Punjab-Haryana High Court
Chand Ram And Others vs State Of Haryana on 16 September, 2009
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.559-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.559-SB of 1999
Date of decision 16.9.2009.
Chand Ram and others
...... Appellants.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. D.S.Bali, Senior Advocate with
Mr. Ashit Malik, Advocate for the appellants.
Mr. Vikas Chaudhary, AAG, Haryana.
K.C.PURI, J.
This is an appeal preferred by appellants against the judgment dated 20.5.1999 and order dated 22.5.1999 passed by Shri K.C.Sharma, learned Additional Sessions Judge, Karnal vide which appellants Chand Ram, Subhash and Krishan have been convicted under Sections 376 and 376(2)(g) of the Indian Penal Code (hereinafter mentioned as - the IPC) whereas appellant-Salochana had been convicted under Section 419 IPC and sentenced him to undergo rigorous imprisonment as under :-
Convict : Subhash, Chand Ram and Krishan
i)Under Section 376(2)(g)IPC To undergo rigorous imprisonment for a Criminal Appeal No.559-SB of 1999 2 period of ten years and to pay a fine of Rs.2000/- each and in default of payment of fine to further undergo R.I. for four months.
Chand Ram
(ii) Under Section 376 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo RI for four months.
Convict ; Salochana Under Section 419 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for two months.
All the sentences were ordered to run concurrently. The factual matrix gathered from the record is that on 28.10.1994, a complaint received in the police station from the office of Superintendent of Police wherein it was alleged that the complainant is resident of village Padnana and the accused Subhash, Chand Ram and Krishan are also the resident of the same village and they had committed rape with his daughter (hereinafter mentioned as prosecutrix) aged 14 years when they noticed that their daughter was pregnant. They inquired from the girl, upon which she stated that the above said accused persons have committed rape with her against her wishes and she was threatened that if she narrated this story to her parents, she would be done to death. Upon this, the complainant went to the house of the accused and told the incident to the parents of the accused. The father of the accused admitted this incident and agreed to get the abortion of the prosecutrix. Upon this, the Criminal Appeal No.559-SB of 1999 3 wife of Puran impersonating as mother of the prosecutrix and get her aborted. After that they came to the house of the complainant and abused them and threatened that to do away. On this application, FIR was got registered and the investigation commenced. Prosecutrix was got medico legally examined. The accused were arrested. They were medico-legally examined. Statements of the Pws were recorded. After completion of necessary investigation, challan against the appellant was presented.
On appearance of the appellants in the Court, copies of the documents were supplied to them under rules.
Finding a prima facie case, charge under Section 376 against Chand Ram, under section 376(2)(g) IPC against Subhash, Chand Ram and Krishan, under Section 313 IPC against Salochna, Ram Kumar and Babu Ram, under Section 319 IPC against Salochna and under Section 506 read with Section 34 of the IPC against Puran, tota alias Anand and Ram Pal was framed against the appellants, to which the appellants pleaded not guilty and claimed trial.
Prosecution, in order to bring home guilt of the appellant, examined Ms.Sarita Gupta, Judicial Magistrate Ist Class as (PW-1), Tarlok Nath (PW-2), Dr.A.P.Bhatia (PW-3), Dr.Mrs. Subhita Ajmani (PW-4), Dr.Tilak Raj Manocha (PW-5), Dr.Partibha Manocha (PW-6), prosecutrix (PW-7), Kela Devi (PW-8), Punna Ram (PW-9) and Ratti Ram (PW-10) and the evidence was closed by the Public Prosecutor.
The appellants were examined under Section 313 Cr.P.C., and all the incriminating evidence were put to them. They denied the allegations and pleaded their innocence.
Criminal Appeal No.559-SB of 1999 4
The appellants were called upon to lead evidence and they did not opt to lead any evidence in defence.
The learned trial Court held the appellants guilty under Sections 419, 376 and 376(2)(g) of the IPC sentenced them, as narrated above whereas accused Babu Ram and Ram Kumar, Puran, Tota alias Anand were acquitted of the charges levelled against them.
Feeling dis-satisfied with the above said judgment of conviction, the convict/appellants have preferred the instant appeal.
I have heard learned counsel for the appellants and the learned State counsel and have gone through the records of the case.
