Punjab-Haryana High Court
Ishwar Singh And Others vs State Of Hy on 5 September, 2014
Author: K.C. Puri
Bench: K.C. Puri
CRA S 1393 SB of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRA S 1393 SB of 2004 (O&M)
Date of decision : September 05, 2014
Ishwar Singh @ Kala and others
................ Appellants
versus
State of Haryana
................. Respondent
CORAM: HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present: Shri Baldev Singh, Senior Advocate with
Shri Deepinder Singh, Advocate for the appellants.
Shri Amit Kaushik Senior DAG, Haryana.
K.C. PURI, J.
Challenge in this appeal is the judgment and order dated 07.05.2004 passed by Shri S.K.Gupta, learned Additional Sessions Judge, Jagadhri vide which the accused-appellants were convicted under Section 376(2)(g) of the Indian Penal Code ( in short - the IPC) and sentenced to undergo rigorous imprisonment for a period of 10 years each. 2 The prosecution story in brief is that on 4.5.2003, the marriage ceremonies of the marriage of Angrejo Devi, father's sister of 17 years and 11 months old prosecutrix were going on in their village Parwalo. A tent CRA S 1393 SB of 2004 2 was erected in the fields near the abadi of village for reception of Barat. At about 11.00 P.M. the prosecutrix accompanied by her family members including the bride was going to the place where tent was erected to participate in Jaimala ceremony. On the way she felt pain in her abdomen and sat by the side of the road to ease herself, whereas the persons accompanying her proceeded further to the venue. When she sat Ishwar Singh accused came there and caught her from behind. Meanwhile remaining two accused Sandeep Kumar and Tej Pal too arrived there. All the three persons committed rape upon her turn by turn. After the occurrence she did not go to the venue of marriage, rather she returned home. She did not tell about the occurrence to anybody because of marriage in the family and presence of guests. She told about the occurrence to her chachi Sunita Devi on the morning of 7.5.2003. Sunita Devi told about the same to other members of family. The prosecutrix was taken to police station Buria by her chachi Sunita Devi and father Jangsher Singh to report the occurrence. Her statement was recorded in the police station by Mahinder Singh SI and on the basis of her statement, FIR was registered. Thereafter, she was taken to Civil Hospital, Jagadhri where she was medico legally examined by the doctor.
3. Mahinder Singh SI went to the place of occurrence and carried out spot inspection. Rough site plan was prepared. Ishwar Singh accused was arrested on the same day from his house. He was taken to Civil Hospital, Jagadhri, where he was medical legally examined.
4. Next day i.e. on 8.5.2003 remaining two accused namely, CRA S 1393 SB of 2004 3 Sandeep Kumar and Tej Pal were also arrested. They too were medico legally examined.
5. On 16.5.2003 the prosecutrix was produced before the Magistrate and her statement under Section 164 Cr.P.C. was recorded. After completion of the investigation, charge was framed against all the three accused under Section 376 (2)(g) IPC to which they pleaded not guilty and claimed trial.
6. The prosecution, in order to prove the guilt of the accused, examined ten witnesses in all. Thereafter the statement of the accused was recorded under Section 313 Cr.P.C. In their statements, they denied all the allegations and pleaded false implication. Ishwar Singh accused further pleaded that there is an intervening wall between their house and the house of the prosecutrix. On 7.5.2003 a dispute took place over the wall and in that dispute he was given beating by the family members of the prosecutrix. He was locked in a room from where he was got released by the police. As he has become unconscious on account of injuries, he was got falsely implicated in the present case by the family members of the prosecutrix to save their skin.
7. In defence, the accused-appellants examined DW-1 Sandeep Jain, Criminal Ahlmad, DW-2 Nihalu Ram and closed the defence evidence.
8. The trial Court, after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment and order dated 07.05.2004, as aforesaid.
CRA S 1393 SB of 2004 4
9. Feeling dissatisfied with the aforesaid judgment and order dated 07.05.2004, accused-appellants have directed the present appeal.
10. Learned counsel for the appellants has submitted that there is delay of three days in lodging the FIR. The said delay has been used for due deliberations and falsely implicating the accused-appellants. In fact there is a dispute regarding common wall with Ishwar Singh accused. Ishwar Singh accused was given severe beating. Having realized that case would be registered against the family of prosecutrix, the false case under Section 376 (2)(g) of the IPC has been registered.
11. I have considered the said submission but do not find any force in that submission.
12. The delay in lodging the FIR has been fully explained by the prosecution. Moreover, family of the prosecutrix thinks thousand times before lodging the FIR of rape case as they are putting the honour of the unmarried girl at stake. The beating to Ishwar Singh has been fully explained as stated by trial Court. Having come to know about the rape, at the hands of appellant, the family members of victim might have given injuries to accused Ishwar Singh. Under those circumstances, it cannot be believed that due to dispute of Wall any one can lodge false FIR in respect of offence of gang rape.
13. Learned counsel for the appellant has further submitted that prosecution story is unnatural. The occurrence has taken place near a thoroughfare. There was marriage in the family of the prosecutrix. No CRA S 1393 SB of 2004 5 injury was found on the person of the prosecutrix, which rules out the factum of gang rape. The medical evidence also shows that it cannot be a case of gang rape. Prosecutrix was habitual to intercourse as test of two fingers was found positive.
14. I have considered the said submission but do not find any force in that submission.
15. Prosecutrix has categorically stated that occurrence has taken place far away from the place of marriage and there was no light at that place. Prosecutrix was raped by three persons and under those circumstances she may not be able to put resistance. So, the absence of injuries do not prove the fact that it is not a case of rape. Injuries are not necessary in a case of gang rape in such circumstances. The doctor has categorically opined that possibility of sexual intercourse could not be ruled out. So, the argument advanced by the counsel for the appellant that medical evidence does not support the case of prosecution is wrong on the face of it.
16. Authority Narender and another vs. State of Haryana reported in 2014 (2) R.C.R. (Criminal) page 171 is distinguishable as in that case, the accused has taken the defence of consent. There is no such plea of any of the appellants in the present case.
17. In authority Swaroop Singh versus State of M.P. reported in 2013 (2) R.C.R. (Criminal ) page 926, Hon'ble the Apex Court has accepted the testimony of prosecutrix where she was taken in a sugarcane field and sexual intercourse was committed with her. Hymen of the CRA S 1393 SB of 2004 6 prosecutrix was torn and ruptured. The Hon'ble Apex Court has held that no self-respecting women would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
18. In authority Lillu @ Rajesh & Anr. vs. State of Haryana reported in 2013 (3) Recent Apex Judgments (R.A.J.) page 1, Hon'ble the Apex Court has held that in case prosecutrix is habitual to sexual intercourse, it does not give presumption of consent. It has been further held that even a women of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone.
19. Authority Bibhishan vs. State of Maharashtra reported in (2008) 3 Supreme Court Cases (Cri) page 163 relied upon by the counsel for the appellant is distinguishable as in that case, prosecutrix was aged about 18 years and the case relates to offence under Sections 376 read with Section 511 of the IPC. Prosecutrix in the present case is stated to be about 15 years of age.
20. No other point has been urged or raised before me.
21. In view of the above discussion, no ground for interference in the judgment and order passed by the trial Court is made out. Therefore, the appeal preferred by the accused-appellants is without any merit and the same stands dismissed.
22. The accused are stated to be on bail. They be taken into custody to undergo the remaining part of their sentence. CRA S 1393 SB of 2004 7
23. A copy of this order be conveyed to the trial Court for strict compliance.
( K. C. PURI )
September 05 , 2014 JUDGE
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