CRA-S-330-SB-2004(OM) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-330-SB-2004(OM)
Date of decision:-3.8.2018
Mai Chand
….Appellant
Versus
State of Haryana
….Respondent
CORAM : HON’ BLE MR. JUSTICE H.S. MADAAN
Present : Mr.Namit Sharma, Advocate
for the appellant.
Ms.Aditi Girdhar, AAG, Haryana.
****
H.S. MADAAN, J.
Accused Mai Chand faced trial by learned Additional
Sessions Judge, Panipat, who vide judgment dated 19.11.2003 convicted
him for the offences under Sections 323, 341, 376 and 506 IPC and vide
order of the even date he was sentenced as under:
Under Section Sentence Awarded
323 IPC Rigorous imprisonment for a period of six
months.
341 IPC Simple imprisonment for one month.
506 IPC Rigorous imprisonment for a period of one year.
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376 IPC Rigorous imprisonment for eight years and to
pay a fine of Rs.1,000/- and in default thereof, to
further undergo simple imprisonment for six
months.
All the sentences were ordered to run concurrently.
The accused-convict – Mai Chand, who is appellant before
this Court prays that the appeal be accepted, the impugned judgment of
conviction and order of sentence passed against him be set aside and he
be acquitted of the charge framed against him.
Briefly stated, the facts of the case are that criminal
machinery was set into motion by the complainant Bachno Devi, aged
65 years, resident of village Sithana, who in her statement made to the
police on 1.5.2001 stated that she had been earning her livelihood by
doing menial jobs; that on 30.4.2001 at about 2:00 p.m., when she had
left her house for going to her daughter house situated at Gopal Colony,
Panipat and time was about 7:00 p.m. and while she was present at
Kabri Railway crossing for the purpose of boarding a bus then accused
Mai Chand from her village, who happened to be a member of the
village Gram Panchayat came there, addressed her as aunt and
represented to her that he would get her some grant under Indra Vikas
Scheme; that he asked her to accompany her; that he stated that some
other women of the village had also come; that accordingly the
complainant accompanied the accused; that when they reached near
eucalyptus tress of Kachi Nagar, the complainant enquired from the
accused as to where he was taking her, then accused took out a knife
from his pocket asking the complainant to come along with him,
otherwise she would be killed by him; that the accused gagged her
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mouth, took her to the pits situated near Garhi Sikenderpur and had
sexually intercourse with her thrice, which was against her wishes; that
the complainant continued to weep and requested the accused to leave
her but to no effect, rather accused threatened the complainant and took
her to the village and left her there at about 11:00 p.m., threatening the
complainant not to disclose the occurrence to anybody, otherwise he
would kill her.
According to the complainant, she narrated the entire
incident to her husband Rattan Chand, who took her to Sarpanch
Darshna Devi, where the entire incident was narrated. Then the
complainant along with other respectables of the village went to the
police station and lodged FIR there. After registration of the FIR, the
matter was investigated. The accused was arrested in this case.
After completion of investigation and other formalities,
challan against the accused was prepared and filed in the Court of
learned Area Magistrate.
On presentation of challan in the Court of learned Area
Magistrate, he supplied copies of documents relied upon in the challan
to the accused free of costs as provided under Section 207 Cr.P.C. Then
finding that the offence under Section 376 IPC is exclusively triable by
Court of Sessions, learned Area Magistrate committed the case to the
Court of learned Sessions Judge, Panipat from where it was entrusted to
the Court of learned Additional Sessions Judge, Panipat.
On receipt of case in the Court, learned Additional Sessions
Judge, Panipat observing that prima facie charge for offences under
Sections 323, 341, 376 and 506 IPC was disclosed against accused, he
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was charge-sheeted accordingly, to which, he pleaded not guilty and
claimed trial.
During the course of its evidence, the prosecution examined
as many as thirteen witnesses namely Balwant Singh, Patwari as PW1,
HC Anand Parkash as PW2, Constable Jai Bhagwan as PW3,
Smt.Bachno Devi as PW4, Dr.Tejinder Kumar as PW5, Dr.Neeru as
PW6, Constable Karambir as PW7, Constable Balkar Singh as PW8,
Rattan Singh as PW9, Sh.Dhan Singh as PW10, SI/SHO Naresh Kumar
as PW11, ASI Om Parkash as PW12 and Ex.Constable Raj Kumar as
PW13.
