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2010 DIGILAW 2079 (PNJ)

Radhey Shyam v. State of Haryana

2010-07-21

JITENDRA CHAUHAN

body2010
JUDGMENT JITENDRA CHAUHAN, J. This order shall dispose of three criminals appeals, namely, CRA No.616-SB of 2000, CRA No.690-SB of 2000 and CRA No.913-SB of 2000 having arisen from the common judgment dated 23.5.2000 and order dated 26.5.2000 of the learned Additional Sessions Judge, Sonepat in FIR No.162 dated 9.3.1998 registered at Police Station, Rai under Sections 376/506/34/IPC. However, the facts are being derived from CRA No.690-SB of 2000. The present criminal appeals have been preferred by the accused-appellants, namely, Ganga Ram, Kuldip and Radhey Shyam, challenging the judgment dated 23.05.2000 and the order dated 26.5.2000, passed by the Additional Sessions Judge, Sonipat, convicting the accused (herein appellants) for committing offence under Section 376(2)(g), IPC and sentencing each of them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000/-and in default of payment of fine, to further undergo rigorous imprisonment for 3 months. The brief facts of the case, as set up by the prosecution, are that on 9.3.1998, prosecutrix-Rekha Kumari, came to the Police Station to get her statement recorded to the effect that she was residing in Village Badwasni. She is aged 13 years and her father had expired and prior to his death, he was working in Everest Tools Factor, Jatheri. Her mother is also employed. On the day of the incident i.e. on 5.3.1998, she was alone in the house as her mother had gone on her duty, her brother Rajesh had gone to meet one Bhaga and her younger brother had gone to school. At about 11.00 am, she went to the Sewing Center in the house of Satya Brahmin where she was learning sewing. While on her way, the accused-appellants met her, who were standing near the vacant plot in Badmalik and when she was passing from there, then all the three accused dragged her to the Chhaper located in front of the house of Jai Bhagwan. The accused Radhey Shyam and Kuldip remained standing outside the Chhaper. Ganga Ram put his hand over her mouth when she was crying for help and forcibly lie her down on the ground. Thereafter, Ganga Ram committed rape upon the prosecutrix and threatened her that her brothers will be kidnapped and she will be killed in case she reported the matter to anybody. Then all the accused went away. Ganga Ram put his hand over her mouth when she was crying for help and forcibly lie her down on the ground. Thereafter, Ganga Ram committed rape upon the prosecutrix and threatened her that her brothers will be kidnapped and she will be killed in case she reported the matter to anybody. Then all the accused went away. She narrated the incident to her mother on 8.3.1998 who called her brother from Samalkha. They went to the police station on 9.3.1998 and a formal FIR was registered against the accused. All the accused were arrested and medically examined. After completion of the investigation, the accused were sent up to face trial under Sections 376/506/34 IPC by Police Station, Rai. The accused were charge sheeted under Section 376(2)(g) IPC. In order to substantiate the charges against the accused, the prosecution examined as many as 11 witnesses, viz., Dr. Anil Kumar-PW1; Inder Pal-PW2; Shri D.K. Sharma, learned Judicial Magistrate 1st Class, Sonipat--PW4; Dr. S.K. Gosain-PW5; Kanwar Singh-PW6; Dr. Manju Arora-PW7 and Rekha (prosecutrix)-PW8; Roshni (mother of the prosecutrix)-PW9; Dr. V K Gupta-PW10 and Jagdish Chander (I.O.)-PW11. PW1-Dr. Anil Kumar has conducted ossification test and proved that the prosecutrix is aged 13 to 14 years but is not more than 17 years because the tooth i.e. No.8 (Third Molar) is yet to erupt. PW2-Inder Pal has proved the site plan Ex.PB. PW3-Constable Jagbir Singh has stated that on 9.3.1998 he was handed over the special report Ex.PC which he handed over to the learned Ilaqa Magistrate. PW4-Shri D.K. Sharma, learned Judicial Magistrate 1st Class, Sonipat has proved the statement recorded by him under Section 164 Cr.P.C. which is Ex.PF/2. He has also proved the police application Ex.PE. Questions asked by him Ex.PF, certificate Ex.PF/1. He has sated that the prosecutrix was identified by Jagdish Chander, ASI. PW5-Dr. S.K. Gosain, who radiologically examined the prosecutrix, has proved that she was aged 15 to 17 years and he has given his report Ex.PG/5. PW6-Kanwar Singh has stated that Phool Pati was born on 29.9.1983 as per his register and she was the daughter of Maha singh and Roshani Devi. He was proved the birth certificate Ex.PH. PW7-Dr. Manju Arora has stated that she has medically examined the prosecutrix on 