Punjab-Haryana High Court
Bani Singh And Another vs State Of Haryana on 5 May, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.173-SB of 2003
Date of decision: 5th May, 2011
Bani Singh and another
... Appellants
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Manoj Chahal, Advocate for the appellants.
Mr. Anoop Sharma, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal has been filed by Bani Singh son of Jai Bhagwan and his wife Sunita alias Guddi. They were nominated as accused in a case FIR No.263 dated 15.06.1998 registered at Police Station Sadar Dadri under Sections 376 and 511 read with Section 34 IPC. They were tried by the Court of Additional Sessions Judge (Fast Track Court), Bhiwani, which vide its judgment dated 4th January, 2003, held them guilty of offences punishable under Section 376 read with Section 511 IPC and Section 342 read with Section 34 IPC. Vide a separate order dated 6th January, 2003, the trial Court sentenced both the appellants to undergo rigorous imprisonment for a period of three-and-a-half years under Section 376 read with Section 511 IPC. They were further sentenced under Section 342 read with Section 34 IPC to undergo rigorous imprisonment for a period of six months. Both the substantive sentences of each accused were ordered to run concurrently. Criminal Appeal No.173-SB of 2003 2
Aggrieved against the same, the present appeal has been filed and conviction and the sentence pronounced by the trial Court have been assailed.
A written complaint Ex.PB was submitted by Master Umed Singh to SHO Police Station Sadar Charkhi Dadri. It was stated therein that complainant Umed Singh was posted as a teacher in the Education Department and was residing in village Sataur. On the day of occurrence, in the evening, when he came to his house after performing his duty, his wife and daughter-in-law (whose name has been withheld to protect her identity) disclosed that on that day i.e. 14th September, 1998 at about 12.30 p.m. the prosecutrix (daughter-in-law of the complainant) while going to the fields from her house had passed in front of the house of accused Bani Singh. At that time, wife of accused Bani Singh was standing at the gate of her house. She asked the prosecutrix to help her in lifting a bag of wheat. As soon as the prosecutrix entered the house to help the wife of Bani Singh in lifting the bag of wheat, she told the prosecutrix to go inside the Kotha saying that she would bring a Mandasi (a small piece of cloth, which is rolled and kept on the head for carrying weight) from outside. When the prosecutrix entered the Kotha, wife of Bani Singh at once locked the door from outside. Bani Singh was already hiding in the Kotha. All of a sudden, he scuffled with the prosecutrix with a bad intention. To save her honour, the prosecutrix raised a noise of 'Mar Diya Mar Diya', which attracted Gali son of Raje Ram and Bhoop Singh son of Subha Chand at the spot. They were passing through the street. Seeing them, wife of Bani Singh opened the door. Bani Singh came out of the Kotha and ran away towards the village through the vacant land. A grievance was made that accused Bani Singh and his wife had detained the prosecutrix, i.e. Criminal Appeal No.173-SB of 2003 3 daughter-in-law of the complainant, in the Kotha without any reason and had made an attempt to outrage her modesty.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The case was committed and entrusted for trial to the Court of Sessions Judge, Bhiwani. Later-on, the case was assigned to the Fast Track Court.
The Court of Sessions Judge, Bhiwani charged the appellants for an offence punishable under Section 342 read with Section 34 IPC. The charge stated that on 14th September, 1998 in the area of village Sataur, in furtherance of their common intention, both the appellants wrongfully confined the prosecutrix wife of Shyam Sunder. The second charge stated that on the same day, accused Bani Singh made an attempt to commit rape upon the prosecutrix and in such attempt did a certain act towards the commission of the said offence. He had made an attempt to break open the string of her Salwar and thereby he committed an offence punishable under Section 376 read with Section 511 IPC.
The accused pleaded not guilty and claimed trial.
The prosecutrix herself appeared as PW-5 and stated that she was married with Shyam Sunder about 3 ½ years ago. She had studied up to matriculation. On 14th September, 1998 at about 12.30 p.m. she was returning to her house from the fields carrying a bundle of millet corns. When she reached near the house of Bani Singh, his wife Sunita alias Guddi met her there. Guddi requested her to help her to lift a bag of wheat, upon which the prosecutrix said that since she was returning to her house she had no time. After some time, when the prosecutrix was again proceeding to her fields having a Lota (water pot) full of water for her mother-in-law Ram Kali, Guddi wife of Bani Singh again met her standing at the gate of her house. She again repeated the same request and the Criminal Appeal No.173-SB of 2003 4 prosecutrix followed her in order to help her at her house. When she was putting the Lota (water pot), then Guddi bolted the door from outside. Bani Singh was already inside the Kotha. He took her in his arms and put one of his hands to gag her mouth. He pressed the breast of the prosecutrix and also tried to break open the string of her Salwar. The prosecutrix struggled to rescue herself, due to which her bangles were broken. She raised a noise of 'Bachao Bachao', which attracted Bhoop Singh at the spot. She could not narrate the incident to Bhoop Singh as he was her uncle in relation. She came back to her house and narrated the entire incident to her mother-in-law. Father-in-law of the prosecutrix reached at house in the evening and thereafter he had gone to the Police Station to lodge a report. In cross-examination, this witness admitted that in the FIR, it was stated that Gali had come to rescue her, whereas in the Court name of Bhoop Singh was mentioned.
