Ashok Kumar vs State of Haryana

A.S. Nehra, J.

Ashok Kumar, Subhash Chander and Mohinder Singh, appellants, have filed this appeal against the judgment and order dated November 28, 1986, passed by the learned Additional Sessions Judge, Ambala, whereby they have been convicted and sentenced as under :

U/s 366, I.P.C. R.I. for three years and a fine of Rs. 500/ each and in default of payment of fine, to undergo further R.I. for three months each.

U/s 354, I.P.C. R.I. for one year and a fine of Rs. 200/ and in default of payment of fine to undergo further R.I. for three months each.

U/s 452, I.P.C. R.I. for two years and a fine of Rs. 200/ each and in default of payment of fine, to undergo further R.I. for three months each.

U/s 506 I.P.C. R.I. for one year and a fine Rs. 200/ each and in default of payment of fine, to undergo further R.I. for three months each.

However, all the substantive sentences were ordered to run concurrently.

The prosecution case, briefly stated, is that on May 27, 1986 at about 10.30 P.M. complainant Shahida alongwith three children and her husband was sleeping in her house situated in Anand Colony, Naya Hamida, Yamunanager, when all the three accused entered her house and called her husband Ashraf to come out and send his wife Shahida with them; lest he would be done to death. When her husband enquired as to who they were, the accused replied that all the three were the same persons who had treated them badly about five years back and they gave their names and addresses as Ram Singh son of Ganga Ram Kamboj resident of Manda Majra, Subhash son of Ram Saran and Arjun son of Ram Saran, residents of Gobindpuri. Thereafter, all the three accused lifted Shahida from the cot and then Ram Singh and Arjan caught hold of her from her breasts and dragged her out of the room. Both Shahida and her husband raised hue and cry for help, whereupon one Head Constable and two Constables from Police Post, Hamida, reached the spot and rescued Shahida from the clutches of the three accused. All the accused were apprehended there and then by the police and they were enquired about their names and addresses. Thereafter, the police officials took all the accused, prosecutirx Shahida and her husband Ashraf to Police Station, Yamunanagar. On their way to the Police Station, ASI Hari Kishan met them at Khan Chand chowk, Yamunanagar and recorded statement, Ex.PA, of Shahida, on the basis of which ruqa, Ex.PA/1, was sent to the Police Station where formal F.I.R., Ex.PA/2, was recorded by ASI Hari Kishan. The accused were arrested there and then. Therafter, ASI Hari Kishan prepared rough site plan, Ex.PB, and recorded statements of Ashraf and three police officials, namely, Head Constable Girdhari Lal, Constable Rajinder Singh and Constable Balraj under Section 161, Criminal Procedure Code. On the following day, i.e., May 28, 1986, the accused, on interrogation, revealed their correct names and addresses. The accused who had earlier disclosed his name as Arjun told his name as Ashok Kumar while Ram Singh told his name as Mohinder and gave his correct address also. On personal search of the accused, Arjun, who later told his name as Ashok Kumar, Rs. 1700/ and a valet were recovered, which were taken into possession vide recovery memo, Ex.PC/1, while personal search of Subash accused led to recovery of a watch, which was taken into possession vide recovery memo, Ex.PC/2 and on personal search of Mohinder Singh, Rs. 400/ were recovered and the same were taken into possession vide recovery memo, Ex.PC/3. The accused were taken to the Police Station while prosecutirx Shahida, her husband and the three police officials of Police Post, Hamida, were sent back. On August 3, 1986, Sushil Kumar, Draughtsman, prepared scaled site plan, Ex.PD, at the instance of Shahida PW.

To prove its case, the prosecution examined prosecutrix Shahida (P.W.1), her husband Ashraf (PW2), HC Girdhari Lal (PW3), Constable Rajinder Singh (PW4), ASI Hari Kishan (PW5) and Sushil Kumar, Draughtsman (P.W.6).

When examined under Section 313, Criminal Procedure Code, the appellants denied the prosecution allegations and stated that a false case had been planted against them in connivance with prosecutrix Shahida and her husband Ashraf. They further stated that when they were returning in their car after seeing a movie, they had an altercation with ASI Hari Kishan over non production of documents of the car with the result that he was agitated and took all the three accused to the Police Station and kept them sitting throughout the night. Thereafter, the entire evidence was fabricated by the A.S.I. in order to vindicate his vanity. They further stated that the car belonged to accused Subhash which was also taken into custody and was got released later on from the court of District Magistrate, Ambala.

When asked to enter into defence evidence, accused Subhash produced Rishi Pal (D.W.1) and Raj Kumar (D.W.2).

I have heard Mr. R.S. Cheema, Senior Advocate, learned counsel for the appellants, and Mr. S.S. Pattar, Assistant Advocate General, Haryana, for the State and have gone through the evidence on record.

