Sushil Kumar and others vs State of Haryana

Nirmal Singh, J.

This appeal has been filed by the appellants against the judgment and order dated 1/3.6.1999 passed by learned Additional Sessions Judge, Karnal, vide which the appellants were held guilty and convicted and sentenced as under :

Sushil Kumar U/s 376/511 IPC. to undergo RI for five years each and to pay a fine of Rs. 5000/. In default of payment of fine, he shall further undergo RI for one year.

Sube Singh U/s 376/511 read with Section 109 IPC. to undergo RI for three years and to pay fine of Rs. 5000/. In default of payment of fine, he shall further undergo RI for nine months.

Devinder Singh U/s 376/511 read with Section 109 IPC. to undergo RI for three years and to pay a fine of Rs. 5000/. In default of payment of fine, he shall further undergo RI for nine months.

The prosecution story, in brief is that on 2.10.1997 accused Sushil Kumar, in connivance with his coaccused Sube Singh and Devinder Singh, raped the prosecutrix in a Jawar field near the railway line passing through the area of village Gharaunda. When Sushil Kumar accused was being caught hold by the complainant, Karamvir Singh, his coaccused Sube Singh, Devinder Singh, Ravinder Singh, Vir Singh, Partap Singh and Kuldeep Singh, who were armed with deadly weapons, freed the accused Sushil Kumar from the clutches of Karamvir Singh etc. and in the process, they had caused injuries to his cousin brother Sat Pal and to her aunt Chameli. They also restrained the complainant Karamvir Singh etc. from taking the accused Sushil Kumar to Police Station, Gharaunda.

On the basis of the report u/s 173 Cr.P.C., learned Additional Sessions Judge, vide his order dated 30.3.1998, charged accused Sushil Kumar alongwith his coaccused Sube Singh and Devinder Singh under Section 376(2)(g) IPC. All the accused were separately charged for the offence under Section 323 read with Section 149 IPC and for offence punishable u/s 341 read with Section 149 IPC, to which they pleaded not guilty and claimed trial.

To prove the case, the prosecution examined PW1 Dr. Ajay Kapoor, Medical Officer, PHC, Bambewa, District Jhajar, PW2 Dr. Archana Soni, PW3 Smt. Shair Sharma, Principal, Government Girls Senior Secondary School, Gharaunda, PW4 HC Ram Pal, PW5 ASI Om Parkash, PW6 Kamlesh, PW7 Karamvir Singh, PW8 Chameli, PW9 Raj Kumar, PW10 Dalbir Singh, PW11 Sajjan Kumar SI, PW12 ASI Ranjit Kumar and PW13 Suresh Kumar.

The accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstance appearing in the prosecution evidence. All the accused pleaded innocence and alleged false implication. Sushil Kumar, one of the accused, stated as under :

"I am running a shop in the house of Thath Singh, father of my co accused Devinder Singh. Prosecutrix Kamlesh developed intimacy with me while passing in front of my shop. She used to write letters to me. She had made a plan of running away with me. This fact had come to the knowledge of the parents of the prosecutrix and other members of the Biradari who took this very seriously and on the date of occurrence family members of the prosecurtix and few other persons from Biradari came to my shop. All of them threatened me to finish in case I tried to show advance towards the prosecutrix. Thereafter family members of the prosecutrix had an altercation with me and they started throwing stones at my shop. In this process, Devinder my co accused also sustained injuries because he restrained them not to do so and it had damaged house of Devinder coaccused. Thereafter hundred of people assembled there. Police also reached at my shop. The entire Biradari of the prosecutrix made it a personal issue and thereafter some police officers were also beaten. Due to this fact a false case has been planted on me. I am innocent."

The learned trial Court, after hearing the defence counsel and learned PP for the State found the appellants guilty and convicted and sentenced them vide judgment and order dated 1/3.6.1999 as stated in Paragraph 1 of the judgment, against which the present appeal has been filed.

I have heard learned counsel for the parties and perused the record carefully.

The case of the prosecution hinges on the statement of PW6 prosecutix. She has not supported the case of the prosecution. She has deposed in her statement that on 2.10.1977 at about 11/11.30, she was going to the house of her uncle''s son near Railway Line, Gharaunda. When she reached at a lonely place, accused Sube Singh and Devinder Singh put a rope around her neck and she became unconscious. She had also deposed that accused had not committed rape with her. On this, she was declared hostile and the Public Prosecutor was allowed to crossexamine her. The Public Prosecutor crossexamined her at length but nothing favourable came to the prosecution to connect the accused with the crime. She was also confronted with her statement recorded by the police. She has also deposed that in her statement before the police, she has stated that accused had not committed sexual intercourse with her. So far as putting a rope by the accused Sushil around her neck and becoming unconscious, this is all a made up story. She deposed that she cannot specify the length of the rope, which was tied around her neck. It is pertinent to mention that in the statement recorded under Section 304 Cr.P.C. before the Judicial Magistrate, she had deposed that Sushil tried to strangulate her neck with rope. But when she was confronted with her statement, this fact was not found mentioned there. (portion B to B where it has not been so stated).

The findings recorded by the learned trial Court that the appellants made preparation for committing rape are palpably erroneous. When the prosecutrix herself has deposed in her statement that neither she has been raped by any of the appellant nor she has stated in her statement that any of the accused has made preparation and attempted to commit rape with her by removing her clothes as well as clothes of the accused, then relying upon the evidence of other witnesses for maintaining the conviction and sentence of the appellants is meaningless. Therefore, the conviction recorded by the learned trial Court under Sections 376 and 511 IPC cannot sustain.

For the reason recorded above, the appeal is accepted and the accused are acquitted of the charges levelled against them. They are on bail. Their bail bonds and surety bonds stand discharged.