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2008 Supreme(SC) 368
S.B. Sinha & V.S. Sirpurkar
Ramesh Kumar - PETITIONER
Versus
State of Haryana - RESPONDENT
CRIMINAL APPEAL NO 398 OF 2008
(Arising out of SLP (Criminal) No.5064 of 2007)
Decided On: 27/02/2008
Headnote:
Indian Penal Code , 1860 – Sections 376 , 506 , 149 and 148 - Appeal is filed by one of accused persons who was convicted for commission of offences - Initially as many as six accused persons came to be tried before Sessions Court on allegation that on night intervening they committed gang-rape, wife - It was further alleged that accused persons formed an unlawful assembly and in prosecution of common object of such assembly they also criminally intimidated said Nirmala and had also committed offence of rioting - Sessions Judge convicted all accused persons and sentenced for offence and came to conclusion that these three accused persons had gang-raped Nirmala, prosecutrix - They were accordingly sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs -10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three years - It was directed that fine, if realized, be paid to prosecutrix as compensation - Other three accused persons, were, although convicted for aforementioned offences, sentenced to undergo imprisonment for 10 years and also to pay a fine of Rs -10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three years - All accused persons were also sentenced to suffer rigorous imprisonment for two years for offence and rigorous imprisonment for two years for offence - All sentences were ordered to run concurrently – Held , Alleged incident appears to have happened on night intervening - It is alleged that husband of prosecutrix was addicted to drinking and on evening came to house of prosecutrix and took along her husband - Again at about 11 p -m - at night her door was knocked and after opening of door she saw that was present there and he told her that her husband was lying in a drunken state and, therefore, she should fetch him back - Prosecutrix allegedly accompanied who took her near engine in fields where other accused persons were already present - Prosecutrix identified each of accused as they were known to her - When she asked whereabouts of her husband she was threatened as she would lose her life if she were to raise an alarm - She was thereafter relieved of all her clothes by committed rape on her turn by turn whereas other three accused merely kept on scaring her - It was then she was taken back to her house and again she was threatened not to disclose incident to anybody, else she would be killed - On following day when her husband came home, she disclosed occurrence to her husband whereupon she, along with her parents, went to Police Station Sadar Panipat and lodged FIR - She was thereafter sent for medical examination and examination was conducted by Lady Doctor - Accused were eventually arrested on different dates and all of them were sent for medical examination - All of them were found to be fit for committing sexual intercourse - Clothes of accused were also sent to Forensic Science Laboratory and it was found that there were semen stains on Salwar of prosecutrix, vaginal swabs and underwears of accused Ramesh and accused - Prosecution led evidence prosecutrix, husband , son - Investigating Officer - Some of witnesses were given up while who had examined accused was examined - One was also examined who had examined accused - Accused generally denied their participation in crime and present appellant asserted that on date of occurrence he was not present in Village - It was his evidence that since, his father was contesting elections of Sarpanch for last 20 years and one was contesting elections against his father and since his father was winning elections throughout, was nursing a grudge against accused - On basis of evidence and more particularly relying on evidence, prosecutrix, all accused were convicted - It is not for us now to consider whether appellants were rightly convicted since that question does not remain in view of fact that this Court had issued only limited notice regarding sentence obviously taking view that there was nothing wrong with judgment of conviction recorded by Trial as well as Appellate Courts – Appeal dismissed
JUDGMENT
V.S. SIRPURKAR, J.
1. Leave granted.
2. This appeal is filed by one of the accused persons who was convicted for commission of offences under Sections 376 (2)(g), 506, read with Sections 149 and 148 of the Indian Penal Code. Initially as many as six accused persons came to be tried under Sections 376 (2)(g), 506 read with Sections 149 and 148 IPC before the Sessions Court on the allegation that on the night intervening 5th and 6th February, 1999 at Village Rajapur they committed gang-rape on Smt. Nirmala Devi, wife of Lal Chand. It was further alleged that the accused persons formed an unlawful assembly and in prosecution of common object of such assembly they also criminally intimidated said Nirmala and had also committed the offence of rioting. The Sessions Judge convicted all the accused persons and sentenced Veer Bhan (A-1), Ajmer Singh (A-3) and Ramesh (A-4) for the offence under Section 376 (2)(g) IPC and came to the conclusion that these three accused persons had gang-raped Nirmala, the prosecutrix. They were accordingly sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three years. It was directed that the fine, if realized, be paid to the prosecutrix as compensation. The other three accused persons, namely, Bagicha (A-2), Raju (A-5) and Suraj Bhan @ Surja (A-6) were, although convicted for the aforementioned offences, sentenced to undergo imprisonment for 10 years and also to pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three years. All the accused persons were also sentenced to suffer rigorous imprisonment for two years for the offence under Section 506 read with Section 149 IPC and rigorous imprisonment for two years for the offence under Section 148 IPC. All the sentences were ordered to run concurrently.
3. All the accused persons filed appeal before the High Court wherein the High Court came to the conclusion that the charges of gang-rape and criminal intimidation were proved against all the appellants. However, the High Court took slightly lenient view in case of accused Bagicha (A-2), Raju (A-5) and Suraj Bhan @ Surja (A-6) as they had not indulged in sexual intercourse with the prosecutrix. The High Court took into consideration that they were behind the bars for about four years and therefore, they were let off with the sentence already undergone by them. However, the High Court did not show any leniency in the case of Veer Bhan (A-1), Ajmer (A-3) and Ramesh Kumar (A-4) who had committed the act of rape and confirmed their life sentence.
4. Now out of the abovesaid three accused persons only Ramesh (original Accused No.4) has come up before this Court. This Court condoned the delay in filing the appeal and issued notice only on the question of sentence.
5. Though a limited notice was issued, the learned counsel tried to argue before us for acquittal. According to him the offence of rape or the more serious offence of gang-rape was not proved at all. It was also urged that since the appellant has undergone about nine years of incarceration, the court should take lenient view in the matter. Learned counsel also pointed out that the prosecutrix was not injured though she was allegedly raped by three persons. Learned counsel also urged that the parents of accused Ramesh are old and have already been deprived of the company of their son for more than nine years eversince the accused-appellant is behind the bars.
6. Since only a limited notice was issued regarding the sentence, we do not propose to discuss in details the prosecution story and the evidence tendered by the prosecution in its support. However, we must notice certain facts in order to appreciate the question of senten