Learned counsel for the appellants has submitted that age of the prosecutrix was above 18 years at the time of alleged occurrence. The trial Court has drawn wrong conclusions from the evidence on the file. PW- 10 ASI Rati Ram has stated that ossification test was got conducted but the report of the same has not been placed on the file. It is further contended that on the cross-examination of both the parents of the prosecutrix the age of prosecutrix comes to be more than 18 years at the time of alleged occurrence. Prosecutrix while appearing before the Magistrate has given her age as 18 years. The doctor has also given the age of prosecutrix as 18 years. It is contended that learned trial Court has wrongly relied upon the birth certificate of one Seema Devi Ex.PK. The said certificate is not connected with the prosecutrix as even in the statement made before Judicial Magistrate Ist Class, prosecutrix has not given her name as Seema Devi.
Criminal Appeal No.559-SB of 1999 5
I have carefully considered the said submission and have gone through the records of the case.
These arguments were advanced by the accused before the learned trial Court and the trial Court did not find any force in these arguments and repelled the same.
On reprisal of the evidence also no ground for interference in that finding of the trial Court is made out. The first occasion for the prosecutrix to give the age was before Dr.Mrs. Subhita Ajmani (PW-4), who medico legally examined the prosecutrix. The prosecutrix has given her age as 15 years. The occurrence relates to about seven months prior to her medico legal examination by Dr.Mrs. Subhita Ajmani (PW-4). Prosecutrix while appearing has stated as her own witness as on 16.9.1996 given her age as 16 years. So, according to that statement, her age was 14 years at the time of occurrence. PW-8 Kela Devi, mother of the prosecutrix has also given the age of prosecutrix as 14 years. She has also stated that prosecutrix is also named by other alias name Seema Devi. Punna Ram father of the prosecutrix has also given her age as 14 years and has stated that alias name of prosecutrix is Seema Devi. Both these witnesses have not been cross-examined that prosecutrix is not Seema Devi as alias name. So, it does not lie in the mouth of the accused that birth certificate Ex.PK does not belong to the prosecutrix. A fact not challenged in the cross- examination would be deemed to have been admitted. The fact that prosecutrix alias name is Seema Devi has not been challenged during the course of cross-examination of Kela Devi (PW-8), Punna Ram (PW-9). So, in these circumstances the finding of the trial Court that prosecutrix was Criminal Appeal No.559-SB of 1999 6 below 16 years at the time of occurrence does not call for interference. Other wise also, the prosecutrix has categorically stated that she was subjected to gang rape at the instance of accused Chand Ram, Krishan and Subhash and thereafter she was raped by Chand Ram. The testimony of the prosecutrix is corroborated by the birth of the child. Otherwise also the testimony of the prosecutrix is better then that of injured witness. The apex Court in authority State of Punjab vs. Gurmit Singh and others 1996(1) Crimes 37(SC) held that victim of sexual assault is entitled to get greater weight. The Court should not insist for corroboration in respect of testimony of a prosecutrix if it inspires confidence.
Learned counsel for the appellants has submitted that there is a huge delay in lodging the FIR. Alleged gang rape relates to month of March 1994 and the FIR was recorded in the month of October 1994 that to after the birth of a child. The prosecutrix in the cross-examination has admitted that there was enmity between the family of the prosecutrix and the accused. It is contended that in these circumstances, it is highly unsafe to rely upon the testimony of the prosecutrix and her parents.
I have carefully considered the said submission.
The aspect of delay in lodging the FIR has also been discussed elaborately by the trial Court. The state of mind of the illiterate villagers can be well imagined where their unmarried minor daughter below the age of 16 has given a birth to a child. The birth of a child to an unmarried girl that to below 16 years is a stigma for the girl and the family. So, in these circumstances, the family members of prosecutrix might have thought thousand times before lodging the FIR. So, in these circumstances, the Criminal Appeal No.559-SB of 1999 7 delay in lodging the FIR is not fatal to the prosecution case.
Learned counsel for the appellants has further contended that as per the prosecution evidence, prosecutrix gave birth to a full matured child. Birth of the child has taken place in the month of October 1994. So, in these circumstances, the prosecutrix might have a sex in the month of January 1994. Therefore, the allegations of rape against the appellants Subhash, Chand Ram and Krishan in the month of March 1994 are wrong on the face of it. It is further contended that father of prosecutrix also signed the papers before the doctor where the child was delivered. In fact prosecutrix, who is a girl of easy virtue had sex with any one in the month of January and it is on account of enmity, the appellants have been falsely implicated.
I have carefully considered the said submission.
