CRA-S-305-SB-2002 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRA-S-305-SB-2002 (OM)
Date of Decision:December 15, 2017

Court on its own motion

…Appellant

Versus

Kulwant Rai and others

…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Ms. Monika Jalota, DAG Punjab.

Mr. H.S. Randhawa, Legal Aid Counsel
for the respondents.

********
JAISHREE THAKUR, J.

The instant appeal has been arisen out of judgment of

conviction/order dated 09.01.2002 passed by Addl. Sessions Judge,

Hoshiarpur.

2. In brief the facts of the case are that on 25.4.1997, Manjit Kaur

daughter of Nanak Singh resident of Muradpur District Mukerian, aged

about 22 years, boarded a passed from Mukerian for going to Jalandhar.

Manjit Kaur alighted at the bus stop of village Cholang thinking she would

board a bus from there to go to Jalandhar. No bus came to the bus stop at

Cholang for going to Jalandhar till 8 p.m. At that time one Kiran (tailor)

told her to spend the night in his house since it was late and assured Manjit

Kaur that she would be sent to Jalandhar the next morning. She was taken to

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a room behind the bus stop where one Naveen Kumar from Delhi was

present. After some time one Dara and Lovely also joined in and she was

raped by all. Next morning at about 9 a.m. accused Lovely and Naveen took

Manjit Kaur to a tube well motor of Lovely and she was again raped turn by

turn. On 27.04.1997, Kulbir Singh, Gurdev Singh alias Geba, Chain Singh

and also Dalwinder Singh alias Koka and Jaspal Singh came there. Jaspal

Singh was killed by Naveen Kumar. All these persons raped Manjit Kaur

too, who kept quiet out of fear, in order to save herself. On the basis of

statement Ex.PE before Inspector Jaswant Singh, the present FIR was

registered against all the accused. Manjit Kaur the prosecutrix was also

medically examined, as well as the accused, who were found fit to perform

the act of sexual intercourse. The case was committed for trial before the

Courts of Session and charges under sections 376/342/406 IPC were framed

against the accused, to which the accused did not plead guilty and claimed

trial.

3. In order to prove its case, the prosecution examined PW 1 Dr.

Kewal Singh, PW2 Dr. Gurmail Singh, PW3 Dr.Kishore Kumar Raikhi,

PW4 Manjit Kaur, PW5 ASI Surinder Kumar Sharma, PW6 lady Dr.

Mandeep Kaur, PW7 Dr. O.P Arora, PW 8 Gurbachan Singh, PW9 Sh.

Harkaran Singh, Judicial Magistrate 1st Class Dasuya, PW10 Inspector

Jaswant Singh and the prosecution tendered into evidence report of the

chemical examiner Ex.PH/1 and thereafter closed its evidence. The accused

got their statement recorded under section 313 Cr.P.C. denying all

allegations and in the defence examined DW1 Constable Amarjeet Singh

and thereafter closed their evidence.

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4. The Sessions Court, after appreciating the evidence came to the

conclusion that accused Naveen Kumar, Kulwant Rai alias Dara and Ashok

Kumar alias Bittu alias Kiran were guilty of the offence under section

376/342 IPC and convicted them on 09.01.2001 to undergo sentence for a

period of 5 years each along with fine of Rs.5,000/- . The other accused

were exonerated on the ground that the prosecution failed to prove its case

against them, as Manjit Kaur prosecutrix had nowhere stated that any of the

accused had committed the offence of rape upon her.

5. Kulwant Rai aggrieved against the said order, preferred an

appeal bearing No.CRA-S-274-SB-2001. An application for suspension of

sentence was filed in the said appeal by way of CRM No.49737 of 2001,

which was declined by an order dated 11.2.2002. However, the High Court

noticed that the trial court had convicted the appellant and his co-accused

under sections 376 IPC for a period of 5 years and imposed a fine of Rs.

