Crl.A.No.494-DB of 2005 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.494-DB of 2005 Date of decision:March 25,2008 Gopi and others ....Appellants vs. State of Haryana ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: Mr.V.B.Aggarwal and Mr.Bijender Dhankar,Advocates, for the appellants. Mr.N.D.Achint, Advocate, Amicus-curiae for the appellant. Mr.J.S.Toor, Additional Advocate General,Haryana, for the State. -- J.S.KHEHAR,J. The instant appeal has been filed against the order passed by the Additional Sessions Judge, Narnaul in Sessions Case No.14 of 2002 decided on 23.2.2005. By the impugned judgment, the accused appellants Gopi, Ajay, Rajesh and Vicky alias Vikrant have been held guilty and convicted for having committed rape upon Rajni and thereafter having committed her murder by intentionally causing her death under section 302 and section 376(2)(g) read with section 34 of the Indian Penal Code. By a separate order dated 26.2.2005, all the accused were sentenced to undergo imprisonment for life for the offence punishable under section 302 read with Crl.A.No.494-DB of 2005 2 section 34 of the Indian Penal Code. Additionally, all the accused were sentenced to undergo imprisonment for life for the offence under section 376 (2)(g) read with section 34 of the Indian Penal Code. It was also ordered that the sentences awarded to the accused/appellants would run concurrently. Appeal bearing No.494-DB of 2005 has been filed by the accused/appellants Gopi, Ajay and Rajesh and Criminal Appeal No.585-DB of 2005 has been filed by the accused/appellant Vicky through jail. As both the appeals have arisen out of one and the same order passed by the Additional Sessions Judge, we shall dispose of the same collectively through the instant order. The prosecution version of the incident is based on the complaint made by Gurbachan Singh PW6 father of Rajni to ASI Kailash Chand PW1 on 22.3.2002 at 11.30 A.M. wherein he stated that he has two daughters namely Rajni aged 14/15 years and Neetu aged 10 years. As per the complainant Gurbachan Singh PW6, his wife Nirmala died about five years ago. In his complaint Gurbachan Singh PW6 stated that on the night of 21.3.2002, he had gone to sleep after taking his meals at about 10:00 P.M. His two daughters Rajni and Neetu along with the daughter of his brother (Leela Ram PW11) Veena, along with the mother of the complainant Lakshmi, were all sleeping together in one room. It was asserted by Gurbachan Singh PW6 that his mother woke up at about 1.30 A.M. in order to urinate. Having woken up, she found that the outer door of the house was open. Through the window she saw a man going on the street. Accordingly the complainant's mother Lakshmi, woke up the complainant Gurbachan Singh PW6, as well as the complainant's brother Crl.A.No.494-DB of 2005 3 Leela Ram PW11, and informed them that the outer door of the house was open, and that, she has seen a man going on the street. Thereupon, the complainant Gurbachan Singh PW6, as well as, his brother Leela Ram PW11 went out into the street but found no one there. They accordingly returned to the house. After some time the younger daughter of the complainant Gurbachan Singh PW6 i.e. Neetu told the complainant as also his brother Leela Ram PW11, that Rajni was not lying on her bed. Finding Rajni missing, the complainant Gurbachan Singh PW6 called his relatives, and went out to search for his daughter Rajni. He claims to have searched for her in all nooks and corners of the city, including the bus stand, railway station, and the canal, but could not find her anywhere. Some student of Vidya Niketan High School told the searching party, that the body of a girl was lying in the street leading to Moti School. On receiving the aforesaid information, the complainant Gurbachan Singh PW6 along with his brother Leela Ram PW11, went to the said street and found the dead body of his daughter Rajni. The “salwar” of his daughter Rajni had been tied and wrapped around her neck. Her private parts had been eaten by some animal. On the question of suspicion on any particular individual having abducted and murdered his daughter, and thereafter having thrown her on the street is concerned, the complainant Gurbachan Singh PW6 asserted that he had no enmity with anybody, nor did he suspect anyone. On the basis of the aforesaid complaint, a First Information Report bearing No.84 was registered at Police Station Mahendergarh on 23.2.2002 at 11.40 A.M. Having recorded the statement of Gurbachan Singh PW6, ASI Kailash Chand PW1, went to the spot and found the dead body of Rajni near Vidya Niketan School, Mahendergarh. He prepared the inquest report Crl.A.No.494-DB of 2005 4 Exhibit PB, as well as, the rough site plan Exhibit PC. Thereafter, Inspector Manbir Singh PW12 took over the investigation