Punjab-Haryana High Court
Ram Mehar vs State Of Haryana on 10 October, 1997
Equivalent citations: 1998CRILJ1999
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This appeal is directed against the order of conviction and sentence passed against Ram Mehar appellant by Additional Sessions Judge, Rohtak vide order dated 4-7-1987 sentencing him to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 1000/- in default to undergo further rigorous imprisonment for 6 months for having assaulted or for having used criminal force to Smt. Roshni wife of Shiv Narain intending to outrage her modesty on 5-9-1986 at about 12-30 p.m. in the areas of village Madina. Fine was ordered to be paid to Smt. Roshni, if recovered.
2. Now the factual matrix of the case in brief.
3. On 5-9-1986, Smt. Roshni wife of Shiv Narain P.W. 2 went to their fields with meals for her husband. After some time, she was returning to her house, she was intercepted by Ram Mehar accused at about 12-30 p.m. who came from behind and caught told of her. He lifted her and took her in bajra field. She kept trying to get out of his clutches. He felled her on the ground and tried to open the string of her salwar. She raised alarm and gave sickle blows on the face of the accused with a view to disable him so that he did not satisfy his carnal lust on her. Accused fled away. Thereafter she went to her husband and narrated him the episode. She and her husband came to Ram Mehar in his field. Ram Mehar apologised to her husband for this indecent act of assault on his part. She and her husband came to their house in village Madina.
4. Her father-in-law was out of station that day. He returned at about 4 p.m. on 6-9-1986. On 6-9-1986, she and her husband went to PS Madina where the matter was reported by Smt. Roshni. FIR Ex.PD was recorded at PS Madina under Sections 376/511/354 Indian Penal Code. Ram Mehar was got medically examined at Primary Health Centre, Madina on 11-9-1986 for injuries.
5. After investigation, Ram Mehar was challaned under Sections 376/511/354, IPC. He was committed to the Court of Session at Rohtak. Ram Mehar was charged under Section 376/511, IPC vide order dated 27-1-1987 by Additional Session Judge, Rohtak. He was charged under Section 354, IPC as well vide the same order by Additional Sessions Judge, Rohtak, He pleaded not guilty to the charge and claimed trial. For bringing home to the accused the charge levelled against him, the prosecution examined Dr. Anshul, Medical Officer, Primary Health Centre, Madina PW 1, Smt. Roshni PW. 2, Shiv Narain PW. 3, Shri S.C. Ooyal, Judicial Magistrate Ist Class, Rohtak PW. 4, Shri Jai Narain PW. 5, Azad Singh Halqa Paiwari, PW. 6, Harish Chander, Photographer, Meham PW. 7, and ASI Randhir Singh, PW, 8. Affidavits of constable Subhash Chander, constable Muni Ram, and constable Ishwar Singh Exts. PK, PL and PM respectively were tendered into evidence. Besides, the report of the chemical examiner Exts. PN and PN/1 was tendered into evidence. Accused when examined under Section 313, Cr. P.C. denied the imputations appearing in prosecution evidence against him and stated that it was a false case woven against him because father-in-law of Smt. Roshni was owing some money to his uncle Jyanti Ram. Jyanti Ram held Panchayat in connection with that money dealing. In that Panchayat, he had threatened with the abduction of the daughters of Suit. Roshni's father-in-law. He examined his uncle Jyanti Ram DW. I in his defence.
6. At the conclusion of the trial, Ram Mehar was convicted and sentenced as noted above.
7. Dissatisfied with this order of conviction and sentence passed against him by Additional Sessions Judge, Rohtak, Ram Mehar has come up in appeal to this Court. Smt, Roshni has given ocular account of what had happened to her at the hands of the accused. Her husband Shiv Narain has stated above what was told to him by his wife immediately after the occurrence. Shiv Narain's statement is thus in the nature of corroboration to the statement of his wife in the same chain. Statement of Doctor is in the nature of circumstantial evidence bearing upon the ocular version of Smt. Roshni, Doctor found on the medical examination of Ram Mehar on 11 -9-1986 at 12-20 p.m. injuries on his nose and in middle of right side of back 4 cm. lateral to T10 vertebral spine. In the opinion of the doctor, the duration of the injuries was 2 to 7 days. Injuries were simple. Kind of weapon used was blunt. According to the doctor, injury No. 1 could be the result of the use of sickle, Doctor on examination of his genitalia found that there was nothing to suggest that he was not capable of sexual intercourse.