5,000/- each by showing undue leniency. On this ground, sou moto notice

was issued to the three accused i.e. Kulwant Rai, Naveen Kumar and Ashok

Kumar, for enhancement of their sentence. It is in this background that the

instant appeal bearing no.CRA-S-305-SB- 2002, Court on its own motion

Vs. Kulwant Rai and Others came to be registered.

6. After the passing of sentence, all the three accused were

arrested and it was only Kulwant Rai who filed an appeal. The sentence of

appellant Kulwant Rai was not suspended being a case of gang rape. All the

three accused, after having undergone the sentence awarded by the

Additional Session Judge, were subsequently released from jail as would be

evident from the custody certificate filed in the case of Kulwant Rai.

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7. Mr. H.S. Randhawa learned counsel on behalf of Kulwant Rai

did not press the appeal bearing CRA-S-274-SB-2001, as the appellant has

already undergone the sentence awarded and has since been released.

Under these circumstances, the said appeal has been dismissed being not

pressed.

8. After notice was issued in the present matter i.e. Court on its

own motion Vs Kulwant Rai And Others every effort has been made to

trace Naveen Kumar through non-bailable warrants and the report received

is that he not available. Both Ashok Kumar and Kulwant Rai are

represented through counsel appointed through legal aid.

9. Service has been effected upon Kulwant Rai and Ashok Kumar

in the present appeal whereas, despite numerous attempts by the police, they

have not been able to secure the presence of Naveen Kumar. Counsel

appearing on behalf of the respondent-State submits that every possible

effort has been made to secure the presence of Naveen Kumar, through

bailable and non bailable warrants of arrest, however, his whereabouts are

totally unknown. The report as received is that he left his village several

years ago and his brother too does not know as to where he is currently

residing. Consequently as on this date Naveen Kumar remains unserved.

10. Mr. H.S. Randhawa, learned counsel on behalf of Kulwant Rai

and Ashok Kumar urges that even though a heinous crime of rape had been

committed, the respondents in the instant appeal had undergone their

sentence as awarded to them and had been subsequently released. It is urged

that the offence pertained to the year 1997 and since then 20 years had

passed by. At the time of commission of the offence, the accused were not

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very old and now, after having served their sentence, they have settled down

in their regular life and no other case is pending against them. It is argued

that some leniency be shown to them instead of enhancing the sentence

already undergone. In this regard he places reliance upon judgments

rendered in State Of Punjab Vs Gurmit Singh 1996 (1) RCR (Criminal)

533 .

11. In the judgment rendered in Gurmit Singh’s case (supra), the

acquittal of the accused of the charges of rape leveled against them was

challenged in the Supreme Court by both the State as well as the

complainant. While upsetting the judgment of acquittal and addressing the

question of quantum of sentence, it was held that the court has to strike a

just balance “We, accordingly, set aside the judgment of the trial court and

convict all the three respondents for offences under Sections

363/366/368 and 376 IPC. So far as the sentence is concerned, the court

has to strike a just balance. In this case the occurrence took place on

30.3.1984 (more than 11 years ago). The respondents were aged between

21-24 years of age at the time when the offence was committed. We are

informed that the respondents have not been involved in any other offence

after they were acquitted by the trial court on 1.6.85, more than a decade

ago. All the respondents as well as the prosecutrix must have by now got

married and settled down in life. These are some of the factors which we

need to take into consideration while imposing an appropriate sentence on

the respondents.”

12. Placing reliance upon the aforesaid judgment, this court too is

not inclined to enhance the sentence of the three accused even though the

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trial court erred in awarding a lesser punishment. This view is being taken

primarily on the ground that the occurrence is of the year 1997 and all the

three accused have already served their sentence and to incarcerate them

again after a period of 15 years, when they are married and have started life

afresh with children and grandchildren. It is enough that they have had the

threat of enhancement of sentence hanging over their heads like democles

sword for the past 15 years. This would be sufficient punishment.

13. It is in this background, this court does not deem it appropriate

to continue with the instant appeal. Disposed of accordingly.

(JAISHREE THAKUR)
December 15, 2017 JUDGE
vijay saini

Whether speaking/reasoned Yes
Whether reportable Yes/No

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