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2013 DIGILAW 66 (JK)

Balwan Singh and Anr. v. State through P/s Katra

2013-02-04

MANSOOR AHMAD MIR

body2013
This appeal is directed against the judgment and order dated 8th June, 2004, by virtue of which appellants have been convicted for the commission of offences punishable under Sections 366/451/376/34 of Ranbir Penal Code, for short as RPC, and against the order dated 9th June, 2004 announcing the quantum of sentence. 2. The appellants have been sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs. 5000/- for the commission of offences punishable under Section 376 RPC; five years and a fine of Rs. 1000/- for the commission of offences punishable under Section 366 RPC and simple imprisonment of five months for the commission of offences punishable under Section 451 of RPC, hereinafter to be referred as impugned judgment. BRIEF FACTS 3. Prosecutrix, namely Sunita Devi, accompanied by her mother, Geeta Devi, lodged a report in Police Station Katra, to the effect, that in the intervening night of 11th/12th August 1997, accused Sham Singh, Vijay Kumar and Balwan Singh had forcibly made entry into her residential premises; lifted and carried her to the shop of accused Sham Singh where she was subjected to rape by all the three accused. Because of her shouts and screaming, her family members could locate her and rescued her after breaking the locks. Accused Vijay Kumar was apprehended on spot while as other two accused Sham Singh and Balwan Singh fled from the place of occurrence. 4. Registration of this report made the police to investigate the matter, which resulted in filing of a final report in terms of Section 173 of the Code of Criminal Procedure, for short as Cr.P.C., before the court of Chief Judicial Magistrate, Udhampur, who committed the same to the court of learned Sessions Judge, Udhampur, vide order dated 25th November, 1997. All the three accused were chargesheeted for the commission of offences punishable under Sections 376, 363 and 451 of RPC. Accused pleaded not guilty and claimed to be tried. 5. During trial accused No. 1 Sham Singh remained absent and police having failed to execute warrants issued against him resulted in initiation of proceedings in terms of Section 512 of Cr.P.C., vide order dated 20th April, 2004. 6. Prosecution, in support of its case, produced and examined PW 1 Sunita Devi, PW 2 Geeta Devi, PW 4 Swarn Singh, PW 11 Dharesh Khajuria, PW 12 Dr. 6. Prosecution, in support of its case, produced and examined PW 1 Sunita Devi, PW 2 Geeta Devi, PW 4 Swarn Singh, PW 11 Dharesh Khajuria, PW 12 Dr. Renu Sudha, PW 15 Rattan Singh, and PW 16 Hans Raj. Prosecution has failed to examine PW Nos 3, 5, 6, 7, 8, 10, 13, 14 and 17. PW No. 9 was given up. All the said witnesses are not material witnesses. 7. The evidence of the prosecution was closed vide order dated 28th August, 2000 and accused were directed to enter upon defence in terms of Section 274 Cr.P.C. vide order dated 9th September, 2000. Accused/appellants have examined DW Gouri Singh, DW Tirath Ram, DW Badri Nath, ASI, DW Narinder Kumar, HC, DW Sham Singh and DW Sohan Singh. 8. Trial court after hearing counsel for the parties and after scanning the evidence, vide its order dated 8th June, 2004, came to the conclusion that prosecution has proved that accused have committed offences punishable under Sections 366, 451, 376 and 34 of RPC. The order of sentence was passed on 9th June, 2004. 9. It would be appropriate to give the brief resume of the prosecution evidence herein, thus:- 10. PW Sunita Devi has deposed that all the three accused were known to her; Sham Singh was running a shop in the locality; vijay kumar is his employee and Balwan Singh was frequently visiting the shop of accused No. 1. During the intervening night of 11th/12th August, 1997 she was sleeping in the verandah of her parental house while as her mother, brother and grandfather were sleeping inside the room. She was sleeping outside because she had sustained burn injuries while preparing meals. All the three accused entered forcibly in the house. Accused Sham Singh gauged her mouth; accused Balwan Singh caught her arms and accused Vijay Kumar caught her legs. She was then taken to the shop of accused Sham Singh. The shop was bolted from inside. Accused Sham Singh stripped off her clothes. She was laid on a wooden bed and was raped in the first instance by accused Sham Singh for about ten minutes, thereafter by accused Balwan Singh and lastly by accused Vijay Kumar. On hearing her screams her family members broke the door and caught Vijay Kumar on spot while as other two accused fled