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CASE NO.: Appeal (crl.)  398 of 2008

PETITIONER: Ramesh Kumar

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 27/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 398 OF 2008 (Arising out of SLP (Criminal) No.5064 of 2007)

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

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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 sentence. 7.      The alleged incident appears to have happened on the night  intervening 5th and 6th February, 1999.  It is alleged that the husband of the  prosecutrix was addicted to drinking and on evening of 5th February, 1999,  Suraj Bhan @ Surja (A-6) came to the house of the prosecutrix and took  along her husband.  Again at about 11 p.m. at night her door was knocked  and after opening of the door she saw that Veer Bhan (A-1) was present  there and he told her that her husband was lying in a drunken state and,  therefore, she should fetch him back.  The prosecutrix allegedly  accompanied Veer Bhan (A-1) who took her near the engine in the fields of  one Mukhtiar Fauji where the other accused persons, namely, Bagicha (A- 2), Surja (A-6), Ramesh (A-4), Ajmer (A-3) and Raju (A-5)  were already  present.  The prosecutrix identified each of the accused as they were  known to her.  When she asked the whereabouts of her husband she was  threatened by Veer Bhan (A-1) as she would lose her life if she were to  raise an alarm.  She was thereafter relieved of all her clothes by Veer  Bhan (A-1) and then Veer Bhan (A-1), Ajmer (A-3) and Ramesh (A-4)  (present appellant) committed rape on her turn by turn whereas the other  three accused merely kept on scaring her.  It was then she was taken back  to her house by Veer Bhan (A-1) and again she was threatened not to  disclose the incident to anybody, else she would  be killed.  On the  following day when her husband came home, she disclosed the  occurrence to her husband whereupon she, along with her parents, went to  Police Station Sadar Panipat and lodged the FIR.  She was thereafter sent  for medical examination and the examination was conducted by the Lady  Doctor.  The accused were eventually arrested on different dates and all of  them were sent for medical examination on 15.2.1999.  All of them were  found to be fit for committing sexual intercourse.  The clothes of the  accused were also sent to Forensic Science Laboratory and it was found  that there were semen stains on the Salwar of the prosecutrix, vaginal  swabs and the underwears of accused Ramesh (the present appellant)  and accused Ajmer.  The prosecution led evidence of Nirmala, the  prosecutrix, the husband of Nirmala, namely, Lal Chand, son of Gian  Chand and Prithvi Singh, the Investigating Officer.  Some of the witnesses  were given up while Dr.K.L. Chopra, who had examined the accused Veer  Bhan and Raju was examined.  One Dr.S.K. Gupta was also examined  who had examined accused Ramesh Kumar, Ajmer, Suraj Bhan and  Bagicha.  The accused generally denied their participation in the crime and  the present appellant asserted that on the date of occurrence he was not  present in the Village.  It was his evidence that since Radhu Ram, his  father was contesting the elections of Sarpanch for the last 20 years and  one Diwan Chand was contesting the elections against his father and since  his father was winning the elections throughout, the said Diwan Chand was  nursing a grudge against the accused.  On the basis of the evidence and  more particularly relying on the evidence of Nirmala, the prosecutrix, all the  accused were convicted.  8.     It is not for us now to consider whether the appellants were rightly  convicted since that question does not remain in view of the fact that this  Court had issued only limited notice regarding the sentence obviously  taking the view that there was nothing wrong with the judgment of

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conviction recorded by the Trial as well as the Appellate Courts.  The  question is only of the sentence.  9.      In this case the courts below have awarded the maximum penalty  against the three accused being the life sentence.  The only plea that was  raised before us was that the appellant Ramesh comes from the poor  background and that his old parents will be deprived of his company.   There is no material placed before the Trial and the Appellate Court as well  as before us in support of his poverty.  At any rate we can take the notice  of the fact that the father of the appellant has been the Sarpanch for the  last 20 years.  Again there would be no question of taking a lenient view  particularly because of the daring dastardly act on the part of the accused  persons in which the appellant took active part inasmuch as out of the six  accused persons, he was one of the three accused who had committed  rape on the lady.  We cannot ignore the fact that the lady was a married  person and was tricked to accompany the accused who obviously had an  evil design.  It cannot be forgotten that the husband of the lady was lured  on the evening of the day of occurrence itself taking advantage of his  addiction to alcohol and it was then that the lady was lured to come out of  the house for taking back her husband who was lying in a drunken state.   Here was a defenceless married person who was tricked out of her house  taking the advantage of the drunkenness of her husband and then was  ravished in a most dastardly manner by as many as three persons, one of  whom was the appellant before us.  Under such circumstances we do not  think that any leniency can be shown in the matter of sentence.  It cannot  be forgotten that out of three accused persons only one of the accused  person has come up by way of an appeal.  He cannot be treated differently  from  others who are serving their life sentence.   10.     Under the circumstances we do not wish to interfere with the  judgments of the Trial and Appellate Courts in so far as the sentence is  concerned.  The appeal has no merits and is accordingly dismissed.