Bhoop Singh appeared as PW-6 and stated that he heard the shrieks of 'Bachao Bachao' from the house of Bani Singh. The voice was of a lady. He reached near the Kotha of the house and saw Guddi standing near the gate of her house. At that time, the prosecutrix while weeping came out of the house of Bani Singh followed by him. Seeing this witness, the prosecutrix put up her Ghunghat. On enquiry, she had not disclosed anything to this witness as she used to observe Parda from him.
Umed Singh complainant, father-in-law of the prosecutrix, appeared as PW-4 and stated that the incident was narrated to him. He had submitted a complaint on the basis whereof, the FIR was registered.
Constable Virshakti Singh PW-1 had prepared the scaled site plan Ex.PA of the spot. HC Ajit Singh PW-2 stated that he had recorded the formal FIR Ex.PC and thereafter, handed over the special report to Constable Ramphal for delivering it to the Illaqua Magistrate. Constable Criminal Appeal No.173-SB of 2003 5 Ramphal PW-3 sated that he had delivered the special report to the Illaqua Magistrate and to various other officers. SI Chandgi Ram PW-7 had arrested the accused and had submitted a report under Section 173 Cr.P.C. ASI Yad Ram PW-8 on an application received, had made an endorsement and had facilitated registration of the case. He had also prepared a rough site plan Ex.PE of the spot and had taken the broken pieces of bangles into possession vide a recovery memo Ex.PD. This witness also proved various other facets of the investigation.
Om Parkash, retired DSP PW-9 stated that on receipt of the special report, he had reached at the place of occurrence.
Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and pleaded innocence taking the plea of false implication.
No witness was examined in defence.
This Court is hesitant to reproduce the entire statement made by the prosecutrix PW-5 however, a perusal of the same reveals that inside the Kotha accused Bani Singh took her in his arms and made an attempt to gag her mouth. He had also pressed the breast of prosecutrix and thereafter made an attempt to break open the string of her Salwar.
From the above said testimony of the prosecutrix, it will be difficult to hold that an offence punishable under Section 376 read with Section 511 IPC is made out against the appellant. This Court, in 'Rabbo alias Raban v. State of Haryana' (Criminal Appeal No.761-SB of 1998, decided on 23rd February, 2010) considered the entire case law and relying upon 'State of Madhya Pradesh v. Babulal' AIR 1960 Madhya Pradesh 155; 'Ram Pratap v. State of Rajasthan' 2002 Crl. L.J. 1430; 'Hari Mohapatra and another v. State of Orissa and others' 1996 Crl. L.J. Criminal Appeal No.173-SB of 2003 6 2952; 'Subash Chander v. State of Haryana' 1983 Recent Criminal Reports 283; 'Jai Chand v. State' 1996 (2) Recent Criminal Reports 244 and 'Shiv Shanker v. State of U.P.' 2002 Criminal Law Journal 2673, held that where the accused had made no effort to penetrate, no offence punishable under Section 376 read with Section 511 IPC is made out against him. Relying upon all the above said judgments, in Rabbo alias Raban's case (supra), it was held that if only string of the Salwar has been broken, the offence will fall under Section 354 IPC.
In the present case, the accused had not put off his clothes or of prosecutrix. Even the string of her Salwar was not broken. Therefore, this Court will not deviate from the law laid down in Rabbo alias Raban's case (supra) and thus, the offence in the present case is hereby converted from Section 376 read with Section 511 IPC to Section 354 IPC.
Occurrence, in the present case, had taken place in the month of September 1998. A period of more than twelve years has elapsed. The appellants are not the previous convicts and according to learned counsel they have committed no offence even after registration of the present case. Taking totality of the circumstances into consideration, appellant Bani Singh is hereby sentenced to undergo rigorous imprisonment for a period of four months under Section 354 IPC. However, the sentence awarded to him under Section 342 read with Section 34 IPC is reduced from six months to three months rigorous imprisonment. Both the sentences of appellant Bani Singh shall run concurrently.
So far as appellant Sunita alias Guddi is concerned, she has facilitated wrongful confinement of the prosecutrix. She cannot be held responsible for an offence punishable under Section 354 IPC. Therefore, appellant Sunita alias Guddi is hereby acquitted of the offence under Section 376 read with Section 511 IPC. However, the sentence awarded to Criminal Appeal No.173-SB of 2003 7 her under Section 342 read with Section 34 IPC is maintained. As in the case of appellant Bani Singh the sentence of six months has been reduced to three months rigorous imprisonment, appellant Sunita alias Guddi is also entitled to the same relief. Therefore, the sentence awarded to her under Section 342 read with Section 34 IPC is reduced from six months to three months rigorous imprisonment.
With the observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE May 5, 2011 rps