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2006 DIGILAW 1245 (PNJ)

Rohtas v. State Of Punjab

2006-03-24

MAHESH GROVER

body2006
Judgment Mahesh Grover, J. 1. This judgment will dispose of two appeals arising out of the ame judgment of the learned Additional Sessions Judge (Fast Track Court) passed by him on 27.8.2003 by which the accused-appellants were sentenced to rigorous imprisonment for ten years each under the provisions of Sections 376(2)(g) and 109 of the Indian Penal Code. 2. The prosecution case in brief that Lachma, the prosecutrix, aged about 20 years was married at Phagwara on 19.9.1999. She had come to her father Shankar Lals house at about 8.00 p.m. She had gone to the house of the Gopal-accused to pay some amount on account of the committees being run by the said accused and as she entered the room, Gopal took money from her and when she insisted upon a receipt in writing, Gopal took out his knife and called his sons Vinod and Rohtas there. The accused Nasirudin was also present there at that point of time. It is alleged further that Vinod and Nasirudin forcibly caught hold of her hands and Vinod and Rohtas committed rape on her, while Gopal remained standing there with a knife in his hands. Lachma raised a hue and cry and upon hearing her cries, her sister-in-law, Shaguna came there and rescued her from the accused and took her back to the house. Next day in the morning, matter was reported to the police but no action was taken against the accused persons and ultimately, she filed complaint before the Snior Superintendent of Police, Kapurthala on 28.9.1999, on the basis of which an inquiry was conducted by Makhan Singh, Deputy Superintendent of Police, and a case under the provisions of Sections 354, 511, 506, 34 IPC was registered against the accused persons. The accused persons were arrested and after completion of the investigation, challan was presented against them before the Court of learned Sub-Divisional Judicial magistrate, Phagwara. 3. A charge under Sections 354, 506 and 34 IPC was framed against the accused by the then learned Sub Divisional Judicial Magistrate, Phagwara. All the accused pleaded not guilty and claimed trial. 4. The prosecution examined PW-1 Kusum Sharma, PW-2 Laxmi and PW-3 Shankar Lal. 3. A charge under Sections 354, 506 and 34 IPC was framed against the accused by the then learned Sub Divisional Judicial Magistrate, Phagwara. All the accused pleaded not guilty and claimed trial. 4. The prosecution examined PW-1 Kusum Sharma, PW-2 Laxmi and PW-3 Shankar Lal. The prosecutrix-Lachma moved an application for adding an offence under Section 376 IPC to the list of offences and the learned Sub-Divisional Magistrate, Phagwara vide his order dated 16.8.2002, finding a prima facie case under Section 376 IPC, having been made out against the accused, allowed that application and the case was committed to the Court of Sessions for trial. 5. Accordingly, all the accused persons were charged under the provisions of Sections 376(2)(g) and 109 IPC. The prosecution in order to bring home the guilt of the accused persons, examined as many as, four witnesses and closed the evidence. 6. Statements of the accused under Section 313 of the Code of Criminal Procedure were recorded and the entire incriminating evidence against them, was put to them. All the accused persons pleaded innocence and claimed false implication at the hands of Shankar, father of the prosecutrix. 7. In defence, the accused examined two witnesses. After appraisal of the evidence, the learned Additional Sessions Judge came to the conclusion that an offence under Section 376(2)(g) IPC was made out against the Rohtas and Vinod accused while Gopal and Nasirudin were also found guilty under the provisions of Section 376(2)(g) IPC read with Section 109 IPC. All the accused persons were directed to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default to undergo further rigorous imprisonment for two months. It is against this judgment that all the accused persons have come up, by way of two separate appeals, which are proposed to be disposed of by this judgment. 8. The learned Additional Sessions Judge has, primarily, relied upon the statement of the prosecutrix and her sister-in-law Shaguna, who was attracted to the spot, by her cries while awarding the conviction to the accused persons. 9. Mrs. G.K. Mann, learned counsel appearing for the appellant in Criminal Appeal No. 1698-SB of 2003 has vehemently argued that the incident is stated to have taken place at 8.00 p.m., in the house of Gopal, where he was present along with his sons Vinod and Rohtas and another accused Nasirudin. 