Punjab-Haryana High Court
Ram Niwas vs State Of Haryana on 1 November, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.315-DB of 2005 and 1
Criminal Appeal No.496-DB of 2005
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:November 01, 2011
Criminal Appeal No.315-DB of 2005
Ram Niwas ......Appellant
Versus
State of Haryana .......Respondent
Criminal Appeal No.496-DB of 2005
State of Haryana ......Appellant
Versus
Ram Niwas .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Kuldeep Singh, Advocate,
Amicus Curiae.
Mr.P.S.Punia, Addl.A.G.Haryana.
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JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals will be disposed of as these have arisen out of the same judgment.
The present case relates to commission of offence of Criminal Appeal No.315-DB of 2005 and 2 Criminal Appeal No.496-DB of 2005 murder of his wife and rape of his minor daughter by the appellant. Prosecution case was set in motion on the basis of the statement of the prosecutrix, daughter of accused Ram Niwas. The prosecutrix, aged about 13 years, stated that she was 5th class student of Government Primary School Padla. They were two sisters and two brothers. She was the eldest child. On 3.6.2003, she had slept after taking meals. Her father came home under the influence of liquor and started teasing her. She raised alarm. Her mother Babli woke up and asked her father as to why he had tried to outrage the modesty of the prosecutrix. She further said that in the morning she would collect some persons and would inform them about the incident. As a result of this a quarrel took place between her parents. Thereafter, they all slept. Her younger brothers and sister were sleeping in the courtyard. She was sleeping on a separate cot in the room where her parents were sleeping. At about 11 p.m./ midnight, she heard the cries of her mother and woke up and saw that her father was strangulating her mother. Out of fear, she did not speak and witnessed the occurrence while lying on the cot. After sometime, her mother died. Thereafter, her father lifted her (prosecutrix) from her cot and placed her on his own cot. Her father told her that in case she raised alarm then he would kill her. Thereafter, her father took off her clothes and removed his own clothes and raped her. He had also given bites on her breasts and face. She did not disclose anything to anybody out of fear. In the morning her father told everyone that her mother had died due to pain in her stomach. The dead body of her mother was cremated. Criminal Appeal No.315-DB of 2005 and 3 Criminal Appeal No.496-DB of 2005 She went to her maternal grandparents' house along with her maternal uncle and grandfather. On the day, her statement was recorded she disclosed the occurrence to her maternal uncle and grandfather and they took her to police station where her statement was recorded. On the basis of the said statement of the prosecutrix recorded on 5.6.2003, formal FIR No.129 was registered at Police Station Sadar Kaithal.
After completion of investigation and necessary formalities, challan was presented against the appellant. Prosecution, in order to prove its case, examined 16 witnesses.
The appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in the case. Appellant did not lead any evidence in his defence. The trial Court vide judgment/ order dated 18.3.2005/ 19.3.2005 convicted and sentenced the appellant for an offence under Sections 302, 376, 201, 506 of the Indian Penal code, 1860 (IPC for short). Hence, the present appeals by the accused as well as the State.
Learned counsel for the accused has submitted that the prosecution had failed to prove its case. There was delay of two days in lodging of the FIR. The prosecutrix had been tutored by her maternal uncle to falsely involve the accused in this case. The dead body of Babli had been cremated in the presence of her parents and relatives. No objection had been raised by any one at that time. Hence, it could not be said that the accused had committed the Criminal Appeal No.315-DB of 2005 and 4 Criminal Appeal No.496-DB of 2005 murder of his wife by strangulation.
Learned State counsel, on the other hand, has submitted that the prosecutrix is none other than the minor daughter of the accused. The prosecutrix had no reason to falsely involve her father in this case. Even the maternal uncle of the prosecutrix had no reason to falsely involve the accused in this case. Learned State counsel has further submitted that the offence committed by the accused was heinous in nature and hence, he was liable to be sentenced to death for commission of offence under Section 302 IPC.
PW-1 Dr. Lajja Ram deposed that as per X-ray examination of the prosecutrix, he was of the opinion that she was aged between 12 to 15 years.
PW-2 Jai Chand deposed that he had brought the register qua admission of the prosecutrix in Government Primary School Padla. As per the entry in their record, the date of birth of the prosecutrix was 10.1.1994.
PW-11, Dr.R.P.Goel deposed that on 7.6.2003, he had medico legally examined the accused and had found following injuries on his person:-
"1. There was abrasion on face right side, size was .75x . 25 cms covered with scab.
2. There was abrasion on left side of face size was 1.25 x .75 cms and was covered with scab."
There was no injury over his penis.
PW-15 Dr.Renu Chawla deposed that on 6.6.2003 at Criminal Appeal No.315-DB of 2005 and 5 Criminal Appeal No.496-DB of 2005 about 2.40 a.m. she had examined the prosecutrix. Superficial scratch marks were present on chest above both the nipples. Superficial linear scratch mark was present on neck and on the mouth on the right side of cheek, which was brownish in colour. On local examination of external genitalia slight blood stained oozing was present. Hymen was partially present. Slight laceration was present through which blood slightly oozed on touch. Vagina did not admit two fingers and admitted just one finger. Opinion regarding sexual intercourse could not be ruled out.