9.3.1998 and has given her report Ex.PL. She has stated that there was no external mark of injury. He was proved the birth certificate Ex.PH. PW7-Dr. Manju Arora has stated that she has medically examined the prosecutrix on 9.3.1998 and has given her report Ex.PL. She has stated that there was no external mark of injury. She stated that on 10.3.1998 she has given report that possibility of sexual intercourse with Rekha cannot be ruled out. PW8-Rekha has stated that on 5.3.1998, she was going to the village for learning sewing near their house and all the accused, now present in the Court were present there at about 11.00 am. She has stated that when she was passing by the side of the shop of accused Ganga Ram, then all the accused caught hold of her and dragged her towards the Chhaper belonging to Jai Bhagwan. She has stated that she raised noise and on that, accused Ganga Ram, gagged her mouth with his handkerchief and Radhey Shyam and Kuldip kept standing outside the Chhaper. She has stated that the accused Ganga Ram grappled with her for some time and thereafter, Ganga Ram put off his pants and also took of her Salwar and did sexual intercourse with her without her consent. She has stated that the accused, Ganga Ram threatened her that in case she disclosed this fact to her mother, her brothers would be kidnapped. She has stated that Ganga Ram's wife also threatened her in the same manner. PW8-Rekha has further stated that on 9.3.1998, her mother came to know about the incident, thereafter she went to Samalkha to meet her brother who informed the police on which FIR Ex.PC was recorded. She was also medico legally examined and her statement was recorded by the learned Ilaqa Magistrate on 10.3.1998, Ex.PF/1. PW9-Roshni is the mother of the prosecutrix and she has also narrated the incident in the same manner. She has stated that neighbours told her that the life of her daughter will be spoiled if something is done in that regard. She has stated that she enquired from her daughter about the occurrence, who told about the incident while weeping. She has stated about the occurrence as told to her by the prosecutrix. She has stated that she called her brother and reported the matter to the police. Dr. She has stated that she enquired from her daughter about the occurrence, who told about the incident while weeping. She has stated about the occurrence as told to her by the prosecutrix. She has stated that she called her brother and reported the matter to the police. Dr. V.K. Gupta, PW10, has medically examined Ganga Ram and gave his report that there is nothing to suggest that he was not capable of performing the sexual intercourse. His report in this regard is Ex.PL/1. PW11-Jagdish Chander, ASI, is the Investigating Officer of the present case and has fully supported the prosecution version. In their statements under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution case and pleaded false implication. In defence, the accused examined Sat Narain as DW1. The learned trial Court, after hearing both the parties, convicted the accused-appellants under Section 376(2)(g), IPC and sentenced them for the term as indicated in para 2 of this judgment, aggrieved from which, the present criminal appeals have been preferred. The present appeals were admitted by this Court on 13.7.2000, 7.9.2000 and 26.02.2001. Learned counsel for the appellants has argued that the occurrence took place on 5.3.1998 whereas the FIR in the present case was registered on 9.3.1998. This delay has not been explained by the prosecution. He has further argued that as per the case of the prosecution, the alleged occurrence took place at 11.00 am. The houses of the accused-appellant Ganga Ram and the prosecutrix are in the vicinity of each other. As per the statement of the prosecutrix (PW8), the incident was witnessed by Promila, wife of accused Ganga Ram as well, which is a highly improbable. Learned counsel for the appellant has further argued that there are material contradictions and improvements in the statement of the prosecutrix as regards the participation of the accused. Learned counsel has further argued that as per the case of the prosecution, the prosecutrix was allegedly dragged to the Chhaper, whereas no external injuries were noticed on her person when she was medico-legally examined by Dr. Manju Arora, PW7. In the same manner, there are improvements in the statement of Roshni Devi, PW9, mother of the prosecutrix. Learned counsel has also referred to the site-plan according to which there is house of Jai Bhagwan located opposite to the Chhaper. The Chhaper does not have any doors. Manju Arora, PW7. In the same manner, there are improvements in the statement