IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.1931-SB of 2002 Virender alias Bittu … Appellant Versus State of Haryana … Respondent 2. Criminal Appeal No.243-SB of 2003 Naresh … Appellant Versus State of Haryana … Respondent Date of decision: 4th June, 2010 CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sartej Singh Narula, Advocate for the appellant in Criminal Appeal No. 1931-SB of 2002. and Amicus Curiae for the appellant in Criminal Appeal No. 243-SB of 2003. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. By this common judgment, Criminal Appeal No. 1931-SB of 2002 preferred by Virender alias Bittu and Criminal Appeal No. 243-SB of 2003 instituted by Naresh shall be decided together. Both the appellants were tried in a case FIR No.349 dated 06.08.2001 registered at Police Station City Jind under Sections 376(2)(g) and 506 IPC by the Court of Additional Sessions Judge, Jind, who held them guilty of an offence punishable under Sections 376(2)(g) and 506 IPC vide impugned judgment dated 8th November, 2002 and vide a Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 separate order of sentence dated 11th November, 2002, sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5000/- each under Section 376(2)(g) IPC, and in default of payment of fine they were ordered to further undergo rigorous imprisonment for two years. Both the appellants were further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- each, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 506 IPC. Both the sentences were ordered to run concurrently. On 6th August, 2001, the prosecutrix PW-6 (whose name has been withheld to protect her identity) made a statement Ex.PG to Ram Kumar SI, In-charge of Police Post, Patiala Chowk, Jind PW-14, on the basis of which formal FIR Ex.PE was registered. The statement Ex.PG, when translated into English, reads as under: “Stated that I am resident of above noted address and a student of 8th Class in Bal Vikas Model School. On 28th July, 2001 at about 12.00 noon I was returning to my house from school. When I reached in front of the house of Naresh alias Dhola son of Ram Kumar, Naresh met me outside his house and told me that today night at about 11.00 p.m. he and Virender alias Bittu son of Chailu Ram, Harijan will come to my house and on their giving signal I should come outside my house, otherwise they would eliminate me and my parents, due to which I became nervous and thought that in case I would not go, they will kill my parents. Therefore, at 11.00 p.m. on the knock at the door I went out of the house where Naresh and Virender caught hold of me and took me to a vacant plot adjacent to our house and both of them, against my wishes, committed wrong act with me. They also told me that in case I narrate this incident to anybody they will liquidate me. Due to fear I had not narrated this incident to anybody as I had a fear that they will finish me and my 2 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 family. Today, on 6th August, 2001, I had told everything to my mother Bimla and father Rameshwar, and along with them I was going to the Police Station for reporting the matter when you have met me in the way. Legal action be taken against Naresh and Virender. I have got recorded my statement. I have heard the same and the same is correct.” Thereafter, the statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 7th August, 2001, in which she gave her age as 13 years. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellants. The case was committed to the Court of Sessions along with the accused, and was entrusted to the Court of Additional Sessions Judge, Jind for trial, who on 3rd December, 2001 charged the appellants for offence punishable under Sections 376(2)(g) and 506 IPC. The accused pleaded not guilty and claimed trial. At the first instance, the evidence regarding age of the prosecutrix can be noticed. In her statement Ex.PG, the prosecutrix had given her age as 13 years. She was examined by the Court of Judicial Magistrate (1st Class), Jind and there also, she had disclosed her age as 13 ½ years. Ex.PF is the certificate issued by the Headmaster of Government Higher Secondary School, Amarheri (Jind), wherein the date of birth of the prosecutrix given is 7th March, 1989. Therefore, on the date of occurrence, the prosecutrix was aged 12 years. Certificate Ex.PF has been proved by Mahavir Singh, In-charge/ Headmaster of Government Higher Secondary School, Amarheri PW-5. 3 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 Dr. Dhan Kumar PW-1 had conducted ossification test of the prosecutrix on 6th August, 2001 and determined her age as 15 years. This witness had submitted his report Ex.PA and also proved skigrams as Ex.P1 to Ex.P3. In cross-examination, this witness stated that it is possible that the age of the girl was more than 16 years. Dr.Malti Gupta PW-2 had medico legally examined the prosecutrix on 6th August, 2001. The medico-legal examination and the observations made by this witness read as follows: “On general examination she was fully conscious, pulse was 74 per minutes, B.P. 120/80 mmhg. Gate was normal. Bilateral breast were moderately developed. There was no external mark of injury was seen anywhere on the body. Auxiliary and pubic hair were moderately developed. On local examination labia majora and minora were partially developed. There was no bleeding from vagina. Hymen was completely torn. Vagina admitted two fingers. Cervix was normal. Uterus was of nully parraous Bilateral fornix were normal. Two swabs were taken from servix and vagina. Pubic hair were taken and sent for examination. Salwar and under- wear worn by (prosecutrix) were taken and seal.” In cross-examination, this witness stated that the possibility of habitual to intercourse cannot be ruled out if the vagina of a female admits two fingers. She further stated that the possibility of rape in the present case, cannot be ruled out. Dr. Rajesh Gandhi PW-11 had medico legally examined both the accused on 6th August, 2001 and recorded the age of the accused as 18 years and opined that there was nothing to suggest that the accused were not capable of performing sexual intercourse. 