JEET SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) In the instant case, Smt. Sarjeet Kaur (PW1) lodged a First Information Report. In that, she stated that her son Kuldeep was in love with Minder, daughter of Jeet Singh, first appellant in Criminal Appeal No. 38 of 2008 and of Santo Kaur, appellant in Criminal Appeal No. 20 of 2008. It was stated that Kuldeep and Minder disappeared from the village, whereafter Panchayat was held and it was decided that Kuldeep will not stay in the village, but Minder will return to her parental home. Soon thereafter, appellant No.1 in Criminal appeal No. 38 of 2008 arranged marriage of Minder, but one day before her marriage she vanished from her house. It was stated that even thereafter Panchayat was held, when it was decided that Minder will not return to her parental home and, at the same time, neither she, nor Kuldeep will reside in the village. Suddenly, however, on 27th May, 2006, around 5 O'clock in the evening, appellants, in both the appeals, dragged PW1 and her husband Gurmeet Singh (PW2) inside the house of appellant No.1 in Criminal Appeal No. 38 of 2008 and there after tying PW2, took PW1 inside the house, made her to open her clothes and did bad things (Bura Kaam) with her. It was also stated that PW1 and PW2 were assaulted by all the appellants. They were threatened and they were also confined against their wishes. After the First Information Report was lodged, medical examination of PW1 was conducted when Dr. Sanjai Kumar, Dr. Parul Goel and Dr. Udai Shanker reported, ultimately, that no definite opinion regarding rape can be given. The said doctors opined that there was no internal injury of PW1. They, however, reported that there were external injuries on the body of PW1. PW2 was also medically examined and the doctors reported that he also had external injuries. The wearing apparels of PW1 were taken into possession and the same were sent for examination of Forensic Science Laboratory, Agra. The said Laboratory reported that the wearing apparels, amongst others, contained spermatozoa. Thus, the investigation was completed and appellants, in both the appeals, were charged. While appellants in Criminal Appeal No. 38 of 2008 were charged for offences punishable under Sections 342, 376, 323, 504 and 506 of I.P.C., appellant in Criminal Appeal No. 20 of 2008 was charged for offences punishable under Sections 342, 323, 504, 506 and 109 of I.P.C. By the judgment and sentence under appeal, the court below has convicted appellants in Criminal Appeal No. 38 of 2008 for offences punishable under Sections 342, 376, 323 and 506 of I.P.C. and acquitted them for offences punishable under Section 506 of I.P.C. Each of the appellants have been sentenced for offence punishable under Section 342 of I.P.C. for one year's rigorous imprisonment, for offence punishable under Section 376 of I.P.C. for life imprisonment and a fine of Rs. 10,000/-, for offence punishable under Section 323 I.P.C. one year's rigorous imprisonment and a fine of Rs. 500/- and for offence punishable under Section 506 of I.P.C. for two years' rigorous imprisonment and a fine of Rs. 500/-. By the selfsame judgment and sentence, appellant in Criminal Appeal No. 20 of 2008 has been convicted under Sections 342, 323 and 109 of I.P.C. and she has been acquitted of the charges framed under Sections 504 and 506 of I.P.C. The said appellant has been sentenced for an offence punishable under Section 342 of I.P.C. for one year's rigorous imprisonment, for offence punishable under Section 323 of I.P.C. for one year rigorous imprisonment and a fine of Rs. 500/- and for offence punishable under Section 109 of I.P.C. for life imprisonment with a fine of Rs. 10,000/-.

(2.) It is the contention of the appellants that the court below erred in accepting the evidence of PW1 and PW2 relating to the incident and the manner, in which the same was described before the court by them. It was contended that there was some enmity in between the family of the appellants on the one hand and PW1 and PW2 on the other hand relating to their daughter and son respectively and PW1 and PW2 have blamed the appellants. We have considered the evidence on record. We have taken note of the statements of the appellants recorded under Section 313 of the Code of Criminal Procedure. We are of the view that the learned court below has rightly held that there was no fabrication on the part of PW1 and PW2 in relation to the incident which resulted in filing of the charge-sheet and, ultimately, conviction of the appellants. However, we feel that there may be some substance in the contention of the learned counsel for the appellants that the evidence on record does not contain the basic required ingredients for putting home a charge framed under Section 376 of I.P.C. As would be evident from Section 376 of I.P.C., in order to put home a charge punishable there under, it is obligatory on the part of the prosecution to establish that penetration had taken place. In the instant case, PW1 is a married woman and, accordingly, was accustomed in having sex. Finding of spermatozoa in her wearing apparel is not a pointer of penetration. In the First Information Report, PW1 did not state about penetration. While deposing before the court, she repeatedly stated what was stated by her in the First Information Report. She again repeated that the appellants in Criminal Appeal No. 38 of 2008 did bad things (Bura Kaam) with her and appellant in Criminal Appeal No. 20 of 2008 instigated them. She did not say that male organs of any of the appellants in Criminal Appeal No. 38 of 2008 were put inside her female organ. Even the learned counsel appearing for the prosecution did not ask a question to clarify what PW1 meant by saying bad things (Bura Kaam). However, there is no escape of the fact that there is ample evidence on record to show that PW1 was denuded by the appellants in Criminal Appeal No. 38 of 2008 in the presence of the appellant in Criminal Appeal No. 20 of 2008, and that, appellant in Criminal Appeal No. 20 of 2008 did not make any effort to save the modesty of PW1 being outraged by the appellants in Criminal Appeal No. 38 of 2008.

(3.) In the circumstances, we uphold the judgment and sentence awarded by the court below in relation to offences punishable under Sections 342, 323 and 506 of I.P.C., in so far as appellants in Criminal Appeal No. 38 of 2008 are concerned. We are, however, unable to uphold the judgment and sentence appealed against, in so far as the same relates to offence punishable under Section 376 of I.P.C. We, however, feel that a clear case has been made out by the prosecution in relation to offence punishable under Section 354 of I.P.C. against the appellants in Criminal Appeal No. 38 of 2008 and, accordingly, convict the said appellants for offence punishable under Section 354 of I.P.C. and sentence them with maximum permissible punishment of two years' rigorous imprisonment with fine of Rs. 2500/- each. We also uphold the judgment and sentence awarded by the court below against appellant in Criminal Appeal No. 20 of 2008 in respect of offence punishable under Section 342 and Section 323 of I.P.C. We also uphold the judgment of the court below in relation to abetment punishable under Section 109 of I.P.C. as against appellant in Criminal Appeal No. 20 of 2008, but not the abetment pertaining to offence punishable under Section 376 of I.P.C., but in respect of offence punishable under Section 354 of I.P.C. and, accordingly, award maximum sentence of two years' rigorous imprisonment for offence under Section 109 of I.P.C. to the said appellant together with fine of Rs. 2500/-.