The prosecution case mainly hinges on the evidence of P.W.1 Shahida prosecutrix, P.W.2 Ashraf, P.W.3 Head Constable Girdhari Lal and P.W.4 Rajinder Singh, who rescued Shahida prosecutirx from the clutches of the accused while they were dragging her out of her house. Shahida prosecutrix has mainly corroborated her statement made before the police. She identified all the three accused present in the Court and categorically stated that Mohinder Singh and Ashok Kumar had dragged her out of the room forcibly and the third accused Subhash had also caught her by her arm. On her raising alarm, HC Girdhari Lal and two other constables reached the spot. She further stated that her husband Ashraf being handicapped by one arm could not resist all the three strongly built accused. The statement of prosecutrix Shahida finds corroboration from her husband Ashraf, HC Girdhari Lal and Constable Rajinder Singh. Ashraf (PW2) stated that on reaching the spot the accused had blurted out that they were the same persons who had struck their car against him about five years ago and due to which his right arm was permanently handicapped. He further stated that the accused had asked him to send his wife with them or they would give him the same treatment which was given to him five years back. Initially, the accused had given wrong names but later on during their interrogation they had disclosed their correct names. Both Shahida and Ashraf, PWs, stated that they had not seen the accused in their vicinity nor they had any altercation with them in the recent past and it was only on the date of the occurrence that the accused had disclosed the fact to them that they were the same persons who had injured Ashraf in an accident about five years back. Though Ashraf admitted that he knew the accused by face as the accused were seen by him at Radaur but he denied having ever met them or seen them at Yamunanagar after the accident. Even after the earlier accident, no report was lodged as there was nobody to pursue the case on behalf of Ashraf and Shahida at that time. Shahida and Ashraf, PWs, had raised an alarm when the accused were dragging Shahida out of the room and the accused had threatened them with the same treatment which was given about five years back. HC Girdhari Lal accompanied by two constables had rescued the prosecutrix from the clutches of the accused and while they were being taken to the Police Station, A.S.I. Hari Kishan met them on the way and he recorded the statement of Shahida prosecutrix and the other P.Ws. The accused on interrogation, had disclosed their correct names and addresses on the next day, i.e. May 28, 1986.

Mr. R.S. Cheema, Senior Advocate, learned counsel for the appellants, contended that there were number of discrepancies and contradictions in the statements of the prosecution witnesses and, as such, they were not reliable and conviction could not be based on such evidence. He pointed out that Shahida prosecutrix had stated that Police Post, Hamida, was situated at a distance of 10 yards from her house, whereas the other prosecution witnesses had stated that the Police Post was at a distance of 200 yards from the house of Shahida. Other discrepancies referred to by the learned counsel are that Head Constable Girdhari Lal had stated that when they had reached the spot, the accused were dragging Shahida in the court yard whereas it had not been so stated by Ashraf and his wife. HC Girdhari Lal further stated that after they met the A.S.I. at Bajriwala Chowk and their statements were recorded, they came back to the Police Post whereas Rajinder Singh PW stated that they had gone for patrolling and returned to the police post at 5.00 A.M. Mr. Cheema further argued that Ashraf had stated that a white car was parked outside their house whereas other PWs had categorically denied this fact. The learned counsel pointed out that Shahida PW had stated that all the accused and the PWs first went to Police Post, Hamida and thereafter they started towards the police station and her statement was also recorded at the police post. The statement of the investigating officer is contradicted by all other witnesses. The investigating officer stated that he had gone to the place of occurrence immediately when the accused and the PWs met him at the chowk, where he recorded the statement of Shahida PW and sent it to the Police Station, after making his endorsement thereon, whereas Shahida and Ashraf, PWs, had clearly stated that the investigating officer had come to the place of occurrence on the following day of the occurrence in the morning.

