HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No.1805/2010 Surendra Singh Baghel, aged about 37 years, son of Dal Bahadur Singh Baghel, Resident of Village Chandeniya Churhat, P.S. Churhat, Distt. Sidhi, Presently residing at Near Mata Mandir, T.T. Nagar, Bhopal …Appellant vs. State of Madhya Pradesh, through SHO P.S. Laur, Distt. Rewa … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri H.S. Dubey and Shri Anuj Singh, Advocates for appellant. Shri Pushpraj Singh, P.L. for the respondent-State. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Criminal Appeal No.1821/2010 Indrapal Singh, aged about 34 years, Son of Harbhajan Singh Parihar, Resident of Khujwa, Laur Distt. Rewa … Appellant vs. State of Madhya Pradesh, through SHO P.S. Laur, Distt. Rewa … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Surendra Singh, Senior Counsel with Shri Shivam Singh, Advocate for the appellant. Shri Pushpraj Singh, P.L. for the respondent-State. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Criminal Appeal No.1825/2010 Suresh Singh Chouhan, aged about 42 years, Son of Raj Bhan Singh, Resident of Uttar Karaundia, Distt. Sidhi …Appellant vs. State of Madhya Pradesh, through SHO P.S. Laur, Distt. Rewa … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri N.K. Mishra, Advocate for the appellant. Shri Pushpraj Singh, P.L. for the respondent-State. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ::
2. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 Criminal Appeal No.1850/2010 Raju @ Nirpendra Singh, aged about 32 years, Son of Gurudeo Singh Parihar, Resident of Khujwa, Laur Distt. Rewa …Appellant vs. State of Madhya Pradesh, through SHO P.S. Laur, Distt. Rewa … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Sharad Verma and Shri R.D. Singh, Advocates for the appellant. Shri Pushpraj Singh, P.L. for the respondent-State. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- and Criminal Appeal No.1963/2010 Sheshmani, aged about 38 years, Son of Ramswaroop Kushwaha, Resident of Chouka Surwarsha, Police Station Laur, Distt. Rewa … Appellant vs. State of Madhya Pradesh, through SHO P.S. Laur, Distt. Rewa … Respondent ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Shashank Shekhar and Shri Mahendra Choubey, Advocates for the appellant. Shri Pushpraj Singh, P.L. for the respondent-State. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Date of Hearing :
04. 4.2013 Date of Judgment :
15. 5.2013
JUDGMENTThese appeals are interlinked as preferred against the judgment dated 9.9.2010 passed by Second Additional Sessions Judge, Mauganj, Distt. Rewa in S.T. No.46/2006, whereby the appellants were convicted and sentenced as under – ::
3. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 Name of Cri. Appeal Convicted Sentenced to appellant not under Section Indrapal Singh 1821/10 363 of IPC undergo R.I. for (hereinafter 7 years and to referred to as pay a fine of A2 Indrapal) Rs.1000/- and in default, to suffer R.I. for 6 months Suresh Singh 1825/10 366 of IPC undergo R.I. for (hereinafter 10 years and to referred to as pay a fine of A4 Suresh) Rs.2000/- and in default, to suffer R.I. for 1 year Surendra 1805/10 376(2)(g) of undergo R.I. for (hereinafter the IPC 1.years and to referred to as pay a fine of A5 Surendra) Rs.2000/- and in default, to suffer R.I. for 1 year. with the direction that the jail sentences shall run concurrently Raju @ 1850/10 376(2)(g) of undergo R.I. for Nirpendra the IPC 1.years and to Singh pay a fine of (hereinafter Rs.2000/- and in referred to as default, to suffer A3 Raju) R.I. for 1 year. Sheshmani 1963/10 366 of the IPC undergo R.I. for arraigned as 10 years and to accused no.1 in pay a fine of the charge Rs.500/- and in sheet default, to suffer (hereinafter R.I. for 1 year referred to as A1 Sheshmani) 2. Prosecution case, as emerging from a conjoint reading of FIR (Ex.P-25) recorded by Sub-Inspector M. Aslam (PW20) in the light of findings of the inquiry into a case of missing person viz. the prosecutrix, registered upon application (Ex.P-21) made by her guardian Premwati to S.P. Rewa and case diary ::
4. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 statement (Ex.D-3) of the prosecutrix, may briefly be stated thus – (i) At the relevant point of time, the prosecutrix (PW11), an unmarried girl aged about 17 years, daughter of Sugreev, a native of Village Dhangan and Chaurasia, was residing with her Bua (father’s sister) namely Premwati (PW13) in Village Chowka Sonvarsha; A2 Indrapal was the Sarpanch of Gram Panchayat Dhoraha whereas Gayatri, the wife of A1 Sheshmani, was the Sarpanch of Gram Panchayat Chowka Sonvarsha. Houses belonging to A1 Sheshmani and Premwati were located in the same vicinity. (ii) Somewhere on 4th or 5th of June, 2005, A1 Sheshmani assured the prosecutrix, who had studied upto Class X, of employment in the near future. Nearly 25 days thereafter, A2 Indrapal and A5 Surendra accompanied by two known persons came to Premwati’s house. Introducing himself as resident of Sidhi & posted at Bhopal and his companions as his brothers-in-law, A5 Surendra told her that he would be able to secure a job for her. (iii) On 6.7.2005 at about 12 Noon, A1 Sheshmani visited the house of Premwati and asked the prosecutrix to accompany upto Rewa informing that she had been called by A2 Indrapal and A5 Surendra for the purpose (of providing employment). He also persuaded the prosecutrix not to seek permission of Premvati, who had fallen asleep, for leaving the house. A1 Sheshmani took her in a house located near LPG Godown in Rewa where A2 Indrapal and ::
5. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 A3 Raju were present. After a while, A5 Surendra also came there. All the three appellants ravished her one after the other. Thereafter, she was made to stay in the house till 10.7.2005 and in the meanwhile, had persistently been subjected to gang rape. (iv) On 10.7.2005 only, the prosecutrix was taken by A2 Indrapal and A3 Raju to Sidhi where A4 Suresh was called telephonically from the PCO installed behind the Bus-stand. He arrived there in a white car; took the prosecutrix to Prince Hotel and subjected her to sexual assault in Room No.32 thereof. On the following day, she was taken to the house of Kalli @ Kalawati (PW4) with whom she resided till 14.7.2005. (v) On 15.7.2005, the prosecutrix was brought back to the house occupied by A2 Indrapal at Rewa where he and A3 Raju again gang raped her. On the same day, they took her to Maihar wherefrom they boarded a train. A woman previously known to A2 Indrapal and A3 Raju was also travelling in the same compartment. On reaching Katni Railway Station, the prosecutrix was handed over to the woman for being taken to A5 Surendra’s place at Bhopal. However, the woman took the prosecutrix to an unknown destination near Delhi where she had resided with the woman in a house till 10.9.2005. During that period, A2 Indrapal and A3 Raju frequently visited the house of the woman and also subjected the prosecutrix to sexual assault. ::
6. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 (vi) On 8.9.2005, A2 Indrapal informed the prosecutrix about a report alleging his involvement in her kidnapping. Thereafter, on 10.9.2005, the woman deputed a boy to render assistance to her in boarding a train for Allahabad. On 11.9.2005, the prosecutrix reached Allahabad and from there, she straightway proceeded to the Police Station at Laur where upon an application (Ex.P-21) made by Premwati, a case of missing person had already been registered. In the light of the statement of the prosecutrix, Mohd. Aslam (PW20), the SHO of P.S. Laur, registered a case under Sections 363, 366 and 376(2)(g) of the IPC against the appellants and others including the unknown woman. (vii) The prosecutrix was sent to GMC, Rewa where she was examined by Dr. Rajshri Bajaj (PW12). Observing that the prosecutrix was accustomed to sexual intercourse, the Lady Doctor not only prepared two slides from vaginal smear of the prosecutrix but also advised radiological and dental examination for determination of her age. (viii) By noticing the number and position of teeth erupted, Dental Surgeon Dr. R.J.Sharma (PW8) ascertained the age of the prosecutrix as below 17 years. (ix) After due investigation, the charge-sheet, showing all the appellants as absconding, was submitted to the Court of JMFC, Mauganj Distt. Rewa, who committed the case to the Court of Session for trial.