This submission does not cut ice before me. All these arguments were advanced before the learned trial Court also and the trial Court has properly dealt with these arguments. A dead child was born. A child is fully developed in the 7th months of pregnancy. So many children of 7th months pregnancy are present in the World. So, the doctor simply stated that child was fully matured and he was not in a position to give opinion that pregnancy was of nine months. So, the arguments that prosecutrix has a sex with another person in the month of January 1994, is the child brain of the accused and the same is not corroborated on the file. Parents of the prosecutrix have not stated about the enmity. One of the appellant was neighbour and mere fact that prosecutrix has stated that there was strained relations with the neighbour does not make out a case for false implication Criminal Appeal No.559-SB of 1999 8 of the accused. Why the prosecution will allow the actual culprit to go scot free and to falsely implicate the appellants. The appearance of Salochana appellant posing himself as mother before the doctor who conducted the delivery further lend supports to the prosecution story. Father of the prosecutrix has categorically stated that delivery has taken place in his absence and his signatures were taken on the next date.
Learned counsel for the appellants has submitted that there is a complete semblance of prosecution story in as much as it cannot be believed that mother and other family members have not come to know that prosecutrix was pregnant. The stomach starts bulging out after three months of the pregnancy and it cannot be believed that the family members especially the mother would not have come to know about the pregnancy of the prosecutrix.
I have carefully considered the said submission.
This argument was also advanced before the learned trial Court. The trial Court has dealt with this aspect of the case correctly. Unless there is some doubt, the mother and the other family members, may not be come to know about pregnancy. There is no change in the stomach during three months of pregnancy as per Modi's Jurisprudence. Thereafter, the stomach starts bulging out gradually. In this case, a dead child was born. So, it can be easily inferred there was no proper nourishment of the child in the womb of the prosecutrix. Moreover, at the growing age of about fourteen years, the child generally gain weight and in these circumstances, the mother of prosecutrix might not be noticed the small change in the stomach of the prosecutrix. Parents of the prosecutrix are rustic villagers and in these Criminal Appeal No.559-SB of 1999 9 circumstances, the above said argument of the counsel for the appellants pale into insignificance.
Learned counsel for the appellants has submitted that so far as Krishna accused is concerned, there is no allegation of rape against him. The allegation against him is that he was simply guarding the room where prosecutrix was subjected to rape by other co-accused. It is submitted that his name has been taken wrongly.
I have carefully considered the said submission but do not find any force.
The explanation of Section 376(2)(g) of the IPC clearly envisaged that where a woman is raped by one or more that in a group of person acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section. So, Krishan accused had facilitated the rape by guarding the premises where the prosecutrix was subjected to rape by other co-accused. So, he is also guilty for offence under Section 376(2)(g) of the Act.
Lastly, it is submitted that sentence imposed upon the appellants is harsh. So far as appellant-Salochana is concerned she has undergone incarceration for three days as per conviction slip. There is no allegation against her that she facilitated the rape. The only allegation against her is that she was present at the time of delivery. It is contended that she has undergone protracted trial since 1996 she be allowed concession of probation or her sentence be reduced to the already undergone.
I have carefully considered the said submission.
Criminal Appeal No.559-SB of 1999 10So far as other accused namely Subhash, Chand Ram and Krishan are concerned, they have been convicted and sentenced under Section 376 (2)(g) of the IPC, the minimum sentence is prescribed under the Act for offence of gang rape. Prosecutrix, who was aged about fourteen years has given a birth to a child. The mental state of the victim could be well adjudged. In the Indian Society, unmarried girl, who gave birth to a child falls in the estimation of public especially the people of locality. So, in these circumstances, no ground for interference regarding their sentence is made out. Their appeal stands dismissed.
So far as appellant-Salochana is concerned, the allegation against her is that she was present at the time of delivery and there is no allegation against her for facilitating the rape. She has been convicted under Section 419 IPC. As per custody certificate, she has undergone incarceration for a period of three days. She is a lady. She has also undergone protracted trial for the last fifteen years. So, ends of justice would be met in case her sentence is reduced to undergone. and I order accordingly. However, her sentence of fine is increased to Rs.10,000/- to be deposited by her within two months from today failing which she will undergo rigorous imprisonment for six months.
With the modification in the sentence of appellant-Salochana as narrated above, the appeal stands disposed of accordingly.
A copy of this judgment be sent to the trial Court for strict compliance.
September 16 , 2009 ( K.C. PURI ) sv JUDGE