After hearing the learned counsel for the appellants and learned Assistant Advocate General for the State, I am of the considered view that the discrepancies pointed out by the learned counsel for the appellants are not material and, as such, they do not create any dent in the prosecution story. Shahida, prosecutrix, being an illiterate lady, was unable to express properly the distance between the Police Post and her house in yards and metres. Moreover, it does not affect the case of the prosecution as the police officials have clearly stated that they had reached the place of occurrence within 23 minutes after they had heard the alarm. There is no discrepancy regarding dragging out the prosecutrix. Shahida PW categorically stated that she was dragged by the accused out of her room and her husband was pushed by the accused after some grappling between her husband and the accused and thereafter the accused wanted to take her forcibly. If there is no mention about the word "dragging", it does not mean that prosecutrix Shahida was not being forcibly dragged by the accused out of her house. Another factor regarding the noting of a car by Ashraf outside his house and not by other PWs also does not have any effect on the case of the prosecution. Since Shahida did not go out of the house, she could not notice anything parked outside her house and HC Girdhari Lal and Rajinder Singh, PWs, had also reached the place of occurrence after some time. Ashraf was not caught by any of the accused; so he might have seen the car and that car might have been removed by somebody else or may be that car belonged to somebody else as there is nothing on the record that any car was involved in the present case. The discrepancy pointed out by the learned counsel for the appellants regarding the Head Constable and two constables of Police Post, Hamida, going on patrolling or their having stayed in the police post after the accused were handed over to ASI Hari Kishan also does not have any effect on the prosecution case. It is a minor discrepancy which might have slipped from the mind of HC Girdhari Lal as the occurrence had taken place 5/6 months prior to the recording of his statement in the Court. Although in crossexamination Shahida prosecutrix had stated that the writing was made in police chowki, she had further stated that she had thumb marked her statement once in the chowki and then at her house in the morning. She had further stated that both her statements were written by the same Thanedar who met her at the chowk which makes it quite evident that her statement was recorded at the chowk by ASI Hari Kishan and not at the Police Post. It seems that she had not properly understood the question put to her during crossexamination and, as such, this kind of discrepancy does not affect the prosecution case.

The statement of ASI Hari Kishan, investigating officer, has, of course, been contradicted by the other PWs when he stated that he had visited the spot in the night and prepared rough site plan at that time. In fact, all the other PWs have categorically stated that the investigating officer had visited the spot on the following day in the morning. It seems that the investigating officer, in order to cover his own lapse regarding his not visiting the place of occurrence during night has made a wrong statement that he had visited the place of occurrence during night.

The learned counsel for the appellants next argued that the circumstances also belie the prosecution story. He pointed out that as Ashraf and his wife Shahida prosecutrix had stated that they had not seen the accused in the vicinity, how could the accused being strangers suddenly enter the house of the prosecutrix at the dead of the night and the prosecution is silent about as to what was the motive of the accused for visiting the house of the prosecutrix. Another circumstance, according to the learned counsel for the appellants, which falsifies the evidence of HC Girdhari Lal and the two constables is that they had not entered their departure from police post, Hamida, in the daily diary, which shows that all the police officials did not reach the place of occurrence. The motive which is engraved in the mind of the accused cannot be known by the PWs. It may be possible that the accused were in the knowledge of the stay of the PWs in Anand Colony in New Hamida and whenever they found an opportunity, they entered their house and threatened Ashraf to send his wife Shahida with them. Even if there was some further motive which has not been brought out by the prosecution, it would not affect its case if otherwise the prosecution is able to prove its case on the basis of the evidence on the record. The police officials, after hearing the alarm raised by the complainant prosecutrix, rushed to the place of occurrence; therefore, they had no time to make entry in the daily diary regarding their departure from the Police Post.

The learned counsel for the appellants lastly contended that the special report was received by the Ilaqa Magistrate about eight hours after the incident. In this case, the F.I.R. had been lodged soon after the incident, i.e. at 11.50 P.M. on the night of occurrence and the accused were apprehended by the police officials of Police Post, Hamida, at the spot. However, the Investigating Officer who is alleged to have altercation with the accused is not shown to have any personal intimacy with PWs Ashraf and Hamida and, as such, delay in the receipt of special report by the Ilaqa Magistrate would not justify the conclusion that this much time had been consumed in making up the deficiencies in the prosecution case.

From the above discussion, I hold that the evidence of the PWs examined by the prosecution inspires confidence and they had no motive to depose against the appellants. The defence version is not substantiated from the evidence on record as A.S.I. Hari Kishan (P.W.5) was not having knowledge regarding the accident committed by the appellants about five years back causing injuries to Ashraf and Shahida, PWs, and as such, how could he associate Ashraf and Shahida in order to vindicate his own vanity. It is nowhere the case of the appellants that Ashraf and Shahida, PWs, were earlier known to ASI Hari Kishan or they had any personal association with him. Moreover, it is unbelievable that a woman would stake her modesty and integrity for the sake of vindicating the vanity of a police officer. The statement of Shahida, prosecutrix, finds corroboration from the statement of her husbandAshraf and two police officials who had saved her from the clutches of the appellants. Moreover, on principle, the evidence of a victim of sexual assault stands at par with the evidence of an injured witness, just as a witness who has sustained injury is the best witness in the sense that he or she is least expected to exculpate the real offender. The evidence of a victim of a sex offence is entitled to greater weightage. In the present case, the evidence of Shahida, prosecutrix, has over whelming corroboration from the witnesses who could be present at the place of occurrence in natural course.

In view of the above discussion, there is no merit in this appeal and the same is dismissed.