Sunil Vs State of Haryana - Citation 1153593 - Court Judgment

Excerpt:
cra-s-877-sb-2009 -1- in the high court of punjab & haryana at chandigarh1 cra-s-877-sb-2009 sunil ..... appellant versus state of haryana ..... respondent 2. cra-s-849-sb-2009 roshan ..... appellant versus state of haryana ..... respondent 3. cra-s-1482-sb-2009 vijay ..... appellant versus state of haryana ..... respondent date of decision:30. 6.2014 coram: hon'ble mr. justice r.p. nagrath1 whether reporters of the local papers may be allowed to see the judgment?.2. to be referred to the reporters or not?.3. whether the judgment should be reported in the digest?. present: mr. salil bali, advocate for the appellant (in cra-s-877-sb-2009). mr. ashwani bhardwaj and mr. lokesh sharma, advocates for the appellant (in cra-s-849-sb-2009). mr. ramender chauhan, advocate for the appellent (in cra-s-1482-sb-2009). mr. cs bakshi, additional advocate general, haryana (in all cases). kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -2- r.p. nagrath, j.by this common judgment, cra-s-877-sb-2009 (sunil vs. state of haryana); cra-s-849-sb-2009 (roshan vs. state of haryana) and cra-s-1482-sb-2009 (vijay vs. state of haryana) are being disposed of, as these arise out of the same judgment of the trial court in fir no.324 dated 25.5.2008 under sections 363/366/376 of the indian penal code (ipc), police station city, bhiwani.2. the appellants and parveen s/o subhash faced trial of charges under sections 363/366-a/376(g)(iv) ipc. learned trial court convicted the appellants and parveen aforesaid on the said charges and they were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ` 1000/- each, in default thereof to further undergo simple imprisonment for a period of 1 months each under section 376 (2) (g) ipc. the appellants were also sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ` 500/- each, in default whereof to further undergo simple imprisonment for a period of 15 days each under section 366-a ipc and rigorous imprisonment for a period of five years and to pay a fine of ` 500/- each and in default of payment of fine to further undergo simple imprisonment for a period of 15 days each under section 363 ipc. the substantive sentences of imprisonment were to run concurrently.3. it appears from custody certificate dated 5.8.2013 that vijay- appellant (in cra-s-1482-sb-2009) is still in custody and has by now undergone more than 6 years of imprisonment.4. parveen co-accused who also faced the trial filed cra-s- kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -3- 1095-sb-2009 against the afore-stated judgment of conviction and sentence. he moved an application during pendency of the trial for treating him a juvenile but the said application was dismissed without taking appropriate evidence on record. the matter was referred to the juvenile justice board, bhiwani (jjb) for determining the issue and parveen was directed to appear before the board. jjb, bhiwani recorded the evidence and arrived at the firm finding that parveen aforesaid was less than 18 years of age on the date of occurrence. he was thus declared as juvenile in conflict with law. therefore, cra-s-1095-sb-2009 preferred by parveen is being separately dealt with.5. the prosecution was launched on the complaint ex. pc dated 25.5.2008 made to asi krishan kumar by father of the prosecutrix while the police party was present at dadri gate, bhiwani, stating therein that the prosecutrix who was about 17½ years old had gone somewhere during the intervening night of 23/24.5.2008. the complainant had been searching for his daughter for the whole day. in the evening, the complainant came to know that his daughter was kidnapped by the appellants and parveen. ex. pc was sent to the police station by making endorsement ex. pq and fir ex. pe/i was recorded on its basis.6. it emerged during trial that on the day of recording fir the police party headed by pw-12 asi krishan kumar received a secret information regarding the accused. the prosecutrix was recovered from the house of appellant-sunil (in cra-s-877-sb-2009) and all the four accused were arrested from that house. the investigating officer prepared the panchnama ex. ps with regard to recovery of girl which as kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -4- attested by head constable mahabir singh (pw-13) and lady constable renu. the rough site plan ex. pr of the house of appellant-sunil showing the room from where the prosecutrix was recovered was also prepared.7. the story brought forth by the prosecutrix is that she had come out of her house during the intervening night of 23/24.5.2008 for urinating. in the vacant plot adjoining their house, appellants sunil and roshan were present and they told the prosecutrix that they were to get filled from her the forms for getting her a job and took her to the house of sunil. parveen and vijay appellants (in cra-s-1095-sb-2009 and cra- s-1482-sb-2009, respectively) were also present there. vijay-appellant aforesaid remarked that today 'dhanki' (the caste to which prosecutrix belongs) has come under their grip and they would commit wrong act with her throughout the night. all the four accused persons committed rape on her. in the morning, the accused persons mixed some intoxicant in the milk served to the prosecutrix and she felt drowsy throughout the day. all the four accused again committed forcible intercourse throughout for the second night.8. the prosecutrix as well as all the four accused were got medically examined from the hospital. on medical examination of the appellants, the doctor found nothing to suggest that they were not capable of committing sexual intercourse. the incriminating articles comprising of underwears of all the appellants and parveen co-accused, pubic hair of appellants sunil and vijay; one dirty salwar of the prosecutrix, her vaginal and cervical swabs were prepared into separate sealed parcels kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -5- which were sent to forensic science laboratory, maduban, karnal (haryana) for analysis and report of the forensic science laboratory is ex. pa. in the opinion of pw-5 dr. sandhya gupta, who medico-legally examined the prosecutrix, sexual intercourse had been committed with the prosecutrix. the prosecutrix was also produced before the judicial magistrate, bhiwani on 2.6.2008 and her statement ex. pn (copy of which is ex. pb) under section 164 cr.p.c. was recorded.9. the case was committed to the sessions court for trial. the charges were framed against the appellants. the prosecution examined 13 witnesses in support of its case. the learned trial court convicted the appellants and awarded them the sentences under the offences as aforesaid.10. before dealing with the rival contentions of the parties, it would be necessary to briefly describe the evidence adduced in this case.11. the prosecutrix as pw-1 testified that on the intervening night of 23/24.5.2008, she was going for toilet and found appellant-sunil (in cra-s-877-sb-2009) standing near the house. accused sunil asked her that he would fill up her application for a job. she went to the house of sunil where two other accused, namely; parveen and vijay-appellants (in cra-s-1095-sb-2009 and cra-s-1482-sb-2009, respectively) were also present. she stated that vijay-appellant (in cra-s-1482-sb-2009) remarked that 'dhanki' had come under their grip. these accused persons committed rape on her for the whole night. the prosecutrix further stated that in the morning the accused persons mixed something in the milk served to her and she remained un-conscious for the whole day. even on kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -6- 24.5.2008, all these accused persons committed rape on her for whole night. in the next morning i.e. on 25.5.2008, the police came and recorded her statement. she was taken to the hospital where she was medically examined.12. since the prosecutrix did not name roshan-appellant (in cra-s-849-sb-2009) as one of the culprits, the public prosecutor was permitted to cross-examine her. she was confronted with relevant portion of her statement ex. pb recorded by the judicial magistrate under section 164 cr.p.c.13. the father of prosecutrix as pw-2 stated that he searched for his daughter on 24.5.2008. during the night of 24.5.2008, he came to know that his daughter was in the house of baljit, father of sunil- appellant. on the next day he moved an application ex. pc before the police, accusing three persons, namely; sunil, parveen and vijay to be the culprits for having committed rape on his daughter. he categorically stated that no other person committed rape on his daughter.14. pw-5 dr. sandhya gupta, medico-legally examined the prosecutrix aged about 17 years 9 months on 25.5.2008. copy of mlr ex. pj prepared by pw-5 shows that the medico-legal examination of the prosecutrix was conducted at 5.25 p.m. there was no mark of external injury all over her body. there was neither any injury on the private parts, back, buttocks and breasts. the doctor found per vaginal examination as under: “.......cervix upwards, uterus retroverted. nulliparous size vaginal orifices passes two fingers easily. there kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -7- was ruptured hymen and healed tag of hymen was present. pubic hair were shaved.”