Punjab-Haryana High Court
Sehdev vs State Of Haryana on 12 November, 2010
Author: Jora Singh
Bench: Jora Singh
CRA-S-998-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-998-SB of 2002
Date of decision: 12.11.2010
Sehdev
........ Appellant
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. J.S. Bedi, Advocate for the appellant.
Mr. Paramjit Batta, Additional Advocate General, Haryana,
with Mr. Amit Goyal, AAG, Haryana and
Mr. Gaurav Arora, AAG, Haryana.
JORA SINGH, J.
Sehdev-appellant, preferred this appeal to challenge the judgment of conviction dated 6.5.2002 and order of conviction dated 8.5.2002, passed by the learned Additional Sessions Judge, Faridabad, in Sessions Case No. 105 dated 13.12.1999/5.7.2000, arising out of FIR No. 325 dated 3.6.1999, registered under Sections 451/376/506 of the Indian Penal Code, at Police Station City, Ballabgarh.
By the said judgment, he was convicted under Sections 451/376/506 IPC and was sentenced as under:
a) A rigorous imprisonment for a period of six months CRA-S-998-SB of 2002 -2- and a fine of Rs.500/- for committing an offence punishable under Section 451 of the Indian Penal Code. In default of payment of fine he shall undergo rigorous imprisonment for a period of 45 days more.
b) A rigorous imprisonment for a period of seven years and a fine of Rs.5000/- for committing an offence punishable under Section 376 of Indian Penal Code.
In default of payment of fine he shall undergo rigorous imprisonment for a period of 1¾ (1-3/4) years more.
c) A rigorous imprisonment for a period of six months and a fine of Rs.500/- for committing an offence punishable under Section 506 of Indian Penal Code. In defualt of payment of fine he shall undergo rigorous imprisonment for a period of 45 days more. Prosecution story, in brief, is that Kaushalya (hereinafter referred as 'the prosecutrix') wife of Vikram Singh, was the resident of Uncha Gaon, Subedar Colony, Ballabhgarh. On 2.6.1999, husband of the prosecutrix had gone to village Pahladpur Majra, Tehsil Ballabgarh, to see his maternal uncle Bali. On 3.6.1999, at about 4.00/5.00 a.m. Sehdev-appellant had entered the house of the prosecutrix when she was alone and had raped her against her wish by gagging her mouth with a piece of cloth. Prosecutrix had raised an alarm but accused threatened to eliminate her. After arrival of her husband entire episode was brought to his notice. Prosecutrix alongwith her husband had gone CRA-S-998-SB of 2002 -3- to lodge report in Police Station City, Ballabgarh but no report was recorded. Then application in writing Ex. PD was given to Superintendent of Police, Faridabad, on the basis of which formal FIR Ex. PD/1 was recorded. After inspecting the place of occurrence, rough site plan with correct marginal notes was prepared. Gadda was taken into police possession vide memo attested by the witnesses. Prosecutrix was produced before the doctor for medico-legal examination. After the receipt of report of Forensic Science Laboratory and completion of investigation, challan was presented in the Court.
Accused was charge-sheeted under Sections 451/376/506 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Vikram S/o Nathi Ram, is the husband of the prosecutrix and stated that on 2.6.1999, he had gone to the house of his maternal uncle. On the next day i.e. on 3.6.1999, at 7.00 a.m. when he came back then his wife (prosecutrix) brought to his notice that when she was alone in her house then she was raped against her wish by Sukhdev. After that they had gone to the concerned police station to lodge report but no action by the police. Complaint in writing was given to Superintendent of Police, Faridabad.
PW-2 Constable Chand Ram, tendered his affidavit Ex. PB. PW-3 Dr. Madhulata Paul, on 3.6.1999, had medico-legally examined the prosecutrix and observed as under:
CRA-S-998-SB of 2002 -4-
"On examination, there was no mark of external injury or any mark of struggle over the body.
Shirt and salwar was not torn anywhere. Not complaint of difficulty in walking. Pubic hair not matted, but show some wet discharge.
Parabdomen examination: Height of uterous 22 to 24 week size, fetal heart shont present. No complaining of pain in abdomen.
Par Vaginal examination: Vagina admits two fingers easily. No bleeding, uterous 24 weeks size ante-vertle, some wet discharge can be seen.
P/S examination: Servix was healthy. She not wearing underwear, vaginal swabs taken, sealed and handed over to police. Salwar do not show any stain and blood sealed in a packet and handed over to the police.
