Crl.Appeal No.2010-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:24.8.2011 (I) Crl.Appeal No.2010-SB of 2002 Raju son of Bhim ... Appellant versus State of Haryana ... Respondent (II) Crl.Appeal No.120-SB of 2003 Raja @ Raj Kumar son of Mahksi ... Appellant versus State of Haryana ... Respondent (III) Crl.Appeal No.1830-SB of 2003 Raju son of Rajender ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Ms.Deipa Singh, Advocate, for the appellant in Crl.Appeal No. 2010 of 2002 Mr.Sudhir Sharma, Advocate, Amicus Curiae, for the appellant in Crl.appeal No.120-SB of 2003 Mr.Sudhir Sharma, Advocate, for the appellant in Crl.appeal No.1830-SB of 2003 Mr.Dhruv Dayal, DAG, Haryana. ... JORA SINGH, J. Crl.Appeal Nos.2010-SB of 2002, 120-SB of 2003 and 1830- SB of 2003 were preferred by Raju son of Bhim, Raja @ Raj Kumar son of Mahksi and Raju son of Rajender, appellants, respectively, to impugn the judgment of conviction dated 8.11.2002 and order of sentence dated 11.11.2002 rendered by Additional Sessions Judge, Gurgaon, in Sessions Case No.5 dated 9.1.2001, arising out of FIR No. 256 dated 14.9.2000 under Sections 376/506/34 IPC, PS Sohna, Gurgaon. Crl.Appeal No.2010-SB of 2002 2 By the said judgment, they were convicted under Section 376 (2)(g) IPC. All the appellants were sentenced to undergo RI for 10 years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for 2 months each. Prosecution story, in brief, is that prosecutrix, aged about 15 years, student of 10th class, is the daughter of PW9 Balbir Singh, who is resident of Village Akera. In the month of September, 2000, her parental family was residing at the tubewell of Gopi Ram situated in the area of Sohna Dhani Mour. Her father was cultivating the land of Gopi Ram. On 14.9.2000 at about 1.00 PM, she along with her brother, aged about one year, in her lap, was going to her fields situated in the area of Village Dhunela with the meal of her father. When she was near the fields of Ballu, then appellants, who were previously known to her, came from the back side on a bicycle. They had gone ahead and after covering a distance of 2 killas, then came back. Her brother, aged about one year, was removed from her lap and was thrown on the ground. She was caught hold by Raja @ Raj Kumar and Raju son of Bhim and was taken inside the fields of Ballu, where bajra crop was standing. Raju son of Rajender stayed outside the crop to watch arrival of any person. Raja @ Raj Kumar broke the string of her salwar and removed her underwear. She was raped against her wish. At that time, Raju son of Bhim had caught hold her from her hands. After that, Raju son of Bhim had raped her and Raja @ Raj Kumar had caught hold her from her hands. Raja was armed with a knife and threatened to eliminate if she raised noise. But she raised raula attracting her father Balbir Singh and one Mohan Singh son of Bhim Singh Saini. On seeing her father and Mohan Singh, appellants tried to flee from the spot but Raju son Crl.Appeal No.2010-SB of 2002 3 of Bhim was apprehended by her father and Mohan Singh. In the scuffle, Raju son of Bhim received minor injuries on his hands and feet. Prosecutrix along with her father Balbir Singh and Mohan Singh with appellant Raju son of Bhim was going towards PS Sohna to lodge report but near Petrol Pump of Raghunandan, police party headed by ASI Om Parkash had met them. Statement of the prosecutrix (Ex.PB) was recorded by ASI Om Parkash at 9.30 PM on 14.9.2000. Statement was read over and explained to the prosecutrix, who signed the same in token of its correctness. After making endorsement (Ex.PB/1), statement was sent to the police station, on the basis of which, formal FIR (Ex.PB/2) was recorded by ASI Surender Singh. Special report was delivered to the Ilaqa Magistrate at 2.40 AM on 15.9.2000. Prosecutrix was taken to Civil Hospital, Sohna, where she was medico legally examined by PW7 Dr.Renu Sharma. Clothes worn by the prosecutrix and her vaginal swabs were made into separate sealed parcels. Sealed parcels were taken into police possession vide separate memo attested by the witnesses. Raju son of Bhim was also produced before PW6 Dr.Prem Kumar and was medico legally examined. Some injuries were noticed on his person. Underwear of Raju son of Bhim was also made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Investigating Officer along with the prosecutrix, PW9 Balbir Singh and Mohan Singh had gone to the spot. Rough site plan with its correct marginal notes