. the doctor prepared sealed parcels of salwar of the prosecutrix and also of the vaginal and cervical swabs. all these parcels along with the forwarding letter and sample of the seal impression put on the parcels were handed over to the police for being sent to the forensic science laboratory. on perusal of the report of forensic science laboratory ex. pa, the doctor gave a firm opinion that the intercourse had taken place with the prosecutrix.15. the appellants and co-accused parveen (since declared as juvenile) were produced before the doctor for medical examination on the same day and as per medico-legal reports ex. pg/1 to ex. pg/4 their medico-legal examination was conducted between 8.15 p.m. and 9.15 p.m. on that day. the underwear of each of the accused persons, pubic hair of sunil and vijay were all prepared into separate sealed parcels by the doctor and sent to the forensic science laboratory.16. as per report of forensic science laboratory ex. pa, human semen was found on the salwar of the prosecutrix and underwears of all the appellants and parveen (juvenile) but no semen was found on the vaginal and cervical swabs and pubic hair. the parcels containing the underwears of the accused persons exs. p-1 to p-4 were produced during the examination of pw-4 dr. ved kumar and the sealed parcel which contained the salwar ex. p-6 was produced and opened in court when pw-5 dr. sandhya gupta was examined.17. pw-6 amir chand taneja, draftsman prepared the scaled kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -8- site plan ex. pl of the house of sunil-appellant showing room mark-a from where the prosecutrix was recovered and all the accused apprehended.18. pw-7 is the judicial magistrate ist class, siwani before whom the prosecutrix was produced on 2.6.2008 and recorded her statement ex. pn under section 164 cr.p.c. the application filed by the police for recording statement is ex. pm.19. pw-8 head constable jagmal singh and pw-9 constable narender kumar are the formal witnesses who tendered their affidavits ex. po and ex. pp respectively, with regard to delivery of sealed parcels of clothes, swabs and pubic hair in the forensic science laboratory.20. pw-12 asi krishan kumar is the investigating officer and pw-13 head constable mahabir singh, accompanied the investigating officer. both these police officials stated that all the four accused persons were apprehended from the house of sunil from where the prosecutrix was recovered.21. i have heard learned counsel for the appellants, the state counsel and gone through the trial court record quite extensively with their able assistance.22. learned counsel for the appellants have challenged the conviction recorded by the trial court inter alia on the grounds:- (i) that the prosecution has failed to prove the age of prosecutrix on the date of occurrence to be below 18 years; (ii) that there is a huge delay in lodging the fir and kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -9- further it was not possible for the father of the prosecutrix to name the accused persons when he had not even met the prosecutrix by that time; (iii) that a false case has been planted upon the appellants due to enmity with sunil-appellant and his family; (iv) that the medical evidence does not support the prosecution story; and (v) that the prosecutrix and her father having contradicted the story about involvement of roshan accused, the entire story stand demolished.23. learned counsel for roshan-appellant (in cra-s-849-sb- 2009) vehemently contended that there is absolutely no evidence against this appellant for finding him guilty of the charges and the conclusion of learned trial court is based on conjectures and surmises. it is submitted that conviction of this appellant is based on the statement of prosecutrix recorded under section 164 cr.p.c. which is not the substantive evidence and could be used only for the purposes of contradiction.24. on the other hand, learned state counsel supported the findings of the trial court and also the observations that prosecutrix and her father seem to have been won over by roshan-appellant. it is submitted that there was complete incriminating evidence against roshan who was apprehended from the house of sunil-appellant along with other co-accused, from where the prosecutrix was recovered. learned state counsel also contended that as per report of the forensic science laboratory finding of semen on the underwear which roshan was kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -10- wearing supports the charge against him also.25. the question of the age of prosecutrix pales into insignificance in the trial on the charge of gang rape. the prosecutrix in cross-examination stated that she did her matriculation examination approximately in the year 2003. she passed her 8th standard in the year 2001. the occurrence is of the year 2008. no school certificate in proof of date of birth of the prosecutrix was proved on record. though in the medico-legal report, age of the prosecutrix is described as 17 years 9 months which the prosecutrix has also stated as pw-1 in the witness box but i would find that in the absence of complete evidence, it would not be possible to say that the girl was less than 18 years of age on the date of occurrence. as i have already observed that the factum that prosecutrix was below or little above 18 years on the date of occurrence would not be of much importance in the facts of the instant case where the prosecution story pertains to the offence of gang rape.26. learned counsel for the appellants, however, vehemently contended that when the girl went missing on 23.5.2008, the matter should have been reported instantly to the police but from the circumstances, it is apparent that the complaint from the father of the prosecutrix was obtained after the girl was recovered. there seems to be total insensitive attitude of the police in not recording the fir of this nature apparently as the girl belongs to a lower strata of society. pw-2 is an illiterate person. the prosecutrix stated in cross-examination that her father is a labourer and working as mechanic in the truck union. she also stated that her mother is running a cosmetic and general store in the kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -11- house where they are living. the prosecutrix is eldest of the three children of her parents. she has two younger brothers who are about 13 and 11 years old respectively. the prosecutrix passed 10+1 from government school, bhiwani and could not qualify in 10+2 examination. she left her studies only last year. the prosecutrix was examined as a witness in the trial on 18.10.2008.27. the manner in which the police proceeded in the instant case would clearly suggest that it was on the immense pressure of the residents of the locality that the police swung into action. the prosecutrix stated in cross-examination that baljit father of appellant-sunil is posted as hawaldar (head constable) in police department. that seems to be the reason for which the police must have initially shown its reluctance to register fir and they adopted a convenient mode by taking written application from the father of prosecutrix making endorsement at 11.15 a.m. on 25.5.2008 to send it to the police station for registration of the case. father of the prosecutrix as pw-2 in cross-examination stated that complaint ex. pc was scribed by a police official who was either head constable or constable. this was written at 7.00 or 7.30 a.m. at dadri gate, bhiwani on 25.5.2008.28. it would be quite relevant to refer to the observations of hon'ble supreme court in state of punjab vs. gurmit singh, 1996 (2) scc383with regard to delay in such matters. it was held that the courts cannot overlook the fact that in sexual offences delay in lodging of the fir can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -12- the incident which concerns the reputation of the prosecutrix and the honour of her family. it is only after giving it a cool thought that a complaint of sexual offence is generally lodged.29. hon'ble supreme court in state of u.p. vs. manoj kumar pandey, 2009 (1) scc72observed that normal rule regarding the duty of the prosecution