8. Smt. Roshni PW 2 stated in terms of the prosecution case as set out by her in the First Information Report. She stated that Ram Mehar accused took her in his bajra field, felled her on the ground and tried to open the string of her slawar. She raised alarm. She gave sickle blows on his nose with a view to disable him from satisfying his carnal lust on her. He fled away. Some drops of blood foil on her salwar and Chunni on account of the bleeding of the injuries on the nose of the accused, Her salwar and chunni were taken into possession by the police. Assistant Director, Seroiogy-eum-Ex-offieio Assistant Chemical Examiner to the Govt. of Haryana, Forensic Science Laboratory, Madhuban found several small stains of blood on salwar and he found a few small blood stains on chunni which was human blood vide report Exts, PN and PN/1.
9. Learned counsel for the appellant submitted that there is considerable delay in the lodging of the FIR at PS Madina. According to Smt. Roshni occurrence took place on 5-9-1986 at about 12-30 p.m. Matter was reported to the police at 8 p.m. on 6-9-1986, There was delay of about 32 hours in the lodging of the First Information Report* l! was submitted by him that FIR is bereft of the spontaneous version of Smt. Roshni. Spontaneity became casualty because Smt. Roshni and her husband had consulted Norang father of Shiv Narain after his arrival on 6-9-1986 at about 4 p.m. in the village. It was submitted that no value should be attached to the version of Smt, Roshni which is punctuated by after-thought, deliberations, confabulations and consultations, In my opinion, no weight can be attached to the submission made by the learned counsel for the appellant that Smt. Roshni's version be discarded being belated and delayed as we know that oure is still a conservative, orthodox and tradition bound society. In rural areas whenever there is an assault or use of criminal force on a daughter-in-law or a daughter of the village, matter k not reported to the police immediately, In the first instance, attempt is made to swallow such incident lest there should be ignominy to the family in the wake of the publication of this incident. Such incident is reported to the police after some thinking. Matter is reported to the police after pros and cons are weighed between the reporting and not reporting to the police. Smt. Roshni was a young woman aged 22-23 years. Her husband was a young man of 27-28 years of age. Both of them were thus raw and they required to consult Norang because it was Norang who could weigh the pros and cons between the hushing up of the matter and the reporting of the matter to the police. Keeping in view that Smt. Roshni and her husband are ruralites, I am not prepared to attach any importance to the fact that there was delay in the lodging of the FIR. There is another way of looking at this aspect of the case. Smt. Roshni is the only eye witness. If there had been some other eye-witness put forth, it could have been contended that he was introduced afterwards as a consequence of deliberations and consultations. Ram Mehar was the only accused sought to be charged with having assaulted or used Criminal force intending to outrage Smt. Roshni's modesty. If there had been someone else as co-accused with him, it could have been contended that there was false implication of one or the other accused. As is human psychology, nobody reconciles to naming an innocent person and leaving the actual culprit who is the author of the crime.
10. It was next submitted that according to the prosecutrix, she dealt sickle blows on the nose of the accused. Doctor found injuries on the nose and the middle of the right side of the back of the accused which are the result of blunt weapon. It was submitted that sickle will not produce blunt injuries. Suffice it to say, Doctor has stated that injury No. 1 could be the result of sickle Ex. P1. If handle of the sickle is used then it is a blunt weapon otherwise it is a sharp weapon. Chemical examiner found stains of human blood on salwar and chunni of Smt. Roshni. She stated that some stains of blood from the nose of the accused fell on her salwar and chunni when she gave him sickle blows with a view to disable him from succeeding in his object of gratifying his carnal lust on her. The presence of the injuries on the nose of the accused is a very strong circumstance suggesting that Smt. Roshni is truthful in her version. Similarly, the presence of stains of human blood on her salwar and chunni is a circumstance suggestive of the accused's presence with Smt. Roshni in the situation attributed by Smt. Roshni to the accused.