was prepared at the instance of the prosecutrix. Photographer was arranged and photographs of place of occurrence were Crl.Appeal No.2010-SB of 2002 4 got clicked. Raja son of Mahksi was arrested on 23.9.2000. Knife was recovered from him. Knife was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Rough site plan of the place from where knife was recovered was prepared. Raja son of Mahksi was also produced before the doctor and was medico legally examined. Underwear of Raja was also made into a sealed parcel and was taken into police possession vide separate memo attested by the witnesses. Raju son of Rajender was arrested on 5.12.2000. During investigation, prosecutrix was also produced before PW1 Dr.B.B.Aggarwal for ossification test. After completion of investigation, challan was presented in Court. Trial Court opined that a prima facie case is made out to frame charge under Section 376(2)(g) IPC. Appellants were charged accordingly, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr.B.B.Aggarwal stated that on 18.9.2000, prosecutrix was produced before him for ossification test. As per report (Ex.PA), age of the prosecutrix was between 16-1/2 to 17 years. Possibility of variation of two years on either side. PW2 ASI Surender Singh in view of the statement (Ex.PB) had recorded formal FIR (Ex.PB/2) at 10.00 PM on 14.9.2000. PW3 Sarwan Kumar, Draftsman, prepared scaled site plan (Ex.PC). Crl.Appeal No.2010-SB of 2002 5 PW4 Constable Kuldeep Singh is the witness of recovery memo (Ex.PB) vide which, underwear of Raja @ Raj Kumar was taken into police possession after the same was made into a sealed parcel by PW6 Dr. Prem Kumar. PW5 MHC Rameshwar Dayal stated that case property of this case was deposited with him. Sealed parcels were handed over to Constable Satpal for depositing in FSL, Madhuban. PW6 Dr.Prem Kumar on 15.9.2000 at 9.45 AM had medico legally examined Raju son of Bhim and on 23.9.2000 at 3.00 PM, Raja @ Raj Kumar. Both were found fit to perform sexual intercourse. PW7 Dr.Renu Sharma on 14.9.2000 at 10.00 PM had medico legally examined the prosecutrix, aged about 16 years. A bruise of 2 cm x 1 cm was noticed on the left cheek. PW8 is the prosecutrix. She has reiterated her stand before the police as per her statement (Ex.PB). PW9 Balbir Singh is the father of the prosecutrix and stated that on hearing raula, he had gone to the spot. Mohan Singh was also present there. Raju son of Bhim was apprehended on the spot. Other appellants had fled away from the spot on seeing them. He along with the prosecutrix and Mohan Singh with appellant Raju son of Bhim had gone to lodge report. Statement of his daughter (Ex.PB) was recorded. Prosecutrix was produced before the doctor and was medico legally examined. PW10 Constable Satpal tendered his affidavit (Ex.PK). PW11 Ummardin, Photographer, stated that as per request of the police, he had gone to the spot and had taken the photographs of the place of occurrence. Crl.Appeal No.2010-SB of 2002 6 PW12 ASI Om Parkash is the Investigating Officer. After close of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. DW1 Mohan Singh stated that on 14.9.2000 at about 1.00 PM, he was going from his village towards Village Sohna Dhani on his motorcycle, then heard noise `Bachao-Bachao' coming from the fields of bajra crop. Motorcycle was stopped. Then noticed Balbir Singh while running towards bajra crop. Balbir Singh was ploughing land near the bajra crop. Prosecutrix, daughter of Balbir Singh, was found present near the field of bajra crop. She was weeping. Raju son of Bhim was also seen while running from the said field. Raju was caught hold by him and Balbir Singh and was brought before the prosecutrix. Prosecutrix stated that she was raped by Raju son of Bhim and Raja @ Raj Kumar. Raju son of Rajender was not named by her. DW2 Poonam daughter of Rajender stated that on 14.9.2000 at 9.00 AM, she along with her brother Raju had gone from her parental village to her in-laws village, namely, Bhango. Her brother stayed at her in-laws house upto 4.30 PM. DW3 Sarla and DW4 Rajender are mother and father of DW2 Poonam. They have also supported the version of DW2 Poonam by saying that their son had gone to Village Bhango with Poonam on 14.9.2000 at 9.00 AM and stayed there upto 4.00-5.00 PM. DW5 Jai Kishan, DW6 Pehlad and DW7 Israil, all residents of Village Bhango, stated that Raju son of Rajender with his sister Poonam came to village Bhango on 14.9.2000 at about 11.00 AM or 12.00 noon and Crl.Appeal No.2010-SB of 2002 7 stayed there upto 5.00 PM. DW8 Bashiri r/o Village Sohna stated that on 14.9.2000 at about 9.00 AM, Raju son of Rajender and his sister Poonam were seen while going towards Village Bhango. DW9 Raju son of Rajender appeared as his own witness and stated that on the day of occurrence, he along with his sister Poonam had gone to Village Bhango at 9.00 AM. He stayed in Village Bhango upto 5.00 PM. Case is false. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defnece counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned defence counsel for Raju son of Rajender, appellant, argued that on the day of occurrence, Raju son of Rajender along with his sister Poonam had gone to Village Bhnago at about 9.00 AM. Appellant stayed in the in-laws house of Poonam at Village Bhango upto 4.00-5.00 PM. Appellant was not present at the time of occurrence. According to the story, Raju son of Rajender had stayed outside bajra crop to watch the arrival of any person. He had not raped the prosecutrix. He was simply named being friend of Raju son of Bhim and Raja @ Raj Kumar. Learned defence counsel for Raju son of Bhim and Raja @ Raj Kumar, appellants, argued that immediately after the occurrence, prosecutrix was produced before the doctor for medico legal examination. Clothes worn by the prosecutrix at the time of commission of crime were taken into police possession but report of the laboratory is to the effect that Crl.Appeal No.2010-SB of 2002 8 no semen was detected. In case, appellants had raped the prosecutrix, then semen should have been detected on the clothes worn by the prosecutrix. Occurrence is dated 14.9.2000. Raja @ Raj Kumar was arrested on 23.9.2000, whereas Raju son of Rajender was arrested on 5.12.2000. Earlier to the occurrence, appellants were not known to the prosecutrix. Test identification parade was not arranged. Prosecutrix as PW8 admitted that only once she had seen the appellants. Earlier to the occurrence, they were not known to her. Names of the parents of the appellants were also not known to her. Raju son of Bhim had disclosed the names of Raja @ Raj Kumar and Raju son of Rajender. In the absence of test identification parade, identity of the appellants is doubtful. After recording the statement of the prosecutrix, police party came to the spot. Rough site plan with correct marginal notes was prepared. Photographs of the place of occurrence were also got clicked but knife was not recovered from the spot. According to the story, knife was recovered after 9 days. If one of the appellants was armed with a knife and the appellants had threatened to eliminate the prosecutrix if raised an alarm, then the appellants should have caused injuries to the prosecutrix because she had raised an alarm attracting her father and one Mohan Singh. Story regarding knife is not genuine one. Argued that Raju son of Bhim was arrested at the spot as per story but regarding age of the prosecutrix, no documentary proof on the file. As per ossification test, age of the prosecutrix was between 16-1/2 to 17 years. Possibility of variation of two years on either side. Prosecutrix was the student of 10th class but no explanation why school leaving certificate or birth was not produced. In the absence of documentary proof regarding age, in view of ossification test report (Ex.PA), prosecutrix was more than Crl.Appeal No.2010-SB of 2002 9 16 years of age. According to MLR, no injury was noticed on the private parts or back of the prosecutrix. Only one injury was noticed on the cheek and possibility of that injury being self suffered or self inflicted cannot be ruled out in view of report of PW7 Dr.Renu Sharma. If two appellants had raped the prosecutrix against her wish in the fields of bajra crop, then injuries on the private parts or the back of the prosecutrix were expected. In the absence of injuries on the private parts or the back of the prosecutrix, when no documentary proof is on the file regarding age, then story shows that prosecutrix was the consenting party. When Mohan Singh and Balbir Singh had seen the prosecutrix in the company of Raju son of Bhim, then false case was got registered. In her statement (Ex.PB), prosecutrix has not stated that her sister was also with her, whereas in Court, prosecutrix stated that her sister Savita was also with her. Savita was sent with the meal of her father. In fact, prosecutrix had summoned Raju son of Bhim in the fields of Ballu and when