3. A bare perusal of the record would reveal that - ::
7. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 (a) Only A4 Suresh could be arrested and thereafter, A2 Indrapal and A5 Surendra also appeared before the trial Court whereas the other two appellants namely A1 Sheshmani and A3 Raju were declared as absconding. (b) Vide order-dated 19.4.2006, A2 Indrapal, A4 Suresh and A5 Surendra were charged with the offences under Sections 363, 366 and 376(2)(g) of the IPC. (c) Upon surrender by way of order-dated 27.6.2006, A1 Sheshmani was charged with the offence punishable under Section 366 of the IPC whereas charge of the offence under Section 376(2)(g) of the IPC was framed against A3 Raju.
4. While denying the charges, all the appellants pleaded false implication because of political rivalry at the behest of members of the opposite group. In the cross-examination of the prosecutrix as well as Investigating Officer M. Aslam (PW20), a resident of Sidhi only, it was also suggested that A4 Suresh was unnecessarily implicated at the instance of the officer, who bore a grudge against him because of strained relations between their families. A1 Sheshmani and A5 Surendra also raised defence of alibi. According to A1, on 6.7.2005, he had gone to Allahabad to attend the cremation ceremony of Ranu Gupta, the mother of Sampat Kumar Gupta (DW3), conducted by Pappu Panda (DW2) whereas A5 asserted that during the relevant period commencing from 6.7.2005, he had been discharging his duties as a teacher in New Cultural ::
8. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 Higher Secondary School, Bhopal wherein Rajeshwar Prasad Patel (DW1) was posted as a clerk.
5. Legality and propriety of the impugned convictions have been challenged inter alia on the following grounds – (i) Absence of cogent evidence as to age of the prosecutrix. (ii) Delay in informing the police. (iii) Apparent willingness of the prosecutrix to move voluntarily with A1 Sheshmani, A3 Indrapal and A5 Surendra. (iv) Inconsistencies and deliberate omissions on material points in the testimony of the prosecutrix (PW11) with reference to her case dairy statement (Ex.D-3). (v) An unusual and improbable conduct of the prosecutrix in not informing any other person about the so-called misdeeds of the appellants. (vi) Non-corroborative evidence of the independent witnesses namely Aarti Gupta (PW17), Sangeeta (PW18) and Kalli @ Kalawati (PW4). (vii) Non-supportive medical evidence as to rape. (viii) Obvious inference from the surrounding facts and the circumstances that the sexual acts in question were consensual in nature. (ix) Probability of the defences. In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, has contended that the convictions are fully justified. ::
9. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 6. At the outset, it may be observed that the contention relating to the age of the prosecutrix was apparently misconceived in view of the fact that the offence of gang rape attracts the statutory presumption under Section 114-A of the Evidence Act. The relevant extract of the provision reads as under - “In a prosecution for rape under … clause (g) of sub-section (2) of Section 376 of the IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.”
7. However, question of the age would still be relevant for deciding the guilt in respect of kidnapping of which all the appellants except A3 Raju stand convicted. As such, in order to appreciate the merits of the rival contentions, it is necessary to first advert to the medical evidence and other evidence available on record as to age of the prosecutrix.
8. In Premwati’s application (Ex.P-21) leading to registration of a case of missing person at Police Station Laur, age of the prosecutrix (PW11) was reflected as 16 years whereas in her deposition recorded on 25.9.2006 i.e. more than a year after the incident in question, apparent age of the prosecutrix (PW11) was shown as 17 years. No dispute was raised as to the assertion made by her that her name had not been included in the voter list as she was a minor. ::
10. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 9. Shakuntala Namdeo (PW9), In-charge of Balika Aupcharik Shiksha Kendra, duly proved corresponding entry in the scholar register (Ex.P-10) indicating that in the school record, prosecutrix’s date of birth was recorded as 10.8.1988. According to her, the certified copies of the relevant entry in scholar register (Ex.P-10 and Ex.P-11) and the transfer certificate (Ex.P-12) were issued by her only. In the cross- examination, she clearly admitted that she had made entry in accordance with the information given by Premwati (PW13), the guardian of the prosecutrix.