PW-7 Paramvir Nijjar deposed that on 25.6.2003, she was posted as Chief Judicial Magistrate, Kaithal and had recorded the statement of the prosecutrix under Section 164 Cr.P.C.
The statement of the prosecutrix was recorded after the trial Judge was satisfied that she was in a position to give rational answers to the questions. Prosecutrix PW-13 deposed as per the contents of the FIR.
PW-14 Prem Singh deposed that his sister Babli @ Kamla was married to accused Ram Niwas about 13-14 years ago. They had been blessed with two sons and two daughters. Prosecutrix was their eldest child aged 13 years. Prosecutrix was residing with her parents at village Padla and was studying there. Accused Ram Niwas was a drunkard. On 4.6.2003, they were told that their sister Babli had died due to pain in her stomach. Thereafter, he along with his father went to village Padla. The dead body of his sister was cremated. Then they returned to Kaithal along with the prosecutrix. At that time, the prosecutrix was under shock Criminal Appeal No.315-DB of 2005 and 6 Criminal Appeal No.496-DB of 2005 and was confused. On enquiry, she told him that her father had come home at night after taking liquor and had started teasing her. Her mother objected to it and threatened to convene a panchayat in this regard. Prosecutrix further told him that at night she woke up on hearing alarm and found that her father was strangulating her mother. After murdering his wife, her father committed rape on her person. Thereafter, he brought the prosecutrix to the police station and her statement was recorded. Prosecutrix was also got medically examined.
PW-16 SI Puran Chand deposed that on 5.6.2003, he recorded the statement of the prosecutrix and then took her to Civil Hospital, Kaithal for examination. Thereafter, he recorded the statements of Jogi Ram and Prem. He prepared the rough site plan. He also lifted bones of the deceased from the cremation ground. On 25.6.2003, statement of the prosecutrix was got recorded under Section 164 Cr.P.C. On completion of investigation, report under Section 173 Cr.P.C. was prepared by Jagdish chander.
In the present case, the accused is charged of having raped his own daughter and murder of his wife. The daughter of the accused has stepped into the witness box as PW-13 and has deposed qua the heinous crime committed by her father. There can never be more shocking and heinous crime than when the father is charged of having raped his own daughter. The father is the protector of his daughter in whom she reposes trust for her protection. However, the said trust has been betrayed by the accused when he raped his own daughter.
Criminal Appeal No.315-DB of 2005 and 7Criminal Appeal No.496-DB of 2005 The FIR was got registered after two days of the occurrence. In the facts and circumstances of the present case, the delay in lodging of the FIR cannot be said to be fatal to the prosecution case. The prosecutrix is a minor girl aged 13 years. She saw her own father committing the murder of her mother and thereafter, she was raped by her own father. The said incident must have left the prosecutrix in a state of shock and trauma. It appears that out of fear and possibly shame, the prosecutrix could not narrate the occurrence to any one immediately. It is not a case where the prosecutrix has been raped by an outsider. Rather the prosecutrix has been raped by her own father after committing murder of her mother by him. Had her mother been alive she would have confided in her mother. After the cremation of the dead body of her mother, the prosecutrix went with her maternal uncle and grandfather to their house. Apparently, the prosecutrix after re-gaining her composure narrated the occurrence to her maternal uncle. The fact that the prosecutrix had been raped is corroborated by the medical evidence on record. PW-15 has deposed that opinion regarding sexual intercourse cannot be ruled out. Moreover, the prosecutrix has no reason to falsely involve her own father in this case. There is also nothing on record to suggest that the maternal uncle of the prosecutrix had any ill will against the appellant to falsely involve him in this case by instigating the prosecutrix. The prosecutrix, who is a minor girl aged 13 years, has deposed in a most natural manner and has narrated the occurrence witnessed by her. Although in the present case, the dead body of Babli was not sent for postmortem Criminal Appeal No.315-DB of 2005 and 8 Criminal Appeal No.496-DB of 2005 examination to corroborate her death by strangulation but in the facts and circumstances of the present case, the said lapse is not fatal to the prosecution case. Moreover, if the deceased had actually pain in her stomach the appellant should have taken her to a doctor for treatment. However, this was not done. This fact also leads credence to the testimony of the prosecutrix. Rather the accused with his clever mind got the dead body cremated without allowing anyone to suspect that it was a case of murder and not a natural death. At the time of cremation of dead body of Babli, the parents of the deceased could not have suspected any foul play as the same was not disclosed to them by the prosecutrix who was under a shock and trauma.
Keeping in view the facts and circumstances of the present case, the trial Court rightly sentenced the accused to undergo life imprisonment for offence under Section 302 IPC. It is only in the rarest of the rare cases that punishment of death sentence can be awarded to an accused for an offence under Section 302 IPC. However, the present case cannot be said to be a rarest of the rare cases which would invite death sentence.
Accordingly, both the appeals are dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
November 01, 2011
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