to explain the delay in lodging fir and the lack of prejudice and/or prejudice caused because of such delayed lodging of fir does not per se apply to cases of rape. this was held to be the consistent view.30. the prosecutrix has been extensively cross-examined and proved to be a truthful person. there is absolutely no reason to disbelieve her statement on any aspect.31. the first contention to challenge the prosecution story is that there was enmity between the family of the prosecutrix and that of sunil- appellant. the prosecutrix admitted as correct the suggestion that there was a dispute between her father and father of appellant-sunil with regard to electric connection. father of the accused had hired electricity from their meter. the prosecutrix, however, categorically denied the suggestion that due to the aforesaid dispute she has falsely named sunil or that the accused persons have been falsely implicated at the instance of her father.32. it seems that on some wrong notion and being under immense stress of a very lengthy cross-examination the prosecutrix made the above statement, which is otherwise not borne out from the testimony of her father. pw-2 father of the prosecutrix un-equivocally stated that kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -13- no electricity supply was taken by baljit father of appellant-sunil from his meter. he also denied the suggestion that there was any dispute of electricity charges between him and baljit aforesaid. how a girl of the age of prosecutrix would falsely implicate so many persons for the incident in which she was sexually ravaged on such a petty dispute of electric charges and to damage her own dignity and honour and that of her family.33. since appellant (sunil) was quite sure of the weakness of the above defence plea, another suggestion was put up to the prosecutrix that appellant-sunil saw the prosecutrix in the company of her boy-friends and he complained of this fact for which sunil was falsely implicated in this case. a similar suggestion put to pw-2 was also denied. the hollowness in the defence version is evident as another plea was suggested to pw-2 that there was a quarrel between pw-2, his brother and nephew on one hand and rajpati mother of appellant-sunil on the other in which rajpati suffered injuries which was categorically denied by pw-2. i am of the considered view that for any such dispute, the prosecutrix would not involve so many accused persons on the charge of rape. the other appellants have not set up any specific defence for suggesting why they would have been falsely implicated. all the appellants are from different communities but belong to the same area.34. in gurmit singh's case (supra), hon'ble supreme court held as under:- “the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -14- respecting 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 involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution 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 otherwise reliable prosecution case. the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?. the court while appreciating the evidence of a prosecutrix may look kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -15- for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. the evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. corroborative evidence is not an imperative component of judicial credence in every case of rape. corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. it must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. inferences kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -16- have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”. 35. it was vehemently contended that the story about the prosecutrix remaining in custody of four accused persons in the house of sunil-appellant continuously for two days is highly improbable, because there are so many family members of sunil accused living there. the prosecutrix stated that sunil-appellant has one brother and a sister, both of whom are younger to sunil. mother of sunil is a housewife. younger brother and sister of sunil are school going. no question was, however, put to the prosecutrix as to whether those family members of sunil accused were residing in the said house. the prosecutrix was even not questioned about the presence of other family members of sunil during the period of two days when she was kept detained by the accused persons in the room of that house.36. cross-examination of the father of prosecutrix as pw-2 was also not directed towards this aspect. this was obviously a deliberate act to avoid any negative response. this most important factor is that neither the parents of sunil accused nor any of his other family member was examined in defence to bring out a version about their living in this house kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -17- or being present with sunil during those crucial days. in fact the family members of sunil were supposed to come forward, as the prosecution version was that the sunil and other accused were apprehended from this house on the day when prosecutrix was recovered. in fact the prosecutrix was cross-examined about location of an area called shanti nagar. she stated that she has not seen shanti nagar and cannot tell the distance of the said locality from her house. it is not explained how the story of location of shanti nagar was attempted to be brought on record. it seems that the appellants wanted to say that family members of sunil were residing in shanti nagar. this is particularly so as none of the accused belongs to shanti nagar.37. the site plan of the house from where the girl was recovered, prepared by the investigating officer and the draftsman, would show that there is street on one side of the house; road on the othe side and on the two other sides there are vacant plots. across the street and road also there are vacant plots. the prosecutrix in cross-examination stated that there was one vacant plot between the house of the prosecutrix and that of appellant-sunil. she, however, does not know who is the owner of the said vacant plot.38. the responses of the prosecutrix on certain important and relevant questions reproduced below would make her absolutely a truthful person and there is no reason to doubt her version with regard to incident of gang rape after she was enticed away on the pretext of filling the application form for getting some job:- “xx...xx...xx...xx...it was about 8.00 am when the milk kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -18- was served to me. (this pertains to the incident of morning of 24.5.2008) i regained consciousness in the day time but i cannot tell the exact time. except milk, no food or drink was provided to me by the accused. even i had not gone for urinating. i remained in that room throughout for two nights and one day. it is incorrect to suggest that the accused had not confined me in the room. i never entered the house of the accused prior to this occurrence ever xx...xx...xx...xx... i remained semi conscious during the second night. when police arrived at the place of occurrence i was unconscious. i regained consciousness in the police station. i cannot tell time when i regained consciousness xx...xx...xx...xx... the accused had also served liquor to me. i cannot tell the time. however, it was night time and might be 10.00 or 12.00. when liquor was served to me, only sunil was there. i was having only one glass and there was one bottle of liquor. there was single bed, one charpai and one table. there was jug containing water which was placed on the table. i cannot tell whether accused also consumed liquor or not as first of all i was served liquor by sunil. the glass was approximately half filled with liquor. i stated to the police that the accused also served liquor to me xx...xx...xx...xx...”. kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -19- 39. learned counsel for the appellants, however, referred to the cross-examination of pw-2 who stated that he heard the cries of his daughter at about 2.00/3.00 a.m. on 25.5.2008 and on hearing the same, he did not enter the house of sunil at night. pw-2 also stated that he had even called two persons jugnu and satbir during the night but did not got to the house of sunil-appellant along with those persons. the above seems to be the statement made by father of the prosecutrix due to over anxiety because in case the father heard the cries of his daughter, he would have immediately gone to the house of sunil. the above statement made by pw-2 would not be enough to demolish the prosecution story.40. from the entire discussion made above, the testimony of prosecutrix is proved to be consistent, cogent and truthful. her version gets support from the statement of her father as pw-2 and the medical evidence.41. learned counsel for the appellants, however, referred to the statement of pw-5 dr. sandhya gupta who medically examined the prosecutrix. she stated that there was no mark of external injury on any part of the body of prosecutrix. it is further contended that no semen was found on the vaginal swab, pubic hair or cervical swab and, therefore, the evidence let in is not sufficient to establish the charge. i do not agree with the above contention especially when the prosecutrix does not state in the witness box that she had any bleeding or that she was physically assaulted while committing rape. rather her case at the first instance was that she was served something in the milk and in the evening of 24.5.2008, she was served liquor. she stated that she remained almost kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -20- unconscious on 24.5.2008, so there was no question of external injuries or mark of resistance. the prosecutrix could not possibly propound a wrong version in this regard when her statement was recorded by the police on the day she was recovered and got medically examined in the government hospital.42. hon'ble supreme court in ranjit hazarika vs. state of assam, 1998 (8) scc635held that the mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. to constitute the offence of rape, penetration, however slight, is sufficient. in that case, the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement remained un-challenged in the cross-examination. it was further held that neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when nothing was brought in the cross-examination to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. in the above case before the hon'ble supreme court, there was rather the opinion of the doctor that no rape appeared to have been committed. hon'ble supreme court held that this opinion was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. this opinion would not throw out an otherwise cogent and trustworthy evidence of the prosecutrix.43. the instant is a case of gang rape and the presumption under kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -21- section 114-a of the indian evidence act would arise. it reads as under:- “section 114-a. presumption as to the absence of consent in certain prosecutions for rape - in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the indian penal code, 1860, 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.”. 44. hon'ble supreme court held in yedla srinivasa rao vs. state of a.p., 2006 (11) scc615 as under:-“15. if sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. presumption has been introduced by the legislature in the evidence act looking to atrocities committed against women and in the instant case as per the statement of pw, she resisted and she did not give consent to the accused at the first instance and he kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -22- committed the rape on her. the accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her.”. the instant cannot be a case of consensual intercourse because the version of appellants had been of total denial throughout.45. learned counsel for roshan-appellant (in cra-s-849-sb- 2009), however, vehemently contended that there is absolutely no evidence against the appellant as neither the prosecutrix nor her father supported the version against this appellant. it is submitted that the learned trial court seems to have recorded the conviction solely on the strength of statement of the prosecutrix made under section 164 cr.p.c. in support of this contention, learned counsel relied upon a judgment of this court in sumer vs. state of haryana 1999 (3) rcr (criminal) 444 for contending that the accused cannot be convicted on the basis of statement of the prosecutrix under section 164 cr.p.c. and police report under section 173 cr.p.c.46. it was further contended that statement under section 164 cr.p.c. is not a substantive piece of evidence and can be used for the purpose of corroboration by prosecution or contradiction by the accused. on the other hand learned state counsel submitted that the case of this appellant is similar to the co-accused because he was apprehended along with other accused from the same room from where the prosecutrix was recovered. it was also submitted that on medical examination of this appellant conducted on the same day semen was found on the underwear kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -23- worn by him. according to the report of forensic science laboratory ex. pa, this appellant was wearing a dirty light blue coloured underwear when he was produced for medical examination.47. i would have accepted the contention of the learned state counsel in the normal course but the present is a case where the whole mess was created by the investigating agency in not promptly recording the report of a serious incident of missing of a girl and apparently obtained the complaint ex. pc on the date when the girl was recovered. this complaint as per the endorsement made thereon, was made at about 11.15 a.m. on 25.5.2008. there are serious contradictions in the evidence on the subject from which i would be inclined to grant benefit of doubt to roshan-appellant in the absence of the prosecutrix and her father making incriminating statement against him.48. the prosecutrix in the cross-examination stated that the police arrived in the house of sunil-appellant at about 8.30 a.m. on 25.5.2008. they were brought to the police station at about 9.00 a.m. she remained at the police station from 9.00 a.m. to 5.00 p.m. it was thereafter, she was taken to the hospital for medical examination. the prosecutrix further stated that her mother was along with her in the police station but her father came at about 1 o'clock in the noon.49. father of the prosecutrix as pw-2 in cross-examination stated that the applicant/complaint ex. pc was got written at about 7.00 or 7.30 a.m. at dadri gate. he reached the police station at about 10.00 or 10.30 a.m. and by that time his daughter was present at the police station. pw-2, however, stated that his wife also accompanied him to the kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -24- police station at that time.50. pw-12 asi krishan kumar, however, stated in cross- examination that the prosecutrix was got recovered at about 2.30 p.m. from the house of accused sunil and at that time, pw-2 was accompanying the police party. pw-2 himself has not stated anything about the recovery of girl by the police in his presence. so the above factors would render the charges against the appellant-roshan (in cra- s-846-sb-2009) doubtful.51. in view of the aforesaid factors and discussion, it is held that charges against roshan-appellant are not proved beyond suspicion. consequently appeal titled roshan vs. state of haryana, (cra-s-849- sb-2009) is allowed and he stands acquitted of the charges framed against him. the bail bonds furnished by him during the pendency of appeal, stand discharged.52. in view of the statement of the prosecutrix as pw-1 that she came out of her house for urinating where sunil appellant in cra-s- 877-sb-2009 met, and on being asked by the accused for filling her forms for a job she accompanied sunil to his house, the ingredients of sections 363 and 366-a ipc would not be attracted as it is not proved that prosecutrix was below 18 years of age. the offence that is proved in the instant case is squarely under section 376 (2) (g) ipc. there the appellants sunil and vijay stand acquitted of the charges under sections 363 and 366-a ipc but their conviction under section 376 (2) (g) is maintained. the sentences awarded to these appellants under sections 363 and 366-a ipc are consequently set aside. kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document cra-s-877-sb-2009 -25- 53. on the quantum of sentence under section 376 (2) (g) ipc there is no scope of interference as this is a case of gang rape and the learned trial court has awarded the minimum sentence provided for the said offence. therefore cra-s-877-sb-2009 (sunil vs. state of haryana) and cra-s-1482-sb-2009 (vijay vs. state of haryana) are partly allowed setting aside the conviction of sunil and vijay for offences under sections 363 and 366-a ipc but their appeals to challenge the conviction and sentence made under section 376 (2) (g) ipc are dismissed.54. the sentence of sunil-appellant (in cra-s-877-sb-2009) was suspended during the pendency of appeal. his bail bonds stand cancelled and his arrest warrants be issued for undergoing the remainder of sentence. june 30, 2014 ( r.p. nagrath ) rishu judge kataria rishu 2014.07.03 16:18 i attest to the accuracy and integrity of this document

