GIAO CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellants, Sarvshri Giao Chand aged 26, Karma alias Karam Chand aged 22, Ramesh Chand aged 18 and Billu alias Sarwan Kumar aged 18 all residents of village Bagher, Tehsil Palampur, were all tried for the offences under sections 366/376, 366/34 and 376/34 I.P.C. by the Sessions Judge, Kangra Division at Dharamsala. The learned Sessions Judge who conducted the trial found all of them guilty of all the charges for which they were tried. He accordingly vide his judgment dated 30-10-78 convicted all the appellants for the offences under sections 376, 366, 376/34 and 366/34 I.P.C. Later, after hearing the appellants on the question of quantum of sentence the learned Judge sentenced each of the three appellants Romesh Chand, Karam Chand and Billu alias Sarwan Kumar to undergo imprisonment for 7 years for the offences under sections 376 and 376/34 I.P.C The 4th appellant Gian Chand was sentenced to undergo R.1 for 5 years for the aforesaid offences, namely, 376 and 376/34 I.P.C. All the appellants were further sentenced to a fine of Rs. 500/- each and in default of payment of fine to suffer further R.I. for six months each. No separate sentence was, however, awarded for the offences under sections 366 and 366/34 I.P.C. Feeling aggrieved the appellants have approached this Court in appeal.

(2.) I would first narrate a few facts pertaining to this case which are not in dispute. The charges against the appellants were founded on the allegations that in the evening of 9.8.75 at village Bagher, Tehsil Palampur, they had abducted Smt. Jogindra Devi (P.W.1) in furtherance of their common intention that she be subjected to illicit intercourse and that after such abduction they actually committed rape an her in a nallah near the place of abduction. The prosecutrix Smt. Jogindra Devi was married to P.W. 3 Prem Singh about two years prior to the occurrence. PW Prem Singh is also from the village of the appellants, namely, Bagher. The houses of the appellants and of Prem Singh PW in village Bagher are located near each other. The appellants and the prosecutrix Smt. Jogindra Devi were known to each other prior to the alleged occurrence. It fact appellants No. 1 and 2 Sarvshri Giao Chand and Karmu who are real brothers are the cousins of PW Prem Singh, the husband of the prosecutrix. They are also related to the prosecutrix from her parental side in that the mother of the prosecutrix and one Smt. Mahanti aunt of these appellants are cousin sisters. These appellants were like brothers to the prosecutrix and even after her marriage they used to address her as their sister. Appellant No. 3 Romesh Chand was also like a brother to the prosecutrix as the maternal uncle of this appellant and the maternal uncle of the prosecutrix were of the same gotra. The 4th appellant Billu is also from the brotherhood of Prem Singh, the husband of the prosecutrix and. he used to address the prosecutrix as his bhabhi. The fields of the appellants are near the fields of PW Prem Singh, the husband of the prosecutrix and there existed a bounday dispute between the appellants and the husband of the prosecutrix.

(3.) Now the case of the prosecution is that P.W. 3 Prem Singh, the husband of the prosecutrix used to work as a labourer with some contract or in village Paplah which is about 6 miles from village Bagher. He used to visit his house in village Bagher occasionally after a lapse of 1 to 3 months. The prosecutrix Smt. Jogindra Devi and her mother-in, law P.W.2 Smt. Panu Devi were the only members of the family residing in their house in village Bagher. The further case of the prosecution is that on 9.8.1975 in the evening PW. 2 Smt. Panu Devi deputed the prosecutrix for bringing grass from her fields which were about two kilometers away from their house. The prosecutrix reached the fields and started cutting grass. She had collected about 5 or 6 pullas of grass when all of Ii sudden Gian Chand appellant armed with a drat appeared on the scene. This appellant pounced upon the prosecutrix, caught hold of her by her neck, snatched her sickle with which she was cutting grass and threatened her with her life in case she cared to raise an alarm Soon after the other three appellants also appeared on the scene. Karmu appellant had also a drat with him. All these four appellants lifted the prosecutrix bodily from her fields and carried her to a Nallah known as Bohru Nallah which was about 300 yards away from her fields. The prosecutrix was then made to lie in that Nallah. Both her legs were separately tied with Parnas and the other ends of Parnas were tied with gharna bushes standing in that Nallah. Both her hands were also tied with another parna. After so making the prosecutrix lie in the nallah and also tying her legs