10. Learned Senior Counsel, while making reference to decision of the Supreme Court in Sushil Kumar v. Rakesh Kumar AIR 200.SC 230.has submitted that the entry in the school register ought to have been considered from the perspective that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. However, in that case, it was also observed that - “where there is of reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person, the requirement of S.35 of the Evidence Act stands satisfied”..
11. This apart, as propounded by a three-Judge Bench decision of the Apex Court in Umesh Chandra v. State of Rajasthan AIR 198.SC 1057.under Section 35, all that is necessary is that the document should be maintained regularly ::
11. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 by a person whose duty it is to maintain the document. In that case, the following illuminating observations made by Hidayatullah, J., speaking for the Court, in Mohd. Ikram Hussain v. State of U.P. AIR 196.SC 162.were quoted with approval - "In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age. There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the School Registers, were made ante litem motam"
12. Accordingly, the entry in the scholar register duly proved by its scriber namely Shakuntala Namdeo (PW9) was admissible under Section 35 of Indian Evidence Act as evidence to determine the age of the prosecutrix (PW11).
13. Moreover, the entry in the scholar register further derived support from the opinion of Dr. R.J.Sharma (PW8) to the effect that dental age of the prosecutrix was found to be less than 17 years in the light of these findings - (a) Teeth 7 + 7 =28 7 + 7 (b) Bulging present in partially erupted teeth 8 + 8 According to him, he categorically asserted that he had ascertained the age of the prosecutrix was below 17 years as ::
12. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 the 3rd molar had not fully erupted. Nothing could be elicited in his cross-examination so as to suggest that his assessment of the age was based on an apparently wrong premise. Non- production of the ossification test report did not assume any significance as it could be predict exact date of birth (Mohd. Imran Khan v. State (Govt. of NCT of Delhi) (2011) 10 SCC 192.
14. Marks-sheets (Ex.D-1 and D-2) seized by Investigating Officer M. Aslam & referred to by the defence to show that in the school record, different name of the prosecutrix was scribed and also that her father’s name was mentioned as Chandrashekhar not Sugreev, also reflected the same date of birth i.e. 10.8.1988.
15. Since no birth certificate was available on record, learned trial Judge did not commit any error in ascertaining the age of the prosecutrix as well below 18 years on the basis of the related evidence brought on record including the entry in the school record and the result of the dental examination.
16. Learned Senior Counsel representing A2 Indrapal and learned counsel appearing on behalf of other appellants except A3 Raju, have still contended that the respective convictions under Sections 363 and 366 of the IPC are not sustainable in absence of evidence to prove – (i) any resistance or struggle offered by the prosecutrix to protect herself. (ii) that kidnapping was aimed at one of the purposes mentioned in the Section. ::
13. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 To buttress the contention, reliance has been placed on the following precedents – (a) Chote Lal v. State of Haryana (1979) 4 SCC 33.(b) Jinish Lal v. State of Bihar AIR 200.SC 208.(c) Gabbu v. State of M.P. (2006) 5 SCC 74.(d) Shyam v. State of Maharashta 1995 SCC (Cri”
17. Conviction of Chote Lal under Section 366 of the IPC was set aside in absence of finding that the appellant had abducted the woman for any of the purposes mentioned therein. In Jinish Lal’s case, sequence of the events showed that the prosecutrix, who was not found to be less than 18 years of age on the date of incident, had accompanied the accused willingly. Gabbu had allegedly persuaded the prosecutrix, who was a married woman and was not able to beget child after 10 years of marriage, to accompany so that they could administer the medicine to her and that did not ipso facto prove the fact that from the very beginning he had any intention of inducing the prosecutrix to forcibly marry him or the other accused or she was induced or seduced to illicit intercourse with the accused or with the other person in whose company he left her at Gunabad the accused made any advances against the prosecutrix so as to show his intention of committing forcible intercourse with her. In Shyam’s case, the conviction was set aside on the premise that the prosecutrix, being a fully grown up woman, was expected to jump down from the bicycle or put up a struggle and in any case, raise an alarm to protect herself. ::
14. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 18. Adverting to the facts of the instant case, it may be observed that no serious dispute was raised as to the assertion made by Premwati (PW13) that the prosecutrix (PW11), who had suddenly disappeared on 6.7.2005, could be traced on 11.9.2005. According to her, after making intensive search in the Village and residence of Sheshmani and those of kiths and kins, she had informed the police by way of application (Ex.P-
21) about non-traceability of the prosecutrix. She further reiterated the facts as mentioned in the application that while going to sleep in the afternoon on 6.7.2005, she had seen A1 Sheshmani sitting by the side of the prosecutrix in her house only.