In my opinion, there is no objective evidence but possibility of rape cannot be ruled out. Correct carbon copy of MLR is Ex. PC."
PW-4 is the prosecutrix and on oath stated that her husband had gone to village Pahladpur to see his maternal uncle. She was alone in the house. On 3.6.1999,at about 4.00/5.00 a.m. accused came inside her house then broke the string of her salwar she was raped against her wish by gagging her mouth with a piece of cloth. She raised an alarm but accused threatened to eliminate her. At about 7.00 CRA-S-998-SB of 2002 -5- a.m. her husband came back then entire episode was brought to his notice. She alongwith her husband had gone to the police station to lodge report but no report was recorded. After that application in writing was given to Superintendent of Police, Faridabad, on the basis of which formal FIR was recorded.
PW-5 Anuj Kumar, Draftsman, had prepared the scaled site plan Ex. PE.
PW-6 Inspector Samunder Singh, stated that after completion of investigation report under Section 173 Cr.P.C. was prepared by him.
PW-7 Dr. S.S. Yadav, on 30.6.1999, had medico-legally examined Sehdev and opined that he was fit to perform sexual intercourse.
PW-8 IHC Jaswant Singh, tendered his affidavit Ex. PI. PW-9 SI Jeet Ram (Retd.), was the Investigating Officer. After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded wherein the appellant denied all the allegations of the prosecution and pleaded to be innocent.
In defence DW-1 Harender Kumar, Additional Ahlmad, brought the record and stated that Urmila filed complaint under Sections 354/452/506 IPC against Jai Ram S/o Nathi Singh. Sehdev-appellant is the eye-witness. Complaint was filed on 4.2.1999 and next date of hearing was 4.6.2002. Ex. D-1 is the photocopy of the complaint.
Lakhmi S/o Gauri Shankar, filed complainant against Nathi, Jai Ram, Ompal, Madan, Vikram and Khanna, under Sections CRA-S-998-SB of 2002 -6- 148/149/323/452/506, IPC and next date of hearing was 8.4.2002. Ex. D-2 is the photocopy of the complaint.
DW-2 HC Nawal Kishore, stated that Rapat No. 24 dated 6.1.1999, was recorded in view of the statement of Lakhan Lal S/o Gauri Shanker, against Ompal, Vikram and Khanna sons of Nathi Singh. Ex. D-3 is the photocopy of rapat No.24 dated 6.1.1999. Accused were arrested on 6.1.1999 DW-3 Somveer, stated that accused and his family members are known to him. Nathi and his sons are also known to him. They are from his village. Sehdev and his family members had old enmity with Nathi and his sons. Panchayat was convened on number of occasions to settle the dispute. Panchayat decided that Nathi and his family members are to leave the village. After that they are residing in village Unchagaon.
DW-4 Banwari Lal, stated that Sehdev, is known to him but he knows nothing about this case.
DW-5 Dhannu, stated that both the parties are known to him. There is old enmity amongst the parties. On 3.6.1999, he was present in his house and did not notice anything about this case. Police came in the evening on 3.6.1999 and it came in the notice of the Panchayat that due to old enmity prosecutrix has falsely implicated Sehdev.
After hearing learned Public Prosecutor for the State, learned defence counsel and after going through the record, appellant was convicted and sentenced as stated aforesaid. CRA-S-998-SB of 2002 -7-
I have heard learned counsel for the appellant, learned State counsel and have carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that there was old enmity amongst the parties. Urmila wife of Lakhan Lal filed complaint Ex. D-1 against Jai Ram brother of Vikram qua the occurrence dated 26.1.1999. Sehdev was the eye-witness. Lakhmi S/o Gauri Shankar, brother of the appellant filed complaint Ex. D-2 against Nathi, Jai Ram, Ompal, Madan, Khanna and Vikram, qua the occurrence dated 10.5.1999. Lakhan Lal got recorded rapat No. 24 dated 6.1.1999, photocopy of which is Ex. D-3, against Vikram and others. Accused were arrested under Sections 107/151 Cr.P.C. on 6.1.1999. Due to previous enmity amongst the parties false case was registered against the appellant. House of the prosecutrix was situated in the abadi area but there was no raula. If the occurrence was at about 4.00/5.00 a.m. on 3.6.1999, then number of persons were expected to be present at the spot but no one came to the house of the prosecutrix after hearing raula. Prosecutrix has minor son but no explanation where the minor son was at the time of occurrence. As per prosecution story, prosecutrix was inside the room and the door was bolted from inside but no explanation how the accused had gone inside the room. On 3.6.1999, prosecutrix was medico-legally examined. According to the doctor no external injury was noticed on her person. There was no struggle mark over the body. Swabs were taken from the vagina but no semen was noticed. In case the prosecutrix was raped against her wish CRA-S-998-SB of 2002 -8- then human semen should have been detected on cotton wool swabs. Statement of the prosecutrix alone is not sufficient for conviction of the appellant. Statement of the prosecutrix should not be taken as gospel truth because she is very much interested in the success of this case due to old enmity amongst the parties.
