KASAM ALIAS KASHA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a criminal Appeal and has been directed against the judgment dated 8/9.4.1987, passed by the Court of Additional District and Sessions Judge, Gurgaon, who convicted the appellants Kasam alias Kasha and Islam alias Gunga under Section 376 IPC, and sentenced them to undergo R.I. for a period of three years each. The appellants were further directed to pay a fine of Rs. 200/ - each; in default of payment of fine, they were directed to undergo R.I. for six months each. Appellants Isha and Majid, respective fathers of Kasam and Islam aforesaid, were convicted under Section 506 IPC, and each one of them was directed to undergo RI for a period of six months. Aggrieved by their conviction and sentence, the present appeal by the four appellants; namely Kasam alias Kasha, Islam alias Gunga, Isha and Majid.

(2.) THE story of the prosecution has been unfolded at the trial through the statement of Rashidan, a young married girl of 20 years, who has alleged that she is the daughter of Malhu and used to reside in village Balai and is married with one Kallu of village Dhana. On 9.2.1986 at 2 PM, Rashidan who was staying at the house of her parents in Village Balai and on that day, she had gone to the fields known as Banjarwala to cut Sarson crop. When she was in the process of cutting the Sarson crop, it started raining, upon which she stopped cutting the crop till the rain stopped. After the rain stopped, she again started cutting the crop. In the meanwhile, Kasam and Islam, appellants, appeared there. Kasam caught hold of her and she was made to fall on the ground. Then, he held her by her legs upon which Islam alias Gunga put a piece of cloth in her mouth and committed sexual intercourse with her forcibly and against her consent and will. Thereafter, Islam alias Gunga caught hold of her by her legs and his co -accused Kasam committed sexual intercourse with her forcibly and without her consent. After both the appellants had committed rape upon her, they left her. It is further alleged by Rashidan that she took out the piece of cloth which was earlier put in her mouth in order to gag it and she started raising an alarm upon which Shokat and Subhana were attracted at the place of occurrence and they also identified Kasam and Islam who ran away from the place of occurrence. Shokat and Subhana chased them in order to capture them, but they threatened Shokat and Subhana with an injury to their lives in case they tried to apprehend them. It is further unfolded by Rashidan that she narrated the entire occurrence to Shokat and Subhana and then she returned to her house while weeping and on reaching home, she narrated her woeful tale to her brother Sharfu. When Rashidan accompanied by her brother Sharfu and father Malhu started for the Police Station in order to lodge the report, they were approached by Suleman and Yasin and they pursuaded them not to go to the Police Station and it was promised by them that they would help the complainant -party. It was also represented that going to the Police Station will bring disrepute to the village. After sometime, Suleman and Yasin against approached Rashidan and her father in the house and informed them that Kasam and Islam had fled away from the village and their sympathizers were keeping an eye upon them and as and when they return to the village, the report will be lodged. It is further alleged that Rashidan came out from the house along with her brother Sharfu in order to lodge the report but Isha and Majid, appellants, came there and they threatened them with an injury to their lives in case they went to the police station in order to lodge the report. In view of this, Rashidan and Sharfu remained inside the house and they could not go to the Police Station. On the next morning, they came out of the house in the early hours and went to village Dhana where Rashidan was married but there was no relation of Rashidan available in that village and they stayed there till the evening when the relations of Rashidan returned to Village Dhana and again, the occurrence was narrated to them. On the next morning, Rashidan accompanied by her brother -in -law and her brother Sharfu left village Dhana in order to lodge the report and they all went to Police Station, Nagina, where Rashidan made a statement on the basis of which formal FIR was drawn. Rashidan was sent to Civil Hospital, Nagina, for medical examination but she was ultimately medically examined at Government Hospital, Ferozepur Jhirka. All the four accused were arrested on 13.2.1986 by SI Gian Chand, who was then S.H.O., Police Station, Nagina Kasam and Islam were also medically examined by the Doctor and on the completion of the investigation of the case, the challan was presented under Sectiion 376, IPC, against Kasam and Islam and under Section 506, IPC, against Isha and Majid, in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 25.9.1986 committed the accused to the Court of Sessions.

(3.) VIDE orders dated 8.10.1986, Kasam and Islam were charge -sheeted on the allegations that on 9.2.1986, in the area of village Balai, in furtherance of their common intention, they committed rape upon Rashidan and thereby committed an offence under Section 376, IPC. Vide orders dated 25.11.1986, Isha and Majid were charge -sheeted under Section 506, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.