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2010 DIGILAW 2706 (PNJ)

Lillu alias Rajesh v. State of Haryana

2010-09-20

ASHUTOSH MOHUNTA, NAWAB SINGH

body2010
JUDGMENT Nawab Singh, J. - This appeal has been filed by Lillu alias Rajesh, Manoj, Satish alias Sitta and Kuldeep, accused-appellants against the judgment of conviction dated March 4th, 2002 and order of sentence dated March 5th, 2002 passed by learned Additional Sessions Judge, Jind, whereby, they were convicted and sentenced as under : Offence U/S Sentence Fine In default Lillu alias Rajesh, accused-appellant 376 Indian Penal Code R.I. for 7 years Rs. 5000/- RI for two years. 506 Indian Penal Code R.I. for 2 years - - Manoj, accused-appellant 376(2)(g) Indian Penal Code Imprisonment for Life Rs. 5000/- RI for two years. 506 Indian Penal Code R.I. for 2 years - - Satish alias Sitta, accused-appellant 363 Indian Penal Code R.I. for 5 years Rs. 1,000/- Imprisonment for one year 366 Indian Penal Code R.I. for 5 years Rs. 1000/- RI for 1 year 506 Indian Penal Code R.I. for 2 years - - 376 Indian Penal Code R.I. for 7 years Rs. 5000/- RI for two years Kuldeep, accused-appellant 363 Indian Penal Code R.I. for 5 years Rs. 1,000/- RI for one year 366 Indian Penal Code R.I. for 5 years Rs. 1000/- RI for 1 year 506 Indian Penal Code R.I. for 2 years - - 376(2)(g) Indian Penal Code Imprisonment for Life Rs. 5000/- RI for two years The sentences were ordered to run concurrently. 2. Facts are these : On March 6th, 2001, at about 7.00 PM, the Prosecutrix (PW-5) was inside her house, situated in village Badhana. Her mother, Savitri - complainant (PW-4) was also present in the house. She heard the shrieks of the prosecutrix that she was caught hold of by Satish alias Sitta son of Chamru. Savitri (PW-4) was not keeping good health. Her husband was in the fields. Kamlesh, wife of his son, had gone to the fields to answer the call of nature. When Kamlesh came back, she asked her to find the prosecutrix. Kamlesh made the search for the prosecutrix, but no clue could be found. A suspicion arose that Satish alias Sitta son of Chamru had kidnapped the prosecutrix. On March 7th, 2001, Savitri (PW-4) made statement (Exhibit PF) to Om Parkash, Assistant Sub Inspector, Police Station Alewa (PW-14). He appended his endorsement (Exhibit PF/1). First Information Report (Exhibit PE) under Sections 363 and 366 Indian Penal Code was recorded. A suspicion arose that Satish alias Sitta son of Chamru had kidnapped the prosecutrix. On March 7th, 2001, Savitri (PW-4) made statement (Exhibit PF) to Om Parkash, Assistant Sub Inspector, Police Station Alewa (PW-14). He appended his endorsement (Exhibit PF/1). First Information Report (Exhibit PE) under Sections 363 and 366 Indian Penal Code was recorded. Om Parkash (PW 14) along with other Police officials reached the field situated in village Badhana itself, in search of the prosecutrix. When he reached near the fields of Chamru, father of Satish alias Sitta, accused-appellant, he saw the prosecutrix present there and the accused-appellant ran away from the spot after seeing the Police party. The statement of the prosecutrix (Exhibit DB) was recorded by Om Parkash - Investigator (PW-14). The offence under Sections 376, 376(2)(g) and 506 Indian Penal Code were added. The statement (Exhibit PG) of the prosecutrix was also recorded by Sh. Rajesh Sharma, Judicia Magistrate Ist Class, Jind (PW-8). She was medico legally examined by Dr. Malti Gupta, Medical Officer, Government Hospital, Jind (PW-1). The matrix of the statements (Exhibit DB and Exhibit PG) of the prosecutrix is that : 10-12 days prior to March 6th, 2001, Satish alias Sitta, a neighbour came to her house; she was all alone at that time; he caught hold of her and laid her down on the ground and raped her; he also threatened her with dire consequences; 2-3 days thereafter, Lillu uncle of Satish alias Sitta, came to her house when she was all alone and took her inside her house and committed rape upon her; he threatened to kill her if she narrated the incident to anybody; next day, Lillu again came and raped her; 5-6 days thereafter, Manoj causin of Satish alias Sitta and Kuldeep came to her house and raped her one by one; they also threatened her with dire consequences; out of fear, she did not inform any one about the incident; on March 6th, 2001 Satish alias Sitta and Kuldeep came to her house and dragged her; she tried to raise alarm but her mouth was gagged by Kuldeep accused-appellant; both of them lifted and took her in the fields; she was asked to sit on the fodder and not to leave the place and in case she tried to run away, she would be done to death; she kept on sitting through-out the night in the field. because she was threatened by the accused-appellants of dire consequences; all the accused- appellants returned to the village; next morning - March 7h, 2001, all the accused came in the field and asked her to run away towards another village because Police had reached the village; she refused to oblige them; thereafter Lillu committed rape upon her; after some time, Police reached the field and the accused-appellants fled-away. 3. On March 9th, 2001, all the accused-appellants were arrested. 4. After completion of investigation and other formalities, the accused was arraigned for trial. 5. The accused-appellants were charged under Sections 363, 366 read with Section 34, 376, 376(2)(g) and 506 Indian Penal Code. They pleaded not guilty and claimed to be tried. 