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2010 DIGILAW 517 (PNJ)

Darbara Singh v. State Of Haryana

2010-01-21

KANWALJIT SINGH AHLUWALIA

body2010
Judgment Kanwaljit Singh Ahluwalia, J. 1. The present appeal is directed against the judgment of Special Judge, kaithal, who has convicted the appellant for offence under Sec.452 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-. In default of payment of fine, to further undergo rigorous imprisonment for two months. The appellant has also been convicted for offence under Sec.354 IPC and sentenced to undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. 2. The appellant was named as accused in case FIR No.119 dated 11.8.1996 registered at Police Station Cheeka, under Sections 452 and 354 IPC and section 3 and 11 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "1989 Act" ). 3. In the present case, FIR was lodged at the instance of Smt. Krishna wife of Surjit Singh, caste Jat, resident of Harigah Kingan. On 11.8.1996 at 4.00 P. M. she made statement Ex. PA to Kedar Singh, Assistant Sub Inspector, in which she has stated that she is resident of Harigarh Kingan; has got four children and all the children i. e. two sons and two daughters were minor. Her husband Surjit Singh was employed as servant of Nachhattar Singh son of Kakka, resident of Harigarh Kingan. On 10.8.1996, her husband had gone to fields after taking meals. She was sleeping on the roof of the house along with her children. At about One Oclock, present appellant Darbara Singh son of Gurdev singh, resident of village Harigarh Kingan came on the roof through staircase after scaling over the wall of the courtyard. The complainant was sleeping when the accused sat on her cot. The complainant woke up. Accused had made an attempt to outrage her modesty. Complainant gave slap and fist blows to accused and raised noise of "bachao Bachao". On hearing the noise, neighbourers Balkar singh and Ghunna were attracted at the spot. The accused ran away through staircase after opening the door of courtyard. The husband of complainant was not present at the house. Therefore, on his return, complainant narrated the incident and when they were going to Police Station then the police party met them and they made statements. The matter was investigated and report under section 173 Cr. P. C. was submitted. 4. The husband of complainant was not present at the house. Therefore, on his return, complainant narrated the incident and when they were going to Police Station then the police party met them and they made statements. The matter was investigated and report under section 173 Cr. P. C. was submitted. 4. The Court of Special Judge, Kaithal, on 6.1.1997, charged the appellant for committing an offence under section 452 IPC. The charge stated that on the intervening night of 10.8.1996/11.8.1996 in the area of village Harigarh Kingan, accused committed house trespass with an intention to outrage the modesty of Smt. Krishna and thereby committed an offence punishable under Sec.452 IPC. The appellant was also charged for offence under Sec.354 IPC. He was also charged for an offence punishable under Sec.3 read with Sec.11 of 1989 Act. The appellant pleaded not guilty and claimed trial. Prosecution examined five witnesses. 5. Smt. Krishna, complainant, appeared as PW.1. In the examination-in-chief, she stated that when the accused sat on the cot, he made an attempt to open the string of salwar. She gave fists and slaps to the accused. In cross-examination, she stated that the string of salwar was not opened but the accused had made an attempt to open the string of salwar. She was confronted with her statement Ex. PA where it was not stated that the accused had made an attempt to open the string of salwar. She further stated in cross-examination that Ghunna is her husbands brother. 6. Ghunna Ram appeared as PW.2, who corroborated the testimony of PW.1 smt. Krishna, complainant. PW.3 Ram Niwas, Draftsman, had prepared the site plan Ex. PB. 7. Kedar Singh, Assistant Sub Inspector, appeared as PW.4. He proved statement of complainant Ex. PA, endorsement made thereupon by him as Ex. PA/1, and registration of formal FIR Ex. PA/2. He further stated that he went to the spot and prepared site plan Ex. PC with correct marginal notes and the accused was arrested on the same day. Karam singh, Clerk from the office of Sub Divisional Officer (Civil), Guhla, appeared as PW.5. He proved Scheduled Caste Certificate Ex. PE issued in favour of Surjit singh, husband of the complainant. Thereafter, prosecution closed its evidence. 8. The statement of accused has been recorded under Sec.313 Cr. P. C. He denied all the incriminating circumstances. He stated that he is innocent and has been falsely implicated. He proved Scheduled Caste Certificate Ex. PE issued in favour of Surjit singh, husband of the complainant. Thereafter, prosecution closed its evidence. 