Punjab-Haryana High Court
Krishan vs State Of Haryana on 2 August, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1003-SB of 1998
Date of Decision : August 02, 2010
Krishan ....Appellant
Versus
State of Haryana .....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Raj Mohan Singh, Advocate
Mr. Manish Deswal, Deputy Advocate General, Haryana.
T.P.S. MANN, J. (Oral)
The present appeal has been directed against the judgment and order passed by Additional Sessions Judge, Karnal whereby the appellant was convicted under Sections 376/511 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default thereof, to undergo further rigorous imprisonment for a period of ten months. The appellant was also convicted under Section 506 Part II IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- and in default thereof, to undergo further rigorous imprisonment for a period of one month. Both the substantive sentences of imprisonment were ordered to run concurrently.
According to the prosecution, ten years' old daughter of complainant Sarla, was sleeping alongwith her sister on the roof of her house on the intervening night of 15/16.5.1995, whereas other members of her family were sleeping in the courtyard of the house. At about 2.00 A.M., she heard cries of her ten years' old daughter, who had been taken by Criminal Appeal No. 1003-SB of 1998 -2- the appellant to the staircase of the house of Yogesh and her Salwar had been removed. On seeing the complainant and her husband, the appellant fled away leaving the ten years' old girl there. On enquiry, she told her parents that the appellant had taken her there with an intention to commit rape. Application Ex.PC was moved by Sarla on 16.5.1995 when she met ASI Dharam Pal, who then made an endorsement Ex.PC/2 and sent the application to the Police Station, Butana where formal FIR No.153 (Ex.PC/1) was registered on 16.5.1995 for offences under Sections 376/511 and 506 IPC.
During investigation of the case, ASI Dharam Pal recorded the statements of the prosecutrix, her father Ram Pal and sister Sunita. Rough site plan of the place of occurrence was prepared. The appellant was arrested. The statement of the prosecutrix was also got recorded under Section 164 Cr.P.C.
Charges under Section 376 read with Sections 511 and 506 Part II IPC were framed against the appellant, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Shiv Kumar, Ahlmad as PW1, Tirlok Nath, Draftsman as PW2, Samey Singh, Assistant Sub Inspector as PW3, SI Rameshwar Dass as PW4, Sarla-complainant as PW5, the prosecutrix as PW6 and ASI Dharam Pal as PW7.
When examined under Section 313 Cr.P.C., the appellant denied the allegations levelled against him in the prosecution evidence. He Criminal Appeal No. 1003-SB of 1998 -3- pleaded false implication because of previous enmity. In defence, he examined Prithi Singh, Record Keeper as DW1 and Yogesh Kumar as DW2.
The trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above.
I have heard learned counsel for the parties and gone through the evidence brought on record by the prosecution and the defence.
In her application Ex.PC, complainant-Sarla had stated that when she heard the cries of her ten years' old daughter, she, alongwith her husband, was attracted to the staircase of the house of Yogesh where they saw that the appellant had removed the Salwar of their daughter and on seeing them, the appellant left the prosecutrix and fled from the scene. When appearing as PW5 Sarla stated that she and her husband had seen the appellant in the staircase of the house of Yogesh where the appellant had put off his pant while the prosecutrix was found without her Salwar. She was successfully confronted with the version given in the application Ex.PC wherein the putting off the pant by the appellant was not mentioned. Similarly, the prosecutrix, while appearing as PW6, deposed before the trial Court that the appellant had taken off his Pajama and so also her Salwar and tried to commit sexual intercourse with her. In her cross- examination, she stated that before the police she had mentioned about the accused having removed his Pajama. However, she was confronted with her statement Ex.PD made before the police wherein it was not so recorded.
Criminal Appeal No. 1003-SB of 1998 -4-
Once there is no evidence regarding removal of the Pajama by the appellant and it was a case of removal of the Salwar of the prosecutrix by the appellant, it cannot be said that the prosecution has been able to make out a case for offence under Section 376 read with Section 511 IPC as there is no attempt to commit sexual intercourse. At the most it is a case of outraging the modesty of the prosecutrix by the appellant by removing her Salwar.
It has come in evidence that before leaving the place of occurrence, the appellant had threatened the complainant party not to raise any voice or else he would kill them. Therefore, the appellant has been rightly held guilty under Section 506 Part II IPC.
Resultantly, the appellant is acquitted of the charge under Section 376 read with Section 511 IPC. Instead, he is convicted under Section 354 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. The conviction and sentence of the appellant for the offence under Section 506 Part II IPC, alongwith its default clause, is maintained. Both the sentences of imprisonment shall run concurrently.
The appeal is, accordingly, disposed of.
( T.P.S.MANN )
August 02, 2010 JUDGE
satish