With that the prosecution evidence got concluded.
Statement of accused was recorded under Section 313
Cr.P.C., in which all the incriminating circumstances appearing against
him were put to him but he denied the allegations contending that he is
innocent and had been falsely involved in this case.
In defence evidence accused examined Subhash as DW1,
who stated that he was acquainted with the accused and the
complainant; that the complainant had migrated from Rajasthan to
village Sithana; that she wanted to have the panchayat land meant for
the cattle; that the accused had objected to the allotment of the land to
the complainant, as such she became inimical towards the accused,
however despite objection of the accused, the complainant was allotted
panchayat land; that the complainant had stated at that time that she
would teach a lesson to the accused for coming in her way in the
allotment of the panchayat land; that the accused was the member of
Gram Panchayat at that time and that the complainant had migrated to
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village Sithana about 8/10 years back.
After hearing arguments, learned trial Court convicted and
sentenced the accused as mentioned above, which left him aggrieved
and he has filed the present appeal.
I have heard learned counsel for the appellant – accused –
convict, learned Assistant Advocate General for the State of Haryana
besides going through the record.
Bachno Devi, the prosecutrix while getting her statement
recorded as PW4 repeated on oath the case of the prosecution. She was
subjected to lengthy cross examination on behalf of the accused but she
stuck to her guns and could not be shattered on material contents. No
plausible or satisfactory explanation could be furnished providing the
motive for alleged false implication of the accused in this case. The
motive suggested that the accused being member of the village Gram
Panchayat had opposed the allotment of panchayat land to the
complainant, though the panchayat had allotted such land to her and for
that reason she bore a grudge against the accused does not appear to be
satisfactory. No woman much less an elderly one would invite stigma on
her moral character by levelling such type of allegations against a person
without any rhyme or reason. The motive suggested for alleged false
implication is too trifle to spur the complainant to level wrong
allegations of rape against the accused. Rattan Chand – PW9 husband of
the complainant is though not an eye witness of the incident but as per
prosecution story soon after the occurrence, the complainant had
informed him in that regard then they had gone to the village Sarpanch
and thereafter accompanied by several persons had gone to police
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station to lodge report regarding the accused there. Therefore, his
testimony is res gestae and corroborates the prosecution story on
material aspects. The trial Court has rightly observed that the
complainant prosecutrix was allotted the land by Gram Panchayat about
7-8 years back and it is not believable that prosecutrix thought of taking
revenge from the accused after such a long period of time.
The medical evidence in this case corroborates the ocular
evidence. PW6 Dr.Neeru, who had medico legally examined the
complainant on 1.5.2001 while posted as Medical Officer at General
Hospital, Panipat, the time of examination of being 5:00 p.m., had found
three injuries on her person, which are as under:
1. Blunt injury on forearm 1 cm x 1 cm reddish in
colour.
2. Contusion i.e. blunt injury on face on both side of
face 1 cm x 1 cm.
3. There was abrasion 1 cm x 1 cm at the lower back in
centre.
She had opined that kind of weapon used for injuries No.1
to 3 was blunt and injuries were caused within a period 24 hours. She
further proved copy of MLR as Ex.PF/1. She had also proved salwar of
the complainant as Ex.P3, shirt Ex.P4, cover of the parcel Ex.P5, two
slides Ex.P6 and Ex.P7, swabs tubes Ex.P8 and Ex.P9 and cover of the
parcel Ex.P10. As per the report from the FSL Ex.PG, semen was found
to be there on the salwar and the shirt pointing out that the complainant
had been subjected to rape. From the statement of PW5 Dr.Tejinder
Kumar, who had medico legally examined the accused on 5.5.2001 at
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the police request, it comes out that accused was able to perform sexual
intercourse since there was nothing to suggest that he could not do so.
