Punjab-Haryana High Court
Raghbir @ Gunga vs State Of Haryana on 1 December, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal S-929-SB of 2001
Date of Decision : December 01, 2010
Raghbir @ Gunga
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. S.S. Walia, Advocate
Mr. Ravish Kaushik, Assistant Advocate General, Haryana.
T.P.S. MANN, J. (Oral)
This appeal is directed against the judgment and order dated 7/10.8.2001 passed by Additional Sessions Judge, Hisar whereby the appellant was convicted under Section 376 and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months.
According to the prosecution, the appellant committed rape upon the prosecutrix, a married lady, on 27.2.2000 at 6.00 P.M. In her statement made before the police, on the basis of which FIR No.38 dated 28.2.2000 under Sections 376/452/120-B IPC was registered at Police Station, Narnaund, the prosecutrix had stated that she was Criminal Appeal S-929-SB of 2001 -2- married about 13 years ago with Ved Parkash. From the said wedlock, one daughter and one son were born to her. Her husband Ved Parkash was murdered about two years earlier and, thereafter, she entered into karewa marriage with Jai Parkash, elder brother of Ved Parkash. She had been living alongwith her husband Jai Parkash and both of her children in a dhani in the agricultural land. On 27.2.2000 at 6.00 P.M. when her husband had gone to purchase household articles from the village shop, the appellant, alongwith an unknown person, came to the dhani and sat on the cot lying in the courtyard. They enquired from the prosecutrix about her husband. She replied that her husband was away for purchasing household articles. She went to the cattle room and when she was tying a calf with the peg, the appellant entered the said room and grabbed her from behind. She was thrown on the ground, whereafter the appellant broke open the string of her salwar. The prosecutrix made an attempt to escape from the clutches of the appellant. In the process, her jumper (shirt) was torn. The appellant gave several teeth bites on her person and committed rape upon her. The alarm raised by the prosecutrix attracted her 4½ years old daughter. The companion of the accused kept on standing at the door of the kotha. In the meantime, Jai Parkash returned to the dhani and on hearing the alarm raised by the prosecutrix and her daughter raised a lalkara whereupon both the accused fled from the scene. The prosecutrix narrated the entire incident to her husband. By that time, it had grown dark. Therefore, both of them did not move out of the dhani. On the Criminal Appeal S-929-SB of 2001 -3- next morning, the prosecutrix, alongwith her husband, went to the house of Sewa Parkash, elder brother of her husband, and narrated the entire episode to him. Sewa Parkash sent Jai Parkash back to the dhani as the children were all alone there and he, thereafter, took the prosecutrix to Civil Hospital, Narnaund, from where they were referred to a lady doctor at Civil Hospital, Hansi. When they reached Civil Hospital, Hansi, they were told to lodge a report with the police in the first instance. Both of them then left for Police Station, Narnaund but at Kheri chowk, they came across ASI Raj Kumar, before whom the prosecutrix made her statement, as mentioned above. As the statement revealed commission of cognizable offences, it was sent to Police Station, Narnaund where FIR No.38 was registered on 28.2.2000 at 8.25 P.M. During investigation of the case, the prosecutrix was got medico-legally examined. The police took into possession a sealed vial containing pubic hair, another sealed vial containing vaginal swab and one more sealed parcel containing salwar and jumper, which were handed over by the lady doctor. The police prepared rough site plan of the place of occurrence and recorded the statements of the witnesses. The appellant and his co-accused Satyawan @ Sattan were arrested on 3.3.2000 and got medico-legally examined.
After completion of investigation and presentation of Criminal Appeal S-929-SB of 2001 -4- challan, followed by commitment of the case, the appellant and his co- accused were charged for an offence under Section 376(2)(g) IPC, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Dr.Usha Kalra, PW2 Dr. Satish Sulekh, PW3 Virender Kumar, Patwari, PW4 ASI Ram Niwas, PW5 HC Balbir Singh, PW6 HC Mohinder Singh, PW7 C. Rajinder Kumar, PW8, the prosecutrix, PW9 SI Jagat Singh, PW10 HC Ram Kumar, PW11 Jai Parkash and PW12 ASI Raj Kumar, besides tendering in evidence report Ex.PM of Forensic Science Laboratory and documents Ex.PA to PL and PN.
When the appellant and his co-accused were examined under Section 313 Cr.P.C., both of them denied the prosecution allegations appearing against them and pleaded false implication. In defence, they examined DW1 Balwant.
After hearing learned counsel for the parties and going through the evidence brought on the record, the trial Court acquitted Satyawan @ Sattan accused of the charge against him. The prosecution case against the appellant was believed. However, in view of the acquittal of his co-accused, he was exonerated of the charge under Section 376(2)(g) IPC, instead, he was convicted under Section 376 IPC and sentenced, as mentioned above.
Criminal Appeal S-929-SB of 2001 -5-
I have heard learned counsel for the parties and perused the evidence with their able assistance.
