SHAMSHER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal has been filed by Shamsher Singh-appellant against the judgment and orders dated 13.7.1993 and 14.7.1993 passed by the learned Additional Sessions Judge, Jind, whereby the appellant has been held guilty for the offences under Sections 457 and 376 Indian Penal Code (IPC - for short). He has been sentenced to undergo RI for 7 years and to pay fine of Rs. 200/- and in default of payment of fine, to undergo further RI for 6 months, for the offence under Section 376 IPC, besides to undergo RI for one year and to pay fine of Rs. 100/- and in default of payment of fine, to undergo further RI for 3 months, for the offence under Section 457 IPC. Both the sentences were ordered to run concurrently.

(2.) CASE FIR 175 dated 2.12.1991 (Ex. PH/2) was registered on the statement, Ex. PH, of the prosecutrix (name withheld) wherein she stated that she was resident of village Pegan and her husband does agricultural work whose five fingers of the left hand are cut; about 5-6 days before the occurrence, she was having stomach ache, which was being treated by the doctor; the doctor had advised her to sleep separate from her husband; the brother of the prosecutrix had come at about 1.00 p.m. during the day on 1.12.1991 to know about her well-being; on the intervening night of 12.12.1991, the prosecutrix was sleeping in the Kotha of her residential house, the door of which was bolted but the latch of which was not fastened from inside; the husband and the brother (namely Satta) of the prosecutrix were sleeping in the cattle shed where cattle were tied; they had closed the door towards the Kotha of the residence from inside; at late night hours, one person through the stairs entered the Kotha of the residential house and started fondling with her breast and the prosecutrix got perplexed and screamed and that person immediately put his right hand on her mouth and made her speechless; he grappled with the prosecutrix on account of which the bangles on her hand broke and then the intruder with his left hand tore the string of the salwar; he took off the salwar and underwear of the prosecutrix and then committed rape on her; he held both her hands with his left hand; she kept screaming and crying, that person forcible did a bad act with her; on hearing the noise of the prosecutrix, her husband, Pala Ram, and brother, Satta, came towards the Kotha of the residential house and after switching on the light, the husband of the prosecutrix identified that person to be Shamsher Singh (appellant); the appellant at once pushed the husband of the prosecutrix and her brother and after freeing himself from them, fled away through the cattle shed; in the morning of 2.12.1991 at 7.00 a.m., the prosecutrix, her husband and brother went to the house of the parents of the prosecutrix, who advised them to lodge a report against the appellant and accordingly they had come to lodge the report and they met the Police at Nagura chowk. After registration of the FIR, the Police investigated the case. The appellant and the prosecutrix were subjected to medical examination and their respective reports are Exhibits PA and PE. After completing the investigation, the challan in the case was filed before the JMIC, Jind on 10.2.1992. The learned Magistrate, vide his order dated 26.2.1992, committed the case to the Court of Session. The learned Additional Sessions Judge, to whom the case was assigned, on 18.3.1992 charged the appellant for the offence of criminal house trespass in terms of Section 457 IPC and of committing rape in terms of Section 376 IPC. The appellant pleaded not guilty to the charge and claimed trial. The prosecution, in order to prove its case, examined 7 witnesses; besides tendering documents and closed its evidence. The statement of the appellant was recorded in terms of Section 313 Cr.P.C. in which he stated that he was innocent and the case was false. It was further stated that on 1.12.1991, Pala Ram-PW6, husband of the prosecutrix, had a drunken brawl with him and so he harboured ill-will against him. The prosecutrix, it was stated, belongs to village Ugalan where the brother of SI Mange Ram was married and on the recommendations of the brother-in-law of SI Mange Ram, this false case had been foisted upon him. It is also stated that after lodging of the FIR, a Panchayat of the village was convened wherein the prosecutrix and her husband tendered apology and admitted having lodged a false report against him. In his defence, he examined one Ajmer Singh (DW-1) son of Fateh Singh of village Pegan. On the basis of the evidence and material on the record, the learned Additional Sessions Judge, Jind found the appellant guilty of both the offences for which he had been charged and accordingly convicted and sentenced him as indicated above. The said judgment of the learned Additional Sessions Judge is assailed by the appellant in this appeal.

(3.) IN response, Mr. Sudhir Nehra, AAG, Haryana, submits that the prosecution has proved its case in all respects. It is contended that the prosecutrix (PW-5) has submitted that the rape was committed on her; besides the bangles were recovered from the place of occurrence. Moreover, the motive, set up by the appellant, is not strong enough to show that it is a case of his false implication. As such, it is contended that the judgment and order of the trial Court is sound and the same is liable to be maintained and upheld.