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2011 DIGILAW 1586 (PNJ)

Harnam Dass v. State of Haryana

2011-08-17

A.N.JINDAL

body2011
JUDGMENT A.N. Jindal, J Custody certificate produced by the learned State counsel is taken on record. An young married woman aged about 50/55 years fell prey at the hands of the accused-appellant Harnam Dass (herein referred as, 'the accused'), who under the cover of a Saint black mailed her, took her away and continued raping her for 12 days. Ultimately, he was prosecuted, tried, convicted vide judgment dated 18.1.2003 passed by the learned Additional Sessions Judge, Rewari, and sentenced as under :- U/s 328/363 IPC : Rigorous imprisonment for three years and to pay fine of `200/- on both counts. U/s 366 IPC : Rigorous imprisonment for five years and to pay fine of `200/-. U/s 376 IPC : Rigorous imprisonment for seven years and to pay fine of `500/-. U/s 506 IPC : Rigorous imprisonment for one year. The accused while projecting as a Saint was residing in a temple of Baba Ravi Dass and Hanuman Ji at village Karoli Mandir. The prosecutrix (name not disclosed) was also a resident of the same village. Her husband was not keeping good health, therefore, she, under utter frustration, used to pray the accused for making some arrangements for treating her husband. On this, the accused had given some desi medicines which had been administered to her husband and he felt some what improved. However, for further betterment, the accused advised her to accompany him to Bala Ji. Though the prosecutrix was in quite confidence of the accused, yet, she showed her un-willingness to accompany him to Bala Ji, yet, when the accused put her under fear saying that she does not accompany him then she would have to face some difficulty, whereupon she agreed to accompany him. About 12 days prior to the occurrence i.e. on 15.11.2000, when the prosecutrix had gone to visit the accused, he administered some intoxicants while mixing the same in the tea; took her inside and raped her. He also told her not to disclose about the same to anyone. Thereafter, he took her to Kanina railway station from where they boarded the train and went to some unknown place for 10-12 days where the accused continued raping her and she used to remain under intoxication. One day when she became some what conscious, she requested the accused to leave her and allow her to return to her husband and children. One day when she became some what conscious, she requested the accused to leave her and allow her to return to her husband and children. Thereafter the accused brought her to the village one day prior to Diwali festival and after coming to him, she disclosed all the facts. When she made enquiries about the accused, he was found missing from the village. He had also sent many threatening letters at her house in between. On 27.11.2000, at about 9.00 a.m. the prosecutrix contacted the police party and made the aforesaid statement Ex.PB before SI Ram Singh, on the basis of which FIR Ex.PB/2 was registered by ASI Munshi Ram. The case was investigated; the prosecutrix was got medico-legally examined; statements of the witnesses were recorded; the accused was arrested and on completion of the investigation challan against the accused was presented in the Court. On commitment, the accused was charged under Sections 328/363/366/376/506 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined Dr. A.K. Arora (PW1), SI Ram Singh (PW2), C. Dharampal (PW3), Dr. Sunita Yadav (PW4), HC Kundan Lal (PW5), SI Mahabir Parshad (PW6), C. Jitender (PW7), Prosecutrix (PW8), Shyam Kumar (PW9), ASI Munshi Ram (PW10) and C. Karambir (PW11). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained that he has been implicated due to party politics in the village with a view to turn him out of the temple. However, he did not lead any evidence in defence. The trial resulted into conviction. Arguments heard. Record perused. Dr. A.K. Arora (PW1) who had examined the accused proved his report Ex.PA, vide which he had opined that there was nothing to suggest that the accused could not perform coitus. Similarly, Dr. Sunita Yadav (PW4) had examined the prosecutrix. Though, she did not find injury on any part of her body, yet, after examining report of the Forensic Science Laboratory, she opined that the possibility of sexual intercourse having been committed upon her could be ruled out. Similarly, Dr. Sunita Yadav (PW4) had examined the prosecutrix. Though, she did not find injury on any part of her body, yet, after examining report of the Forensic Science Laboratory, she opined that the possibility of sexual intercourse having been committed upon her could be ruled out. Now when once it is proved that the prosecutrix had been sexually assaulted, the fact remains that, “whether the testimony of the prosecutrix (PW8) has some credibility?” She while appearing in the witness box has re-iterated the entire version stating that she has been black mailed by the accused assuring the good health of her husband. She came into his confidence as with the desi medicines given by him, he had little bit improved. Consequently, she reposed confidence in him and with the hope that her husband would be fully cured, she came under his enticement and after administering some intoxicants he misused her helplessness and raped her in the said semi conscious condition. Thereafter, he took her to some unknown place, where he continuously kept on raping her for 10-12 days. However, the accused brought her back to the village while taking promise that she would surrender before him at any time and place as stated by him. Even after they came to the house, the accused started threatening her through the letters Ex.P1 to Ex.P3. The demeanor of the witness indicated from her testimony speaks to volumes that she was coerced; compelled to consent for sexual intercourse which cannot be said to be a consent at all. According to her, the accused took her three days after the Dushehra festival in the year 2000 and brought her