19. The prosecutrix (PW11) vividly described as to how under a false promise to secure employment for her, A1 Sheshmani had been able to persuade her to accompany, even without informing Premwati. As per her statement, - (i) On 6.7.2005, A1 Sheshmani, who had been residing in the neighbourhood, deceived her into a belief that she was required to fill a form for the job and therefore, placing implicit faith in him, had agreed to accompany in Bolero Jeep to Rewa. (ii) On 10.7.2005, A2 Indrapal and A3 Raju took her from Rewa to Sidhi where she was taken by A4 Suresh in a Maruti Car, first to a Rest House and then to Prince Hotel and thereafter, she was made to stay at Sidhi till 14.7.2005. (iii) On 15.7.2005, A2 Indrapal and A3 Raju had brought her back to Rewa and from there, had taken her ::
15. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 to Maihar where she was caused to board a Katni-bound train and during journey, was given in custody of a woman travelling in the same compartment for being handed over to A5 Surendra at Bhopal. But, she was taken by that woman to a place near Delhi where she was made to reside till 10.9.2005. Meanwhile, on 18.8.2005, upon her request, A2 Indrapal had permitted her to use his mobile cell phone to converse with Premwati by calling her to local STD Booth run by Anil (PW1) who, in turn, had asked her to call Premwati on another STD Booth owned by Ramakant Patel (PW2) in view of the fact that he (Anil) was named as one of the suspects in Premwati’s application (Ex.P-21). (iv) On 8.9.2005, A2 Indrapal, while apprising her of the action being taken by the Police upon the report viz. the application (Ex.P-21) made by Premwati, had asked to return to her village and to admit that she had accompanied him of her own accord. (v) On 10.9.2005, a servant of the woman had dropped her at the nearby Railway Station wherefrom she was taken by A2 Indrapal in a train to Allahabad and from there to Rewa in a bus and from Rewa, to Police Station at Laur in a Commander Jeep. (vi) During the period from 6.7.2005 to 8.9.2005, she had been subjected to forcible sexual intercourse by all the appellants except A1 Sheshmani.
20. The assertion made by the prosecutrix to the effect that on 18.8.2005, upon her request, A2 Indrapal had permitted to use his mobile cell phone to make a call to her Bua Premwati ::
16. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 by calling her to the STO Booth run by Anil Mishra (PW1) drew support from the evidence of Anil and Ramakant (PW2). Ramakant substantiated the fact that he had called Premwati at the instance of the prosecutrix to converse with her on telephone. Further, as admitted by Premwati (PW13), she had submitted the application (Ex.P-21) on 22.8.2005 to the S.P. only after being informed by the prosecutrix as to complicity of A2 Indrapal and others in her kidnapping.
21. Thus, the case on hand is clearly distinguishable on facts from the cases cited at the bar for the reason that from the evidence brought on record, it was clearly established that A1 Sheshmani had induced the prosecutrix to leave the house of her lawful guardian namely Premwati even without informing her and to accompany him upon a false pretext of securing employment for her upto the house occupied by A2 Indrapal at Rewa with an intent that she would be forced to illicit intercourse by the other appellants therein as well as at various other places.
22. The law on the point is well-settled in the light of the pronouncement in Thakorlal D. Vadgama vs. The State of Gujarat AIR 197.SC 2313.Accordingly, the word ‘takes’ does not necessary connote taking by force and it is not confined only to use of force, actual or constructive. The word merely means ‘to cause to go’, ‘to escort’ or ‘to get into possession. Although, a divergent opinion on the point was expressed in Lalta Prasad vs. State of M.P. AIR 197.SC 1276.yet in a subsequent decision in Parkash vs. State of ::
17. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 Haryana AIR 200.SC 227.the view taken in Thakorlal’s case (supra) was re-affirmed with the observation that penal provision is also designed to protect sacred right of the guardians with respect of their minot wards.