she was seen with Raju son of Bhim, then Balbir Singh or Mohan Singh had no alternative except to produce the prosecutrix before the police to implicate the appellants. Lastly argued that if the Court is of the view that crime was committed by the appellants, then lenient view may be taken because appellants have already undergone more than three years as per custody certificates. Learned State counsel argued that prosecutrix was not more than 16 years of age. PW1 Dr. B.B.Aggarwal has conducted ossification test. Ex.PA is the report and as per report, age of the prosecutrix was between 16-1/2 to 17 years. But there is a possibility of variation of two years on either side. As per doctor, prosecutrix can be less than 16 years or more than 17 years. Before the police, prosecutrix stated that she is about Crl.Appeal No.2010-SB of 2002 10 15 years' old and the student of 10th class. No suggestion was given to the prosecutrix that her age was more than 16 years. Case of Raju son of Rajender is that he was not present at the time of occurrence because he had gone to Village Bhango with DW2 Poonam. Defence version of other two appellants is that prosecutrix was the consenting party but no suggestion to the prosecutrix that she was the consenting party because she had affair with Raju son of Bhim and Raja @ Raj Kumar. One of the appellants, namely, Raju son of Bhim was arrested at the spot. Mohan Singh, DW1, stated that when he was near the place of occurrence on his motorcycle, then heard raula `Bachao-Bachao'. On hearing raula, he had gone to the spot and had seen Balbir Singh while running towards bajra crop. Prosecutrix was also found present there and was weeping. Immediately on enquiry, prosecutrix stated that she was raped by Raju son of Bhim and Raja @ Raj Kumar. In Ex.PB, prosecutrix did not state that she was also raped by Raju son of Rajender. As per statement (Ex.PB), allegation of the prosecutrix is that Raju son of Rajender stayed outside the bajra crop, whereas other two appellants had taken the prosecutrix inside the bajra crop. Raju son of Rajender used to visit the akhara (wrestling ring) of DW1 Mohan Singh. So, due to this reason, Mohan Singh appeared as DW1. Raju son of Rajender when examined under Section 313 Cr.P.C., then did not state that on the day of occurrence, at 9.00 AM he had gone to Village Bhango and remained there upto 4.00-5.00 PM and was not present at the place of occurrence. Suggestions were given to the prosecutrix and Balbir Singh that prosecutrix had invited the appellants to the place of occurrence. One of the appellants, namely, Raju son of Bhim, was arrested on the spot and on the day of occurrence, he was produced before the doctor. Underwear of Crl.Appeal No.2010-SB of 2002 11 Raju son of Bhim was sent to the laboratory and as per report of the laboratory, underwear was found to contain semen. In case as per report of the laboratory, semen was not found on the clothes worn by the prosecutrix or vaginal swabs, then on this short ground, story is not to be ignored because mere penetration is sufficient to convict the appellants under Section 376 IPC. Appellants and the prosecutrix are from the same village. For about 20-30 minutes, appellants stayed with the prosecutrix. Occurrence was during day time. So, there was no difficulty to identify the appellants. Prosecutrix is the daughter of PW9 Balbir Singh. Balbir Singh with his family was staying at the tubewell of Gopi Ram situated in the area of Sohna Dhani Mour. Appellants are also from Village Sohna. According to the story, on the day of occurrence, i.e., 14.9.2000, at about 1.00 PM, prosecutrix along with her brother, aged about one year, was going towards her fields situated in the area of Village Dhunela with meal of her father. When the prosecutrix was near the fields of Ballu, then appellants came on a bicycle. After crossing the prosecutrix, appellants had gone ahead but again came back after covering a distance of about 2 killas. Minor brother in the lap of the prosecutrix was removed by one of the appellants. One of the appellants, namely, Raju son of Rajender stayed outside the field of bajra crop. Other two appellants had raped the prosecutrix one after the other. One of the appellants Raja @ Raj Kumar was armed with a knife and threatened to eliminate the prosecutrix if she raised an alarm, but she has raised raula attracting her father Balbir Singh and one Mohan Singh, who was going from Village Sohna towards Village