Judgment:

CRA-S-877-SB-2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH1 CRA-S-877-SB-2009 Sunil ..... Appellant Versus State of Haryana ..... Respondent 2. CRA-S-849-SB-2009 Roshan ..... Appellant Versus State of Haryana ..... Respondent 3. CRA-S-1482-SB-2009 Vijay ..... Appellant Versus State of Haryana ..... Respondent Date of decision:

30. 6.2014 CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.

2. To be referred to the Reporters or not?.

3. Whether the judgment should be reported in the digest?. PRESENT: Mr. Salil Bali, Advocate for the appellant (in CRA-S-877-SB-2009). Mr. Ashwani Bhardwaj and Mr. Lokesh Sharma, Advocates for the appellant (in CRA-S-849-SB-2009). Mr. Ramender Chauhan, Advocate for the appellent (in CRA-S-1482-SB-2009). Mr. CS Bakshi, Additional Advocate General, Haryana (in all cases). Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -2- R.P. NAGRATH, J.

By this common judgment, CRA-S-877-SB-2009 (Sunil Vs. State of Haryana); CRA-S-849-SB-2009 (Roshan Vs. State of Haryana) and CRA-S-1482-SB-2009 (Vijay Vs. State of Haryana) are being disposed of, as these arise out of the same judgment of the trial Court in FIR No.324 dated 25.5.2008 under Sections 363/366/376 of the Indian Penal Code (IPC), Police Station City, Bhiwani.

2. The appellants and Parveen S/o Subhash faced trial of charges under Sections 363/366-A/376(g)(iv) IPC. Learned trial Court convicted the appellants and Parveen aforesaid on the said charges and they were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ` 1000/- each, in default thereof to further undergo simple imprisonment for a period of 1 months each under Section 376 (2) (g) IPC. The appellants were also sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of ` 500/- each, in default whereof to further undergo simple imprisonment for a period of 15 days each under Section 366-A IPC and rigorous imprisonment for a period of five years and to pay a fine of ` 500/- each and in default of payment of fine to further undergo simple imprisonment for a period of 15 days each under Section 363 IPC. The substantive sentences of imprisonment were to run concurrently.

3. It appears from custody certificate dated 5.8.2013 that Vijay- appellant (in CRA-S-1482-SB-2009) is still in custody and has by now undergone more than 6 years of imprisonment.

4. Parveen co-accused who also faced the trial filed CRA-S- Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -3- 1095-SB-2009 against the afore-stated judgment of conviction and sentence. He moved an application during pendency of the trial for treating him a juvenile but the said application was dismissed without taking appropriate evidence on record. The matter was referred to the Juvenile Justice Board, Bhiwani (JJB) for determining the issue and Parveen was directed to appear before the Board. JJB, Bhiwani recorded the evidence and arrived at the firm finding that Parveen aforesaid was less than 18 years of age on the date of occurrence. He was thus declared as juvenile in conflict with law. Therefore, CRA-S-1095-SB-2009 preferred by Parveen is being separately dealt with.

5. The prosecution was launched on the complaint Ex. PC dated 25.5.2008 made to ASI Krishan Kumar by father of the prosecutrix while the police party was present at Dadri Gate, Bhiwani, stating therein that the prosecutrix who was about 17½ years old had gone somewhere during the intervening night of 23/24.5.2008. The complainant had been searching for his daughter for the whole day. In the evening, the complainant came to know that his daughter was kidnapped by the appellants and Parveen. Ex. PC was sent to the police station by making endorsement Ex. PQ and FIR Ex. PE/I was recorded on its basis.

6. It emerged during trial that on the day of recording FIR the police party headed by PW-12 ASI Krishan Kumar received a secret information regarding the accused. The prosecutrix was recovered from the house of appellant-Sunil (in CRA-S-877-SB-2009) and all the four accused were arrested from that house. The Investigating officer prepared the panchnama Ex. PS with regard to recovery of girl which as Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -4- attested by Head Constable Mahabir Singh (PW-13) and Lady Constable Renu. The rough site plan Ex. PR of the house of appellant-Sunil showing the room from where the prosecutrix was recovered was also prepared.

7. The story brought forth by the prosecutrix is that she had come out of her house during the intervening night of 23/24.5.2008 for urinating. In the vacant plot adjoining their house, appellants Sunil and Roshan were present and they told the prosecutrix that they were to get filled from her the forms for getting her a job and took her to the house of Sunil. Parveen and Vijay appellants (in CRA-S-1095-SB-2009 and CRA- S-1482-SB-2009, respectively) were also present there. Vijay-appellant aforesaid remarked that today 'Dhanki' (the caste to which prosecutrix belongs) has come under their grip and they would commit wrong act with her throughout the night. All the four accused persons committed rape on her. In the morning, the accused persons mixed some intoxicant in the milk served to the prosecutrix and she felt drowsy throughout the day. All the four accused again committed forcible intercourse throughout for the second night.

8. The prosecutrix as well as all the four accused were got medically examined from the hospital. On medical examination of the appellants, the doctor found nothing to suggest that they were not capable of committing sexual intercourse. The incriminating articles comprising of underwears of all the appellants and Parveen co-accused, pubic hair of appellants Sunil and Vijay; one dirty Salwar of the prosecutrix, her vaginal and cervical swabs were prepared into separate sealed parcels Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -5- which were sent to Forensic Science Laboratory, Maduban, Karnal (Haryana) for analysis and report of the Forensic Science Laboratory is Ex. PA. In the opinion of PW-5 Dr. Sandhya Gupta, who medico-legally examined the prosecutrix, sexual intercourse had been committed with the prosecutrix. The prosecutrix was also produced before the Judicial Magistrate, Bhiwani on 2.6.2008 and her statement Ex. PN (copy of which is Ex. PB) under Section 164 Cr.P.C. was recorded.

9. The case was committed to the Sessions Court for trial. The charges were framed against the appellants. The prosecution examined 13 witnesses in support of its case. The learned trial Court convicted the appellants and awarded them the sentences under the offences as aforesaid.

10. Before dealing with the rival contentions of the parties, it would be necessary to briefly describe the evidence adduced in this case.

11. The prosecutrix as PW-1 testified that on the intervening night of 23/24.5.2008, she was going for toilet and found appellant-Sunil (in CRA-S-877-SB-2009) standing near the house. Accused Sunil asked her that he would fill up her application for a job. She went to the house of Sunil where two other accused, namely; Parveen and Vijay-appellants (in CRA-S-1095-SB-2009 and CRA-S-1482-SB-2009, respectively) were also present. She stated that Vijay-appellant (in CRA-S-1482-SB-2009) remarked that 'Dhanki' had come under their grip. These accused persons committed rape on her for the whole night. The prosecutrix further stated that in the morning the accused persons mixed something in the milk served to her and she remained un-conscious for the whole day. Even on Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -6- 24.5.2008, all these accused persons committed rape on her for whole night. In the next morning i.e. on 25.5.2008, the police came and recorded her statement. She was taken to the hospital where she was medically examined.

12. Since the prosecutrix did not name Roshan-appellant (in CRA-S-849-SB-2009) as one of the culprits, the Public Prosecutor was permitted to cross-examine her. She was confronted with relevant portion of her statement Ex. PB recorded by the Judicial Magistrate under Section 164 Cr.P.C.