from the scene of occurrence. She was laid on a wooden bed and was raped in the first instance by accused Sham Singh for about ten minutes, thereafter by accused Balwan Singh and lastly by accused Vijay Kumar. On hearing her screams her family members broke the door and caught Vijay Kumar on spot while as other two accused fled from the scene of occurrence. Story was narrated to the police who registered the case; got the victim examined and seized the clothes viz. Shalwar and shirt. Seizure memo EXPW1 was prepared. She has further deposed that three months prior to the date of occurrence when she was going to Training Center at Katra, accused Sham Singh; Vijay Kumar and a stranger met her. She was photographed nude after having been undressed forcibly. She had reported the said matter to her mother who lodged report with the police in this behalf. 11. The statement of the witness could not be knocked down during cross examination. 12. Other witnesses namely Geeta Devi, Swarn Singh have supported her version. Statement of PW Dr. Renue Sudha is reproduced below: “When questioned by PP stated that on 12.8.97 I was posted as Assistant Surgeon as above and on the said day I examined one Sunita D/o Mohr Singh R/o Chamba Katra on observed as under: Pubic hair were normally placed, non matted, no injury to labia majora, minors and clitoris nated. Hymen ruptured, bleeds p/v nil and seminal fluid found in the vagina. As per lab. Tech report dead sperms were in the vaginal smear. In my opinion the penetration into vagina had been there, since the hyment was ruptured and dead sperms were found in vagina and duration was more than 6 to 8 hours. The certificate to this effect on the file is in my hand writing and bears my signatures. It is marked as EXPWRS. When cross examined by the defence counsel stated that I do not know the prosecutrix personally. She is not present in the court today. During menstruation period of a virgin, the hymen is not ruptured. If two fingers are inserted with force the hymen can rupture. There was not injury on the private parts of the prosecutrix. I cannot say whether she was habitual to sexual intercourse. She further clarified that prosecutrix was not habitual to sexual intercourse. No further questioned was asked.” 13. During menstruation period of a virgin, the hymen is not ruptured. If two fingers are inserted with force the hymen can rupture. There was not injury on the private parts of the prosecutrix. I cannot say whether she was habitual to sexual intercourse. She further clarified that prosecutrix was not habitual to sexual intercourse. No further questioned was asked.” 13. PW Danesh Khajuria, Radiologist, has stated that the age of the prosecutrix was more than 14 years and less than 16 years. 14. PW Hans Raj retired Police Inspector has deposed that he has conducted investigation in the matter and concluded that accused are involved in commission of offences punishable under Section 376/34 of RPC. PW Rattan Singh has obtained the FSL report only. 15. Appellant/Accused had led evidence without having taken any specific stance at the time of framing of charge or at the time of making statement under Section 342 of Cr.P.C. However, the evidence so produced in defence does not, in any way, demonstrate that the story tried to be projected by the medium of police final report, is false and fabricated. 16. There is nothing on the file which can make the court to believe that the prosecutrix has been lying or appellants/accused are being falsely implicated. She has vividly given the details of the occurrence. She has been made the victim, and subjected to rape. 17. Thus, I am of the considered view that prosecution has succeeded in bringing home guilt against the appellant/accused and trial court has rightly convicted the accused. The appellants/accused had been in custody from the date of their arrest till they were released on bail and from the date of impugned judgment i.e. 8th June, 2004, therefore, have undergone more than eight years of rigorous imprisonment. It appears that the appellants/accused have also earned remission as per the Jail Manual. 18. In the given circumstances, I deem it proper to modify the order of sentence by providing that appellants/accused are sentenced to imprisonment for a period already undergone. The fine as awarded by the trial court is maintained and accused/appellants are directed to deposit the same. In default of doing so, they shall undergo imprisonment for a further period of three months. The order of sentence is accordingly modified. 19. The appeal is disposed of on the above terms. 20. The record of the trial court be sent back.