Punjab-Haryana High Court
Ram Phal And Another vs State Of Haryana on 28 October, 2009
Author: Ashutosh Mohunta
Bench: Ashutosh Mohunta, Jitendra Chauhan
Crl. Appeal No. 452-DB of 2001 [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No. 452-DB of 2001
Date of Decision: Oct. 28,2009
Ram Phal and another ........................................................ Appellants
Versus
State of Haryana ................................................................ Respondent
Coram: Hon'ble Mr.Justice Ashutosh Mohunta
Hon'ble Mr. Justice Jitendra Chauhan
Present: Mr. H.S.Gill, Sr. Advocate with
Mr. Vivek Goyal, Advocate
for the appellants.
Mr. S.S.Goripuria, DAG, Haryana.
...
ASHUTOSH MOHUNTA, J.
The appellants-Ram Phal and Sanjay are aggrieved by the judgment dated 16.7.2001 and the order of sentence dated 18.7.2001 vide which they have been convicted under Section 376 (2)(g) IPC and have been sentenced to undergo rigorous imprisonment for 12 years and also to pay a fine of Rs.25,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for two years.
Briefly the case of the prosecution is that the prosecutrix Smt. Santosh, wife of Dharambir, resident of village Dattaur, filed a complaint to the police that on 30.3.1998 at about 12:00 noon, she along with her Jethani (sister-in-law) Smt. Manto had gone to cut grass from the fields of Chand Ram resident of village Ismaila, whose fields are situated adjacent to the Crl. Appeal No. 452-DB of 2001 [ 2 ] boundary line of village Dattaur. It was stated by her that in the fields, son of Chand Ram, who was accompanied by another boy, asked them to give their "Palli" (a piece of cloth type which was twisted and turned into a type of rope was used for starting tractor) for starting their tractor. Both the ladies went there and handed over the 'Palli" to them and they got their tractor started. In the meantime, the unknown boy caught the complainant Santosh by her hand and took her forcibly near a dry water-course while the son of Chand Ram caught hold of Smt. Manto and took her on the other side of the tractor. Both the ladies were threatened that they would be killed if they raised any hue and cry. The unnamed boy who had taken away the prosecutrix Smt. Santosh broke open the string of her Salwar and committed rape upon her against her wishes. Thereafter, the unnamed boy caught hold of Manto and the son of Chand Ram also committed rape upon Smt. Santosh against her wishes. The prosecutrix tried to save herself but was unable to wriggle out of the clutches of both the men. She also gave a bite on the hand of son of Chand Ram, but in vain. Thereafter both the accused ran away on their tractor. Both the women raised hue and cry in the fields but no body was attracted as there was no one else nearby. On returning home, the prosecutrix narrated the entire incident to her mother-in-law Smt. Murti Devi. Her husband, who was working in a factory, was also informed. After he reached home, the prosecutrix along with other co-villagers came to the police station to report the incident. The complainant also stated that both the accused persons were young and their bodies were strongly built and that she could identify them if they were produced before her. On the basis of the statement of the prosecutrix (Ex.PA), formal FIR (Ex. PA/1) was registered under Sections 376/506/34 IPC against the accused.
Crl. Appeal No. 452-DB of 2001 [ 3 ] The Investigating Officer took Santosh to Civil Hospital, Sampla, for her medical examination from where she was referred to Civil Hospital, Rohtak, where she was medicolegally examined by Dr. Pushpa Bishnoi. A packet containing Salwar, Kamiz and swabs containing vial was also handed over by the Doctor to the Investigating Officer which was sent to Forensic Science Laboratory Haryana, Madhuban. He also recorded the statement of Smt. Manto and Smt. Murti Devi and inspected the spot and on demarcation by Sanjay and Ram Phal a site plan (Ex.PJ) was prepared. The Investigating Officer produced both the accused before the Illaqa Magistrate and filed an application (Ex.PN) for conducting the Test Identification Parade. The learned Magistrate recorded the statement of the accused persons who refused to participate in the Test Identification Parade.
The case was investigated by ASI Nathu Ram (PW11). He tried to search the accused in the village, but in vain. On 1.4.1998, about 4-5 persons along with the accused approached Krishan Kaushik, Sarpanch of village Dattaur, and requested him to effect a compromise between the accused and the complainant side. The Sarpanch took the accused to the police station on 1.4.1998 where ASI Nathu Ram recorded the statement of Krishan Kaushik and arrested the accused persons. The accused were taken to the Civil Hospital, Sampla, where they were got medicolegally examined vide application (Ex.PK). The Investigating Officer interrogated the accused Sanjay and Ram Phal. The accused Sanjay made a disclosure statement (Ex.PL) and Ram Phal also made a disclosure statement (Ex.PM) wherein they admitted that they had committed rape upon Smt. Santosh and also disclosed that they could point out the place where the rape was committed.