23. Accordingly, ingredients of the offences punishable under Sections 363 and 366 of the IPC were made out beyond all reasonable doubt. However, for want of charge, it was not possible to hold A3 Raju guilty of the offence of kidnapping. Moreover, double punishment awarded to A2 Indrapal, A4 Suresh and A5 Surendra for the offences under Sections 363 and 366, was also violative of Section 71 of the IPC.
24. Turning to the charge of gang rape, it may be seen that the prosecutrix (PW11) was able to give a vivid account of sequence of events leading to her ravishment at the hands of A5 Surendra, A2 Indrapal, A3 Raju and A4 Suresh. She was emphatic in stating that on 6.7.2005, in the house located near the LPG Godown in Rewa, she was first subjected to sexual assault by A5 Surendra and thereafter, A2 Indrapal & A3 Raju had also ravished her one after the after. According to her, - (i) A2 Indrapal and A3 Raju had persistently subjected her to sexual exploitation during the period from 7th July to 10th July, 2005 in the house occupied by A2 Indrapal at Rewa. (ii) In the night intervening 10th and 11th July, she was subjected to sexual intercourse in one of the rooms of Prince Hotel by A4 Suresh, who had not allowed her to leave Sidhi all alone during the period from 11th July to 15th July, 2005. ::
18. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 (iii) On 15.7.2005, after bringing her back to the house at Rewa, both A2 Indrapal and A3 Raju again committed rape on her one after the other. (iv) During her stay at the house of the unknown woman near Delhi, A2 Indrapal and A3 Raju had again subjected her to ravishment during their respective visits on 3-4 occasions and the sexual act was committed by A2 Indrapal on 8.9.2005 and A2 Indrapal had stayed in the house during the period from 8.9.2005 to 10.9.2005.
25. Still, placing reliance on the pronouncements of the Supreme Court in – (a) Rajoo v. State of M.P. AIR 200.SC 85.(b) Narender Kumar v. State (NCT of Delhi) (2012) 7 SCC 17.(c) State of Rajasthan v. Kishanlal AIR 200.SC 225.(d) Sudhansu Sekhar Sahoo v. State of Orissa AIR 200.SC 213.- learned counsel appearing on behalf of the appellants excepting A1 Sheshmani, have submitted that it was not possible to hold anyone of the appellants guilty of the offence of rape much less for the offence of gang rape.
26. The contention centering around the conduct of the prosecutrix (PW11), a village girl who had education upto Class X only, in not disclosing the incident to anyone other than her Bua Premwati (PW13) is also not acceptable in view of the well settled principles governing appreciation of evidence of the prosecutrix in such a case. In this regard, it would be useful to ::
19. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 quote the following illuminating observations made by the Apex Court in State of Punjab v. Gurmit Singh (1996) 2 SCC 38.– “A girl, in a tradition-bound not permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the Society… ………In the normal course of human conduct, an unmarried minot girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy.”
27. Accordingly, the prosecutrix’s disinclination to narrate the details of sexual exploitation and the compulsion to reside with the woman apparently involved in immoral trafficking was quite natural and probable.
28. Even though, Sangeeta (PW18), examined as a daughter of Suresh Prasad Soni, residing as tenant in the house of Ramhit Gupta located in front of the house of Kalli @ Kalavati in Sidhi and Aarti Gupta (PW17), the daughter of Ramhit Gupta categorically denied the suggestion that they had the occasion to come in contact with the prosecutrix at Sidhi yet, Kalli @ Kalawati (PW4) has admitted that the prosecutrix had stayed at her house in Sidhi for two days.
29. Further, discrepancy has to be distinguished from contradiction. Whereas, contradiction in the statement of the witness is fatal for the case, minot discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while ::
20. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 narrating a particular incident there may occur minot discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minot or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. .. in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person. In the light of these well settled principles, the contention as to so- called infirmities in the testimony of the prosecutrix has to be examined.