of the case and recorded the statements of Sanjay, Veena PW7 and Leela Ram PW11. The dead body of Rajni was then sent by him for post mortem examination to the Civil Hospital, Mahendergarh. Having recorded the statements of the persons referred to above, Inspector Manbir Singh PW12 commenced to search for the accused/appellant Vicky. On 24.3.2002, he arrested Vicky and interrogated him. On his interrogation, Vicky made a disclosure statement Exhibit PX about the clothes worn by him, on the date of occurrence. Thereupon the accused/appellant Vicky led the police party to the spot, and got recovered his clothes, on the basis whereof recovery memo Exhibit PS/1 was prepared. Consequent upon the interrogation of the accused/appellant Vicky, Inspector Manbir Singh PW12 also arrested the accused/appellants Rajesh and Ajay, and interrogated them. Likewise on the basis of the disclosure statements Exhibits PT and PU, he recovered the clothes worn by them on the date of the occurrence, vide recovery memos Exhibits PT/1 and Exhibit PU/1 respectively. On the following day, i.e. on 25.3.2002, he arrested the accused/appellant Gopi Ram, and on the basis of the disclosure statement Exhibit PX made by him, Inspector Manbir Singh PW12 recovered the clothes worn by the accused/appellant Gopi on the date of the occurrence. On the recovery of the aforesaid clothes, he prepared recovery memo Ex.PX/1. On completion of the investigation, a challan was presented in the Court of Sub Divisional Magistrate,Mahendergarh, on 27.5.2002. By an order dated 12.6.2002, the Sub Divisional Judicial Magistrate, Mahendergarh, concluded that a prima facie case was made out Crl.A.No.494-DB of 2005 5 against the accused/appellants under Section 302 and 376 read with section 34 of the Indian Penal Code. Since however, the offences under Section 302 and 376 of the Indian Penal Code, are exclusively triable by the Court of Session, the Sub Divisional Judicial Magistrate, Mahendergarh, by his order dated 12.6.2002, committed the case for trial to the Court of Session. On 3.1.2003, the Additional Sessions Judge, Narnaul charged the accused/appellants Gopi Ram, Ajay, Rajesh and Vicky for having committed gang rape on Rajni under section 376(2)(g) read with section 34 of the Indian Penal Code, he also charged all the aforesaid accused for having committed the murder of Rajni in furtherance of their common intention under section 302 read with section 34 of the Indian Penal Code. The accused were then 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 is being summarized hereunder. The prosecution first of all examined ASI Kailash Chand as PW1. He confirmed the fact that he had recorded the statement of Gurbachan Singh PW6 on 22.3.2002.He further deposed that he had gone to the place of occurrence and carried out various formalities as have already been indicated hereinabove. The statement of Surender Kumar was recorded as PW2. He asserted that he was called by the Inspector posted at the Police Station City Mahendergarh, to take photographs of the dead body of a girl. He produced the photographs taken by him as Exhibits P1 to P4 and their negatives as Exhibit P5 to P8. The statement of EHC Tara Chand was recorded as PW3. He tendered into evidence his affidavit Exhibit PF. A Crl.A.No.494-DB of 2005 6 perusal of his affidavit reveals that he had taken various samples prepared and sealed at the place of occurrence on the directions of the Investigating Officer to various locations including the concerned doctors and the Forensic Science Laboratory,Madhuban. The prosecution then examined EHC Rajinder Singh as PW4. EHC Rajender Singh PW4 tendered into evidence his affidavit Exhibit PG. A perusal of his affidavit reveals that he had taken the special report of the case, and delivered the same to the Ilaqa Magistrate Mahendergarh. The statement of Constable Satbir Singh was recorded as PW5. He tendered into evidence his affidavit Exhibit PH. In the same fashion as EHC Tara Chand PW12. Constable Satbir Singh PW5 deposed that he had taken various sealed parcels prepared by the Investigating Officer and delivered them in terms of the directions issued to him. The statement of the complainant Gurbachan Singh i.e. the father of the deceased Rajni was recorded as PW6. The complainant Gurbachan Singh PW6 reiterated the entire factual position expressed by him when he had made a complaint to the police on 22.3.2002. He also identified the various wearing apparel belonging to his daughter Rajni. The prosecution then examined Veena (daughter of Leela Ram PW11 and cousin of the deceased Rajni) as PW7. Veena PW7 deposed that her father and Rajni's father are real brothers. She also stated that on the evening of 21.3.2002, she had seen the deceased Rajni and the accused/appellant Vicky talking