4 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 The prosecutrix herself appeared as PW-6. She gave the date of occurrence as 28th July, 2001 and reiterated as to what was stated in her statement Ex.PG. She proved her statement recorded under Section 164 Cr.P.C. as Ex.PH/1. She further stated that accused Virender was not known to her earlier, however, she had seen him in the street. Whereas, accused Naresh was known to her from the childhood. She further stated that at the vacant plot, there was darkness and the accused remained with her at the place of occurrence for about an hour. She further stated that there were small bushes in the plot and the accused had spread a towel under her. Bimla, mother of the prosecutrix, appeared as PW-7 and corroborated the statement of the prosecutrix. This witness gave the age of her daughter as 13 years. In cross-examination, this witness stated that when the accused knocked at the door, she was sleeping and had not heard the noise. When she woke up, she found that the prosecutrix was not sleeping with her. She came out of the house and in the meanwhile, the prosecutrix met her in the street. This witness had not seen the accused there. She asked the prosecutrix as to why she had gone out, but the prosecutrix could not give any reply but was weeping. She further stated that after the incident the prosecutrix had stopped going to her school. She also stated that her neighbour Omi wife of Shama had asked her to enquire from the prosecutrix as to where she had gone at the night and as to what had happened with her. She further stated that she kept on enquiring from her daughter regarding the incident but as and when she enquired, the prosecutrix used to weep. In her statement to the police, she had only named Naresh and not Virender. Constable Dilbag Singh PW-3 stated that he had prepared the scaled site plan Ex.PD of the place of occurrence. Constable Ranbir 5 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 Singh PW-4 had carried the special report Ex.PE to the Illaqua Magistrate and other officers. Constable Narain Dass PW-8 and HC Mahavir Singh PW-13 had tendered their affidavits Ex.PJ and Ex.PN respectively to prove link evidence. Bajrang Lal PW-9 was present along with Ram Kumar SI PW- 14, when statement of the prosecutrix Ex.PG was recorded. He had submitted an application for medico legal examination of the prosecutrix. He was handed over one vial containing swab and clothes of the prosecutrix by the doctor, which he had handed over to Ram Kumar SI PW-14. HC Mohinder Singh PW-10 was also present when statement Ex.PG of the prosecutrix was recorded. He had brought both the accused along with the application to the Civil Hospital, Jind for their medico legal examination. Kesho Ram, Statistical Assistant of the office of Civil Surgeon, Karnal appeared as PW-12. He had brought the original birth register for the year 1989 and proved the birth entry of the prosecutrix from that register. Ram Kumar SI, Investigating Officer appeared as PW-14. He had recorded the statement Ex.PG of the prosecutrix, on the basis of which the formal FIR was registered. He had prepared rough site plan along with correct marginal notes on the demarcation of the prosecutrix. He had arrested the accused and had deposed regarding various facets of the investigation . Thereafter, the prosecution closed its evidence and statements of the accused under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. 6 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 In defence, two witnesses were examined. HC Dhir Chand DW-1 proved Ex.D1 as a copy of the DDR No.217/2001. Prem Singh DW- 2 stated that earlier the prosecutrix had lodged a false case against his son Sohan Lal, leveling allegation of rape and the matter was compromised after Rs.10,000/- were paid to her. I have heard Mr.Sartej Singh Narula, Advocate appearing for the appellants and Mr.Manish Deswal, Deputy Advocate General, Haryana for the State. Mr. Narula has submitted that reliance cannot be placed upon the testimony of the prosecutrix as she and her family members are habitual of leveling such type of allegations. Learned counsel has referred to the grounds of appeal, wherein the translation of Ex.D1 proved by HC Dhir Chand DW-1 has been reproduced. From the true translation provided by the learned counsel, Ex.D1 reads as under: “(Prosecutrix) d/o Rameshwar Dass caste Harijan, r/o Raj Nagar, Kaithal Road, Jind aged 14 years Information 21.7.2001 It is registered at 10.30 p.m. that (prosecutrix), column No.2 came present to the police post along with her father Rameshwar Dass, mother Bimla Devi and other respectable members comprising the Panchayat and stated that she had leveled allegations of being kidnapped from her house and raped by her uncle in brotherhood namely Rampal s/o Banwari Lal and Subhash s/o Krishan Lal (brother) along with an unknown person because they have a land dispute with uncle Rampal which is pending in the Court. She was neither kidnapped by anyone nor did anyone outrage her modesty or rape her and she did not want to take any action in the matter. Sd/- (prosecutrix) attested