8. The statement of accused has been recorded under Sec.313 Cr. P. C. He denied all the incriminating circumstances. He stated that he is innocent and has been falsely implicated. He further stated that he had labour dispute with Surjit Singh, husband of the complainant and for that reason, FIR has been registered against him. No evidence has been led in defence. 9. The trial Court, as stated earlier, held appellant guilty of offence under Sections 452 and 354 IPC. However, the appellant was acquitted of charge under Sec.3 read with Sec.11 of the 1989 Act. The trial Court has placed implicit reliance on the testimony of PW.1 Smt. Krishna and PW.2 Ghunna ram. 10. Mr. Sukhjinder Singh Behl, Advocate, appearing for the appellant, has submitted that PW.2 Ghunna Ram is younger brother of the husband of the complainant, therefore, no independent witness has been examined and the allegation has been levelled due to inimical relations of the appellant with the husband of the complainant. It has been further submitted that in the statement Ex. PA, allegation that appellant made an attempt to open the string of salwar was not mentioned. The complainant has improved her version in the court and she has been duly confronted with her statement Ex. PA. Counsel for the appellant has further submitted that there is no external or internal mark of injury on the complainant and four children sleeping with the complainant have not been named as witnesses. It is further contended that there is a delay of 15 hours in lodging the report. Therefore, all the above circumstances justify that the appellant has been falsely implicated. 11. I am not impressed by the contentions raised by counsel for the appellant. It has been explained by PW.1 Smt. Krishna that she waited for her husband to return from the fields and when her husband returned from the fields, they went to lodge the report. The incident had taken place at One oclock on the intervening night of 10.8.1996/11.8.1996. Statement was made on 11.8.1996 at 4.00 P. M. A woman will not put her reputation at stake by levelling false allegations. The incident had taken place at One oclock on the intervening night of 10.8.1996/11.8.1996. Statement was made on 11.8.1996 at 4.00 P. M. A woman will not put her reputation at stake by levelling false allegations. In the night time, appellant had entered into her house, and committed an offence of trespass and on slaps given by Smt. Krishna, appellant immediately ran away from the spot. Therefore, the argument that complainant has suffered no injury does not arise. PW.2 Ghunna Ram is a younger brother of the husband and his presence at the spot is natural and probable. Non-examination of the children cannot be construed against the prosecution as the Court always insist for quality of evidence and not quantity of evidence. 12. At this stage, Mr. Behl stated that in the present case, occurrence had taken place on 10.8.1996/11.8.1996. The appellant has suffered a protracted trial of more than 13 years and he has already undergone about four months of his actual sentence. Mr. Behl has referred to the order dated 1.12.1997 passed by this Court in which it was noticed that the appellant had undergone about four months rigorous imprisonment and this fact, at that time, was not disputed by counsel appearing for the State. Mr. Behl has also referred to the statement made by accused on 24.7.1997 before the Special Judge, Kaithal, when he was heard on quantum of sentence. Accused has stated at that time that he is a poor man and is only bread earner of the family. Counsel for the appellant has stated that as per his knowledge till today, in the last 13 years, the appellant has committed no offence and his responsibility towards his family has increased manifold. Therefore, no useful purpose will be served by sending the appellant behind the bars. 13. I find merit in the submissions made by counsel for the appellant. Taking into consideration protracted trial, conduct of the accused after the occurrence and the fact that he is only bread earner of the family, sentence awarded upon the appellant is reduced from one year to four months rigorous imprisonment. However, sentence of fine is enhanced to Rs.10,000/- and the same shall be paid as compensation to the complainant. In case, fine is not deposited, the appellant shall undergo rigorous imprisonment for two months. 14. However, sentence of fine is enhanced to Rs.10,000/- and the same shall be paid as compensation to the complainant. In case, fine is not deposited, the appellant shall undergo rigorous imprisonment for two months. 14. With the modification in the sentence awarded upon the accused, present appeal is disposed of.