OM PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) These two appeals (Cr.A. Nos. 610-SB of 1985 and 109-SB of 1986) are being disposed of through this common judgment as these concededly arise out of the same incident. The two appellants have been convicted u/ss. 376/366 read with sec. 34, Penal Code, and have been sentenced to ten years rigorous imprisonment and fine of Rs. 200/- each.

(2.) The prosecution version as disclosed by Chamba Ram PW 9, father of Sumitra, proseoutrix (PW 7), vide his statement Ex.PJ to the police was that on 5th May, 1985 when he after irrigating his fields surrounding his dhani (farm house) came back at about 9.00 p.m. he found that his daughter Sumitra, aged about 14 years, was not there in the house. He also found that she had actually left the house with Rs. 4,000/- in cash and some gold ornaments weighing about 3 tolas. This statement he made on 9th May, 1985, at about 5.30 p.m. at Police Station Fatehabad though the above noted incident had taken place sometime near about 8.00 p.m. on 5th May, 1985. The explanation offered by him for not informing the police earlier was that he was trying to find out the whereabouts of Sumitra. Ultimately suspecting that she had been kidnapped by Kali Ram, appellant, in connivance with Rajinder and Bahadur Ram he thought it proper to make that report. On the basis of this statement, formal FIR Ex.PJ was recorded. On the morning of 16th May, 1985, Sumitra PW 7 was produced before S.I. Tara Chand PW. 10 by her aunt namely Lakshmi Bai PW 8. He recorded her statement u/s 161, Cr. P.C. Since this statement disclosed that Sumitra had been raped by the two appellants a number of times during the days she was with them, i.e. from 5th May, 1985 to 16th May, 1985, a case u/s 376, read with sec. 34, IPC, also came into being. He also made an application (Ex.PC/2) on the same very day, i.e., 16th May, 1985, for the medico-legal examination of Sumitra. In this application all that he mentioned was that she had been subjected to rape by Kali Ram, appellant. No such specific allegation was levelled against Om Parkash therein. She was subjected to medico-legal examination on that very day, i.e., on 16th May, 1985 and though Dr. Geeta Chaudhary PW 2 found certain injuries on her person yet she nowhere opined that Sumitra had been subjected to intercourse. On the next day, i.e. 17th May, 1985, the Sub Inspector produced Sumitra before Shri B. S. Rawat(PW 1), Sub Divisional Magistrate 1st Class, Fatehabad, for purposes of recording her statement (Ex.PB), u/s 164, Cr. P.C. As per this statement, it was at about 8.00 p.m. that she had gone out of the house to pick cotton sticks from a heap lying nearby. Both the appellants who were concealing themselves behind that heap caught hold of her and after threatening her with a knife and a pistol she was made to smell something which made her lose her consciousness. She maintained that though she tried to raise a noise at that time but her mouth was gagged. Later she was subjected to rape on the way. She, however, could not tell the place or places to which she was subsequently taken by the appellants, as for most of the time she remained in a state of semi-consciousness on account of the administration of certain sedatives or intoxicants. It was only during the night intervening 15th and 16th May, 1985 that she found a chance to slip away from the clutches of Kali Ram as Om Parkash was not present there at that moment. She then ran to her place of residence, she firstly came to the house of her aunt, i.e. Lakshmi Bai PW 8 to whom she narrated the entire occurrence. The latter then produced her before S.I. Tara Chand, PW 10. As a result of the further investigation that followed, the two appellants were sent up for trial with the result as already indicated in the opening part of the judgment.

(3.) Appellants' plea u/s 313, Cr. P.C., was of innocence and false implication.