Sd/- SI, PPR Jind, 21.7.2001. On asking Rameshwar Dass s/o Santu Ram caste Harijan r/o Raj Nagar Colony, Kaithal Road, Jind and Bimla wife of Rameshwar stated that they had satisfied themselves 7 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 that their daughter (prosecutrix) had neither been kidnapped, nor raped. Due to the land dispute with Rampal etc., their daughter (prosecutrix) had made false allegations against Ram Pal, Subhash and an unknown person. She was a child and was immature, and did not know about consequences of this. LTI Rameshwar RTI Bimla. Sd/- SI PPR Jind, 21.7.2001. On asking, the present respectable including Sh.Nafe Singh s/o Shadi Ram caste Jat r/o Raj Nagar, Kaithal Road, Jind, Ranjit Singh s/o Jai Narayan caste Jat r/o Rajender Nagar, Inder Singh s/o Chanderbhan caste Jat r/o Raj Nagar Colony, Jind, Ram Parkash s/o Phool Chand caste Chamar r/o Rajender Nagar, Jind, Rampal s/o Banwari Lal caste Chamar r/o Rajender Nagar, Jind, Subhash s/o Kisan Lal caste Harijan Chamar r/o Rajender Nagar, Jind, Mukhbir s/o Shish Ram caste Chamar r/o Sheetal Puri Colony, Jind also confirmed this. Sd/- Rampal Sd/- Inder. Attested Sd/- SI, PPR, Jind. 21.7.2001 Police proceedings – the above statements were recorded and read out. On finding the statements to be correct, the persons making the statements signed underneath the same. I verified these. The statement of Rameshwar Dass and Bimla were also corroborated and from the investigation no offence for taking cognizance is made out. Rather a family dispute over land was found between Rameshwar Dass and Rampal etc. which is pending in the Court. These persons were disbursed after issuing necessary directions. The report has been registered.” After reading Ex.D1, Mr.Narula has submitted that Prem Singh DW-2 had stated in categoric terms that similar allegation was leveled against his son and the matter was compromised after receipt of Rs.10,000/-. Referring to Ex.D1 and the statement of DW-2, the credibility of prosecutrix and her mother Bimla has been assailed. It is further submitted that there is a delay of nine days in lodging the report. Once, Bimla PW-7 found that the prosecutrix was not on her bed and came in 8 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 the street and found her daughter there, it can be safely inferred that the delay of nine days was used for consultations and deliberations to coin a false version. In this context, much emphasis has been laid on the medical evidence to say that no external or internal mark of injury was found on the person of the prosecutrix. Furthermore, it is stated that the prosecutrix was habitual to sexual intercourse, as her vagina admitted two fingers. I have given my thoughtful consideration to the submissions made by counsel for the appellants. Even though it was put to the prosecutrix that she had earlier made a report against Sohan Lal and had compromised the matter later, the suggestion was emphatically denied by the prosecutrix. No such suggestion was put to Bimla PW-7, mother of the prosecutrix. Ex.D1 bears signatures of the prosecutrix and other witnesses. No handwriting expert was examined to compare the signatures. Even HC Dhir Chand DW-1 had stated that the original DDR was not recorded by him and that he had no personal knowledge of the case. Furthermore, the incident of rape is a cognizable offence on the basis of compromise. It cannot be compounded by making a writing Ex.D1. Therefore, Ex.D1 cannot be taken as a conclusive piece of evidence and a clincher, especially when Prem Singh DW-2 had stated that no FIR was lodged as the prosecutrix and her father had not reported the matter to the police. No authenticity can be attached to Ex.D1, unless and until the signatures of the prosecutrix and other witnesses on the same are proved. In case Ex.D1 is accepted, without insisting for mode of proof, it is fraught with dangerous consequences, any rich and mighty may resort to this tactics and defeat ends of justice. One who pleads innocence on the basis of a document, he must prove the same to the hilt. The above said conclusion is also arrived at, as the testimonies of the prosecutrix PW-6 and her mother Bimla PW-7 appear 9 Criminal Appeal No.1931-SB of 2002 & 243-SB of 2003 truthful. The prosecutrix was aged about 13 years at the time of occurrence. She had denied the suggestion regarding the incident mentioned in Ex.D1. Bimla, mother of the prosecutrix, who could comprehend the intricacies of such a suggestion, was purposedly not asked anything in her cross-examination regarding the genuineness of Ex.D1. In the present case, delay will pale into insignificance, as Bimla PW-7 had specifically stated that after she found her daughter at the night in the street, she had been asking the reason and the prosecutrix had not revealed the same as she kept on weeping. It is a normal reaction of a girl, who has been raped forcibly. The prosecutrix could muster courage only after nine days to narrate the incident to her mother when she was sufficiently consoled. What is more important to be noticed is that the prosecutrix was aged about 13 years as per the register of births and deaths maintained by the Health Department. The School certificate and the ossification test also determined her age to be 15 years. Therefore, the argument that the prosecutrix was a consenting party is also not available to the accused appellants. Thus, the prosecution has conclusively proved the allegation of gang rape against the accused appellants. Hence, there is no merit in both the present appeals and the same are hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE June 4, 2010 rps 10