Crl. Appeal No.322-DB of 2006 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.322-DB of 2006 Date of Decision: 25.03.2008 Birender and another ....Appellants. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. N.S. Shekhawat, Advocate for the appellants. Mr. Deepak Girotra, A.G., Haryana for the respondent. ... J.S. Khehar, J. The instant appeal has been filed by the accused/appellants Birender and Dharambir against the order passed by the Additional Sessions Judge, Rewari, in Sessions Case No.39 of 2002, decided on 24.9.2004. All the three accused Birender, Dharambir and Badri Bahadur were held guilty of having committed rape on the prosecutrix Sunita, and as such, guilty of the offence under Section 376 read with Section 34 of the Indian Penal Code. In the conclusion drawn by the trial Court, it was held, that the accused/appellant Birender was the only one, who committed the actual rape, whereas, the other two accused Dharambir and Badri Bahadur had Crl. Appeal No.322-DB of 2006 2 facilitated the commission of the rape. By a separate order passed on the following date i.e. on 25.9.2004, the Additional Sessions Judge, Rewari sentenced the accused/appellant Birender to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.2,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. For the offence under Section 323 of the Indian Penal Code, the accused/appellant Birender was sentenced to undergo rigorous imprisonment for six months. In so far as the accused/appellant Dharambir is concerned, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for nine months. Additionally, he was sentenced to undergo rigorous imprisonment for six months for the offence under Section 323 of the Indian Penal Code. Likewise, Badri Bahadur was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for nine months. It was directed that all the substantive sentences awarded to the accused would run concurrently. The determination of the Additional Sessions Judge, Rewari, noticed in the foregoing paragraph was subject to challenge in Criminal Appeal No.838-DB of 2004. The aforesaid appeal was disposed of by a Division Bench of this Court vide order dated 23.11.2005 with, inter-alia, the following observations:- “...In the present case after having found the appellants guilty Crl. Appeal No.322-DB of 2006 3 under Section 376(2) (g), IPC, the Court after deciding that a sentence of 10 years was inadequate had no option but to punish the appellants with sentence of life imprisonment. This position, which has been settled by a Division Bench of this Court in Satbir's case (supra) had not been followed. Similarly, the Court had not imposed any sentence qua the offence under Section 323 read with Section 34 IPC in the case of Badri Bahadur. On both these counts, the judgement of the trial Court in the present case in relation to the sentence alone should be set aside and the case remanded back to the trial Court for a fresh decision. In view of the above, the sentence imposed by the Court below in the present case cannot be upheld and we, accordingly, set aside the judgement in relation to the sentence alone and remand the case back to the trial Court which will after giving the appellants another opportunity of hearing on the question of sentence pass a fresh order in accordance with law. The entire process would be completed within one month from the date of receipt of a certified copy of this order. In case the appellants are dissatisfied with the sentence, it would be open to them to challenge the conviction and sentence by filing a fresh appeal.” In view of the aforesaid directions issued by this Court on 23.11.2005, while disposing of Criminal Appeal No.838-DB of 2004, the accused/appellant Birender and Dharambir were heard on the question of sentence afresh. Whereupon, by an order dated 1.4.2006, the Crl. Appeal No.322-DB of 2006 4 accused/appellant Birender was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, for having committed the offence under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. For the offence under Section 323 read with Section 34 of the Indian Penal Code, the accused/appellant Birender was sentenced to imprisonment for a period of six months and to pay a fine of Rs.500/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month. In so far as the accused/appellant Dharambir is concerned, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. Likewise, for the offence under Section 323 read with Section 34 of the Indian Penal Code, the accused/appellant Dharambir was sentenced to imprisonment for six months and to pay a fine of