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2010 DIGILAW 3284 (PNJ)

Mahesh v. State Of Haryana

2010-12-08

MOHINDER PAL

body2010
Judgment Mohinder Pal, J. 1. This appeal is directed against the judgement of conviction dated 01.09.2000 and the sentence order dated 05.09.2000 passed by the learned judge, Faridabad, whereby appellant Mahesh was convicted and sentenced under Sections 450 and 376 of the Indian Penal Code (hereinafter referred to as the Code). For the former offence, the appellant was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default whereof to undergo further rigorous imprisonment for six months. For the latter offence, the appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/-, in default whereof to further undergo rigorous imprisonment for six months. Both the sentences were, however, ordered to run concurrently. 2. The instant F.I.R was registered against the appellant on the basis of the statement made before the police by prosecutrix (name withheld). 3. The prosecution case, in brief, is that on the night intervening 4/5.5.1999, Birpal husband of the prosecutrix had gone to his duty at about 8.00 P.M. After that, prosecutrix along with her minor son had slept inside the room of her house. At about 12/12.15 A.M, accused M-ahesh, who was their tenant, came down from his room and knocked at the main door of her house. On her asking, he stated that his electric light had gone out of order and he wanted to see the fault from inside her room. Thereupon, she opened the door. The accused started seeing the electric wires. In the meantime, the prosecutrix went inside her room. Accused then bolted the main door of the gate from inside. Thereafter, he entered the room of the prosecutrix and bolted the same from inside. He caught hold of her from her waist and made her to lay down on`the cot forcibly. He also gagged her mouth and then threatened her not to raise an alarm. Then he committed rape upon her. It was at about 1.15 A.M on 5.5.1999 that her husband Birpal reached there and knocked at the door. Thereupon, accused Mahesh fled away from the spot. She then narrated the entire occurrence to her husband. He also gagged her mouth and then threatened her not to raise an alarm. Then he committed rape upon her. It was at about 1.15 A.M on 5.5.1999 that her husband Birpal reached there and knocked at the door. Thereupon, accused Mahesh fled away from the spot. She then narrated the entire occurrence to her husband. The prosecutrix, thereafter, in the company of her husband and his brother Hukam Singh, left for police station to lodge the report against the accused when Assistant Sub Inspector Krishan Kumar (P.W.6), Incharge Police Post Sector-11 met them on the way and the prosecutrix made statement (Exhibit P.B) before him. On the basis of statement of the prosecutrix (Exhibit P.B), the instant F.I.R was registered against the appellant. Thereafter, Assistant Sub Inspector Krishan Kumar visited the spot and prepared rough site plan (Exhibit P.H) with correct marginal notes. He got the prosecutrix medico-legally examined. The accused-appellant was arrested on the same day i.e. 05.05.1999. He was also got medico- legally examined. After completion of investigation, challan was presented against the appellant in Court. The accused was charged under Sections 450 and 376 of the Code. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined Dr. Beena Sharma (P.W.1), prosecutrix (P.W.2), Ashok Kumar, draftsman (P.W.3), Birpal, husband of the prosecutrix (P.W.4), Dr.Sudhir Khurana (P.W.5) and Assistant Sub Inspector Krishan Kumar, Investigating Officer (P.W.6). Statement of the accused-appellant was thereafter recorded under Section 313 of the Code of Criminal Procedure. He denied the prosecution allegations and pleaded innocence. He further stated that all the prosecution witnesses have deposed falsely against him and he was involved in this case due to enmity. In defence, the appellant examined Banwari (D.W.1), who was allegedly the tenant of Birpal, husband of the prosecutrix, in the adjoining room of the accused. 4. I have heard the learned counsel for the parties and have gone through the records of the case. 5. Learned counsel for the appellant argued that the prosecutrix in this case was a consenting party and the appellant was on visiting terms with her for the last about three/four months prior to the occurrence. However, after giving a careful thought to the argument raised and going through the evidence on record, I do not find any force in this argument of the learned counsel. However, after giving a careful thought to the argument raised and going through the evidence on record, I do not find any force in this argument of the learned counsel. Report (Exhibit P.F) given by the Forensic Science Laboratory mentions that blood was detected on the under-wears of the prosecutrix and the accused as well as on the vaginal swabs. Human semen was also detected by the Forensic Science Laboratory on the underwear of the accused. In this case, Dr. Beena Sharma (P.W.1), had medico-legally examined the prosecutrix. According to this Doctor, the last menstruation period of the prosecutrix was 4.5.1999. The occurrence in this case had taken place on the night intervening 4/5.5.1999. The prosecutrix, in her deposition in Court as P.W.2, deposed that she had become unconscious at about 12.45 A.M and then regained consciousness at about 1.30 or 2 A.M on that night. She further stated that after regaining consciousness, she had narrated the entire incident to her husband. It is also worth noticing here that the accused, in his statement recorded under Section 313 of the Code of Criminal Procedure, stated that he was involved in this case on account of enmity. A suggestion was put to Birpal (P.W.4), husband of the prosecutrix, that he had taken loan from the accused, which had not been repaid by him (Birpal). According to the accused, thus, it was on account of the demand made by the accused from Birpal for return of the loan amount that he was involved in this false case. The accused did not allege the amount of loan advanced by him to Birpal anywhere. No husband would put the honour of his wife at stake to avoid repayment of some loan. The prosecutrix in her deposition in Court stated that the duty hours of her husband as Chaukidar were from 8 P.M to 4 A.M, but her husband used to return to the house sometimes at 12 mid-night, sometimes at 1 A.M or 2 A.M. If the husband of the prosecutrix was inimically disposed towards the appellant, as alleged by him, the prosecutrix was not expected to be having intimacy with him (appellant) at the risk of her family life. The facts apd circumstances, noticed above, prove in certain terms that the prosecutrix was not a consenting party. The facts apd circumstances, noticed above, prove in certain terms that the prosecutrix was not a consenting party. The defence version, as sought to be projected by the appellant by producing Banwari (D.W.1), who allegedly was another tenant of Birpal (P.W.4), that the prosecutrix was having intimacy with the appellant, does not inspire any confidence. Banwari (D.W.1) had not been able to produce any document on record which could show that he was a tenant of Birpal (P.W.4). in fact, during the course of arguments, learned counsel for the appellant could not lay any serious challenge to the veracity of the prosecution version. 6. In view of the above, the prosecution has been able to bring home the guilt of the accused beyond all reasonable doubts. Consequently, the judgment of conviction rendered by the learned trial Judge is upheld. However, keeping in view the fact that the incident relates to May, 1999 and Sword of Damocles has remained hanging on the head of the appellant for more than eleven and a half years, the sentence awarded to the appellant under Section 376 of the Code is reduced from rigorous imprisonment for seven years to rigorous imprisonment for three years. The sentence of fine and the default clause under Section 376 of the Code shall remain unaltered. The sentence awarded to the appellant by the trial Court under Section 450 of the Code i.e rigorous imprisonment for three years and fine of Rs. 500/- in default whereof to undergo further rigorous imprisonment for six months, shall remain unaltered. However, as ordered by the trial Court, both these sentences shall run concurrently. The impugned sentence order is modified accordingly. With the above modification in the impugned sentence order, this appeal is hereby dismissed. Appeal dismissed.