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2015 DIGILAW 2334 (PNJ)

Rajesh @ Pappu Yadav v. State of Punjab

2015-12-21

JITENDRA CHAUHAN

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JUDGMENT : Jitendra Chauhan, J. These two appeals are being decided by the common judgment, preferred by the accused-appellants, against the judgment of conviction and the order of sentence dated 12.12.2003, passed by the Additional Sessions Judge (Adhoc), Fast Track Court, Ludhiana vide which they were convicted and sentenced as under:- Offence Sentence Fine In default 376(2)(g) IPC RI for 10 years Rs.1000/- RI for 3 months The facts of the case as noticed in para no. 2 of the judgment of the trial Court are as under :- "The prosecution case stands registered on the basis of statement of prosecutrix Bhuman Kalan which was recorded by SI Balwinder Singh on 08.10.2000. The prosecutrix has averred in her statement that she was married with Prem Bahadur, who at the time of occurrence was working as Peon in M/s Pathak Machine tools, Ludhiana. She along with her husband used to reside in the same factory. On 07.10.2000 at about 2:30 p.mshe along with her husband went to Jamalpur colony in order to witness the Dushehra festival. At about 7 p.m., they were coming back on a three-wheeler and when the said three wheeler reached near Railway Crossing Dhandari Kalan, Ludhiana, the owner of the said three wheeler asked the prosecutrix and her husband to get down and refused to go further. The prosecutrix as well as her husband entered into discussion with the owner of three wheeler and in the mean time, a traulla bearing No. PJW-4740 came there, in which three persons i.e. accused were sitting. The driver of traulla get down and asked the husband of prosecutrix as to why they were quarreling and those persons further offered them lift in their traulla to drop the prosecutrix and her husband at their residence. The prosecutrix and her husband then boarded that traulla. The driver of said traulla then took it towards Dry Post and on the way he slowed down the speed of traulla and the other persons pushed the husband of prosecutrix out of the traulla. The prosecutrix tried to raise alarm, but those two persons gagged her mouth and started threatening her with dire consequences if she raised alarm. They then took the traulla to a deserted place and the driver of same asked other two persons to get down and thereafter he committed rape upon the prosecutrix against her will and consent. The prosecutrix tried to raise alarm, but those two persons gagged her mouth and started threatening her with dire consequences if she raised alarm. They then took the traulla to a deserted place and the driver of same asked other two persons to get down and thereafter he committed rape upon the prosecutrix against her will and consent. Thereafter other person came inside the traulla and he committed rape upon the prosecutrix and finally third person also committed rape upon the prosecutrix without her wish and consent. Those persons were calling each other by their names i.e. Rajesh, Bindeshwari and Ram Yatan. Accused Rajesh while committing rape upon the prosecutrix also brandished a knife towards her and threatened her with dire consequences. Thereafter, all the accused again repeatedly raped the prosecutrix. In the mean time husband of prosecutrix along with one Kumb Lal and Paramjit Singh came there and on seeing them accused threw the prosecutrix out of the traulla and fled away from the spot. The prosecutrix being in pain and nervous condition was taken to her residence where she narrated the entire occurrence to her husband, but due to fear and threats given by the accused, they did not disclose about the occurrence to any body." 2. Charge under Section 376(2)(g) IPC was framed against the accused to which the accused did not plead guilty and claimed trial. 3. In order to prove its case, the prosecution examined PW-1 Dr. Kiran, PW-2 Constable Parmod Raj, PW-3, Dr. Ashok Raswant, PW-4 Dr. R.S. Grewal, PW-5 HC Kuldeep Singh, PW-6 Bhooman Kalan (prosecutrix), PW-7 Prem Bahadur, husband of the prosecutrix, PW-8 SI Balwinder Singh and PW-9 Harminder Singh. 4. In their statements, recorded under Section 313 Cr.P.C, the accused pleaded false implication. In defence, DW-1 Kallu Yadav and DW-2 Bhagwan Dass were examined. 5. After going through the evidence and hearing the counsels for the parties, learned Trial Court convicted and sentenced the accused as indicated above. 6. Aggrieved by the judgment of conviction and sentence, the accused-appellants filed the present appeals. 7. It is contended that there are material contradictions with regard to place of occurrence. As per the FIR, the prosecutrix was raped on the traula by the appellant whereas, in her deposition before the Court, she has stated specifically that she was raped near bushes. Aggrieved by the judgment of conviction and sentence, the accused-appellants filed the present appeals. 7. It is contended that there are material contradictions with regard to place of occurrence. As per the FIR, the prosecutrix was raped on the traula by the appellant whereas, in her deposition before the Court, she has stated specifically that she was raped near bushes. He further states that the statement of the prosecutrix acquires significance when read in the line of statement of the I.O., who has specifically stated that he correctly recorded and read over the statement to the prosecutrix and her husband. The medical examination was not carried out immediately. The incident took place on 7.10.2000 whereas, the medical examination was carried on 9.10.2000. No mark of injury was noticed on the person of the accused during the medical examination. Lastly, it is submitted that the prosecutrix allegedly made a statement that the appellant pushed her husband out of the traula whereas, there is no evidence on record with regard to any injury suffered by her husband. During the medical examination, no injury was noticed on the person of the accused. He further states that the identity of the appellants is not established in the present case. In the FIR, the appellant has been described as Rajesh Kumar, whereas, in the deposition before the Court, she has stated that she was raped by the appellant, Pappu Yadav. He further states that the appellants were not known to the prosecutrix whereas, the prosecutrix has named the appellants accused which creates doubt about the prosecution case. 8. On behalf of accused Rajesh Kumar @ Pappu Yadav, it is contended that on the day of occurrence i.e. 7.10.2000, he was in Kanpur. He has been falsely roped in. Much prior to the date of occurrence, the appellant had left for Kanpur along with his father Kallu Yadav to visit his sister which is corroborated from the statement of DW-1, Kallu Yadav, who has specifically deposed that his son Pappu Yadav had gone along with him to Kanpur on 5.10.2000. The railway tickets were also placed on record. It is further contended that there is unexplained delay of about 20 hours in lodging the report to the Police which proves fatal to the case of the prosecution. 