Sohna Dhani on his motorcycle. On seeing Balbir Singh and Mohan Singh, Crl.Appeal No.2010-SB of 2002 12 Raja @ Raj Kumar and Raju son of Rajender had fled away from the spot. Raju son of Bhim was caught hold by Balbir Singh and Mohan Singh. Mohan Singh was the prosecution witness and was given up as won over but as DW1 supported the prosecution story by saying that on 14.9.2000, he was going towards Village Sohna Dhani on his motorcycle. When he was near the fields of Ballu, then heard raula. Balbir Singh was seen while running towards bajra crop. He was ploughing land near that field. Prosecutrix was also seen present there. At that time, she was weeping. Raju son of Bhim was seen while running from the spot and was caught hold by them. He was brought to the place where prosecutrix was present. On enquiry, prosecutrix told them that she was raped by Raju son of Bhim and Raja @ Raj Kumar. So, one thing is clear from the statement of DW1 Mohan Singh that prosecutrix was present at the place of occurrence. Her father Balbir Singh was also present there. One of the appellants namely Raju son of Bhim was seen while fleeing from there and was apprehended. Immediately on enquiry, prosecutrix replied that she was raped by two of the appellants. Now the dispute is whether Raju son of Rajender was present at the spot or not. Mohan Singh in cross-examination admitted that Raju son of Rajender used to visit his akhara (wrestling ring). Police came at the spot on the same day and his statement was recorded but stated that police did not record his statement correctly. Witness was confronted with his statement (Ex.PL). In Ex.PL, Mohan Singh stated that Raju son of Rajender was also seen while fleeing from the place of occurrence. When Mohan Singh was confronted with his statement (Ex.PL), then his reply was that he stated before the police that Raja son of Mahksi had fled away from the spot. Till today, no complaint to any authority that Crl.Appeal No.2010-SB of 2002 13 his statement (Ex.PL) was wrongly recorded. If Raju son of Rajender was not seen while fleeing from the spot by DW1 Mohan Singh and statement of Mohan Singh (Ex.PL) was not correctly recorded, then Mohan Singh should have sent complainants to different authorities that his statement (Ex.PL) was not correctly recorded regarding presence of Raju son of Rajender. Mohan Singh was given up as unnecessary and to save Raju son of Rajender, he appeared as DW1. He has supported the prosecution story except by saying that Raju son of Rajender was not seen at the time of occurrence. DW2 Poonam is the sister, whereas DW3 Sarla and DW4 Rajender are the mother and father of Raju. They have stated that on the day of occurrence, at 9.00 AM, Raju along with Poonam had gone to Village Bhango and remained there upto 4.00-5.00 PM. DW5 Jai Kishan, DW6 Pehlad and DW7 Israil, all residents of Village Bhango, stated that on 14.9.2000, Raju son of Rajender along with Poonam came to Village Bhango and stayed there upto 4.00-5.00 PM. DW8 Bashiri r/o Village Sohna stated that she had seen Poonam and Raju son of Rajender while going towards Village Bhango. Raju son of Rajender, appellant, appeared as his own witness as DW9 and stated that he along with his sister Poonam had gone to Village Bhango on 14.9.2000 at 9.00 AM and remained there upto 5.00 PM, then came back. But plea of alibi inspires no confidence because no suggestion to the prosecutrix or Balbir Singh that on the day of occurrence, Raju son of Rajender had gone to Village Bhango. Raju son of Rajender when examined under Section 313 Cr.P.C., then stated that case is false but did not state a word that on Crl.Appeal No.2010-SB of 2002 14 14.9.2000 at 9.00 AM, he along with his sister Poonam had gone to Village Bhango and came back at 5.00 PM. In view of the statement (Ex.PB) dated 14.9.2000 of the prosecutrix, case was registered against the appellants, but till today, no complaint in writing to any authority that Raju son of Rajinder on the day of occurrence at 9.00 AM had gone to Village Bhango and stayed there upto 4.00-5.00 PM. Appearance of sister, father, mother of Raju son of Rajinder, appellant, and few other persons from Village Bhango shows that plea of alibi is without any evidentiary value. In case on 14.9.2000, Raju son of Rajender had gone to Village Bhango, then suggestion should have been given to the witnesses that he was not present at the spot. When examined under Section 313 Cr.P.C., then he should have stated that