6. Trial ensued. In support of its case, prosecution examined fifteen witnesses viz - Dr. Malti Gupta, Medical Officer (PW-1), Dr. Dhan Kumar (PW- 2), Krishan Chander, Constable (PW-3), Savitri (PW-4), Raj Bala - Prosecutrix (PW-5), Bhup Singh, Patwari (PW-6), Jagdish Rai (PW-7), Sh. Rajesh Sharma, Judicial Magistrate Ist Class, Jind (PW-8), Azad Singh, Head Constable (PW-9), Dilbag Singh, Constable (PW-10), Lakhi Ram, Science Teacher (PW-11), Mohinder Kumar, Sub Inspector (PW-12), Jagdish (PW-13), Om Parkash, Assistant Sub Inspector - Investigator (PW-14) and Gajraj Singh, JBT Teacher (PW-15). 7. The accused-appellants were examined under Section 313 of the Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. They denied their complicity and pleaded innocence. In defence, Anil Kumar, Clerk, office of Civil Surgeon, Jind (DW-1) was examined to prove that the date of birth of the prosecutrix was not recorded in the records maintained in their office. Jaibir Singh (DW-2) brother of Satish alias Sitta deposed that on March 7m, 2001, he was present in the house of the prosecutrix, where a Panchayat was convened. Police also reached there and asked him to lead them to the farm of Teku, Sarpanch. He brought the Police party at the farm of Teku, Sarpanch and saw the prosecutrix present there. She told the Police that as she was beaten by her father so, she came to the farm of Teku, Sarpanch. The prosecutrix was taken away by the Police. 8. He brought the Police party at the farm of Teku, Sarpanch and saw the prosecutrix present there. She told the Police that as she was beaten by her father so, she came to the farm of Teku, Sarpanch. The prosecutrix was taken away by the Police. 8. Learned counsel for the appellants has contended that from a conjoint reading of statements of the prosecutrix (PW-5) and the Medical Officer (PW- 1), it is proved that the prosecutrix was habituated to sexual intercourse and was of easy virtue and if at all, the accused-appellants were involved sexually with the prosecutrix, that was with her consent. 9. The prosecutrix was medically examined by Dr. Malti Gupta (PW-1). She found that hymen was torn and the possibility of prosecutrix being habituated to sexual intercourse could not be ruled out. 10. The prosecutrix (PW-5) has given the version of the occurrence, which has been described in paragraph 2 of this judgment, while narrating the facts. 11. The argument in relation to on sent of the learned counsel is of no avail because the prosecutrix was under sixteen years of age at the time of commission of offence, as is gleaned from the school certificate Exhibit PN proved by Lakhi Ram, Science Teacher, Government High School, Badhana (PW-11) and Gajraj Singh, Teacher, Government Primary School, Badhana (PW-15). Her date of birth was June 41h, 1987. So, she was 13 years 9 months and 2 days old at the time of commission of offence. To refute the same, no evidence worth the name has been led by the accused appellants. She was a student of 6th standard. In view of this, it does not matter at all whether the prosecutrix was a consenting party or not, because as per the definition of rape defined under clause - Sixth of Section 375 Indian Penal Code, a man having sexual intercourse with a woman, with or without consent, when she is under sixteen years of age, is said to have committed rape upon her. 12. Faced with this legal proposition of law, the next submission of learned counsel for the appellants was that the trial Court was not justified in awarding Imprisonment for Life to Manoj and Kuldeep, accused-appellants. 12. Faced with this legal proposition of law, the next submission of learned counsel for the appellants was that the trial Court was not justified in awarding Imprisonment for Life to Manoj and Kuldeep, accused-appellants. Rather their case was also to be taken at par with that of Lillu alias Rajesh and Satish alias Sitta, who were sentenced to undergo Rigorous Imprisonment for 7 years. To support the contention, reliance has been placed on State of Chhattisgarh v. Derha 2004 (2) RCR (Criminal) 714. 13. As would be manifest, there was element of consent on the part of the prosecutrix in this case. Her age was less thin sixteen years, so, the consent could not absolve the accused appellants but it is a very relevant factor to be reckoned while deciding the quantum of sentence. 14. In Derhas case (supra), rape was committed on a girl of 8 years. Accused at that point of time was 18 years. The sentence was reduced from ten years to seven years by the Honble Supreme Court. 15. Here the age of the prosecutrix was about 14 years while the age of accused - Manoj and Kuldeep, was about 18 and 20 respectively. Crime was committed in the year 2001 and we are now in the year 2010. The case of these two accused-appellants is thus, obviously at a better footing. 16. Thus, the appeal against the judgment of conviction is dismissed. The conviction of all the accused-appellants is upheld but the sentence imposed upon accused-appellants - Manoj and Kuldeep is reduced to 7 years. 17. For the reasons aforesaid, the appeal filed by Lillu alias Rajesh and Satish alias Sitta, accused-appellants is dismissed and the appeal filed on behalf of Manoj and Kuldeep, accused-appellant is partly accepted in the manner indicated above. 18. The accused-appellants were released on bail by this Court during the pendency of the appeal. Their bail/surety bonds are cancelled. They be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court.