Rs.500/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month. The judgement rendered by the Additional Sessions Judge, Rewari dated 24.9.2004 and the sentence awarded to the accused/appellant Birender and Dharambir vide order dated 1.4.2006 are subject matter of challenge at the hands of the accused/appellants through the instant appeal. The prosecution version of the incident is based on three complaints. The first complaint was made by Rai Singh PW3 on 12.9.2001 to the Sarpanch, Gram Panchayat, Tumna. The second complaint was made by the prosecutrix Sunita PW1 to Head Constable Karam Singh at Police Station, Kosli on 12.9.2001. The last of the three complaints was made by Crl. Appeal No.322-DB of 2006 5 Rai Singh PW3 and his wife Rajbala PW2 to the District Manager, Integrated Women's Empowerment and Development Project, Rewari (hereinafter referred to as the IWEDP, Rewari) dated 19.9.2001. The details and the particulars of the aforesaid three complaints are being narrated sequentially in the following three paragraphs. On 12.9.2001, Rai Singh PW3 made a complaint to the Sarpanch, Gram Panchayat, Tumna, disclosing that he has been residing in his farm at village Tumna, close to the boundary of the adjoining village Badoli, for the last 25 years. He also stated that while going to village Tumna from his house, he has to pass the poultry farm of the accused/appellant Birender. In his complaint dated 12.9.2001, Rai Singh PW3 asserted that his daughter Sunita was a student of class10+2 and used to leave for school in the morning at 8.00 AM. She used to pass in front of the poultry farm of the accused/appellant Birender to go to school. One day, when she was going to school, the accused/appellant Birender started urinating in her presence. Sunita protested to the accused/appellant Birender. Whereupon, the accused/appellant Birender replied that he would continue to do the same. On her way back from school at 12.00 Noon while Sunita was passing the poultry farm of the accused/appellant Birender, one of his servants threw dirty water at her. The complainant Rai Singh PW3 in his complaint has alleged that the servant had done so earlier as well on different occasions. Since the servant had repeated the same thing for the fifth time, the complainant Rai Singh PW3 had made a complaint to Shish Ram i.e. the father of the accused/appellant Birender. It is alleged that Shish Ram responded to the complainant Rai Singh PW3 by suggesting that he should give a beating to the concerned servant. On which, the Crl. Appeal No.322-DB of 2006 6 complainant Rai Singh PW3 responded that the said servant was an employee of Shish Ram and that he (Rai Singh PW3) could not give a beating to him. In his complaint dated 12.9.2001 made to the Sarpanch, Gram Panchayat, Tumna, complainant Rai Singh PW3 also recited another incident to the effect that a servants of the accused/appellant Birender had kicked his son Vinod, when he was on his way to the village to purchase some house hold items. The aforesaid incident was allegedly brought to the notice of the accused/appellant Birender. It is, however, pointed out that the accused/appellant Birender did not take any action in the matter against his servant. In his complaint, complainant Rai Singh PW3 alleged that in his opinion the servants of the accused/appellant Birender were acting at the instance of their employer. He, therefore, sought protection from the panchayat so that such kind of behaviour is not repeated in the future. On 12.9.2001 i.e. on the same day, when the first complaint (referred to in the foregoing paragraph was made by Rai Singh PW3 to the Sarpanch, Gram Panchayat, Tumna) the prosecutrix Sunita PW1 alongwith her father Rai Singh PW3 went to Police Station, Kosli at 10.20 PM. At the police station, the prosecutrix Sunita PW1 made a statement to Head Constable Karam Singh, disclosing that she was aged 17 years and was studying in class 10+2 at the Girls School at Kosli. She also stated that she has been residing in a house in the fields in village Tumna alongwith her family. She further stated that before coming to the police station, her father had gone to the village sarpanch in connection with the same matter. In her statement, she asserted that she (the prosecutrix Sunita PW1) alongwith her sisters Mukesh and Sarita had gone to the village to call their father. Since they could not find their father in the village, they were Crl. Appeal No.322-DB of 2006 7 returning to their house. When the three sisters reached the passage in front of the farm of the accused/appellant Birender, at about 8.45 PM, the accused/appellant