13. The father of prosecutrix as PW-2 stated that he searched for his daughter on 24.5.2008. During the night of 24.5.2008, he came to know that his daughter was in the house of Baljit, father of Sunil- appellant. On the next day he moved an application Ex. PC before the police, accusing three persons, namely; Sunil, Parveen and Vijay to be the culprits for having committed rape on his daughter. He categorically stated that no other person committed rape on his daughter.

14. PW-5 Dr. Sandhya Gupta, medico-legally examined the prosecutrix aged about 17 years 9 months on 25.5.2008. Copy of MLR Ex. PJ prepared by PW-5 shows that the medico-legal examination of the prosecutrix was conducted at 5.25 p.m. There was no mark of external injury all over her body. There was neither any injury on the private parts, back, buttocks and breasts. The doctor found per vaginal examination as under: “.......cervix upwards, uterus retroverted. Nulliparous size vaginal orifices passes two fingers easily. There Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -7- was ruptured hymen and healed tag of hymen was present. Pubic hair were shaved.”

. The doctor prepared sealed parcels of Salwar of the prosecutrix and also of the vaginal and cervical swabs. All these parcels along with the forwarding letter and sample of the seal impression put on the parcels were handed over to the police for being sent to the Forensic Science Laboratory. On perusal of the report of Forensic Science Laboratory Ex. PA, the doctor gave a firm opinion that the intercourse had taken place with the prosecutrix.

15. The appellants and co-accused Parveen (since declared as juvenile) were produced before the doctor for medical examination on the same day and as per medico-legal reports Ex. PG/1 to Ex. PG/4 their medico-legal examination was conducted between 8.15 p.m. and 9.15 p.m. on that day. The underwear of each of the accused persons, pubic hair of Sunil and Vijay were all prepared into separate sealed parcels by the doctor and sent to the Forensic Science Laboratory.

16. As per report of Forensic Science Laboratory Ex. PA, human semen was found on the Salwar of the prosecutrix and underwears of all the appellants and Parveen (Juvenile) but no semen was found on the vaginal and cervical swabs and pubic hair. The parcels containing the underwears of the accused persons Exs. P-1 to P-4 were produced during the examination of PW-4 Dr. Ved Kumar and the sealed parcel which contained the salwar Ex. P-6 was produced and opened in Court when PW-5 Dr. Sandhya Gupta was examined.

17. PW-6 Amir Chand Taneja, Draftsman prepared the scaled Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -8- site plan Ex. PL of the house of Sunil-appellant showing room Mark-A from where the prosecutrix was recovered and all the accused apprehended.

18. PW-7 is the Judicial Magistrate Ist Class, Siwani before whom the prosecutrix was produced on 2.6.2008 and recorded her statement Ex. PN under Section 164 Cr.P.C. The application filed by the police for recording statement is Ex. PM.

19. PW-8 Head Constable Jagmal Singh and PW-9 Constable Narender Kumar are the formal witnesses who tendered their affidavits Ex. PO and Ex. PP respectively, with regard to delivery of sealed parcels of clothes, swabs and pubic hair in the Forensic Science Laboratory.

20. PW-12 ASI Krishan Kumar is the Investigating Officer and PW-13 Head Constable Mahabir Singh, accompanied the Investigating Officer. Both these police officials stated that all the four accused persons were apprehended from the house of Sunil from where the prosecutrix was recovered.

21. I have heard learned counsel for the appellants, the State counsel and gone through the trial Court record quite extensively with their able assistance.

22. Learned counsel for the appellants have challenged the conviction recorded by the trial Court inter alia on the grounds:- (i) that the prosecution has failed to prove the age of prosecutrix on the date of occurrence to be below 18 years; (ii) that there is a huge delay in lodging the FIR and Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -9- further it was not possible for the father of the prosecutrix to name the accused persons when he had not even met the prosecutrix by that time; (iii) that a false case has been planted upon the appellants due to enmity with Sunil-appellant and his family; (iv) that the medical evidence does not support the prosecution story; and (v) that the prosecutrix and her father having contradicted the story about involvement of Roshan accused, the entire story stand demolished.

23. Learned counsel for Roshan-appellant (in CRA-S-849-SB- 2009) vehemently contended that there is absolutely no evidence against this appellant for finding him guilty of the charges and the conclusion of learned trial Court is based on conjectures and surmises. It is submitted that conviction of this appellant is based on the statement of prosecutrix recorded under Section 164 Cr.P.C. which is not the substantive evidence and could be used only for the purposes of contradiction.

24. On the other hand, learned State counsel supported the findings of the trial Court and also the observations that prosecutrix and her father seem to have been won over by Roshan-appellant. It is submitted that there was complete incriminating evidence against Roshan who was apprehended from the house of Sunil-appellant along with other co-accused, from where the prosecutrix was recovered. Learned State counsel also contended that as per report of the Forensic Science Laboratory finding of semen on the underwear which Roshan was Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -10- wearing supports the charge against him also.

25. The question of the age of prosecutrix pales into insignificance in the trial on the charge of gang rape. The prosecutrix in cross-examination stated that she did her matriculation examination approximately in the year 2003. She passed her 8th standard in the year 2001. The occurrence is of the year 2008. No School Certificate in proof of date of birth of the prosecutrix was proved on record. Though in the medico-legal report, age of the prosecutrix is described as 17 years 9 months which the prosecutrix has also stated as PW-1 in the witness box but I would find that in the absence of complete evidence, it would not be possible to say that the girl was less than 18 years of age on the date of occurrence. As I have already observed that the factum that prosecutrix was below or little above 18 years on the date of occurrence would not be of much importance in the facts of the instant case where the prosecution story pertains to the offence of gang rape.

26. Learned counsel for the appellants, however, vehemently contended that when the girl went missing on 23.5.2008, the matter should have been reported instantly to the police but from the circumstances, it is apparent that the complaint from the father of the prosecutrix was obtained after the girl was recovered. There seems to be total insensitive attitude of the police in not recording the FIR of this nature apparently as the girl belongs to a lower strata of society. PW-2 is an illiterate person. The prosecutrix stated in cross-examination that her father is a labourer and working as mechanic in the truck union. She also stated that her mother is running a cosmetic and general store in the Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -11- house where they are living. The prosecutrix is eldest of the three children of her parents. She has two younger brothers who are about 13 and 11 years old respectively. The prosecutrix passed 10+1 from Government School, Bhiwani and could not qualify in 10+2 examination. She left her studies only last year. The prosecutrix was examined as a witness in the trial on 18.10.2008.

