1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ..... J U D G M E N T 1.Madan Lal vs. State of Rajasthan (S.B.Criminal Appeal No.855/2002) 2.Kalu Singh vs. State of Rajasthan (S.B.Criminal Appeal No.129/2006) Date of Judgment :::::: January 28, 2008 PRESENT HON'BLE MR.JUSTICE G.S.SARRAF Mr. Sumer Singh for appellants. Mr. B.N.Sandu, P.P. Reportable By the Court (oral):- The two appeals are directed against the judgment dated 27.4.2002 passed by Additional Sessions Judge No.2, Sikar in Sessions Case No.31/2001 and, therefore, they are being disposed of by this common judgment Briefly stated the facts of the case are that at 4.30 P.M. on 6.8.2001, the prosecutrix lodged a report at the police station Nechhawa, district Sikar stating therein that at about 2.30 P.M. on that day, she was grazing cattle in her field Adava. The appellants Madan 2 Lal and Kalu Singh came over there and called her in the field of millet (Bajra) and when she did not oblige both the appellants came to her field, lifted her and took her to the field of millet. The appellant Kalu Singh threw her on the ground and when she cried he pressed her throat. The appelant Madan Lal committed rape on her. She suffered injuries on her neck and hands and she was also bitten on her thigh. Hearing her cries, one Bhagirath Mal Saini came there and when he tried to save her the appellants attacked him with a knife as a result of which he sufferred injuries on the back and hands. On the basis of the written report (Ex.P-1) lodged by the prosecutrix, first information report No.87/2001 (Ex.P-2) was registered at the police station Nechhwa against the appellants Madan Lal and Kalu Singh under Sections 323, 342 and 376 IPC. The proscutrix was medically examined. Her injury report is Ex.P.10 whereas report regarding the rape is Ex.P.6. Injury report of the witness Bhagirath Mal Saini is Ex.P.11. Site plan is Ex.P.7 and the photos of the place of occurrence are Ex.P.3 to Ex.P.5. Broken bangles of the prosecutrix were seized through seizure memo Ex.P.8. The underwears of the appellants wre seized vide seizure memo Ex.P.17 and Ex.P.18. Vaginal Swab, Vaginal smear, Petticoat, Soil, Control Soil and the Underwears of the appellants were sent to the FSL for examination and according to the FSL report Ex.P.12 human semen was detected on the petticoat of the prosecutrix 3 and the underwears of the appellants. Potency reports of the appellants are Exs.P.13 and P.14. The appellant Kalu Singh was arrested on 12.8.2001 vide arrest memo Ex.P.15 and the appellant Madan lal was arrested on 20.8.2001 vide arrest memo Ex.P.16. After necessary investigation the police filed a challan against both the appellants in the court of Judicial Magistrate, Laxmangarh, district Sikar under Sections 376, 342, 324 and 323/34 IPC, who committed it to the Court of Sessions Judge, Sikar from where the case was transferred in the court of Additional District and Sessions Judge No.2, Sikar. On the basis of the material and evidence collected by the investigating agency charges were framed against the appellant Madan Lal under Sections 342, 376(2)(g), 323 and 324 IPC whereas against the appellant Kalu Singh charges were framed under Sections 342, 376(2)(g) and 323 IPC. Both the appellants denied the charges and claimed to be tried. The prosecution examined 7 witnesses. In their statements recorded under Section 313 Cr.P.C. the appellants did not deny their presence at the place of occurrence. However, the appellant Kalu Singh stated that they objected when they saw Bhagirath Mal with the prosecutrix driven by lust whereas the appellant Madan Lal stated that they gave 2-4 blows to that person. Both 4 stated that they were falsely implicated. The appellants did not lead evidence in defence. Learned trial court after hearing both the sides acquitted the appellant Madan Lal of the charge under Section 324 IPC. However, both the appellants were convicted under Sections 342, 323 and 376(2)(g) IPC and each was sentenced as under:- U/s.376(2)(g)IPC Rigorous imprisonment for ten years and a fine of Rs.10,000/- and in default of payment of the fine further six months simple imprisonment. U/s.342 IPC: Rigorous imprisonment for six months. U/s.323 IPC: Rigorous imprisonment for six months. Aggrieved by the above judgment the appellants have filed these two appeals. Heard learned counsel for the appellants and learned Public Prosecutor. Learned counsel for the appellants has argued that human semen has not been detected on the vaginal swab and vaginal smear and, therefore, there is no medical corroboration of the testimony of the prosecutrix. He has 5 further argued that in the written report Ex.P.1 lodged by the prosecutrix herself the appellant Kalu Singh is not alleged to have committed rape on her and, therefore, he cannot be found guilty of the offence of rape. He has aslo submitted that the appellant Madan Lal has already sufferred imprisonment for about six years and five months whereas the appellant Kalu Singh has remained in jail for about five years and, therefore, attracting the proviso to Section 376(2) IPC the sentence of imprisonment may be reduced to the period already undergone by the appellants. He has placed reliance on (2004) 9 SCC 699, (2006) 10 SCC 608, AIR 1989 SC 937 and 2007 WLC (Raj.) 451. Learned P.P. Has contended that the prosecution has fully proved the guilt of the appellants and no leniency should be shown by courts in the matters like this relating to atrocity on woman. In her statement, the prosecutrix PW.4 has described the acts of the appellants in detail and there is absolutely nothing in her cross-examination to raise any doubt in her testimony. She has made a clear and ephathatic statement that both the appellants committed rape on her and while one appellant was committing rape the other was holding her. The statement of the prosecutrix is fully corroborated by the statement of the eye witness Bhagirath Mal Saini PW.2. The statements of 6 both these witnesses