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Shankar Yadav v. State of Haryana and Another - CRA-1523-sb-2002  RD-P&H 11763 (1 December 2006)
CRL.A.No.1523-SB of 2002
DATE OF ORDER: 15.12.2006
State of Haryana
CORUM : HON'BLE MR. JUSTICE M.M. AGGARWAL .*.*.*.
Present: Mr. B.S. Walia, Advocate.
Mr. S.K. Hooda, Sr.DAG, Haryana.
This is an appeal against judgment dated 14.8.2002 passed by Additional Sessions Judge, Sonepat whereby present appellant Shankar Yadav was convicted for the offence under Sections 363/366/376/34 IPC.
He was sentenced to undergo RI for three years and to pay a fine of Rs.3000/-, in default of payment of fine, he was to undergo RI for six months for the offence under Sections 363 IPC read with Section 34 IPC, to undergo RI for five years and tio pay a fine of Rs.5000/-, in default of payment of fine, he was to undergo RI for one and half years for the offence under Sections 366 IPC read with Section 34 IPC and to undergo RI for ten CRL.A.No.1523-SB of 2002 #2#
years and to pay a fine of Rs.10000/-, in default of payment of fine, he was to undergo RI for two years for the offence under Sections 376(2)(g) IPC.
Case was registered on the statement of Mangli Ram that accused Shankar Yadav was a tenant in the adjoining house in village Rasoli. His daughter Babita aged about 15 years had been kidnapped and taken away by Shankar on 31.1.1998. Police after registration of the case had started investigation. Babita was recovered and then after investigation her statement was recorded. Accused was challaned. There was another accused namely Haridwar, who could not be arrested and was declared as proclaimed offender. Present accused-appellant was charged for the offence under Sections 363/366/376/34 IPC. Case was found to be proved. After trial, accused was convicted and sentenced as aforesaid.
Counsel for the appellant had argued that no rape was committed by Shankar and even as per statement of Babita, it would come out that rape, if any, was committed by Haridwar whereas on behalf of respondent-State, it was argued that it is a case of offence under Section 376 (2)(g) IPC and rape by Haridwar on Babita was with the common intention with the present appellant.
Babita prosecutrix had appeared as PW5. She had stated that on 31.1.1998 at about 10.00 A.M, Haridwar had come to her house and closed the door of the kitchen and then committed rape on her at the point of knife and then had threatened. Thereafter at about 3.00 PM on that day when she was going to take the book from her friend Poonam then Shankar, present accused (now appellant) had met and had taken her to New Delhi Railway Station on the pretext that her parents wanted to see her. There accused Haridwar came. Then Haridwar and Shankar had taken her to a CRL.A.No.1523-SB of 2002 #3#
village where some old lady was residing and there Haridwar had been committing rape. Again accused Haridwar and Shankar had taken her to the house of a sister of Haridwar. There again Haridwar committed rape. She was being brought to the house of Haridwar and there police came and had recovered her. Haridwar had run away. Shankar was apprehended.
From all this statement, it is quite clear that the present appellant did not commit rape. The rape had already been committed by Haridwar on 31.1.1998 at 10.00 AM when Shankar was nowhere in the picture. Thereafter Shankar had been accompanying Haridwar and the prosecutrix and Haridwar had been committing rape. There is no allegation that Shankar had even threatened or taken any part to assist Haridwar in committing rape. Even if, appellant may be liable for the offence under Section 376(2)(g) IPC due to the explanation (I), still it is a fit case, where lenient view should be taken.
Under these circumstances, while dismissing the appeal, sentence of the appellant for the offence under Section 376(2)(g) IPC is reduced from ten years to seven years whereas that of fine is enhanced to Rs.20,000/-, in default of payment of fine, appellant shall undergo RI for two years. Other sentences for other offences including that of fine are maintained.
December 15, 2006 ( M.M. AGGARWAL )
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