27. The manner in which the police proceeded in the instant case would clearly suggest that it was on the immense pressure of the residents of the locality that the police swung into action. The prosecutrix stated in cross-examination that Baljit father of appellant-Sunil is posted as Hawaldar (Head Constable) in Police Department. That seems to be the reason for which the police must have initially shown its reluctance to register FIR and they adopted a convenient mode by taking written application from the father of prosecutrix making endorsement at 11.15 a.m. on 25.5.2008 to send it to the police station for registration of the case. Father of the prosecutrix as PW-2 in cross-examination stated that complaint Ex. PC was scribed by a police official who was either Head Constable or Constable. This was written at 7.00 or 7.30 a.m. at Dadri Gate, Bhiwani on 25.5.2008.

28. It would be quite relevant to refer to the observations of Hon'ble Supreme Court in State of Punjab Vs. Gurmit Singh, 1996 (2) SCC383with regard to delay in such matters. It was held that the Courts cannot overlook the fact that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -12- the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

29. Hon'ble Supreme Court in State of U.P. Vs. Manoj Kumar Pandey, 2009 (1) SCC72observed that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape. This was held to be the consistent view.

30. The prosecutrix has been extensively cross-examined and proved to be a truthful person. There is absolutely no reason to disbelieve her statement on any aspect.

31. The first contention to challenge the prosecution story is that there was enmity between the family of the prosecutrix and that of Sunil- appellant. The prosecutrix admitted as correct the suggestion that there was a dispute between her father and father of appellant-Sunil with regard to electric connection. Father of the accused had hired electricity from their meter. The prosecutrix, however, categorically denied the suggestion that due to the aforesaid dispute she has falsely named Sunil or that the accused persons have been falsely implicated at the instance of her father.

32. It seems that on some wrong notion and being under immense stress of a very lengthy cross-examination the prosecutrix made the above statement, which is otherwise not borne out from the testimony of her father. PW-2 father of the prosecutrix un-equivocally stated that Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -13- no electricity supply was taken by Baljit father of appellant-Sunil from his meter. He also denied the suggestion that there was any dispute of electricity charges between him and Baljit aforesaid. How a girl of the age of prosecutrix would falsely implicate so many persons for the incident in which she was sexually ravaged on such a petty dispute of electric charges and to damage her own dignity and honour and that of her family.

33. Since appellant (Sunil) was quite sure of the weakness of the above defence plea, another suggestion was put up to the prosecutrix that appellant-Sunil saw the prosecutrix in the company of her boy-friends and he complained of this fact for which Sunil was falsely implicated in this case. A similar suggestion put to PW-2 was also denied. The hollowness in the defence version is evident as another plea was suggested to PW-2 that there was a quarrel between PW-2, his brother and nephew on one hand and Rajpati mother of appellant-Sunil on the other in which Rajpati suffered injuries which was categorically denied by PW-2. I am of the considered view that for any such dispute, the prosecutrix would not involve so many accused persons on the charge of rape. The other appellants have not set up any specific defence for suggesting why they would have been falsely implicated. All the appellants are from different communities but belong to the same area.

34. In Gurmit Singh's case (supra), Hon'ble Supreme Court held as under:- “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self- Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -14- respecting 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 involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution 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 otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?. The Court while appreciating the evidence of a prosecutrix may look Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -15- for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -16- have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”. 35. It was vehemently contended that the story about the prosecutrix remaining in custody of four accused persons in the house of Sunil-appellant continuously for two days is highly improbable, because there are so many family members of Sunil accused living there. The prosecutrix stated that Sunil-appellant has one brother and a sister, both of whom are younger to Sunil. Mother of Sunil is a housewife. Younger brother and sister of Sunil are school going. No question was, however, put to the prosecutrix as to whether those family members of Sunil accused were residing in the said house. The prosecutrix was even not questioned about the presence of other family members of Sunil during the period of two days when she was kept detained by the accused persons in the room of that house.

36. Cross-examination of the father of prosecutrix as PW-2 was also not directed towards this aspect. This was obviously a deliberate act to avoid any negative response. This most important factor is that neither the parents of Sunil accused nor any of his other family member was examined in defence to bring out a version about their living in this house Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -17- or being present with Sunil during those crucial days. In fact the family members of Sunil were supposed to come forward, as the prosecution version was that the Sunil and other accused were apprehended from this house on the day when prosecutrix was recovered. In fact the prosecutrix was cross-examined about location of an area called Shanti Nagar. She stated that she has not seen Shanti Nagar and cannot tell the distance of the said locality from her house. It is not explained how the story of location of Shanti Nagar was attempted to be brought on record. It seems that the appellants wanted to say that family members of Sunil were residing in Shanti Nagar. This is particularly so as none of the accused belongs to Shanti Nagar.

37. The site plan of the house from where the girl was recovered, prepared by the Investigating officer and the draftsman, would show that there is street on one side of the house; road on the othe side and on the two other sides there are vacant plots. Across the street and road also there are vacant plots. The prosecutrix in cross-examination stated that there was one vacant plot between the house of the prosecutrix and that of appellant-Sunil. She, however, does not know who is the owner of the said vacant plot.

38. The responses of the prosecutrix on certain important and relevant questions reproduced below would make her absolutely a truthful person and there is no reason to doubt her version with regard to incident of gang rape after she was enticed away on the pretext of filling the application form for getting some job:- “xx...xx...xx...xx...It was about 8.00 AM when the milk Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -18- was served to me. (This pertains to the incident of morning of 24.5.2008) I regained consciousness in the day time but I cannot tell the exact time. Except milk, no food or drink was provided to me by the accused. Even I had not gone for urinating. I remained in that room throughout for two nights and one day. It is incorrect to suggest that the accused had not confined me in the room. I never entered the house of the accused prior to this occurrence ever xx...xx...xx...xx... I remained semi conscious during the second night. When police arrived at the place of occurrence I was unconscious. I regained consciousness in the police station. I cannot tell time when I regained consciousness xx...xx...xx...xx... The accused had also served liquor to me. I cannot tell the time. However, it was night time and might be 10.00 or 12.00. When liquor was served to me, only Sunil was there. I was having only one glass and there was one bottle of liquor. There was single bed, one Charpai and one table. There was jug containing water which was placed on the table. I cannot tell whether accused also consumed liquor or not as first of all I was served liquor by Sunil. The glass was approximately half filled with liquor. I stated to the police that the accused also served liquor to me xx...xx...xx...xx...”

. Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -19- 39. Learned counsel for the appellants, however, referred to the cross-examination of PW-2 who stated that he heard the cries of his daughter at about 2.00/3.00 a.m. on 25.5.2008 and on hearing the same, he did not enter the house of Sunil at night. PW-2 also stated that he had even called two persons Jugnu and Satbir during the night but did not got to the house of Sunil-appellant along with those persons. The above seems to be the statement made by father of the prosecutrix due to over anxiety because in case the father heard the cries of his daughter, he would have immediately gone to the house of Sunil. The above statement made by PW-2 would not be enough to demolish the prosecution story.

40. From the entire discussion made above, the testimony of prosecutrix is proved to be consistent, cogent and truthful. Her version gets support from the statement of her father as PW-2 and the medical evidence.

