2009 - 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