VIJAY KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is criminal appeal and has been directed against the order dated 19.8.1987 passed by the court of Additional Sessions Judge, Ambala who convicted the appellant Shri Vijay Kumar under Sections 363 and 376 I.P.C. and sentenced him to undergo three years Rigorous Imprisonment for an offence under Section 366 I.P.C. He was also sentenced to undergo Rigorous Imprisonment for a period of five years for an offence under Section 376 I.P.C. Both the sentences were ordered to run concurrently.

(2.) THE brief facts of the case are that Sarabjit Kaur (prosecutrix) was studying in B.A. Part I, S.D. College, Hoshiarpur during the day of the occurrence. On 8.1.1987 she started from Hoshiarpur for going to Delhi. On the same day at about 9.00 P.M. she boarded from Chandigarh a Haryana Roadways bus for going to Delhi. In the bus she met Vijay Kumar accused who was sitting with her on the same seat. The appellant informed her that he was a resident of Gurdaspur and his two elder brothers are living at Yamuna Nagar alongwith their wives and children. He further told the prosecutrix that he was also going to Yamuna Nagar and she should accompany him as he would get her some employment at Yamuna Nagar. The accused made her get down at Ambala Cantt bus stand by alluring her to get the employment and took her to Yamuna Nagar by train where they reached at about 1.00 A.M. or 1.20 A.M. From there Vijay Kumar hired a rickshaw and took her to his brother's house which is situated at the back of the bus stand. The house of brother of Vijay Kumar consisted of two rooms and he asked Sarbjit Kaur to enter one vacant room. When she enquired about his sister-in-law and his brother's children, the accused told her that his sister-in-law had gone to Hoshiarpur to attend his wife during her delivery. He further told her that he was working in Hawkins Pressure Cooker factory Hoshiarpur. After some time Vijay Kumar also came in the same room for sleeping. When she objected, he closed the room from inside and threatened her to keep quite otherwise she would be killed. Thereafter the appellant committed forcible sexual intercourse upon the prosecutrix against her will and consent. On 9.1.1987 in the morning she asked the appellant that she should be allowed to go but she was threatened by the accused, therefore, she kept quiet out of fear. The appellant further told the prosecutrix that his brother was well known in the city and if she does something no body will come to know. The appellant forcibly locked her in the room and again committed forcible sexual intercourse upon her on the night of 9.1.1987. On 10.1.1987 the appellant was trying to take the prosecutrix to some other place when she met the A.S.I. Subhash Chander and two police constables at the bus stand and made statement Ex. PE before him. Subhash Chander ASI sent ruqa Ex. PE/1 on the basis of which formal F.I.R. Ex. PE/2 was recorded. Sarbjit Kaur handed over the bus tickets Ex.PF, Ex. PF/1, Ex. PF/2 and Ex.PF/3 to S.I. Om Parkash who took the same into possession vide memo Ex. PL. The appellant was arrested from the bus stand. The prosecutrix then took the Investigating Officer to the house of the brother of the accused and pointed out the place of occurrence. The rough site plan Ex. PM was prepared. The prosecutrix was medically examined by Dr. Shashi Bala at 9.45 P.M. The Doctor issued her Medical Legal Report Ex.PA. The accused was examined on 11.1.1987 on the police application and copy of the M.L.R. of the accused is Ex. PC. The prosecutrix also made a supplementary statement. She was radiologically examined on 26.1.1987 by Doctor S.C. Goel. She was produced before the Magistrate on 23.1.1987. On completion of the investigation the appellant was challaned in the court of Area Magistrate under Sections 366/376 I.P.C. who supplied him copies of the documents as required under law and vide commitment order dated 13.4.1987 the accused was committed to the court of Sessions. Vide order dated 4.5.1987 the appellant was charge-sheeted under Sections 366 and 376 I.P.C. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed trial.

(3.) ALSO it has been stated by the Doctor that the vagina of the prosecutrix admitted two fingers. There was no mark of injury over face, thigh, arms, forearms and abdomen. In the cross-examination this Doctor has stated "Since two fingers were easily admitted in the vagina, therefore, possibility of prosecutrix habitual to sexual intercourse cannot be ruled out." This Doctor further stated that clothes of the prosecutrix were not torn at the time of her examination. The possibility of injury No. 1 on the person of the prosecutrix being self suffered or self inflicted cannot be ruled out. Also this Doctor deposed that in vagina no blood was found and injury No. 2 could be caused due to normal act of intercourse. PW. 2 Dr. Bimal Kumar Prinja (PW. 2) medically examined Vijay Kumar appellant and declared him fit to perform sexual intercourse. Further it has been stated by the Doctor that there was no mark of injury on the penis, glans penis, inner aspects of thighs, front chest and abdomen of the accused. There was no mark of injuries on the face, lips and neck. PW. 3 is Shri Jagdish Lamba Draftsman who prepared scaled site plan of the place of the occurrence. Sarabjit Kaur appeared as PW. 4. I will discuss her statement in the later portion of this judgment. Balwan Singh Constable appeared as PW. 5. His statement is formal in nature. He accompanied the prosecutrix and the accused and after medical examination of the prosecutrix the Lady Doctor handed over sealed parcels including the sealed parcel of the underwear of the prosecutrix to S.I. Om Parkash, Investigating Officer of this case.