Learned State counsel argued that on 2.6.1999, husband of the prosecutrix had gone to village Pahladpur Majra to see his maternal uncle. Prosecutrix was alone in the house. On 3.6.1999,at about 4.00/5.00 a.m. accused came inside her house then broke the string of her salwar and she was raped against her wish by gagging her mouth with a piece of cloth. She raised an alarm but accused threatened to eliminate her. Appellant had the motive to commit the crime because earlier to the present occurrence complaints Ex. D-1 and Ex. D-2 were filed by the relations of the appellant and to seek revenge prosecutrix was raped. Motive was double edged weapon. Appellant had the motive to rape the prosecutrix. On the other hand there was possibility of false implication but if appellant was to be falsely implicated then Vikram or his brother could easily level an allegation that appellant had threatened to eliminate them or during night time had stolen some domestic item. There was no idea to involve the prosecutrix. According to the report of the Forensic Science Laboratory, semen was detected on the Salwar of the prosecutrix and Gadda. Appellant when examined under Section 313 Cr. P.C. then did not state a word that due to previous enmity he was falsely implicated or there was a Panchayat and Panchayat had directed the complainant party to leave the village and CRA-S-998-SB of 2002 -9- after that complainant party was residing in village Unchhagaon.
According to the prosecution story, on 3.6.1999, at about 4.00/5.00 a.m. when prosecutrix was alone in her house then appellant came inside her house and raped her against her wish whereas defence version of the appellant was that there was previous enmity amongst the parties and due to previous enmity appellant was falsely implicated in this case. Now the question is whether the prosecution story inspires confidence or defence version is more probable then the prosecution story.
First submission of the learned defence counsel for the appellant was that there was previous enmity amongst the parties and due to previous enmity he was falsely implicated in this case. Ex. D-1 is the copy of complaint dated 4.2.1999, qua the occurrence dated 26.1.1999. Complaint was filed by Urmila wife of Lakhan Lal, brother of the appellant against Jai Ram, brother of Vikram. Complaint was under
Sections 354/452/506 IPC, but no evidence on the file that before 3.6.1999, Jai Ram was served in the complaint or had the notice of the complaint filed by Urmila. Ex. D-2 is the photocopy of the complaint dated 22.5.1999, filed by Lakhmi S/o Gauri Shankar, qua the occurrence dated 10.5.1999. Complaint was against Nathi and his sons but prosecutrix was not one of the accused. Sehdev-appellant was the eye-witness in both the complaints Ex. D-1 and D-2 but again no evidence on the file that on the day of occurrence i.e. 3.6.1999, prosecutrix or her husband had the notice of the complaints filed by Lakhmi or Urmila. Ex. D-3 is the photocopy of rapat No.24 dated CRA-S-998-SB of 2002 -10- 6.1.1999. Rapat was recorded in view of the statement of Lakhan Lal under Sections 107/151 Cr.P.C. Accused were Vikram, Ompal and others. Accused were arrested on 6.1.1999, under Sections 107/151 Cr.P.C. Suppose on 3.6.1999, complainant party had the notice of the complaints Ex. D-1 and Ex. D-2 and security proceedings were initiated against the complainant party in view of rapat No.24, then it means that there was enmity amongst the parties. Old enmity was double edged weapon. Appellant had the motive to commit the crime because on 26.1.1999, Jai Ram made an effort to outrage the modesty of Urmila.