11. It was submitted by the learned counsel for the appellant that Smt. Roshni has stated that she went to her husband and narrated the occurrence to him. She and her husband came to Ram Mehar in his field and remonstrated with him and he apologised to her husband. Her husband Shiv Narain PW 3 stated that after 5-10 minutes of delivering him meals in the fields, she came to him and told him about the occurrence. Then they both went to the accused in his field and the accused apologised. There is a distance of 7-8 kilas between the place where he was working in his field and the place where the accused criminally assaulted Smt. Roshni with a view to outrage her modesty. It was submitted that this distance could not be covered to and for in 5-10 minutes. Nothing turns on this submission because .Shiv Narain PW stated so only by approximation. If she came to him after half an hour or so, nothing will turn on that either.
12. Accused was produced before Shri S. C. Goyal, Judicial Magistrate 1st Class, Rohtak by the police with a view to taking his blood sample. He refused to give his blood sample. Refusal to give his blood sample by him would impinge upon his innocence. He did not give his blood sample for the fear that the group of his blood would be the same as the group of the blood stains present on the chunni and salwar of Smt. Roshni. ASI Randhir Singh PW. 8 who investigated the case stated that there was damage to the crop at the place of occurrence which was photographed. This circumstance also shows that accused was bent upon satisfying his carnal lust upon Smt. Roshni.
13. The monster of conviction being visible to the learned counsel for the appellant, he submitted that occurrence allegedly took place on 5-9-1986 and he was convicted on 6-7-1987 and he is thus facing the vagaries of the criminal trial for the last 10-11 years. Ends of justice would be sufficiently met if he is allowed one opportunity to reform himself and follow the path of rectitude. It was submitted that the modern trend in penology is complete switchover from retribution to reclamation and reformation of the offender. In support of this submission that the appellant should be allowed the benefit of the provisions of the Probation of the Offenders Act, 1958 he drew any attention to Pargat Singh v. State of Punjab 1985 (1)Rec. Cri R 411, Mulakh Raj v. State of Haryana 1991 (3) Rec Cri R 180 (2), Naib Singh v. State of Punjab 1980 Chand LR (Cri) 29 and Bishnu Deo v. State of West Bengal AIR 1979 SC 964 : 1979 Cri LJ 841.
14. In my opinion, the facts and circumstances of this case are not parimateria with the facts of Pargat Singh (supra), Mulakh Raj (supra), Naib Singh (supra) and Bishnu Deo (supra) cases. Here the, accused was 45 years old while the victim was 22 years old. Finding her alone when she was returning to her house, he fell upon her like a vulture and lifted her and carried her to the bajra field, felled her on the ground and made every effort to gratify his lust on her by trying to open the string of her salwar. Had she not raised alarm and given sickle blows, he would have gratified his lust on her. The retributive theory is incongruous in an era of enlightenment. It is inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the person punished. It is, however, necessary to clear a common misunderstanding that the retributive theory justifies the death penalty. According to the retributivist, society has the right and the duty to vindicate the wrong done to it and it must impose a punishment which fits the crime. It does not mean returning of evil for evil but the righting of a wrong. It is, therefore, essential for the Court while awarding punishment to the offender to do justice to the society because the commission of a crime is a wrong done to the society. Award of punishment in some cases satisfies the wrong done to the society by the offender. Keeping in view the facts and circumstances of the case, I do not think appellant should be released on probation of good conduct. Keeping, however, in view that now the appellant has reached the age of 55 or 60 years, I think some leniency should be shown to him in the matter of punishment. He is sentenced to undergo RI for one year and to pay fine of Rs. 1,000/- and in default to undergo further RI for 2-months. Fine if realised shall be paid to Smt. Roshni prosecutrix as compensation. Subject to this reduction in sentence this appeal fails and is dismissed.