Birender and Dharambir were consuming the liquor at the poultry farm. The accused/appellant Birender hurled filthy abuses at the three sisters. When the prosecutrix Sunita PW1 protested, he took up a “dantali” and ran towards them. The accused/appellant Dharambir also followed the accused/appellant Birender. The accused/appellant Dharambir then caught hold of the prosecutrix Sunita PW1 and the accused/appellant Birender gave her a blow with the “dantali”, which the prosecutrix Sunita PW1 allegedly warded of with both her hands. The accused/appellant Birender then gave the prosecutrix Sunita PW1, fist blows on her chest and also bit the thumb of her right hand. Thereafter, the accused/appellant Birender's two servants also came to the spot and started slapping and giving fist blows to her (the prosecutrix Sunita PW1), and to her two sisters Mukesh and Sarita. The accused/appellant Birender then told his companions to take all the sisters to a room, at which point, the complainant claims to have raised an alarm, whereafter her mother Rajbala PW2 came to the spot and rescued the three sisters. The prosecutrix Sunita PW1 also stated that during the aforesaid episode, her “jumper” was torn from the shoulder. She requested that action be taken against the culprits. After the aforesaid statement of the prosecutrix Sunita PW1, a Daily Diary Report bearing No.23 was registered at Police Station, Kosli. Head Constable Jawahar Singh made a note to the effect that he had noticed a wound on the right thumb of the prosecutrix Sunita PW1, as also, swelling in the middle of her forehead. He also made a note that the prosecutrix Sunita PW1 was complaining of pain in the chest. Head Constable Jawahar Singh, Crl. Appeal No.322-DB of 2006 8 accordingly, deputed Constable Vijay Singh to take Sunita to the Primary Health Centre, Kosli for medico-legal examination. The medico-legal examination of the prosecutrix Sunita PW1 revealed three injuries on her person. The Medical Officer at the Primary Health Centre, Kosli, who had conducted the medico-legal examination, advised x-ray of two of the three injuries. Accordingly, x-rays were taken of the specified two injuries on 14.9.2001. No bony injury was found. Thereafter, the accused/appellants Birender and Dharambir and their Nepali servant, were challaned under Sections 107 and 151 of the Criminal Procedure Code, before the Sub Divisional Magistrate, Kosli. The third complaint was made by Rai Singh PW3 and his wife Rajbala PW2, to the District Manager, IWEDP, Rewari on 19.9.2001 stating that on the evening of 12.9.2001, their daughter Sunita, aged 17 years, had gone to find the complainant Rai Singh PW3. On her way, when she was near the poultry farm of the accused/appellant Birender, the accused/appellants Birender and Dharambir alongwith their Nepali servant forcibly put their daughter Sunita in a vehicle and took her into the poultry farm. Since she was protesting, she was beaten mercilessly. Thereafter, rape was committed on the prosecutrix Sunita PW1. The prosecutrix Sunita PW1 was brought to the road by women folk of the village. At about 10.30 AM, Sunita was taken to Police Station, Kosli, and from there, to the Primary Health Centre, Kosli, but the prosecutrix Sunita PW1 was not attended to at the Primary Health Centre, Kosli. Instead, it was advised that she be taken to the hospital at Rewari. The doctors at Rewari examined the prosecutrix Sunita PW1 and advised that she was all right and that she should go back home. The complainant Rai Singh PW3 then brought her Crl. Appeal No.322-DB of 2006 9 home. Since the prosecutrix Sunita PW1 was unconscious, she was again taken to the hospital at Rewari by her father Rai Singh PW3 on the following day i.e. on 13.9.2001, where she was admitted for treatment. It is alleged that she was treated till 15.9.2001. It is alleged that on 15.9.2001, she was discharged in an unconscious state. After her discharge, the prosecutrix Sunita PW1 was brought back home. It was alleged by the complainants in their complaint dated 19.9.2001 that the prosecutrix Sunita PW1 was in a state of shock as she was still unable to speak and had also not eaten anything. It was alleged that she be provided proper medical treatment, and that, a First Information Report be got registered so that the culprits can be punished. The aforesaid complaint was referred to by the IWEDP, Rewari to the District Administration. The complaint dated 19.9.2001 was marked by the Superintendent of Police to the Station House Officer, Police Station Model Town, Rewari for getting the prosecutrix Sunita PW1 medico-legally