Criminal Appeal No.693-SB of 2001 v. State of Haryana

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr.J.S. Bedi, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction dated 21.4.2001 and the sentence order dated

23.4.2001 passed by the learned Additional Sessions Judge, Rewari, whereby appellant Raj Pal alias Rajiya was convicted -2- Criminal Appeal No.693-SB of 2001. under Sections 452, 376 read with Section 511 and 323 of the Indian Penal Code (hereinafter referred to as `the Code'). Under Section 452 of the Code, the appellant was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- in default whereof to undergo further imprisonment for one month. Under Section 376 read with Section 511 of the Code, the appellant was sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.1000/- in default whereof to undergo further imprisonment for two months. Under Section 323 of the Code, the appellant was sentenced to undergo rigorous imprisonment for two months and to pay fine of Rs.100/- in default whereof to undergo further imprisonment for seven days. In brief, the case of the prosecution is that on

31.10.1998, when the prosecutrix (name withheld), a minor girl, was alone in her tube-well `Kotha', the appellant trespassed into the said `Kotha', grappled with her, tore her shirt and `Salwar', gave a fist blow on her left forearm and attempted to commit rape upon her. The attempts of the appellant were resisted by the prosecutrix. She raised an alarm upon which her grandmother Rajbai reached there. The appellant started running from the place. The prosecutrix pelted a stone which hit him on the back side of his head. In the meantime, Smt.Saroj, mother and Bhateri, sister of the prosecutrix, who had gone to collect firewood, also reached there. The mother of the prosecutrix tried to catch the accused, but he made good his escape from the place of occurrence. -3- Criminal Appeal No.693-SB of 2001. The accused-appellant was arrested. After completion of investigation, challan was presented against the appellant in the Court of the Ilaqa Magistrate, who committed the case to the Court of Session. The accused was charged for the aforesaid offences. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined Dr. Nawal Kishore (P.W.1), Sub Inspector Bhagat Singh (P.W.2), the prosecutrix (P.W.3), Smt.Rajbai, grand mother of the prosecutrix (P.W.4) and Sub Inspector Basant Pal (P.W.5). Statement of the accused-appellant was thereafter recorded under Section 313 of the Code of Criminal Procedure, in which he denied the prosecution allegations and pleaded false implication. However, no evidence was led by the appellant in defence. I have heard Mr.J.S. Bedi, Advocate, appearing for the appellant and Ms. Sushma Chopra, Additional Advocate General, Haryana, appearing for the State and have gone through the records of the case. In this case the evidence of the prosecutrix (P.W.3) clinches the issue that it was a case of attempted sexual intercourse falling within the definition of Section 376 read with Section 511 of the Code. The prosecutrix (P.W.3) deposed that on 31.10.1998 at about 9.30/10.00 A.M, she was present in the kotha of their tube-well. Appellant Raj Pal came to their tube-well. She was alone in the kotha of their tube-well. Her mother and younger -4- Criminal Appeal No.693-SB of 2001. sister had gone to fetch fire wood from the jungle whereas her grandmother was grazing cattle about 40/50 yards away from the tube-well. It was further deposed by her that she was sitting in her kotha and was preparing a garland of currency notes when the appellant came there. The appellant caught hold of her, tore her salwar from front and back side and tried to commit rape on her. However, the act of the accused was resisted by her and she raised alarm 'bachao-bachao'. Her skirt was also torn by the accused. It was further deposed by her that the accused made her lay down on the takhat. He opened the chain of his trousers and took out his private parts. He overpowered her, laid upon her body and tried to commit rape forcibly. Upon an alarm raised by the prosecutrix, her grand-mother Smt. Rajbai (P.W.4) arrived at the spot. The appellant was lying upon her when her grand-mother came. He at once left her and tried to run away. Her grand-mother, being an old lady, could not catch the accused. She further stated that in the meanwhile, her mother and sister also arrived there. They also tried to catch the accused, but he escaped. She further deposed that she had picked up a stone and pelted it at the accused, which hit him on the back side of his head. Smt. Rajbai (P.W.4), grand-mother of the prosecutrix, has corroborated the version given by the prosecutrix. Dr. Nawal Kishore (P.W.1), who had medico-legally examined the prosecutrix, had found an abrasion, which was present transversely, on the left forearm of the prosecutrix. The statement of this Doctor shows that the prosecutrix had been caused simple injury by the appellant -5- Criminal Appeal No.693-SB of 2001. during the scuffle Dr. Nawal Kishore (P.W.1) had also medico- legally examined the accused and had found four injuries on his person. In the presence of the unimpeachable evidence against the appellant, discussed above, there is no escape from the conclusion that it was a case of an attempted sexual intercourse. An attempt to commit rape upon the prosecutrix was made by the appellant. In fact, during the course of arguments, faced with the unimpeachable evidence led by the prosecution, learned counsel for the appellant stated that he did not challenge the conviction of the appellant for the aforesaid offence. However, he prayed for leniency in the matter of sentence. In view of the above, the prosecution has been able to bring home the guilt of the accused beyond all reasonable doubts. Consequently, the judgment of conviction rendered by the learned trial Judge is upheld. The appellant has already undergone rigorous imprisonment for about thirteen months. However, keeping in view the fact that the incident relates to

31.10.1998 and Sword of Damocles has remained hanging on the head of the appellant for more than eleven years, the sentence of maximum rigorous imprisonment of four years awarded to the appellant by the aforesaid offences is reduced to the period already undergone by him. To make it clear, the sentence awarded to the appellant under Sections 452, 376 read with Section 511 and Section 323 of the Code shall stand reduced to the period already undergone by him, but the sentence of fine imposed on -6- Criminal Appeal No.693-SB of 2001. him by the trial Court for the said offences and the default clause shall remain unaltered. The impugned sentence order is modified accordingly. With the above modification in the impugned sentence order, this appeal is hereby dismissed. April 19, 2010. ( MOHINDER PAL ) JUDGE