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2012 DIGILAW 1734 (PNJ)

Ramanand v. State of Haryana

2012-12-04

K.C.PURI

body2012
K. C. Puri, J.— (ORAL) This appeal is directed by Ramanand against the judgment and order dated 13.10.2008 passed by Shri R. K. Yadav, Additional Sessions Judge, Fatehabad vide which the accused/appellant was convicted under Sections 376(2G), 342 and 506 read with section 34 of the Indian Penal Code (in short – the IPC) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/- and in default thereof to further undergo rigorous imprisonment for one year under Section 376(2G) of the IPC. The accused-appellant was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1000/- under Section 342 read with Section 34 of the IPC and in default of payment of fine to undergo further SI for one month. The accused-appellant was further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo further SI for two months under Section 506 read with Section 34 of the IPC. However, all the sentences were ordered to run concurrently. 2. The story of the prosecution in brief is that on 3.10.2006 at about 8. 00p. m. accused Satish @ Kalu son of Shamsher Singh came to the residence of prosecutrix and requested her to accompany him to his sister's house as the latter was about to deliver a baby. She accompanied Satish and when she entered his sitting room she found the co-accused Ramanand already sitting there. On enquiry Satish informed her that his sister was in the next room. At his instance, the prosecutrix went into the second room but did not find anyone over there. Satish pushed her inside the room while Ramanand closed the latch. Ramanand caught hold of her and pushed her on the bed while Satish raped her. Thereafter, Satish caught hold of her and Ramanand raped her. She raised an alarm but the two accused threatened to kill her and told her not to disclose the occurrence to anyone. They also extricated a promise on oath from her in this regard. After sometime, her husband Karambir reached the spot. The accused pushed him and managed to escape. She disclosed the entire occurrence to her husband. She raised an alarm but the two accused threatened to kill her and told her not to disclose the occurrence to anyone. They also extricated a promise on oath from her in this regard. After sometime, her husband Karambir reached the spot. The accused pushed him and managed to escape. She disclosed the entire occurrence to her husband. They went home and consulted their family members and thereafter reported the matter to the police. On the basis of the information investigation commenced. The accused were arrested. During investigation accused Satish was found to be a juvenile and therefore ordered to be sent to the Juvenile Court on 16.11.2006. After completion of necessary investigations, challan against the accused was presented for trial of the accused-Ramanand. 3. On appearance of the accused, copies of documents were supplied to the accused free of costs. Since offence under Section 376 of the IPC was alleged against the accused, therefore, the Illaqua Magistrate committed the case to the Court of Session for trial. 4. Charges under Section 376 (2G), 342, 506, 34 of the IPC was framed against the accused to which he pleaded not guilty and claimed trial. 5. In order to prove its case, prosecution examined SI Joginder Singh (PW-1), HC Mahender Singh (PW-2), Constable Virender Singh (PW-3), HC Mahender Singh (PW-4), Dr. Pankaj Gupta MO (PW-5), Balwant Singh, Draftsman (PW-6), Dr. Ramesh Chakrawarti (PW-7), ASI Tarlochan Singh (PW-7), prosecutrix PW-8, Karamvir husband of the prosecutrix (PW-9), ASI Banwari Lal (PW-10), and closed the prosecution evidence. 6. In the statement recorded under Section 313 Cr. P. C., the accused denied all the allegations as incorrect and pleaded that he has been falsely involved in this case. In defence he examined Jogidner DW-1, Bahadur DW-2 and Dr. R. C. Goyal DW-3. 7. The trial court after appreciating the evidence convicted and sentenced the accused vide judgment and order dated 13.10.2008. 8. Feeling dissatisfied with the aforesaid judgment and order dated 13.10.2008, the present appeal has been directed by appellant. 9. I have heard learned counsel for both the sides and have gone through the records of the case. 10. 7. The trial court after appreciating the evidence convicted and sentenced the accused vide judgment and order dated 13.10.2008. 8. Feeling dissatisfied with the aforesaid judgment and order dated 13.10.2008, the present appeal has been directed by appellant. 9. I have heard learned counsel for both the sides and have gone through the records of the case. 10. Learned counsel for the appellant has submitted that there was no injury on the person of the prosecutrix as well as her private part or on the private part of the appellant and other accused Satish, the prosecutrix was aged 38 years and she could put sufficient resistance. So, the trial Court has wrongly convicted the appellant for the offence under Section 376(2G) of the IPC. 11. I have carefully considered the said submission but do not find any force in the said submission. 12. As per medical report there were two injuries on the left elbow and left forearm of the prosecutrix. It is not necessary that in case of rape there must be injuries on the private part of the prosecutrix or that of the accused. 13. Learned counsel for the appellant has further submitted that according to the statement of Dr. Ramesh Chakarwarti, prosecutrix disclosed that rape has been committed on her by Kala son of Shamsher and this witness has not given the name of the appellant. So, the prosecution story is doubtful. 14. I have carefully considered the said submission but do not find any force in the said submission. 15. Satish alias Kala son of Shamsher Singh is a juvenile and is stated to be facing trial for offence under Section 376(2G) of the IPC. It is not the requirement of the law that prosecutrix should give the name of assailants to the doctor. So, the appellant cannot have benefit of the said argument. 16. Learned counsel for the appellant has further submitted that house of the accused is situated in abadi. The prosecutrix could have raised noise and it cannot be said to be case of rape. At the most it can be taken that prosecutrix is a consenting party when her husband came to know about the fact that prosecutrix has sexual inter course with accused she has lodged a false report. 17. I have carefully considered the said submission but do not find any force in the said submission. 18. At the most it can be taken that prosecutrix is a consenting party when her husband came to know about the fact that prosecutrix has sexual inter course with accused she has lodged a false report. 