After completing the investigation, the case was committed to Crl. Appeal No. 452-DB of 2001 [ 4 ] the Court of Sessions by the Judicial Magistrate Ist Class, Rohtak, vide order dated 13.6.1998.
After perusal of the record, the accused persons were charged under Sections 376 (2)(g), 506, 34 IPC to which they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution relied on the testimony of the prosecutrix Smt. Santosh as PW1, Dr. Puran Singh Gautam, Sr. Medical Officer, Community Health Centre, Sampla, as PW2, Dr. Pushpa Bishnoi, Medical Officer, CHC, Jhajjar, as PW5, Smt. Murti Devi as PW7, Smt. Manto, who was an eye-witness, as PW10, ASI Nathu Ram as PW11 and Krishan Kaushik, Sarpanch of village Dattaur, as PW13. Apart from the above, several other formal witnesses were also examined.
The Prosecutrix Smt. Santosh appeared as PW1 and deposed that on 30.3.1998 at about 12:00 noon when she had gone with her Jethani Smt. Manto for cutting grass in the fields of Chand Ram, Ram Phal, son of Chand Ram, along with Sanjay asked for "Palli" from Manto. They told them that they are unable to start their tractor and that the "Palli" would help in doing so. Manto gave them the "Palli". Thereafter, both the accused also asked the prosecutrix to give "Palli" to which she initially refused but ultimately gave it to the accused. "Palli" is used for tying grass and the same can also be coiled and turned into a kind of rope for starting the tractor also. Thereafter, the accused Sanjay caught hold of the hand of the prosecutrix and put her in a dry water-course (Nala) and forcibly opened the string of her Salwar and committed rape upon her against her wishes. The prosecutrix also stated that she caused resistance and also shouted, but there was no one around to help her. Smt. Manto had been caught by the other accused Ram Crl. Appeal No. 452-DB of 2001 [ 5 ] Phal and she had also been threatened with dire consequences in case she shouted. Sanjay, after raping the prosecutrix, went and held Smt. Manto. Thereafter, the other accused Ram Phal also committed rape upon the prosecutrix. The entire incident was witnessed by Smt. Manto also. The matter was reported by the prosecutrix and Smt. Manto to Murti Devi (their mother-in-law) on reaching home and after the husband of Smt. Santosh returned home from work, the matter was reported to the police on the day of occurrence itself.
Smt. Manto, who appeared as PW10, has also given a detailed account of the manner in which rape was committed upon the prosecutrix by both the accused Sanjay and Ram Phal. She stated that the accused asked Smt. Santosh to give "Palli" which could be made into a rope for starting the tractor and thereafter Sanjay caught hold of the prosecutrix, put her in a dry drain and committed rape upon her. Later on, Ram Phal also committed rape upon the prosecutrix Smt. Santosh. She also stated that both the accused had caught hold of her and threatened to kill her in case she shouted or raised any hue and cry. This witness identified both the accused in Court.
Smt. Murti Devi (mother-in-law of the prosecutrix) appeared as PW7 and had deposed that on 30.3.1998 at about 1:00 P.M. the prosecutrix while weeping, narrated the entire incident and the manner in which the accused had committed rape upon her. The prosecutrix also stated that she would die.
Dr. Pushpa Bishnoi appeared as PW5 and stated that on 31.3.1998 at about 1:15 A.M. she examined Smt. Santosh, wife of Dharambir, who was brought before her by the police and found that there was an abrasion on the nose of the prosecutrix measuring .5cm, 1 cm away Crl. Appeal No. 452-DB of 2001 [ 6 ] from midline at the level of right eye. She took two vaginal swabs and handed them over to the police for FSL examination. She also opined that the possibility of intercourse with the prosecutrix cannot be ruled out.
As per the FSL report (Ex.PE) human semen was detected on the Salwar. Dr. Pushpa Bishnoi (PW2) who had medicolegally examined the accused Sanjay and Ram Phal and opined that both were capable of doing intercourse. Mrs. Shalini Nagpal, JMIC Rohtak, appeared as PW12 and stated that on 2.4.1998, ASI Nathu Ram produced the accused Ram Phal and Sanjay before her and filed an application (Ex.PW) for getting the Test Identification Parade of the accused conducted. Accordingly, she recorded the statement of both the accused by which they refused to join the Test Identification Parade. The statement (Ex.PO) was duly signed by both the accused persons and thereafter an order (Ex.PO/1), vide which the application was disposed of, was passed. She has also categorically stated that both the accused were produced before her in muffled faces.
