SANSAR CHAND Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This Criminal Appeal has been preferred against judgment and order dated 21/1/1991 and 22/1/1991 passed by the learned Sessions Judge, Udhampur, whereby he has convicted and sentenced the accused for commission of offences under Sections 458 and 376, R.P.C., to suffer Rigorous Imprisonment for life and fine of Rs. 20,000.00 in equal shares, in default whereof to undergo further imprisonment of the like nature for a period of two years. The appellants have also been convicted and sentenced for commission of offence under Section 458, RPC to suffer Rigorous Imprisonment for a term of 10 years and a fine of Rs. 10,000/-, in default of payment of fine, to suffer Rigorous Imprisonment for a further period of two years. Both the sentences have been ordered to run concurrently.

(2.) The prosecution story is that the prosecutrix is a widow of 35 years. Her husband died two years before the occurrence. She has two sons and two daughters. Her elder daughter has been married while other children are minors, living with her, in her house at a hilly village Karlah. She alongwith her children was sleeping on a single cot. The door had no bolt. She had kept a stone behind the door to keep it closed. On the night intervening 31stMarch/1st April, 1991, the accused-appellants came to the house of the prosecutrix at about 11.00 p.m., and broke open the door with kicks, where the prosecutrix alongwith her children was sleeping. They broke open one side of the door and entered in the house. The prosecutrix and the children woke up. Accused Sansar Chand caught hold of the prosecutrix from the cot and was moved to the ground. The other accused Krishan was having a torch. He put off the light of the room, which had been kept on by the prosecutrix and stood at the door. The prosecutrix pleaded with folded hands to the accused to go back but all in vain. The children saw their mother being laid on the ground by accused Sansar. They started crying as they apprehended that accused was to beat their mother. The accused threatened them that if they cry they would be killed. The accused Sansar Chand after removing shalwar of the prosecutrix raped her against her will and consent. When he finished the act, he called the other accused. The other accused Krishan also raped her. The prosecutrix on the pretext of urinating went out of the room and left for bringing her husband's brother Surjan, who lived at a distance of about one mile away. When they came back, the accused by then had already gone. She went to the house of the Chowkidar in the morning but he was not there. She went to Police Station Chenani, which is about 20 Kilometers away from the place of occurrence and lodged the FIR on 1/4/1991. Police registered FIR No. 34/1991 for commission of alleged offences under Sections 376/452 read with Section 34, RPC and started investigation.

(3.) During the investigation the prosecutrix was got medically examined. One broken wooden plank of the door was seized from the spot. The salwar of the prosecutrix was also seized and sent for chemical ex amination to F.S.L., Jammu and its report was obtained. The statements of the witnesses were recorded under S. 161, Cr.P.C. The accused were arrested and got medically examined on 18-4-1991. The challan was presented in the Court. They were charged sheeted on 15-5-1991 for the alleged commission of offences under Sections 376/451, R.P.C. They pleaded not guilty and were put to trial.