of Roshni Devi, PW9, mother of the prosecutrix. Learned counsel has also referred to the site-plan according to which there is house of Jai Bhagwan located opposite to the Chhaper. The Chhaper does not have any doors. As per the prosecutrix, she remained with the accused for about 1-1½ hours. Learned counsel has further stated that there is no conclusive proof that the prosecutrix was a minor. The birth entry of the prosecutrix has not come on record. Mr. S S Dinarpur, Advocate, appearing on behalf of the appellant Kuldip Singh has argued that the prosecutrix has improved her statement before the Court that all the accused caught hold of her and dragged her to the Chhaper of Jai Bhagwan. She has further contradicted in regard to the role of the appellants as it has come in her statement that when she came out of the Chapper, the appellants Radhey Shyam and Kuldip were not there. On the basis of that, learned counsel has submitted that there is no allegation of rape against accused Radhey Shyam and Kuldip and they did not share the common intention to commit the crime as stated by the prosecution. It has also come in the statement of prosecutrix that Kuldip and Radhey Shyam did not come inside the Chhaper at any stage. The prosecutrix has further stated that she gave tooth bite injury and nail scratches on the person of accused Ganga Ram and in the process, she herself suffered injury on the left leg. In support of his contentions, learned counsel for the appellants has placed reliance on a judgment of this Court rendered in Heena alias Babita V. Sandeep, 2010(1) RCR (Criminal). The relevant portion of the judgment reads as under:- “No doubt, the trial Court, also convicted the accused namely Vijay Dua and Krishan Kumar Takkar, for the offences, punishable under Sections 366 and 376(2)(g) of the Indian Penal Code. There is no material, on record, that these accused abducted the prosecutrix or played any part in her abduction. Even, according to the prosecutrix herself, they did not commit sexual intercourse with her. She, however, stated that they fondled the parts of her body and one of them, had a bite at her cheek. There is no material, on record, that these accused abducted the prosecutrix or played any part in her abduction. Even, according to the prosecutrix herself, they did not commit sexual intercourse with her. She, however, stated that they fondled the parts of her body and one of them, had a bite at her cheek. For constituting the offence, under Section 376(2)(g) of the Indian Penal Code, proof of common intention of the accused, it is essential ingredient. Even if, it is assumed, that both the accused namely Vijay dua, and Krishan Kumar Takkar, were present, at the place of occurrence, it could not be said that they shared common intention with their co-accused namely Krishan Kumar Malik, and Krishan alias Kaka, for the commission of offence, punishable under Section 376(2)(g) of the Indian Penal Code. Had they shared common intention with Krishan Kumar Malik and Krishan @ Kaka, they would have also committed sexual intercourse with the prosecutrix. It appears that both of them were falsely implicated by the prosecutrix, just with a view to exaggerate the number of the accused. Both these accused namely Vijay Dua, and Krishan Kumar Takkar, therefore, did not commit any offence. The trial Court, was wrong, in recording conviction and awarding sentence to them, for the offences, punishable under Sections 366 and 376(2)(g) of the Indian Penal Code. The findings of the trial Court, recording conviction and awarding sentence to Vijay Dua, and Krishan Kumar Takkar, for the offences, punishable under Sections 366 and 376(2)(g) of the Indian Penal Code being incorrect, are reversed.” Learned counsel has further stated that the prosecutrix had stated in her statement that her mother came to know about the alleged incident from the neighbours and thereafter, on asking of her mother-Roshni, she narrated the entire story. However, in the FIR Ex.PC, it has been stated that the prosecutrix herself narrated the incident to her mother-Roshni (PW9) which proves that the prosecutrix made material improvement in her statement. Learned counsel has further referred to the site-plan Ex.PB which clearly shows that the distance between the shop of Ganga Ram and the Chapper is about 60 feet. The place from where the prosecutrix was allegedly dragged by the accused is a gali. Learned counsel has further referred to the site-plan Ex.PB which clearly shows that the distance between the shop of Ganga Ram and the Chapper is about 60 feet. The place from where the prosecutrix was allegedly dragged by the accused is a gali. Learned counsel states that it