KHURSHEED AND ORS. Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal has been filed by the appellants against the judgment of conviction dated 10.11.2003 and order of sentence dated 11.11.2003, passed by learned Addl. Sessions Judge (Fast Track Court), Gurgaon whereby all the accused -appellants were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/ - and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months under Section 363 I.P.C. and to further undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/ - and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months under Section 366A I.P.C. All the accused -appellants were further directed to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2000/ - and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year under Section 376(2)(g) I.P.C. All the sentences were ordered to run concurrently.

(2.) THE brief facts of the prosecution case are that Juhru made an application to the police on 05.02.2000 to the effect that he was having three daughters and one son and two daughters were married. It is further stated in the application that his youngest daughter aged 14/15 years is unmarried. Complainant used to remain ill and so, for taking medicine, he had gone to Kosi to a Hakim for that purpose on 04.02.2000 and he stayed for a night there. Maksood met him and told him that prosecutrix had gone with Khursheed alias Mani and his brothers Jakir and Jamshed and further informed that all the three had kidnapped prosecutrix forcibly with intent that she be forced to illicit intercourse. Complainant further stated that prosecutrix was raped by Khursheed alias Mani on 04.02.2000 at 8.00 P.M. According to complainant, Khursheed alias Mani committed rape whereas Jakir and Jamshed were standing at some distance and provided help to him. On hearing hue and cry, Fajri and Maksood reached the spot and had seen the occurrence. His daughter had been taken by the accused persons forcibly to commit the offence, so action be taken. On the basis of this application, FIR was recorded. Rough site plan was prepared. Accused Khursheed alias Mani was arrested. Prosecutrix was produced before Illaqa Magistrate for getting her statement recorded under Section 164 Cr.P.C. Prosecutrix was got medico legally examined. Statements of witnesses were recorded. Report of FSL was obtained. After necessary investigation, challan was presented against appellant Khursheed alias Mani. On the basis of police report and other evidence, he was charge -sheeted under Sections 363, 366A and 376 I.P.C. Later on, after recording statements of some witnesses, accused -appellants Jakir and Jamshed were summoned on the application under Section 319 Cr.P.C.

(3.) IN support of its case, prosecution examined PW -1 Head Constable Subhash Chand, formal witness, who tendered into evidence his affidavit Ex. PA. PW -2 Maksood deposed as per prosecution version. PW -3 Constable Naresh Kumar, Draftsman, proved the scaled site plan. PW -4 ASI Sabha Ram deposed regarding preparing of challan. PW -5 Head Constable Balwan Singh, also a formal witness, who tendered into evidence his affidavit Ex. PE. PW -6 ASI Abhey Singh deposed regarding recording of formal FIR Ex. PG on receiving ruqa Ex. PF. PW -7 Sh. Mewa Singh, Sub Divisional Judicial Magistrate, Fatehabad mainly deposed regarding recording of statement of prosecutrix under Section 164 Cr.P.C. Ex. PH/1. PW -8 prosecutrix deposed that on 04.02.2000, at about 8.30 P.M., she had gone to case herself in the fields. Khursheed came and dragged her in a 'bara' and then he committed rape upon her against her wishes. She raised alarm and Fajri came. In the meantime, Khursheed alias Mani and his brothers namely Jakir and Jamshed also came. They took her to 'pahar' of Lohinga village. She further deposed that all the three committed rape upon her separately. Before she was taken to the 'pahar', Maksood and Sultan had also come, who are her uncle. Third day, accused left her all alone. A person from Lohinga village met her and he took her to his house and then informed her parents. She also deposed that then 4 -5 people from her village came to village Lohinga and her father was also along with them. Then she was taken to police post Pingawa. Her statement was recorded. Then she was taken to Ferozepur Jhirka hospital for medical examination. Her statement under Section 164 Cr.P.C. was recorded by the Magistrate. PW -9 ASI Sarup Singh, Investigating Officer, deposed regarding investigation conducted by him in the present case. FSL report was tendered into evidence. PW -10 Dr. Santosh Jain, who medico legally examined the prosecutrix deposed that no external injury was seen. According to the report, the doctor stated that she is of the opinion that no sexual intercourse was performed on prosecutrix by anyone. She further deposed that two fingers entered in the vaginal orifice conveniently. In the cross -examination, this witness deposed that prosecutrix was habitual to sexual intercourse. PW -11 Dr. M. Farukh, medico legally examined Khursheed alias Mani. PW -12 Constable Mohammad Harun, deposed regarding delivering of Special Report to the Illaqa Magistrate.