Second allegation is that injuries were caused to Lakhmi S/o Gauri Shankar by Nathi, Jai Ram, Ompal, Madan, Vikram and Khanna but copy of the MLR not on the file to show how many injuries were caused or whether the injuries can be self-suffered or self-inflicted. Filing of different complaints rather show that appellant had motive to commit the crime. On the other hand no doubt due to previous enmity there was possibility of false implication of the appellant but there was no idea to involve the prosecutrix. If the complainant party had the intention to implicate the appellant then a criminal case could easily be got registered against the appellant on the allegation that appellant has stolen some household article or attempted to cause injuries to any of the family member of the complainant party. If the intention of the complainant party was to implicate the opposite party then Lakhan Lal should have been named as accused because wife of Lakhan Lal had filed complaint against Jai Ram or Lakhmi S/o Gauri Shankar, because he had filed complaint against Nathi and others. When there was a CRA-S-998-SB of 2002 -11- previous enmity amongst the parties then due to previous enmity prosecution story was not to be ignored. Previous enmity was one of the suspicious circumstance to scrutinize the evidence with great care and caution.
Next submission of the learned defence counsel for the appellant was that house of the prosecutrix was within abadi area. Occurrence on 3.6.1999, was at about 4.00/5.00 a.m. When there was no fan in the room and room was locked from inside then the prosecution story becomes doubtful as to how the appellant had gone inside the room and if the appellant had gone inside the room and had raped the prosecutrix against her wish then why raula was not raised. After going through the evidence on file, I am of the opinion that submission of the learned defence counsel for the appellant carries little weight. No doubt house of the prosecutrix was within abadi area. There was no fan in the room. Across the road at a distance of 15 feet there was house of brother-in-law of the prosecutrix but after going inside the room, mouth of the prosecutrix was gagged with a piece of cloth. String of the salwar was opened, then prosecutrix was raped against her wish. After committing the crime appellant had fled away from the spot. At about 7.00 a.m. Vikram husband of the prosecutrix came back from his maternal uncle's house. Entire episode was brought to the notice of Vikram then Vikram and prosecutrix had gone to the concerned police station to lodge report but the report was not recorded on the allegation that appellant was an influential person. After that application Ex. PD was presented before the Superintendent CRA-S-998-SB of 2002 -12- of Police, Faridabad. In view of the complaint in writing formal FIR Ex. PD/1 was recorded. On the same day prosecutrix was produced before Dr. Madhulata Paul and was medico-legally examined. No external injury was noticed but at the time of medical examination prosecutrix was pregnant. Pregnancy was 22 to 24 weeks old. Doctor stated that possibility of rape cannot be ruled out. After inspecting the spot Gadda was taken into police possession vide memo attested by the witnesses. When the rape was on the Gadda then there was no question of external injury. Gadda was sent to laboratory alongwith the salwar of the prosecutrix. Semen was noticed on the salwar of the prosecutrix as well as on the gadda. Suggestion was given to Vikram that on 6.1.1999, his brother namely Ompal, had caused injuries to Lakhan Lal, brother of the appellant but qua the occurrence dated 6.1.1999, no complaint in writing. Matter was not reported to the police. No MLR dated 6.1.1999, showing this fact that injuries were noticed on the person of Lakhan Lal. Second suggestion to Vikram was that on 26.1.1999, Jai Ram had gone to the house of the appellant and attempted to outrage the modesty of his Bhabhi (Urmila). Prosecutrix appeared as PW-4 and suggestion was given that on 4.1.1999, Vikram and Ompal, had assaulted Lakhan Lal. Second suggestion to the prosecutrix was that Jai Ram, tried to outrage the modesty of Urmila on 26.1.1999 and there was a Panchayat but no writing of the Panchayat on the file.
In defence DW-3 Somveer, stated that there was enmity amongst the parties but no resolution by the Panchayat. DW-5 CRA-S-998-SB of 2002 -13- Dhannu, stated that there was enmity amongst the parties. On 3.6.1999, he was present in his house and nothing was heard about the present occurrence. DW-3 Somveer, in examination-in-chief stated that to settle the dispute amongst the parties there was a Panchayat. Panchayat had decided that Nathi and his family should leave the village and after that Nathi and his family started residing at Unchagaon but no writing of the Panchayat on the file.
In 2009 (1) RCR (Criminal) 311,"Rajoo and others Vs. State of M.P." Hon'ble Supreme Court held that statement of prosecutrix should not be taken as gospel truth because she is an injured witness.
In 2005 (1) RCR (Criminal) 858, "Pandurang Sitaram Bhagwat Vs. State of Maharashtra", case was under Section 376 and 354 IPC. Evidence showed that parties had strained relations and no cogent evidence available against accused but conviction on the ground that no woman would put her character at stake. Woman can make false allegations.
In 2004 (1) RCR (Criminal), "Dinesh Vs. State of Haryana", it was observed that woman would not ordinarily put her chastity at state by making a false allegation but though this may be the general rule, exceptions thereto are not lacking.