separately with the bushes and also tying her bands, Gian Chand appellant tore the Salwar of the prosecutrix from the front and committed rape on her. The other three appellants then stood nearby. Thereafter, Kannu appellant came to the prosecutrix and removed her salwar from her waist after cutting its string with the drat Karmu then also committed rape on her. After Karmu the other two appellants EiIlu and Romesh Chand also raped her turn by turn. Three of the appellants, namely, Karmu, Billu and Romesh raped the prosecutrix twice. During this occurrence the mouth of the prosecutrix had been gagged by the appellants with her own Chaddar. After the prosecutrix bad been raped in the aforesaid manner, the appellants ran away. Before leaving the spot, however, the appellants had united the legs and hands of the prosecutrix and taken away the parnas used for the purpose. The saiwar of the prosecutrix was soiled with blood and semen in the process of rape. The prosecutrix felt pain in her private parts and her stomach was also swolien on account of the repeated acts of rape. She, however, gathered courage and after some time got up from the spot and proceeded towards her house. On reaching home. she narrated the occurrence to her mother-in-Jaw Smt. Panu Devi (PW.2) who being ill and old could do nothing in the evening. It is also the case of the prosecution as stated by the prosecutrix that the prosecutrix had been seen by Smt. Biasan Devi wife of D W Rattan Chand Sarpanch of the village when she was being bodily carried by the four appellants from her fields towards the nallah. Rattan Chand Sarpanch was also present in his fields Dear the nallah and he challenged the appellants by shouting as to who they were. The further case of the prosecution is that Prem Singh P.W. 3. the husband of the prosecutrix returned home only on 13.8.1975 when he was apprised of the occurrence by the prosecutrix. The same evening he talked to the Pradban who directed him to report the matter to the police. On 15. 8. 1975 Prem Singh accompanied by the prosecutrix Smt. Jogindra Devi left his village for the police station. He, how ever, could not reach the police station that day on account of the fact that a kund lying the way was over flooded and could not be crossed Prem Singh and the prosecutrix, therefore stayed for the night in the house of the parents of the prosecutrix and could reach the police station only on 16.8.1975 where the statement of the prosecutrix under section 154 Cr. P.C. was recorded. Such statement is found at EX. PA. On the basis of her statement formal F.I.R. Ex. PA/i was recorded at the police station. In the course of investigation, the police, visited the spot and collected the broken pieces of bangles of the prosecutrix from the nallah where she is alleged to have been raped. Her glass bangles, according to the prosecutrix, were smashed in the course of scuffle before she was subjected to rape in the nallah. Her salwar, which she was wearing on the day of occurrence was taken into possession and sent to the Chemical Examiner for analysis. She was also got medically examined. The appellants were arrested and also subjected to medical examination. The investigation thus revealed a prima facie case against the appellants and hence they were arrested, charged and tried for the offences mentioned above. At the trial the prosecutrix appearing as P. W. I painted a horrific and gruesome picture of the scene in which she claimed to have been carried away by the appellants from her fields to the nallah, her legs and hands were tied and she was in a beast-like manner subjected to repeated acts of rape at the hands of the present appellants. Corroboration to the testimony of the prosecutrix was sought to be supplied by the prosecution from the oral testimony of P. W. 2 Smt. Panu Devi mother in law of the prosecutrix, P. W. 3 Prem Singh (husband of tile prosecutrix) and P. W. 4 Sollan Singh, (maternal uncle of the prosecutrix. Further corroboration was supplied in tile form of medical evidence did the opinion of the Chemical Examiner who hold examined the salwar found on the person of the prosecutrix at the time of the occurrence. No much corroboration of any material value, however, could be found in such evidence the learned Sessions Judge, however, did not consider such lack of corroboration of any material significance. According to him there was no requirement of law that the evidence of the prosecutrix should be corroborated by other independent evidence before it could be acted upon. He appears to have been deeply impressed by the testimony of the prosecutrix which struck to him all tile more natural and true on account of her demeanor noted in the witness box where she broke down a number of times while narrating her woeful tale.