to one another, at the back of her house. She also identified the accused/appellant Vicky present in court as the same person, with whom her cousin Rajni was talking on 21.3.2002. She also confirmed that she had even earlier seen them talking to one another, whereupon, she had advised Rajni not to develop any relationship with any boy, as the honour of the family was at Crl.A.No.494-DB of 2005 7 stake. She confirmed that she had narrated the instant factual position to the police as well. During the course of her cross examination, she stated that the accused/appellant Vicky was employed, and that, he used to work with Sanjay son of Jai Dayal. The statement of Dr.Gajraj Singh, Medical Officer, Civil Hospital, Mahendergarh was recorded as PW8. He had conducted the post mortem examination on the dead body of Rajni on 22.3.2002. The said post mortem examination had been conducted by Dr.Gajraj Singh PW8 along with Dr. Karan Singh and Dr. Sunita Sharma. The findings of the post mortem examination, and the opinion of the team of doctors who had conducted the post mortem examination, is being extracted hereunder:- “Description of legature mark: A green Salwar was tied around the neck with a knot transversely. The ligature was cut and preserved with knot. The ligature mark 2.5cm wide starting from the 2cm below the left mastoid process to the right side mastoid process which was 30cms long. The ligature mark was transverse and continuous low down below the thyroid cartilage. The base of growve was reddish and soft. On opening, fracture of larynx and trachae was present. On general physical examination: It was an averagely built dead body of a female wearing a printed Kameej with green prints with blood-stains, white sameeze, salwar was tied around the neck which had already been described and a reddish shawl. The body was having two green glass bangles in the left wrist, silver colour ear rings and golden colour nose pin. The rigor mortis was present all over the body. Eyes were closed. Mouth Crl.A.No.494-DB of 2005 8 was semi-open and the tongue was protruded out in between teeth and the face was swollen and congested. Injuries: 1. A lacerated wound of size 27cm longx22cm wide was present on the right thigh upper 1/3rd region medially. The wound starts from the anterior superior iliac spine continuous upto the pubic region and from pubic region to rectum downward. On the part of the left majora was present vaginal orifice was present. The hymen was torn. Swabs were taken from the vagina and cervi. No spouting of blood was present from the wound. No clot was present. Muscle of the thigh and bones were exposed. Walls, ribs and cartilages of the thorax, abdominal wall and peritoneum were healthy, Pericardium and the large vessels were also present. Heart contained blood in the right chamber and the left chamber were empty. Larynx and trachea, both the lungs, mouth, pharynx, oesophagus, liver,spleen, kidney were congested. Stomach contained 100 cc of semi digested food particles and fluid, small intestine contained chyme and gases. Large intestine contained faecal matter and gases. The bladder was full. The uterus was of multifarious size. Opinion: In our opinion, the cause of death in this case was asphyxia due to strangulation which was sufficient to cause death in the ordinary course of nature. The ligature mark was ante-mortem in nature. Injury No.1 was post mortem in nature. The possibility of rape could not be ruled out. However, vaginal Crl.A.No.494-DB of 2005 9 and cervical swabs and smears and pubic hairs were sent to the FSL Madhuban for chemical analysis. No other injury was detected on the body except described earlier.” As per the statement of Dr.Gajraj Singh PW8, all the accused/appellants had also been medico legally examined and were considered fit for sexual intercourse. He asserted that none of the accused/appellants had any injuries whatsoever on their person. During the course of his cross- examination, he affirmed that the deceased Rajni may or may not have been raped. The prosecution then produced SI Kurda Ram as PW9. He stated that on completion of the investigation of the case, he had prepared the final report under Section 173 of the Code of Criminal Procedure. Constable Mahesh Kumar appeared as PW10. His statement pertains to his having prepared the scaled site plan Exhibit PR on the pointing out of the complainant Gurbachan Singh PW6. The statement of Leela Ram i.e. the elder brother of the complainant Gurbachan Singh was recorded as PW11. In his deposition, he supported the statement made by his brother Gurbachan Singh PW6 on all material points. He also deposed about the fact that the accused/appellant Vicky had made an extra judicial confession to him, admitting that he along with the other co-accused were responsible