back to the village one day prior to Diwali from where it clearly implies that the accused kept her in his illegal custody for 12 days. First of all the accused committed rape upon her in the temple and thereafter continued raping her at places where she was taken. Her testimony stands corroborated by Shyam Kumar (PW9) who corroborated the testimony of the prosecutrix that her aunt was found missing from the village three days after Dushehra festival and came back one day prior to the Diwali festival and she had disclosed the entire version to him. The prosecutrix had no motive to falsely implicate the accused. Her testimony stands corroborated by Shyam Kumar (PW9) who corroborated the testimony of the prosecutrix that her aunt was found missing from the village three days after Dushehra festival and came back one day prior to the Diwali festival and she had disclosed the entire version to him. The prosecutrix had no motive to falsely implicate the accused. No enmity or animosity has been proved by the accused against her for his false implication rather the story indicates the sexual abuse of a lady by inducing her on the assurance that her husband would be cured. There is no reason to disbelieve her testimony. Even in the absence of the the marks of violence on her private parts in this case would not negate the prosecution version. No sane lady from a respectable family would come forward to take herself to the streets to gain dust and defamation without any rhyme or reason. Consequently, to seek corroboration to the testimony of the prosecutrix would be an insult to the injury. The Full Bench of this Curt State of Rajasthan vs. N.K. 2000 (2) R.C.R. (Criminal) 471 observed as under :- “..... It is true that the golden thread which runs throughout the cob-web of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prawl for easy preys, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirijibhai vs. State of Gujarat, 1983 Crl. L.J. 1096, this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. This Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelieved or suspicion.” It would also not be out of place to mention here that the testimony of the victim stands almost at par with the injured witness and special status has been given to the testimony of the prosecutrix. She could be treated as more reliable and credible even then the injured witness. Consequently, her evidence has a greater weight and corroborative evidence is not an imperative component of judicial credence in every case of rape Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not the requirement of law. The corroboration is not required in each and every case. When a victim of rape at another person's lust, and appears before the court, then her testimony should not be tested with the touch stone of suspicion but the inference has to be drawn from the facts and circumstances of the case with a realistic diversity and not a dead uniformity lest that type of rigidity in the shape of law is introduced through a new form of testimonial tyranny making justice a casualty Further delving deep into the law as settled by the Apex Court from time to time, the case has unique background as a middle aged lady stood enticed by the accused, who has been residing under the cover of a Saint in the temple for 26-27 years, therefore, obviously she could confide in him particularly when on account of some medicines given by him, her ailing husband had little bit improved. With the hope that he would be completely cured, she acted to his commands, but he misused her confidence; he by administering some intoxicant to her and raped her in the temple itself. With the hope that he would be completely cured, she acted to his commands, but he misused her confidence; he by administering some intoxicant to her and raped her in the temple itself. The terror and fear which he extended to her, compelled her to accompany him so that the accused may not cause any harm to her and her family members if she did not obey and he continued misusing his dominance over her by committing rape upon her. The prosecutrix as soon as came out of trauma lodged the FIR. Thus, I have no reason to discard or disbelieve her testimony qua the factum of rape committed by the accused upon her. I am not convinced with the arguments advanced by the learned counsel for the appellant with regard to the delay in lodging the FIR. As per the prosecution, the prosecutrix left the village three days after Dushehra festival and returned to village one day prior to Diwali i.e. 26.10.2000 and, thereafter, the FIR was lodged on 27.11.2000. As such, the FIR cannot be said to be delayed one. She explained as to what actually happened to her. Even delay in lodging the FIR is hardly sufficient to discard the prosecution version. If the delay is caused with a view to concoct the prosecution version or to create evidence then it may be material but when the delay is in routine and accompanied by certain reasons, then such delay cannot be given due importance. It was observed in case State of Punjab vs. Gurmit Singh and others 1996 (1) RCR (Criminal) 533 as under :- “The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” No other argument has been raised. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.” No other argument has been raised. Faced with the situation, learned counsel for the appellant has contended that the accused was 64 years old at the time of commission of offence and now he must be 74 years old, therefore, it is a fit case where some leniency could be extended to him particularly taking into consideration his age. Having examined the facts and circumstances of the case, and the period of 3 years, 4 months and 17 days which he had already undergone so as the age of the prosecutrix and the accused, it would be in the fitness of things if the sentence is reduced to some extent. Consequently, the appeal is dismissed with the modification in the sentence which is reduced to four years without any alteration in the sentence of fine.