Learned counsel for the appellant has submitted that there was a long delay of more than 24 hours in the lodging of the FIR. This delay had been used by the prosecutrix and her husband to come up with false version against the appellant.
The occurrence in question had taken place on 27.2.2000 at 6.00 P.M. in the dhani of the prosecutrix at village Kapro. The said place was at a distance of 18 kms. from Police Station, Narnaund. By the time the occurrence was over, it had grown dark. For this reason, the prosecutrix and her husband Jai Parkash did not move out from their dhani. On the next morning, both of them went to the house of Sewa Parkash, elder brother of Jai Parkash, and narrated the entire incident to him. Considering that the two children of the prosecutrix were all alone at his dhani, Jai Parkash was sent back to look after them. Sewa Parkash then accompanied the prosecutrix to Civil Hospital, Narnaund and from there to a lady doctor at Civil Hospital, Hansi. Even at Civil Hospital, Hansi, the prosecutrix was not medico-legally examined. Instead, she was directed to inform the police in the first instance. Accordingly, the prosecutrix and Sewa Parkash left for Police Station, Narnaund. On the way at Kheri chowk, they came across ASI Raj Kumar, before whom the prosecutrix made her statement Ex.PG. As the said statement disclosed Criminal Appeal S-929-SB of 2001 -6- commission of offences under Sections 376/452/120-B IPC, ASI Raj Kumar made an endorsement Ex.PG/1 on the same on 28.2.2000 at 7.30 P.M. and sent it to Police Station, Narnaund for registration of the FIR. The FIR came into existence on the same evening at 8.25 P.M. There was, thus, no delay in the lodging of the FIR. Whatever delay occurred had been satisfactorily explained by the prosecution.
Learned counsel for the appellant submitted that vide report Ex.PM of the Forensic Science Laboratory, Haryana, semen was not detected on the vaginal swab, pubic hair and shirt of the prosecutrix. Therefore, it cannot be said that the prosecutrix was subjected to sexual intercourse by the appellant.
A perusal of report Ex.PM would reveal that human semen was detected on the salwar of the prosecutrix. The absence of semen on the vaginal swab and pubic hair is explainable as the prosecutrix was medico-legally examined on 28.2.2000 at 10.45 P.M. and in the preceding 28 hours after she was subjected to sexual intercourse by the appellant she might have washed her private parts. Therefore, no benefit can be extended to the appellant on account of non-detection of seminal stains on the vaginal swab and pubic hair.
The testimonies of the prosecutrix, while appearing as PW8 and that of her husband Jai Parkash, while appearing as PW11, are clear and consistent to show that it was the appellant who had committed rape Criminal Appeal S-929-SB of 2001 -7- upon the prosecutrix. During the sexual assault, the prosecutrix had tried her level best to escape from the clutches of the appellant and in the process, the jumper worn by her was torn. PW1 Dr. Usha Kalra, while medico-legally examining the prosecutrix noticed six circular interrupted abrasions on both the cheeks in lower part, inner aspect of right thigh, anterior aspect of left forearm, left side of the chest wall on upper aspect and just above her right breast. The doctor had opined that the possibility of the injuries found on the person of the prosecutrix as having been sustained on 27.2.2000 at 6.00 P.M. could not be ruled out.
The appellant was medico-legally examined on 3.3.2000 at 6.30 P.M. by PW2 Dr. Satish Sulekh, who found him capable of performing sexual intercourse.
As per DW1 Balwant, there was a dispute between the prosecutrix and the wife of the appellant regarding payment of purchasing of cow by Jai Parkash and both the ladies had a scuffle while in his presence when he went to purchase biri from the village shop. Both the ladies exchanged fisticuffs and caused injuries to each other by giving teeth bites. In view of the aforementioned statement made by DW1 Balwant, learned counsel representing the appellant submitted that the prosecutrix was never subjected to forcible sexual intercourse by the appellant and, in fact, it was the prosecutrix and her husband who made use of the presence of the injuries on the prosecutrix to come up with a Criminal Appeal S-929-SB of 2001 -8- false version of the prosecutrix being subjected to forcible sexual intercourse.
Going by the nature of the injuries found on the person of the prosecutrix as noticed by PW1 Dr.Usha Kalra, it cannot be said that these injuries were received in the alleged scuffle between the prosecutrix and the wife of the appellant. In any case, the prosecutrix would not have received an abrasion on the inner aspect of her right thigh if she had a scuffle with another lady. Moreover, no material has been brought on the record by the defence that the wife of the appellant had suffered any injury on her person as claimed by DW1 Balwant. In view of the same, the version given by DW1 Balwant does not enable the appellant to seek exoneration of the charge against him.
I have perused the impugned judgment of conviction and sentence. The same is based upon proper appreciation of the evidence available on the file. Even sentence of seven years awarded to the appellant is the minimum as prescribed by law. Therefore, no case is made out for any interference in the conviction and sentence of the appellant.
The appeal is, accordingly, dismissed.
( T.P.S. MANN )
December 01, 2010 JUDGE
satish