for the occurrence. He also asserted that having made the aforesaid confessional statement the accused/appellants Vicky begged, to be forgiven. According to Leela Ram PW11, the accused/appellant Vicky confessed that he had taken liquor together with the other co-accused Rajesh, Ajay and Gopi, and thereafter, had gone to the house of Gurbachan Singh PW6 and had enticed Rajni to come out with him. He had taken her to the street where the office of the B.E.O. is located, and had indulged in sex with her. Crl.A.No.494-DB of 2005 10 The remaining accused namely, Rajesh, Ajay and Gopi had also reached there, whereupon, they also had sexual intercourse with Rajni against her wishes. On account of the fact that Rajni had started weeping after being sexually abused by all the accused/appellants, under the fear that Rajni would narrate the incident to the members of her family, the accused/appellants tied the”salwar” worn by Rajni around her neck and strangulated her. It is also in the statement of Leela Ram PW11 that the accused/appellant Vicky had also narrated the same facts when the police had arrested him. Leela Ram PW11 also affirmed that he was an attesting witness on the disclosure statement and recovery memos referred to hereinabove. The statement of DSP Manbir Singh was recorded as PW 12. DSP Manbir Singh PW12 while holding the rank of Inspector had conducted the investigation of the case. Details in this behalf, have already been referred to hereinabove. After recording the statement of DSP Manbir Singh PW12, the prosecution evidence was closed by order. The statements of the accused/appellants were then recorded under section 313 of the Code of Criminal Procedure. All the accused/appellants when confronted with the incriminating evidence appearing on the record, denied the same. All the accused/appellants, claimed to be innocent, and asserted, that the witnesses produced by the prosecution had deposed falsely. They also stated that they had been falsely implicated. Despite having been afforded an opportunity to lead evidence in their defence, on the statement made by the accused on 19.2.2005, their defence evidence was closed without leading any evidence. The Additional Sessions Judge, Narnaul delivered the Crl.A.No.494-DB of 2005 11 judgment in Sessions Case No.14 of 2002 on 23.2.2005. He held all the accused/appellants guilty of having committed gang rape on Rajni under Section 376(2)(g) read with section 34 of the Indian Penal Code. The accused/appellants were also held guilty, of having committed the murder of Rajni in furtherance of their common intention, and as such, for having committed the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. After having heard the accused/appellants on the question of sentence, the Additional Sessions Judge, Narnaul, vide a separate order dated 26.2.2005, sentenced all the accused/appellants to undergo imprisonment for life for the offence punishable under Section 376 (2)(g) read with section 34 of the Indian penal Code. The Court also sentenced all the accused/appellants to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. It was further ordered that the sentences awarded to the accused/appellants would run concurrently. A perusal of the evidence produced on behalf of the prosecution as well as the judgment rendered by the Additional Sessions Judge ,Narnaul, reveal that while convicting the accused/appellants, Gopi Ram, Ajay, Rajesh and Vicky, reliance was placed only on the ocular evidence of three witnesses, namely, the complainant Gurbachan Singh PW6, Veena PW7 and Leela Ram PW11. The evidence produced at the hands of the aforesaid three witnesses was in the nature of circumstantial evidence as neither of the aforesaid witnesses had actually seen the occurrence. The statement of Veena PW7 was only to the effect that her cousin i.e. the deceased Rajni had an affair with the accused/appellant Vicky, and that, she had seen them talking to one another on the preceding Crl.A.No.494-DB of 2005 12 day of the occurrence i.e. on 21.3.2002. The vital testimony on which the conviction of the accused/appellants was based was however, the statement of Leela Ram PW11 i.e. the uncle (father's elder brother) of the deceased Rajni. The testimony of Leela Ram PW 11 is to the effect that the accused/appellant Vicky had made an extra judicial confession to him, wherein, he had acknowledged having committed the rape of Rajni along with the other co-accused, and then having committed her murder. In addition to the aforesaid, reliance was also placed on the report of the Forensic Science Laboratory Madhuban which returned a positive finding that sperms were detected on the apparel of the deceased Rajni, as also, on the clothes got recovered from the accused/appellants, which they had worn on the date of