41. Learned counsel for the appellants, however, referred to the statement of PW-5 Dr. Sandhya Gupta who medically examined the prosecutrix. She stated that there was no mark of external injury on any part of the body of prosecutrix. It is further contended that no semen was found on the vaginal swab, pubic hair or cervical swab and, therefore, the evidence let in is not sufficient to establish the charge. I do not agree with the above contention especially when the prosecutrix does not state in the witness box that she had any bleeding or that she was physically assaulted while committing rape. Rather her case at the first instance was that she was served something in the milk and in the evening of 24.5.2008, she was served liquor. She stated that she remained almost Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -20- unconscious on 24.5.2008, so there was no question of external injuries or mark of resistance. The prosecutrix could not possibly propound a wrong version in this regard when her statement was recorded by the police on the day she was recovered and got medically examined in the Government Hospital.

42. Hon'ble Supreme Court in Ranjit Hazarika Vs. State of Assam, 1998 (8) SCC635held that the mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. To constitute the offence of rape, penetration, however slight, is sufficient. In that case, the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement remained un-challenged in the cross-examination. It was further held that neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutrix particularly when nothing was brought in the cross-examination to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. In the above case before the Hon'ble Supreme Court, there was rather the opinion of the doctor that no rape appeared to have been committed. Hon'ble Supreme Court held that this opinion was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion would not throw out an otherwise cogent and trustworthy evidence of the prosecutrix.

43. The instant is a case of gang rape and the presumption under Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -21- Section 114-A of the Indian Evidence Act would arise. It reads as under:- “Section 114-A. Presumption as to the absence of consent in certain prosecutions for rape - In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860, 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.”. 44. Hon'ble Supreme Court held in Yedla Srinivasa Rao Vs. State of A.P., 2006 (11) SCC615 as under:-

“15. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW, she resisted and she did not give consent to the accused at the first instance and he Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -22- committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her.”

. The instant cannot be a case of consensual intercourse because the version of appellants had been of total denial throughout.

45. Learned counsel for Roshan-appellant (in CRA-S-849-SB- 2009), however, vehemently contended that there is absolutely no evidence against the appellant as neither the prosecutrix nor her father supported the version against this appellant. It is submitted that the learned trial Court seems to have recorded the conviction solely on the strength of statement of the prosecutrix made under Section 164 Cr.P.C. In support of this contention, learned counsel relied upon a judgment of this Court in Sumer Vs. State of Haryana 1999 (3) RCR (Criminal) 444 for contending that the accused cannot be convicted on the basis of statement of the prosecutrix under Section 164 Cr.P.C. and police report under Section 173 Cr.P.C.

46. It was further contended that statement under Section 164 Cr.P.C. is not a substantive piece of evidence and can be used for the purpose of corroboration by prosecution or contradiction by the accused. On the other hand learned State counsel submitted that the case of this appellant is similar to the co-accused because he was apprehended along with other accused from the same room from where the prosecutrix was recovered. It was also submitted that on medical examination of this appellant conducted on the same day semen was found on the underwear Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -23- worn by him. According to the report of Forensic Science Laboratory Ex. PA, this appellant was wearing a dirty light blue coloured underwear when he was produced for medical examination.

47. I would have accepted the contention of the learned State counsel in the normal course but the present is a case where the whole mess was created by the Investigating Agency in not promptly recording the report of a serious incident of missing of a girl and apparently obtained the complaint Ex. PC on the date when the girl was recovered. This complaint as per the endorsement made thereon, was made at about 11.15 a.m. on 25.5.2008. There are serious contradictions in the evidence on the subject from which I would be inclined to grant benefit of doubt to Roshan-appellant in the absence of the prosecutrix and her father making incriminating statement against him.

48. The prosecutrix in the cross-examination stated that the police arrived in the house of Sunil-appellant at about 8.30 a.m. on 25.5.2008. They were brought to the police station at about 9.00 a.m. She remained at the police station from 9.00 a.m. to 5.00 p.m. It was thereafter, she was taken to the hospital for medical examination. The prosecutrix further stated that her mother was along with her in the police station but her father came at about 1 O'clock in the noon.

49. Father of the prosecutrix as PW-2 in cross-examination stated that the applicant/complaint Ex. PC was got written at about 7.00 or 7.30 a.m. at Dadri Gate. He reached the police station at about 10.00 or 10.30 a.m. and by that time his daughter was present at the police station. PW-2, however, stated that his wife also accompanied him to the Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -24- police station at that time.

50. PW-12 ASI Krishan Kumar, however, stated in cross- examination that the prosecutrix was got recovered at about 2.30 p.m. from the house of accused Sunil and at that time, PW-2 was accompanying the police party. PW-2 himself has not stated anything about the recovery of girl by the police in his presence. So the above factors would render the charges against the appellant-Roshan (in CRA- S-846-SB-2009) doubtful.

51. In view of the aforesaid factors and discussion, it is held that charges against Roshan-appellant are not proved beyond suspicion. Consequently appeal titled Roshan Vs. State of Haryana, (CRA-S-849- SB-2009) is allowed and he stands acquitted of the charges framed against him. The bail bonds furnished by him during the pendency of appeal, stand discharged.

52. In view of the statement of the prosecutrix as PW-1 that she came out of her house for urinating where Sunil appellant in CRA-S- 877-SB-2009 met, and on being asked by the accused for filling her forms for a job she accompanied Sunil to his house, the ingredients of Sections 363 and 366-A IPC would not be attracted as it is not proved that prosecutrix was below 18 years of age. The offence that is proved in the instant case is squarely under Section 376 (2) (g) IPC. There the appellants Sunil and Vijay stand acquitted of the charges under Sections 363 and 366-A IPC but their conviction under Section 376 (2) (g) is maintained. The sentences awarded to these appellants under Sections 363 and 366-A IPC are consequently set aside. Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document CRA-S-877-SB-2009 -25- 53. On the quantum of sentence under Section 376 (2) (g) IPC there is no scope of interference as this is a case of gang rape and the learned trial Court has awarded the minimum sentence provided for the said offence. Therefore CRA-S-877-SB-2009 (Sunil Vs. State of Haryana) and CRA-S-1482-SB-2009 (Vijay Vs. State of Haryana) are partly allowed setting aside the conviction of Sunil and Vijay for offences under Sections 363 and 366-A IPC but their appeals to challenge the conviction and sentence made under Section 376 (2) (g) IPC are dismissed.

54. The sentence of Sunil-appellant (in CRA-S-877-SB-2009) was suspended during the pendency of appeal. His bail bonds stand cancelled and his arrest warrants be issued for undergoing the remainder of sentence. June 30, 2014 ( R.P. NAGRATH ) rishu JUDGE Kataria Rishu 2014.07.03 16:18 I attest to the accuracy and integrity of this document

Court	Punjab and Haryana High Court
Decided On	Jun-30-2014
Appellant	Sunil
Respondent	State of Haryana

Sunil Vs. State of Haryana - Court Judgment