9. Mrs. G.K. Mann, learned counsel appearing for the appellant in Criminal Appeal No. 1698-SB of 2003 has vehemently argued that the incident is stated to have taken place at 8.00 p.m., in the house of Gopal, where he was present along with his sons Vinod and Rohtas and another accused Nasirudin. The house was being used by Gopal himself and his familys residence. It is submitted by her that the prosecutrix who appeared as PW-1 has stated in the cross- examination that there were three rooms in the house of Gopal and Gopal had four daughters. Rohtas his son is also married and his wifes name is Suman and has two children. Vinod accused is also married to Saroj and he also has children, who are living with him. Another daughter of Gopal, by the name of Santra, who is having three children, is also living in the same house, after she had been turned out of her matrimonial home. Mrs. Mann further submitted that since the occurrence had taken place at 8.00 p.m. it was highly unlikely that Gopal, his family members and children were not present in the house at that point of time. No evidence has come on record to suggest that any such question was put to explain the total absence of all the family members at 8 p.m., the time of occurrence. The second submission raised by Mrs. Mann, while assailing the findings of the learned Additional Sessions Judge, is that there is considerable delay in lodging of FIR, which is unexplained and, therefore, the prosecution case does not inspire any confidence. 10. Learned counsel for the State has submitted that the delay in lodging of the FIR is not fatal to the present case. Initially, the police did not take any action and it is only with the intervention of the Senior Superintendent of Police but when the complaint was submitted that the matter was got investigated through Makhan Singh, Deputy Superintendent of Police. 11. I have considered the rival contentions raised by both the sides and have also gone through the record, with their assistance. 12. A perusal of the statement of the prosecutrix shows that Gopal-accused was living jointly with various other members of his family, which included several children. 11. I have considered the rival contentions raised by both the sides and have also gone through the record, with their assistance. 12. A perusal of the statement of the prosecutrix shows that Gopal-accused was living jointly with various other members of his family, which included several children. It was very unlikely that none of the children or anybody else, would not be present at 8.00 p.m. either in the house or in vicinity of the house. The locality itself is a crowded locality. The prosecutrix is stated to have raised hue and cry, which would ordinarily have attracted people from the neighbouring houses. The prosecutrix further stated in her statement that she did not talk to anybody regarding this incident. In the cross-examination, it is stated that the occurrence is stated to have taken place at 8.00 p.m., and the prosecutrix went to the police station at 10.00 a.m., in the morning and approached the Senior Superintendent of Police ten days thereafter. In between, no attempt had been made by her either to get the police activated or to get herself medically examined especially when such a serious offence is alleged to have been committed. Surprinsingly, in the examination-in-chief, she states that when the gory act was being committed upon her, she raised a hue and cry which attracted her sister-in-law Shaguna and when she came she took her to her house and immediately thereafter putting on clothes, they went to police station. This is in complete contrast to what she has stated in the cross-examination. There is, thus, a glaring contradiction and unexplained delay of 9 days which to my mind is fatal to the prosecution case as the delay has not been explained satisfactorily. 13. Further an inquiry is said to have been conducted by Deputy Superintendent of Police-Makhan Singh, who investigated the matter after intervention of the Senior Superintendent of Police, Kapurthala and on his report a case under Sections 354, 511 and 510 IPC was registered. No offence under Section 376 IPC was found to have been made out during the investigation and it was only when an application was moved by the prosecutrix subsequently, after a lapse of three years that the offence of Section 376 IPC was added by the learned Sub Divisional Judicial Magistrate. No offence under Section 376 IPC was found to have been made out during the investigation and it was only when an application was moved by the prosecutrix subsequently, after a lapse of three years that the offence of Section 376 IPC was added by the learned Sub Divisional Judicial Magistrate. In cross-examination when this question was put to her regarding the investigation having been conducted by Makhan Singh, Deputy Superintendent of Police, she expressed total ignorance. 14. There is not an iota of medical evidence or any other circumstantial evidence to support the case of the prosecution. The prosecutrix statement also does not inspire much confidence because it seems from the evidence that the father of the prosecutrix and the accused Gopal were probably having some financial dealings in the form of committees etc. An enmity between the two, and consequent false implications on that account cannot be ruled out. 15. In view of the fact that there is no evidence to suggest the commission of rape and in the absence of any other cogent evidence against the accused persons, I am left with no option but to give benefit of doubt to the accused-appellants and acquit them for the charges under Section 376(2) and 109 IPC. I, therefore, allow both the appeals and set aside the judgment and conviction awarded to the accused-appellant under Section 376(2)(g) IPC read with Section 109 IPC.