examined. The prosecutrix Sunita PW1 was, accordingly, medico-legally examined by a board of doctors at the General Hospital, Rewari. The board of doctors in their report opined that the possibility of sexual intercourse with the prosecutrix Sunita PW1 could not be ruled out. On the receipt of the aforesaid medico-legal report, a First Information Report bearing No.119 was registered at Police Station, Kosli on 19.9.2001 at 6.15 PM. The accused Badri Bahadur was arrested on 25.10.2001 and the accused/appellants Birender and Dharambir were arrested on 21.11.2001. After completing the investigation and other police formalities, a challan was presented in the Court of the Judicial Magistrate Ist Class, Rewari on 5.12.2001. The Judicial Magistrate Ist Class, Rewari by Crl. Appeal No.322-DB of 2006 10 his order dated 2.1.2002, arrived at the conclusion that a prima-facie case under Sections 323 and 376 read with Section 34 of the Indian Penal Code was made out against all the accused. Since the offence under Section 376 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Rewari by an order dated 2.1.2002 committed the case for trial to the Court of Session. By an order dated 13.2.2002, the Additional Sessions Judge, Rewari charged the three accused Birender, Badri Bahadur and Dharambir for having committed the offence under Section 323 read with Section 34 of the Indian Penal Code for voluntarily causing simple injuries to the prosecutrix Sunita PW1. Additionally, all the accused were also charged with the offence punishable under Section 376 (2)(g) of the Indian Penal Code for committing gang rape on the prosecutrix Sunita PW1, The accused were confronted with the charges levelled against them. They pleaded not guilty and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution before the trial Court, is being summarised hereinafter. The statement of the prosecutrix Sunita was recorded, first of all, as PW1. During the course of her examination-in-chief, she asserted that at about 8.45 PM on 12.9.2001, she alongwith her younger sister Mukesh, was going to their house from the village side. When they reached the poultry farm of the accused/appellant Birender, they saw that the accused/appellants Birender and Dharambir, alongwith two other persons, were sitting in front of the poultry farm. Out of the four persons, she asserted that three were present in Court. She also asserted that one of the Crl. Appeal No.322-DB of 2006 11 servants, who was present on the date of occurrence, was not present in Court. She further alleged that all the four accused caught her and took her inside the poultry farm of the accused/appellant Birender. She asserted that the accused/appellant Dharambir had caught hold of one of her hands, while one servant had caught hold of her other hand. The second servant had tied her mouth with a “chuni”. Thereupon, the accused/appellant Birender had committed rape on her. On seeing the occurrence, her sister Mukesh ran away from the spot. She asserted in her cross-examination that she had not made a statement to the police. She also asserted that her medico-legal examination was conducted after the occurrence. She denied having stated to the police that the accused/appellant Birender had tried to give her a blow with the “dantali” which she had warded of with her hands. She, however, acknowledged during the course of her cross-examination, that the accused/appellant Birender had given a fist blow on her chest and that he had bitten the thumb of her right hand. She also confirmed that the two servants of the accused/appellant Birender, had given fist and slap blows to both her sisters. She also asserted that when she raised an alarm, she was rescued by her mother Rajbala PW2. She further asserted that her shirt was also torn from the shoulder. She also confirmed that the accused/appellants Birender and Dharambir were taking liquor while sitting in front of the poultry farm. During the course of her cross-examination, she asserted that she had remained under shock after the occurrence till 21.9.2001. In this behalf, she asserted that she was not aware where she was taken and by whom, during the aforesaid period (from 12.9.2001 to 21.9.2001). She asserted that she had remained at the Civil Hospital, Rewari upto 21.9.2001, and that, she was examined by doctors on 21, 22 and 23.9.2001. In the Crl. Appeal No.322-DB of 2006 12 cross-examination, she also asserted that the accused/appellant Birender had committed rape in front of the main gate of the poultry farm of the accused/appellant Birender. She stated that she had remained in the poultry