17. I have carefully considered the said submission but do not find any force in the said submission. 18. The case of the appellant put up in the defence is that he is unable to have sexual inter course. The accused has examined DW-1 Joginder, who has stated that accused is not fit for sexual inter course and on that account his wife has deserted him. The accused has also examined DW-3 who has stated that he prescribed a medicine of sexual weakness to Ramanand appellant. 19. However, the said argument falls to the ground as DW-3 Dr. R. C. Goyal had stated that he cannot confirm whether Ramanand accused was impotent. Mere fact that he was taking medicine of sexual weakness does not prove the assertion made by counsel for the appellant that appellant is not fit to have sexual inter course. The prosecution has examined PW-5 Dr. Pankaj Gupta, Medical Officer to prove the fact that Rama Nand appellant was capable of performing sexual inter course. Even suggestion has not been put to this witness that he is unable to perform sexual inter course. So, the evidence of Dr. Pankaj Gupta (PW-5) to the fact that Ramanand is capable of performing sexual inter course goes unrebutted. The whole testimony of DW-2 father of the accused-appellant and that of Dr. R. C. Goyal (DW-3) does not prove the fact that appellant is not capable of performing sexual inter course. 20. The other arguments raised by the counsel for the appellant that prosecutrix is a consenting party falls on the ground as a sand castle as the second stand taken by the appellant that he is unable to perform sexual inter course. It so seems that appellant is taking different stand at different stages of trial just to save himself. It was not a case of appellant before the trial court that prosecuting was a consenting party. 21. Learned counsel for the appellant has further submitted that there is a delay in lodging the FIR and on that account the prosecution story is doubtful. 22. I have carefully considered the said submission but do not find any force in the said submission. 23. 21. Learned counsel for the appellant has further submitted that there is a delay in lodging the FIR and on that account the prosecution story is doubtful. 22. I have carefully considered the said submission but do not find any force in the said submission. 23. The delay in such cases is immaterial as due to social structure of Indian society. In the Indian Society victim of rape has to undergo severe type of mental pain and agony due to the occurrence. Normally inhabitants of the locality asked searching questions to the victim and her family about the occurrence and raise suspicion about the character of the prosecutrix, although she is a sufferer. So, in these circumstances, the prosecutrix and her family members think thousand times before lodging the FIR in a rape case. So, the delay in the present case is not fatal. 24. Lastly the learned counsel for the appellant has submitted that the appellant has already undergone incarceration for a period of four years eight months and twenty seven days out of the substantive sentence of ten years and prayer has been made for reduction in sentence. 25. Learned counsel for the appellant has relied upon the following authorities to press his submission regarding reduction in sentence :- 1. Tapas Mondal versus State of West Bengal reported in page 2010 (3) AICLR page 549 ; 2. Lillu alias Rajesh and others versus State of Haryana reported in 2011 (2) R. C. R. (Criminal ) page 814 ; 3. Mishra Singh & another vs. State of Punjab reported in 2008 (1) R. C. R. (Criminal ) page 631. 26. As per provisions of Section 376 (2)(g) the minimum sentence prescribed is ten years. However, after giving reasoning the sentence can be reduced than the minimum prescribed. In the present case, the prosecutrix is 38 years old and appellant has given his age as 22 years on 22.7.2008 when his statement under Section 313 of the Cr. P. C. was recorded. So, his age was about 20 years at the time of commission of the offence. In the present case, the prosecutrix is 38 years old and appellant has given his age as 22 years on 22.7.2008 when his statement under Section 313 of the Cr. P. C. was recorded. So, his age was about 20 years at the time of commission of the offence. The Division Bench of Calcutta High Court in authority Tapas Mondal's case (supra) held that where the accused is 20 to 25 years of age and is passing through adolescence at the time of commission and there is no record that he had committed the offence earlier, so, on those grounds the sentence was reduced to seven years instead of ten years for offence under Section 376 (2G) of the IPC. In the present case also, the appellant was passing through the age of adolescence and he is not a previous convict and has not tried for similar offence earlier. 27. In authority Lillu alias Rajesh and others' case (supra), the Division Bench of this Court reduced the sentence to seven years under Section 376(2G) of the IPC where the prosecutrix was less than 16 years of age relaying upon the authority State of Chhattisgarh vs. Derha reported as 2004 (2) RCR (Criminal) page 714. In authority State of Chhattisgarh vs. Derha's case (supra) the prosecutrix was aged eight years and the accused was aged 18 years and so in the circumstances sentence was reduced to seven years instead of ten years. 28. In authority Mishra Singh & another's case (supra) this Court reduced the sentence from ten years to seven years although the prosecutrix was student of 8th standard and was aged about 14 years. 29. So, keeping in view all the circumstances mentioned above, the sentence of appellant under Section 376(2G) of the IPC is reduced to rigorous imprisonment to seven years instead of ten years awarded by the trial Court. However, the sentence of fine under Section 376(2G) of the IPC and sentence of imprisonment and fine imposed under Sections 342, 506 read with Section 34 of the IPC stands affirmed. However, all the sentences are ordered to run concurrently. The period of detention during the investigation, trial and after conviction is ordered to be set off against the substantive sentence awarded above as per provisions of Section 428 of the Cr. P. C. 30. With the reduction in the sentence the appeal stands dismissed. 31. However, all the sentences are ordered to run concurrently. The period of detention during the investigation, trial and after conviction is ordered to be set off against the substantive sentence awarded above as per provisions of Section 428 of the Cr. P. C. 30. With the reduction in the sentence the appeal stands dismissed. 31. A copy of this order be sent to the trial Court for strict compliance.