find full support from the statement of Dr. M.Farooque PW.5. Dr. M.Farooque PW.5 while proving the injury report of the prosecutrix Ex.P.10 has deposed that the prosecutrix had injuries on her neck, left thigh and left hand including one teeth bite injury of the size 3 cm x 3 cm on the left thigh. Dr. M. Farooque has also proved the injury report (Ex.P.11) of the witness Bhagirath Mal Saini PW.2 by stating that he had five injuries on his body. There is no doubt that these injuries were inflicted by the appellants as the appellant Madan Lal himself admits in the statement recorded under Section 313 Cr.P.C. that they gave 2-4 blows to Bhagirath Mal Saini. Though as per the FSL report, human semen has not been detected on vaginal smear and vaginal swab but human semen has been found on the petticaot of the prosecutrix and the under-wears of the appellants. The argument of the learned counsel for the appellants that there is no medical corroboration is without any force. There is injury report of the prosecutrix Ex.P.10 wherefrom it is clear that she suffered injuries on her neck, left thigh and left hand including one teeth bite injury on the left thigh and also human semen has been found on the petticoat of the prosecutrix and the underwears of the appellants. The prosecution story is thus fully corroborated by the 7 medical evidence. In the instant case, the occurrence is alleged to have taken place at about 2.30 P.M and the report has been lodged soon thereafter at 4.30 P.M. on the same day at a police station which is about 11 Kms away from the place of occurrence. The prosecutrix is illiterate lady. In her cross-examination the prosecutrix has stated that the report Ex.P.1 was written by one Kailash and she told him that the appellant Kalu Singh also committed rape on her but she does not know why it is not there in the written report Ex.P.1. In view of her above explanation and the statement of the witness Bhagirath Mal Saini PW.2 wherein he has stated that when he reached the place of occurrence the appellant Kalu Singh was committing wrong act with the prosecutrix in the field of millet the offence of rape agaisnt the appellant Kalu Singh stands fully proved. Thus there is no substance in the argument of learned counsel for the appellants that the appellant Kalu Singh has not committed rape on the prosecutrix. Moreover under Section 376(2)(g) IPC read with Explanation 1 thereto, the prosecution is only expected to adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped 8 by one only and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. Section 376 IPC reads thus:- "376. Punishment for rape:- (1) *** (2)Whoever,- ******* (g) commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten yeas but which may be for life and shall also be liable to fine. Provided ..... Explanation 1:- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section." The above provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common 9 intention has committed rape. On proof of common intnetion of the group of persons which would be of more than one actual act of rape by even one individual forming group would fasten the guilt on other members of the group, although he or they have not committed rape on the victim. In the light of the principles enunciated above even on the basis of the allegation in the written report Ex.P.1 the offence under Section 376(2)(g) IPC is proved against the appellant Kalu Singh because he has clearly acted `in furtherance of the common intention of committing rape on the prosecutrix. Having considered the arguments of the learned counsel for the appellants on the merits of the case, I shall now consider the alternative prayer of the learned counsel for the appellants that the appellants may be sentenced to the period of imprisonment already undergone by them. Under the proviso to Section 376(2) IPC the court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years. Learned counsel for the appellants has not been able 10 to point out even one mitigating circumstance in this case. There is nothing on the record to bring the case of the appellants under the proviso to Section 376 (2) IPC for imposing a sentence of imprisonment for a period of less than ten years. Therefore, no interference is called for on the point of sentence also. In view of the above discussion it is clear that the prosecution has proved its case beyond reasonable doubt and there is no merit in the two appeals. Consequently, both the appeals fail and are hereby dismissed. Conviction of the appellants as also the sentence passed against them are maintained. The appellant Kalu Singh is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the trial court immediately and if he does not do so then he shall be arrested and he shall be sent to jail to serve out the remaining sentence. (G.S.SARRAF),J. Bairwa 11 S.B.Criminal Appeal No.855/2002 Madan Lal vs. State of Rajasthan January 28, 2008 HON'BLE MR.JUSTICE G.S.SARRAF Mr. Sumer Singh for appellants. Mr. B.N.Sandu, P.P. Arguments heard again today. Consequently, both the appeals fail and are hereby dismissed. Conviction of the appellants as also the sentence passed against them are maintained. (See separate detailed judgment.) By Order Court Master. 12 S.B.Criminal Appeal No.129/2006 Kalu Singh vs. State of Rajasthan January 28, 2008 HON'BLE MR.JUSTICE G.S.SARRAF Mr. Sumer Singh for appellants. Mr. B.N.Sandu, P.P. Arguments heard again today. Consequently, both the appeals fail and are hereby dismissed. Conviction of the appellants as also the sentence passed against them are maintained. The appellant Kalu Singh is on bail. His bail bonds are hereby cancelled. He is directed to surrender before the trial court immediately and if he does not do so, then he shall be arrested and he shall be sent to jail to serve out the remaining sentence. (See separate detailed original judgment in S.B. Criminal Appeal No.855/2002 Madan Lal vs. State of Rajasthan.) By Order Court Master.