farm of the accused/appellant Birender for about 2/3 minutes. She stated that she had fallen unconscious inside the poultry farm of the accused/appellant Birender. She denied the suggestion that all the villagers including women folk, had told the Investigating Officer, as well as, the superior officers of the police that it was a case of casual “mar-peat” (beating), and that, no rape had been committed on the prosecutrix Sunita PW1. The statement of Rajbala i.e. the mother of the prosecutrix Sunita PW1, was recorded as PW2. She claimed to be returning from the village, soon after the departure of her daughter Sunita PW1. She reiterated the factual position narrated by the prosecutrix Sunita PW1. She also stated that she had rescued her daughter by throwing sand on the accused persons, and that, all the four accused persons had run away. She further stated that on hearing the noise of the occurrence, villagers were attracted to the place of occurrence. She asserted that she had taken the prosecutrix Sunita PW1 to the village road with the help of her daughter Mukesh, where she laid Sunita on the cot. After 5/7 minutes, her husband Rai Singh PW3 had reached the place of occurrence. When the accused persons were running away from the spot in a car, they were stopped by the villagers and the tyres of their vehicle were deflated. The statement of Rai Singh, father of the prosecutrix Sunita PW1, was recorded as PW3. He reiterated the facts narrated by his wife Rajbala when she appeared before the Court as PW2. He stated in his examination-in-chief that he narrated the whole story to the police, but had concealed the factum of rape as the honour of his family was Crl. Appeal No.322-DB of 2006 13 at stake. He also stated that when Sunita was taken to the Primary Health Centre, Kosli, as there was no lady medical officer present, the prosecutrix Sunita PW1 was referred to Civil Hospital, Rewari. He also asserted that on 17.9.2001, the incharge of “Sanjivani” came to the hospital and took him to the office of the Deputy Commissioner. He stated that he had made a complaint to the incharge of “Sanjivani” Ex.PA and that the same bears his signatures. Dr. Chitranjan, Medical Officer, Primary Health Centre, Kosli appeared before the trial Court as PW4. He stated that on 2.11.2001, he had conducted the medico-legal examination of the accused/appellant Birender. On the basis of the medico-legal examination conducted by him, he opined that there was nothing to suggest that the accused/appellant Birender was not capable of performing sexual intercourse. The statement of Dr. Sharda Debas, Medical Officer, General Hospital, Rewari was recorded as PW5. She stated that consequent upon a request made by the police on 17.9.2001, a board of doctors, was constituted by the Civil Surgeon, Rewari, whereupon Dr. Sharda Debas PW5 alongwith Dr. Saroj Mann PW8 and Dr. Vipula Garg, had conducted the medico-legal examination of the prosecutrix Sunita PW1. On external examination, no injury was found on her face, breasts, abdomen, thighs, buttocks and back. However, on the examination of her genital, she deposed as under:- “.....On local examination labia majora healthy, raw are about 2cm x 2cm on both side in between labia minora and majora. No laceration or tear. Hymen was ruptured freshly. Laceration seen of .5 x .5 at 8 O' clock position in the inferior aspect of hymen. Slight ooze (blood) seen at the sites, dark coloured bleeding was seen coming out per vagina. PS examination:- all Crl. Appeal No.322-DB of 2006 14 fornices were healthy. Cervix was healthy. Altered blood seen coming through internalos (menstrual). Swabs taken & slides & test tubes were prepared. PV examination:- cervix backwards uterus anterverted, nulliperous size, vaginal orifice admits two fingers with slight difficult...” During the course of her cross-examination, she inter-alia asserted as under:- “It is correct that if an area is described as raw and shown as fresh the maximum possibility of same within 24 hours of the injury. It is correct that the raw area as mentioned in the MLR Ex.PE can be caused by the poor hygiene and scratching of the same by the prosecutrix. Raw area can be created by friendly hand. Hymen ruptured can be caused by cycling, jumping and doing other works. Sunita was conscious throughout her examination. It is correct that as per patent had experienced sexual intercourse more than once as two fingers passed slight difficult. It is incorrect to suggest that I alongwith board members have given opinion without basis and the opinion of the board is wrong.” The statement of Dr. Ashok Kumar,