30. It is also distressing to note that learned trial Judge had deferred the cross-examination of the prosecutrix on more than one occasion despite the guideline laid down in Gurmit Singh’s case (supra) that it is the duty of the Court to see that victim of sexual assault is not harassed or humiliated. Her chief- examination was recorded on 25.9.2006 and due to non- availability of the Senior Defence Counsel, the cross- examination was postponed to 10.10.2006. Although, it was resumed on that date yet, the same was again deferred to 13.12.2006 on which it could be completed. However, nothing ::
21. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 could be elicited in her cross-examination so as to suggest that she was, in any way, interested convictions of the appellants on absolutely false grounds or for any extraneous motive.
31. As further propounded in Gurmit Singh’s case, - “The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross- examined by the defence. It must effectively control the recording of evidence in the court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross- examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions”. in her evidence”.
32. Even after being subjected to a lengthy cross- examination, the prosecutrix’s statement made in the chief- examination regarding sexual assaults made by A2 Indrapal, A3 Raju, A4 Suresh and A5 Surendra remained totally un- impeached. She emphatically denied all the suggestions put forth by the defence counsel to probablise non-complicity of the respective appellant. As also observed in Gurmit Singh’s, - ::
22. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 “The courts must, while evaluating evidence, re- main alive to the fact that in a case of rape, no self-re- specting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases in- volving sexual molestation, supposed considerations which have no material effect on the veracity of the pros- ecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an oth- erwise reliable prosecution case. The inherent bash- fulness of the females and the tendency to conceal out- rage of sexual aggression are factors which the courts should not overlook”..
33. In the facts and circumstances of the case, as highlighted above and well settled position of law on the subject, it can easily be concluded that none of the so-called discrepancies in the evidence of the prosecutrix with reference to her case diary statement shook the veracity of the prosecution case.
34. Dr. Rajshree Bajaj (PW12) clearly admitted that no injury was noticed on the person of the prosecutrix who was also found accustomed to sexual intercourse. However, absence of visible injury was also of no consequence as the prosecutrix was examined more than 2 months after the first incident of gang rape on her (See. State of Punjab v. Ramdev Singh AIR 200.SC 1290). The fact that the prosecutrix (PW11) was found accustomed to sexual intercourse was not, by itself, sufficient to record an order of acquittal.
35. Further, consent of the prosecutrix for the sexual assaults committed by A4 Suresh cannot be presumed on the mere fact that she was more than 16 years of age at the relevant point of time as submission of body under fear of terror or duress would ::
23. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 not amount to consent. In Kishanlal’s case (ibid), statement of the prosecutrix that the accused had offered Rs.20/- for the act was considered to be an act showing intimacy between the parties. However, in the present case, the prosecutrix was handed over to A4 Suresh by A2 Indrapal and A3 Raju and there was nothing on record to suggest that the prosecutrix and A4 Suresh were on intimate terms. The fact that a sum of Rs.100/- was given by A4 Suresh to the prosecutrix for maintaining herself during her stay could not be treated as an indication of her consent for the act in the peculiar factual backdrop of the case. More so, evidence of the prosecutrix that she had been subjected to forcible sexual assault by accused persons except A1 Sheshmani evinces absence of consent on her part apart from the legal presumption under Section 114-A of the Evidence Act (Gagan Bihari Samal v. State of Orissa (1991) 3 SCC 56.followed).
36. In a case of gang rape, the clinching proof of completed act of rape by each one of the accused on the victim is not required in view of Explanation 1 in relation to Section 376(2)(g) of the IPC (Promod Mahto v. State of Bihar AIR 198.SC 147.referred to). Moreover, on proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims (See. Pardeep Kumar v. Union Administration, Chandigarh, (2006) 10 SCC ::
24. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 608). Moreover, normal rule of delay does not per se apply to rape case.
