CRM No. M-9445 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-9445 of 2010 Date of Decision: 30.03.2010 Bhupinder Singh and others ....Petitioners Versus Union Territory of Chandigarh ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. H.S. Bhullar, Advocate for the petitioners. ***** 1. Whether Reporters of Local Newspapers 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 ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of the charge sheet (Annexure P-1) and directing holding of separate trial against each person accused in the case FIR No.115 dated 18.05.2009 under Sections 376/120-B IPC at Police Station, Sector 26, Chandigarh. While making out a prayer that each person accused of rape should be tried separately, learned counsel for the petitioners submitted that the charging and trial of the petitioners under Section 376(2)(g) IPC is wrong. It was further submitted that it is nowhere available from the facts of the case that the accused persons who allegedly raped Kajal collected CRM No. M-9445 of 2010 2 together at one place or the rape was committed by any one of them with the aid and abatement of the other ones. The commission of individual acts of alleged rape cannot be tried as gang rape. Further, it is submitted by learned counsel for the petitioners that the joint trial of the accused will not bring the case of the prosecution under Section 376(2)(g) IPC when otherwise the circumstances do not warrant it to be a case of gang rape. Thus, it was the legal requirement in this case that each accused ought to have been directed to be tried separately and filing of one challan against all the accused by the prosecution is totally illegal and unwarranted. Reference was made by learned counsel for the petitioners to Sections 219, 220, 221 and 223 to state that one trial of the accused is not permissible and should be tried separately. Learned counsel for the petitioners has been heard. In fact, all the petitioners have been charge-sheeted and one of the charge, as per the charge-sheet, reads as under :- “ That in the year 2009 at Nari Niketan, Sector 26, Ashreya Home for mentally challenged persons, Sector 47-D and Government Institute of medically retarded children, Sector 32, Chandigarh, you all the above named accused hatched a criminal conspiracy to do an illegal act namely gang rape upon a mentally retarded a minor inmate girl namely Kajal and besides the above said agreement that you did some acts i.e. you accused Kamla being sweepress in Nari Niketan, Sector 26 used to take the above named girl to the above named accused persons and helped them in commission of above said offence and you also destroyed clothes of Kajal which she was wearing at the time of commission of above-said offence and you accused Maya being nursing attendant at Nari Niketan, Sector 26, Chandigarh used to stand at the gate of bathroom at the time of commission of offence there and you also helped the accused by destroying the CRM No. M-9445 of 2010 3 medical record register containing menstrual record of said Kajal, in pursuance of said agreement to commit the offence of gang rape and you all thereby committed an offence punishable u/s 120-B IPC and within cognizance.” The girl, in the present case, is Ms. Kajal, 16 years old, who is mentally retarded and was admitted in Nari Niketan. Subsequently, she was shifted to Ashreya Home for mentally retarded children at Chandigarh. On medical examination, she was found to be pregnant. As per the evidence collected by the Investigating Agency. Kajal identified the photographs of Bhupinder, Jamna and Bijender Singh, in addition to that of Chhotu Ram and in fact, also identified Bhagwandeen Yadav as persons who raped her. She is not in a fit state of mind to state as to whether she was gang raped or whether each incident was separate or whether each time, she was raped by more than one person. However, it is admitted that she was being raped by suspected persons over a period of time while she was in the Nari Niketan. She is not mentally sound enough to tell the time and date of the said incident. In any case, as per Section 216 of the Cr.P.C., the Court can alter or add any charge at any time before the judgment is pronounced in view of the evidence produced before it. Accordingly, there is no merit in the petition in view of the special facts and circumstances of the case. The same is, hereby, dismissed. (NIRMALJIT KAUR) 30.03.2010 JUDGE gurpreet