I agree that statement of the prosecutrix cannot be taken as gospel truth and to seek revenge lady can make an allegation that opposite party came to her house and she was raped against her wish but in the present case husband of the prosecutrix alongwith minor child CRA-S-998-SB of 2002 -14- had gone to see his maternal uncle. Prosecutrix was alone in the house. Appellant to seek revenge had gone inside the house of the prosecutrix. With a piece of cloth mouth of the prosecutrix was gagged. She was raped against her wish. There was no external injury on the person of prosecutrix because Gadda was used to commit the crime. Prosecutrix had no occasion to raise an alarm because her mouth was gagged with a piece of cloth. According to the evidence there was no fan in the room but no evidence on the file that door was locked from inside. When the lady was alone in the house then she was to stay inside the room in the morning. Nothing on the file that house of the appellant was at some distance from the house of the prosecutrix and at about 4.00/5.00 a.m. not possible for the appellant to enter the house of the prosecutrix to commit the crime. Admittedly, at a distance of 15 feet across the road there was the house of brother-in-law of the prosecutrix. But relations of the prosecutrix were expected to reach at the spot if there was a raula.
DW-5 Dhannu in examination-in-chief, stated that on 3.6.1999, he was present in his house but had not heard about the present occurrence. Statement is without any evidentiary value because his statement was not recorded by the police. When Dhannu was present in his house then he cannot say that there was no occurrence at the house of the prosecutrix. Dhannu has not stated a word that he had gone to the house of the prosecutrix and had made an enquiry as to whether anything happened or not. When Dhannu was at his house then his statement is without any evidentiary value. CRA-S-998-SB of 2002 -15-
DW-4 Banwari Lal, is also from the village of the parties but he has not stated a word about the present occurrence. DW-3 Somveer, stated that there was enmity amongst the parties. Panchayat had directed the complainant party to leave the village and after that complainant party was residing in village Unchagaon but no suggestion to the witnesses that at the time of occurrence prosecutrix was residing in village Unchagaon.
PW-1 Vikram husband of the prosecutrix, after the present occurrence came back to his house at 7.00 a.m. After that he alongwith the prosecutrix had gone to concerned police station to lodge the report. FIR was recorded at about 2.25 p.m. Prosecutrix was medico-legally examined on the same day at about 4.45 p.m. On 3.6.1999, Gadda was taken into police possession vide memo attested by the witnesses. Salwar of the prosecutrix was also taken into police possession vide separate memo attested by the witnesses. Both were sent to Forensic Science Laboratory and report of the laboratory Ex. PH is to the effect that human semen was detected on both the articles. Before the present occurrence Jai Ram had attempted to outrage the modesty of Urmila and due to this reason to seek revenge appellant had gone to the house of the prosecutrix when she was alone and had raped her against her wish by gagging her mouth with a piece of cloth.
Occurrence is dated 3.6.1999 and on the same day in view of the written complaint Ex. PD, FIR Ex. PD/1 was registered against the appellant. Appellant was arrested on 30.6.1999. Till today no complaint in writing to any authority that case is false. In case on CRA-S-998-SB of 2002 -16- 3.6.1999, appellant had not gone to the house of the prosecutrix and had not raped the prosecutrix and was falsely named due to previous enmity then appellant could easily sent complaints to different authorities but till today no complaint to any authority. No application was given to the Panchayat that case is false. There was no resolution by the Panchayat regarding false implication. If due to previous enmity and to settle the dispute, complainant party was directed to leave the village and to stay in village Unchagaon and there was no occurrence as per prosecution story then Panchayat could easily pass a resolution that case is false. Absence of the appellant from his house till his arrest on 30.6.1999, shows that prosecution story inspires confidence. Although the appellant was presumed to be innocent unless the guilty is proved. Appellant when examined under Section 313 Cr.P.C. then did not state a word that due to previous enmity he was falsely implicated in this case or as per resolution by the Panchayat complainant party was directed to leave the village and stay at village Unchagaon.
No other submission was put forward by the learned defence counsel for the appellant.
In view of the discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld.
For the reasons recorded above, no merit in the present appeal and the same is dismissed.
CRA-S-998-SB of 2002 -17-
Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which concerned authority/the Chief Judicial Magistrate, Faridabad, to issue re-arrest warrants of the appellant to undergo the remaining period of sentence as per impugned judgment.
November 12, 2010 ( JORA SINGH ) rishu JUDGE