is highly improbable that a person will drag a 15 year old girl to the Chhaper which is 60 feet away from a 'gali sare aam' at 11.00 am when everybody is awake especially when the prosecutrix is said to have raised cries while she was being dragged. Learned counsel for the State has argued that the delay in registering the FIR is not fatal to the case of the prosecution as when the family honour is at stake, the matter is very often not instantly reported to the Police. As regards the fact that the injuries were not found on the person of the prosecutrix, he has submitted that the prosecutrix was examined four days after the occurrence, therefore, it is possible that the injuries might have healed in the meanwhile. He has lastly argued that there was no reason as to why the prosecutrix would falsely implicate the appellants. Learned State counsel has produced custody certificates of the appellants and the same are taken on record. I have heard learned counsel for the parties and perused the record. As regards the delay, the alleged occurrence in the present case took place on 5.3.1998 and the FIR was registered on 9.3.1998. The prosecutrix lost her father in her early childhood. She narrated the incident to her mother, who went to the house of her brother at Samalkha, and thereafter, the present FIR was registered. It is of common knowledge that when an incident of such like nature occurs in an Indian family, and the reputation of the family is at stake, some delay is natural. Therefore, the delay is not fatal in the instant case. As per the case of the prosecution, the prosecutrix was dragged to the Chhaper from the Gali in the vicinity of the house of the prosecutrix. From the site-plan (Ex.PB), it is made out that the distance between Mark 'A', where the shop of the accused Ganga Ram is located, and the Chhaper where the alleged rape was committed is about 60 feet. It is a 'gali sare aam'. From the site-plan (Ex.PB), it is made out that the distance between Mark 'A', where the shop of the accused Ganga Ram is located, and the Chhaper where the alleged rape was committed is about 60 feet. It is a 'gali sare aam'. As per the prosecution, the incident took place at 11.00 am when everybody is awake. In this factual background, this kind of act is not possible in the country side. It is the further case of the prosecution that the prosecutrix suffered abrasions and other injuries on her person while she was being dragged by the appellant. However, when the prosecutrix was medico-legally examined by Dr. Manju Arora, PW7, no external marks of injury were noticed. Another aspect of the matter which invites attention of the Court is that the alleged occurrence was allegedly witnessed by Promila, wife of the accused Ganga Ram, however, the statement of said Promila was not recorded by the Police. Otherwise also, it is quite alien to the nature for any wife to allow her husband to indulge in such an act in her presence. From the statement of the prosecutrix, it is clearly made out that the accused Radhey Shyam and Kuldip remained outside the Chhaper. It is not in the statement of the prosecutrix that all the accused dragged her and entered the Chhaper. Therefore, the common intention on the part of the above accused to commit rape in the instant case is not proved. The version of the prosecution that the prosecutrix was dragged from 'Mark A' to 'Mark B', which is at a distance of 60 feet as per the site-plan-Ex.PB, is not possible in the broad day-light, at 11.00 am, especially in the presence of his wife, particularly when the prosecutrix was raising protest and giving tooth bite and also causing nail-scratch injuries to the accused and in the process, receiving abrasions on her person as well. However, the fact remains that no such abrasions/injuries were noticed on the person of prosecutrix at the time of the medical examination. Further, it proved that the accused Radhey Shyam and Kuldip did not enter the Chhaper. In the circumstances, prosecution has failed to establish its case in the manner projected. Resultantly, the present appeals are allowed. The accused-appellants are acquitted of the charge by giving them the benefit of doubt. Further, it proved that the accused Radhey Shyam and Kuldip did not enter the Chhaper. In the circumstances, prosecution has failed to establish its case in the manner projected. Resultantly, the present appeals are allowed. The accused-appellants are acquitted of the charge by giving them the benefit of doubt. The judgment and order of conviction/sentence of the learned trial Court, dated 23/26.05.2000 is set aside. Ordered accordingly. A photocopy of this order be placed on the files of the connected cases.