The prosecution examined Krishan Kaushik, Sarpanch of village Dattaur, Distt. Rohtak, as PW13 who stated that on 1.4.1998, 4-5 persons belonging to village Ismaila had brought both the accused before him and all the persons had asked him to get a compromise effected between the accused and the complainant side as he was the Sarpanch. The Sarpanch produced the accused before the police on 1.4.1998.
After examining other formal witnesses, the evidence on behalf of the prosecution was closed.
The accused in their statements under Section 313 Cr. P.C. stated that they are innocent and they have been falsely implicated in the present case due to party fraction. They further stated that they were kept Crl. Appeal No. 452-DB of 2001 [ 7 ] in police station and were shown to the witnesses in the lock-up of the police station and were subsequently asked by the police to refuse the Test Identification Parade as and when produced.
The trial Court by placing reliance on the testimony of the prosecutrix and the statement of PW10 Smt. Manto, who was an eye- witness, and other evidence led by the prosecution, convicted both the accused under Section 376 (2)(g) IPC and sentenced them to undergo RI for 12 years and to pay a fine of Rs.25,000/- each. In default of payment of fine, to further undergo RI for two years. Both the accused were, however, acquitted under Sections 506/34 IPC.
Mr. H.S.Gill, learned Senior counsel for the appellants, has contended that both the accused refused to participate in the Test Identification Parade as they had already been shown to the complainant in the police station and, hence, to participate in the same would have been a complete farce. This argument is without any merit. Smt. Shalini Nagpal, JMIC, Rohtak, (PW12) has stated that the faces of both the accused were muffled when they were brought before her. However, the accused refused to join the Test Identification Parade. As per statement (Ex.PO) dated 2.4.1998 it was never alleged by the accused persons in their statements before the Judicial Magistrate that they have been shown to the witnesses by the police. Apart from the above, the Test Identification Parade was immediately got conducted after the arrest of the accused persons on the next day i.e. on 2.4.1998 and, hence, an adverse inference regarding the non-joining of the accused can be taken against them. Apart from the above, both the accused, namely Ram Phal and Sanjay, were identified in Court by the prosecutrix Smt. Santosh as well as by Manto (PW10), who was an eye-
Crl. Appeal No. 452-DB of 2001 [ 8 ] witness.
Counsel for the appellants has further contended that the accused were not named in the complaint (Ex.PA) by the prosecutrix and, hence, the prosecution has not proved its case against the accused. This argument also is without merit as the prosecutrix had specifically mentioned in her complaint (Ex.PA) that one of the persons who committed rape upon her was the son of Chand Ram and the person who committed rape upon her could be identified if produced before her. The occurrence in the present case had taken place on 30.3.1998 at 12:00 noon. The complainant had seen the accused in broad day light and could easily identify them. Moreover, the entire incident was also witnessed by Smt. Manto, Jethani of the prosecutrix, and she had categorically named Ram Phal to be one of the persons who had committed rape upon the prosecutrix and had also identified the accused Sanjay. Krishan Kaushik (PW13), Sarpanch of village Dattaur, has also deposed that 4-5 persons belonging to village Ismaila had come to his house along with both the accused for effecting a compromise with the complainant side. He is the person who had handed over the accused to the police. It is, thus, amply clear that it was the accused persons who had committed rape upon the prosecutrix.
Lastly, a perusal of the disclosure statements (Ex.PL and Ex.PM) also shows that the accused had admitted before the witnesses that they had committed rape upon the prosecutrix. In their disclosure statements, they had also identified the place of occurrence. The statement of the prosecutrix and the eye-witness Smt. Manto have been duly corroborated by the medical evidence and the FSL report. The Doctor, who medicolegally examined the prosecutrix, has categorically stated that the Crl. Appeal No. 452-DB of 2001 [ 9 ] possibility of sexual intercourse having been committed with the prosecutrix cannot be ruled out. As per the FSL report (Ex.PE), human semen was detected from the Salwar of the prosecutrix. Thus, the testimony of the prosecutrix Smt. Santosh has been duly corroborated by the statement of Smt. Manto (PW10), Smt. Murti Devi (PW7) and the medical evidence tendered by Dr. Pushpa Bishnoi (PW5) as well as the FSL report (Ex.PE).
In view of the aforementioned facts, we are of the considered opinion that it was the accused Ram Path and Sanjay who had committed the offence of gang rape on the prosecutrix Smt. Santosh on 30.3.1998 and they have committed the offence punishable under Section 376 (2)(g) IPC.
Resultantly, we find no merit in the appeal filed by the accused and the same is dismissed and the judgment passed by the trial Court is upheld.
In case the appellants are on bail, than their bail bonds are cancelled and they be taken into custody forthwith to serve out the remaining portion of their sentence.
( ASHUTOSH MOHUNTA )
JUDGE
28.10.2009 ( JITENDRA CHAUHAN )
Rupi JUDGE