37. Coming to the defences, it may be observed that the plea of false implication due to political rivalry was, by itself, improbable as no unmarried girl as no unmarried girl, having expectations of married life, would accuse any person falsely of rape sacrificing her chastity and exposing the entire family to shame at the risk of condemnation by the Society. The plea of alibi raised by A1 Sheshmani did not inspire confidence in absence of record by the official concerned or by Pappu Panda (DW2) who claimed to have conducted the performance of last rites by Sampat Kumar as to cremation of Rani Gupta, the mother of Sampat Kumar Gupta (DW3) at Allahabad whose death certificate was also issued from the office of Sub- Registrar, Janpad Panchayat Mauganj. As rightly pointed by learned trial judge, plea of alibi raised by A5 Surendra was also not probable inasmuch as the entry in the register did not contain any certification by the Principal of the School as to the number of pages and authenticity of the corresponding entry made therein. For these reasons, the conclusion that probability of anyone of the defences could not be established was justified.
38. The fact that A4 Suresh and A5 Surendra were not personally known to the victim was not material as each one of them was convincingly identified as the persons who had subjected her to rape at Rewa and Sidhi respectively (Mohan ::
25. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 Chand v. State of Uttarakhand (2009) 4 SCC 6.followed).
39. In Rajoo’s case (above), the observation that statement of the prosecutrix cannot be treated as a gospel truth was made in the peculiar facts and circumstances of the case suggesting that no injury was found on the person of the prosecutrix, who was allegedly subjected to rape one after the other by as many as 13 persons at the same place and was also questioned by the police as to why she was indulging in prostitution. Narender Kumar (supra) was found entitled to benefit of doubt for the reasons the evidence of the prosecutrix suffered from serious infirmities, inconsistencies and deliberate improvements. In Sudhansu Sekhar Sahoo’s case (ibid), testimony of prosecutrix was rejected as unreliable on two grounds – (a) no rational explanation was given as to what urgent official work was there at night requiring her to travel along with accused at night in a jeep for long distance and (b) she asserted that she was virgin till alleged incident but medical evidence revealed that she was habituated to sex. However, none of these decisions is attracted to the factual scenario in the present case.
40. Following guidelines for appreciation of evidence in rape cases are discernible from the decision of the Apex Court in Visveswaran vs. State AIR 200.SC 247.- “The approach required to be adopted by courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are ::
26. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 required to be examined and the Courts are not to get swayed by minot contradictions or insignificant discrepancies, which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.”
41. Conviction for the offence of rape can be safely recorded on the sole testimony of the prosecutrix provided that her evidence does not suffer from any basic infirmity and “probabilities factor”. does not render it unworthy of credence (Bharwada Bhoginbhai Hirjibhai v. State of Gujrat AIR 198.SC 75.relied on). As explained in Ramdev Singh’s case, the appellate Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances. The doubt has to be reasonable and not an excuse to record acquittal.
42. To sum up, none of the grounds raised against legality and propriety of the impugned convictions has any merit or substance. A very natural and probable version of the prosecutrix was, therefore, rightly accepted by learned trial Judge. The convictions in question, accordingly, deserve to be maintained as well merited.
43. Taking into consideration the social impact of the crime and other relevant aspects of the sentencing policy, there is no ::
27. :: Cri. Appeal Nos.1805/10, 1821/10, 1825/10, 1850/10 and 1963/10 extenuating or mitigating circumstance justifying imposition of less than the minimum custodial sentence prescribed for the of- fence of gang rape. Coming to the question of sentence awar- ded to A1 Sheshmani, it may be observed that although he has been found guilty of the offence under Section 366 of the IPC, yet he ought to have been charged and convicted for the of- fence under Section 376(2)(g) also in view of the legal position as laid down in Pardeep Kumar’s case’s (above). In this view of the matter, no reduction in the term of custodial sentence is called for.
44. In the result, the appeals stand dismissed. The impugned convictions and the consequent sentences for the offences under Sections 366 and 376(2)(g) of the IPC are hereby affirmed. However, by virtue of Section 71 of the IPC, the separate sentences for the offence under Section 363 of the IPC awarded to A2 Indrapal, A4 Suresh and A5 Surendra are set aside. Respective fine amount, if deposited, be refunded.
45. A2 Indrapal and A3 Raju are in custody whereas A1 Sheshmani, A4 Suresh and A5 Surendra are on bail. They are directed to surrender to their bail bonds before the trial Court on or before 15.07.2013 for being committed to the custody for undergoing remaining part of the sentences. A copy of this judgment be retained in the connected criminal appeals. Appeals dismissed. (R.C. Mishra) JUDGE 15 5.2013