He proved MLR of accused as Ex.PE/1, underwear of accused Ex.P1
and sample seal as Ex.P2. From the statement of PW7 Constable
Karambir, who had proved his affidavit Ex.PH and testimony of PW8
Constable Balkar besides statements of other witnesses corroboration is
lent to the case of prosecution.
The investigation in this case has been conducted in a fair
and impartial manner. The Investigating Officer had no reason to
involve the accused in this case wrongly, challan him falsely or to
depose against him to secure his conviction.
Learned counsel for the appellant stated that there is delay
of 15 hours in lodging a report with the police, which has been left
unexplained and the prosecution story should be disbelieved for that
reason.
However, I am not convinced by this argument. The delay
in such type of sexual offences is nothing unusual because it involves
the dignity and honour of the family. The victim and his family
members do ponder over the things, concert their nears and dears and
then take decision to inform the police. In the instant case as per the
prosecution story goes after the incident, the accused had left the
complainant near her house. The complainant had then discussed the
matter with her husband Rattan Singh, thereafter they had gone to the
village Sarpanch and then had gone to the police station. Therefore, the
delay, if any in reporting the matter has been adequately explained and it
does not affect the credibility of the prosecution story.
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According to the learned counsel for the appellant, the
medical evidence did not corroborate the prosecution story as regards
rape having been committed upon the complainant. However, I do not
find any merit in this contention. As per report received from FSL,
Madhuban marks of semen were found to be there on the shirt and
salwar of the complainant, which clearly points out towards rape.
Learned counsel for the appellant has referred to authority
Devanand Versus State (NCT of Delhi), 2003(1) RCR(Criminal) 771
by Delhi High Court. The same had different facts where an accused and
prosecutrix lived in the same house and as per allegations accused raped
the prosecutrix many a time by threatening to put her parents to death.
However, there was no injury or resistance on part of prosecutrix
coupled with delay in lodging the FIR, the accused was acquitted giving
benefit of doubt. Here the facts are different. The delay in lodging the
FIR had been adequately explained and as per the prosecution story
accused had threatened the complainant and then raped her. Putting a
person in so much fear so that she cannot offer any resistance does not
go to show that she as a consenting party. Therefore, this authority does
not help the appellant in any manner.
As regards the next citation State of Rajasthan Versus
Kishanlal, 2002(2) RCR(Criminal) 852 where in a rape case conviction
of the accused had been set aside on the following grounds:
(i) Statement of prosecutrix that accused offered her
Rs.20/- for having intercourse and also stated that
another persons will also pay Rs.20/- for same
favour.
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(ii)No alarm was raised though the brother-in-law of
the prosecutrix and his wife were sleeping only 20-25
feet away.
(iii)Two abrasions were found on the breasts of
prosecutrix – According to Doctor these could be self
inflicted.
(iv)According to prosecutrix she was silenced by
accused by show of knife – Accused was caught on
the spot, but knife was not seized.
(v) These facts show that rape was with consent.
For the reasons discussed above and view of the different
facts and circumstances of the case in hand, this authority is also not
helpful to the appellant.
The judgment of conviction is well reasoned one, based
upon proper appraisal and appreciation of evidence and correct
interpretation of law. There is no illegality or infirmity therein.
As regards the sentence part, the accused had done a very
heinous crime of repeating rape on an aged woman by causing injuries
to her, illegally detaining her and threatening her. Such type of conduct
on the part of accused cannot be taken lightly. He has been sentenced for
eight years for the offence under Section 376 IPC. No scope for
reduction in sentence is there lest that should send a wrong signal in the
society that one can commit a heinous crime and then get away lightly.
The said judgment of conviction and order of sentence are
upheld whereas appeal is found to be without any merit and the same is
dismissed accordingly.
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It is stated that appellant – accused namely Mai Chand is on
bail in terms of the orders passed by this Court. The bail order is
cancelled. He is ordered to be taken into custody and made to undergo
the remaining sentence. Necessary direction in that regard be issued to
Chief Judicial Magistrate, Panipat.
(H.S.MADAAN)
3.8.2018 JUDGE
Brij
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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