9. The railway tickets were also placed on record. It is further contended that there is unexplained delay of about 20 hours in lodging the report to the Police which proves fatal to the case of the prosecution. 9. On the other hand, the learned State Counsel submits that the accused have been rightly convicted and sentenced by the trial Court. He supports the judgment and the order passed by the trial Court and prays for dismissal of the present appeals. 10. I have heard the learned counsel for the parties and have gone through the case. 11. The first contention of the learned counsels for the appellants pertains to the discrepancies in the statements of the prosecutrix made before the police and later, in the Court. It is well established on record that the prosecutrix was unable to read or understand any other language except Nepali and under these circumstances, an interpreter was provided to her at the time of her examination as PW-6. The discrepancies in her statements, if any, are attributable to her lack of knowledge of the native language and in the absence of any infirmity in her statement, the same is not sufficient to disbelieve the case of the prosecution. The statement of the prosecutrix is fully corroborated by the statement of her husband, Prem Bahadur, who has specifically stated that on the relevant date and time, he along with his wife had gone to see the Dushera at Jamalpur. When they were coming back in a three wheeler, the three wheeler stopped at Dhandari Railway crossing. A traulla came there. There were three persons in the traulla, they are the accused present today in the Court. One of the accused asked him not to argue with the driver of three wheeler and sit in the traulla. They sat in the traulla. After half kilometer, the driver slowed down the speed and he was pushed away from the traulla. Khumb Lal and Paramjit met him there and he stated the incident to them and after that, they all went to search his wife and near telephone exchange store, they saw the traulla. The accused threw away his wife from the traulla and fled away. He brought his wife to the residence where she told the entire incident to him. Khumb Lal and Paramjit met him there and he stated the incident to them and after that, they all went to search his wife and near telephone exchange store, they saw the traulla. The accused threw away his wife from the traulla and fled away. He brought his wife to the residence where she told the entire incident to him. Even otherwise, no evidence was adduced by the accused-appellants to prove their enmity with the prosecutrix and her husband. It is a well settled principle that a victim of a sexual offence is not to be treated as an accomplice. Once the prosecutrix has deposed in clear terms regarding the incident, there is no bar against acting on it without corroboration on material aspects. 12. Now coming to the question of the identity of the accused, this Court is of the opinion that once the prosecutrix while appearing in the witness box as PW-6 had identified the accused present in the Court as the perpetrator of the crime, the question of identity does not survive any more. PW-8, SI Balwinder Singh had deposed that accused Rajesh Kumar was also known as Pappu Yadav. Moreover, the accused Pappu Yadav led no evidence to prove that he was not known as Rajesh Kumar. 13. The plea of alibi taken by the accused Rajesh Kumar alias Pappu Yadav does not find favour with this Court even though Ex. D-1 and D-2 are railways tickets but it has not been proved on record that the accused Rajesh Kumar had in fact traveled to Kanpur on 05.10.2000 on those tickets. The mere production of railway tickets does not prove the journey performed by the accused. So, the argument is rejected. 14. The learned counsels for the appellants have raised several questions with regard to the medical examination of the prosecutrix, her husband and of the accused. First of all, it is a well settled principle that absence of injury marks on the person of the accused or of the prosecutrix, does not create a dent in the case of the prosecution. In the present case, not only was the prosecutrix put under fear of her life in case she raised alarm, but accused Rajesh Kumar had also brandished a knife on her. Therefore, the contention that no injury marks were found is rejected by this Court. Secondly, copies of MLR of the prosecutrix Ex. In the present case, not only was the prosecutrix put under fear of her life in case she raised alarm, but accused Rajesh Kumar had also brandished a knife on her. Therefore, the contention that no injury marks were found is rejected by this Court. Secondly, copies of MLR of the prosecutrix Ex. PA and Ex. PA/1 were produced on record, which were prepared by PW-1 Dr. Kiran who had proved these documents in Court. During the cross-examination of PW-1, bed head ticket regarding admission of prosecutrix was also produced and it depicted that she had made the same observation in the bed head ticket and in the MLR of the prosecutrix. Whether these lines were subsequently added in the MLR, as is the contention of the appellants, is not sufficient to dislodge the testimony of the prosecutrix and her husband. Thirdly, the contention that as per the prosecution, the husband of the prosecutrix, Prem Bahadur was pushed out from the moving traulla but he was not medically examined to show any injury marks on his person, does not carry any weight in the eyes of this Court. 15. Lastly, as far as delay of 20 hours in lodging the FIR is concerned, it was proved on record that at the time of commission of rape, the prosecutrix was put under fear for her life as accused Rajesh Kumar had brandished a knife on her. After the occurrence, she was in pain and was feeling traumatized. As it is, in cases of sexual offences, the prosecutrix and her family members are hesitant in reporting the matter to the police and furthermore, a delay of 20 hours assumes no importance in light of the physical and mental agony suffered by the prosecutrix at the hands of the accused. Therefore, the same is of no consequence to the case of the prosecution. 16. No other point has been urged. 17. In view of above, the present appeals are dismissed and the impugned judgment and the order are upheld. The accused are stated to be on bail, they be taken into custody to serve the remaining part of the sentence. Their bail bonds and surety bonds stand canceled.