the occurrence. Collectively on the basis of the aforesaid evidence, the trial court held the accused/appellants guilty of the offences for which they had been charged. Learned counsel for the appellants have raised a few contentions to contest the findings recorded by the Additional Sessions Judge, Narnaul, in the impugned judgment, as well as, to contest the veracity of the testimony of the prosecution witnesses. The submissions advanced by the learned counsel for the appellants are being dealt individually in the following paragraphs. The first contention of the learned counsel for the accused/appellants, in their effort to impugn the judgment rendered by the Additional Sessions Judge Narnaul is in respect to the statement of Veena PW7. In this behalf, it is pointed out that at the time when the statement of Veena was recorded on 28.4.2003, she was a minor, as her age at that juncture was merely 15 years. Before recording her statement, it was Crl.A.No.494-DB of 2005 13 imperative on the trial Court to have tested her demeanor and to determine whether or not she was able to make her statement voluntarily, as at that impressionable age, it is known that children can be persuaded by their parents and other close relations to record statements as per advice rendered to them. It is the vehement contention of the learned counsel for the accused/appellants that the trial Court recorded the statement of Veena PW7 without carrying out its aforesaid responsibility. We have considered the first contention of the learned counsel for the accused/appellants. During the course of hearing, on our query it was confirmed by the learned counsel for the respondents that Veena PW7 was indeed a minor on 24.3.2003, and it was the responsibility of the court to determine whether Veena-PW7 was able to give the rationale answers to the questions posed to her. It has been asserted by the learned counsel for the accused/appellant that this responsibility had not been carried out by the trial Court before her statement was recorded on 24.3.2003. In the aforesaid view of the matter, would it be improper to rely upon the statement of Veena PW7 so as to make any finding against the accused/appellants. Although there is nothing wrong factually in the submission made by the learned counsel for the accused/appellants, yet we find the instant submission cannot and need not be the basis of an outright rejection of the statement of Veena PW2. Firstly, Veena PW2 had made a lengthy statement in her examination-in-chief, thereafter, she was subjected to extensive cross-examination. She has made a statement just like any other witness of age would have made, accordingly we are of the view that Veena PW2 was mature enough to make a statement on oath in court, secondly, on the issue whether at her age she could be persuaded to depose Crl.A.No.494-DB of 2005 14 as advised by her family; it is clear that even persons of age make false statements to help one or the other party, but then, law affords the oppsite party the tool of cross-examination to test the veracity of their statement, and as such, the truth or otherwise of a statement made in Court can be brought out by effective cross-examination. Since Veena PW2 was subjected to extensive cross-examination, we are of the view that no prejudice can be deemed to have been caused to the accused/appellants by the statement of Veena PW2. Be that as it may, even if the statement of Veena PW7 is accepted on its face value, it does not reveal any material particular connected to the occurrence on 21.3.2002. The only fact stated by Veena PW7 during the course of her deposition, was that the deceased Rajni had been seen by her talking to the accused/appellant Vicky. The aforesaid statement at its face value cannot lead to any inference so far as the occurrence under reference is concerned. While rejecting the first contention of the learned counsel for the accused/appellants to the effect that the statement of Veena PW7 cannot be relied upon to record any positive finding against the accused/appellants, we also hereby conclude, that the statement made by Veena PW7 during the course of her testimony was inconsequential to the occurrence under reference. The second contention of the learned counsel for the accused/appellants is in respect of the extra judicial confession made by the accused/appellant Vicky before Leela Ram PW11. It would be pertinent to mention that Leela Ram PW11 is the elder brother of the father of the deceased Rajni. It is submitted that Leela Ram PW11could not have any sympathy with the accused/appellants on account of the accused/appellants having allegedly committed the gang rape of his niece Rajni and thereafter Crl.A.No.494-DB of 2005 15 having even murdered her, it would not be expected that Leela Ram PW11 would