IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.353 of 2005 Decided on : June 23, 2008 Arjun Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Ashwani Sharma, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge( Oral ) Appellant Arjun Kumar has preferred this appeal against the judgment of Sessions Court, whereby he and one Suman Kumar, who has not filed any appeal, have been convicted for offences, punishable under Sections 376(2)(g), 342 and 506 IPC and sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.25,000/-, in respect of offence under Section 376(2)(g) IPC; to undergo simple imprisonment for six months and pay a fine of Rs.1,000/-, in respect of offence under Section 342 IPC; and to undergo simple imprisonment for six months and pay a fine of Rs.1,000/-, in respect of offence under Section 506 IPC. His grievance is that the evidence on record does not prove Whether reporters of the local papers may be allowed to see the judgment? …2… the charge. His counsel submits that even if the prosecution version be accepted as it is, it does not prove the charge of gang rape. It is also his submission that the prosecutrix being more than 16 years of age and the evidence on record indicating that no resistance was put up, the possibility of her having consented to the alleged acts of sexual intercourse, cannot be ruled out. 2. First, we may notice the prosecution version, as it emerges from the evidence led during trial. Prosecutrix, examined as PW-16, was resident of Delhi. Her date of birth is 21st February, 1986. She has six sisters and one brother. One of her sisters, named Sushma, who is senior to her in age, visited Kangra temple in the company of her husband and on return told her sisters that whosoever visited the said temple and made some wish, the deity of the temple fulfilled that wish. Father of the prosecutrix PW-17 Nath Ram was a low paid employee in a bank. It appears that the prosecutrix wanted the financial condition of her father’s family to improve and so on being told by her sister Sushma about the fulfillment of the wishes on visit to Kangra temple, she without informing her parents thought of going to that temple. She boarded a night bus at Delhi on 1st July, 2002 and reached Kangra the next morning. She hired taxi of the appellant, bearing registration number HP-02-4410, for going to the temple. She went to the temple. Appellant followed her. The prosecutrix asked him to take her back to the bus stand, as she wanted to return to Delhi. Appellant offered her lift in his …3… aforesaid taxi and instead of taking her to the bus stand at Kangra took her to a hotel known as Happy Restaurant. There he booked a room and took the prosecutrix in that room. He kept the prosecutrix confined in that room till 8 or 9 in the night and during this period he committed sexual intercourse with her, repeatedly, without her consent and against her will. When she tried to raise alarm, he threatened that she will be done to death. 3. Around 9.00 in the night, appellant brought out the prosecutrix from the room of the said Happy Restaurant and handed her over to his accomplice Suman Kumar, who carried her in his own taxi (Maruti Van bearing registration number HP-01-1479) to a guest house known as Walia Guest House. There he hired a room. He too committed sexual intercourse with her several times in the course of the night. Next day, he took the prosecutrix in his aforesaid taxi towards Chamunda temple and kept driving the taxi for quite some time and finally took her to a Guest House named Nivia Guest House. The prosecutrix was kept in that guest house for the night and was again subjected to sexual intercourse repeatedly by said Suman Kumar. On 4th July, Suman Kumar made her to board a bus alongwith him and travelled in her company upto a place called Lanj, where the prosecutrix was asked to deboard the bus and he (Suman Kumar) himself proceeded further in that bus. The prosecutrix, who was looking scared and frightened, took off her pair of Chappals and started running towards the bazaar. She was spotted by …4… PW-3 Tarlok Chand and PW-4 Kapur Singh, who have their shops in Lanj bazaar adjacent to each other. They asked the prosecutrix as to who she was, where she had come from and why was she looking frightened and running away. She was taken to the shop of PW-3 Tarlok Chand. She told PW-3 Tarlok Chand and PW-4 Kapur Singh that she had been in the captivity of two taxi drivers, who kept her in the abovesaid three guest houses and subjected her to rape repeatedly on 2nd and 3rd July, 2002. She disclosed the taxi numbers to the abovenamed two witnesses. She also gave the telephone number of her father to those witnesses. 4. PW-4 Kapur Singh made a call to the father of the prosecutrix. Police was also informed. Prosecutrix made statement Ex. PW-16/A to PW-18 SI Sureshtha Thakur, on the basis of which case was formally registered vide FIR Ex. PW- 12/A. In the said statement, Ex. PW-16/A, the prosecutrix disclosed not only the taxi numbers, but also the names of the appellant and his accomplice Suman Kumar, because on account of her having been in their captivity for two days, she came to know about their names. She told the police that she would not get herself medically examined until her father came from Delhi. 5. Next day, her father PW-17 Nath Ram reached Kangra. Prosecutrix was medically examined by PW-2 Dr. Rama Thakur. Medico legal examination of the prosecutrix showed that prior to the alleged acts of rape committed by the appellant and his abovenamed accomplice, she was probably …5… virgin, because her hymen was found to be recently torn and it was found bleeding on touch. 6. Appellant and his accomplice were arrested and were got medically examined. Both of them were found to be capable of performing intercourse. Shirt, Salwar and underwear, which the prosecutrix was wearing at the time of the commission of the offence, were taken into possession. Bed sheets, which were spread on the beds in the aforesaid three guest houses, on which the prosecutrix was allegedly raped, were also taken into possession. The aforesaid clothes and the bed sheets were sent to the Chemical Examiner, who, though did not find any semen thereon, did find stains of human blood thereon. 7. Trial Court charged the appellant and his accomplice with offences of gang rape, unlawful confinement and criminal intimidation and on conclusion of the trial found them guilty of all the aforesaid offences and convicted and sentenced them, as aforesaid. 8. Learned counsel representing the appellant has made the following submissions: i) Appellant and his accomplice did not commit the alleged act of rape in a group and, therefore, this is not a case of gang rape. ii) Evidence on record shows that the prosecutrix was more than 16 years of age and, hence, capable of consenting for the sexual intercourse and that from her conduct and also from her medico legal examination as also the medical legal examination of the …6… appellant and his accomplice, it can be made out that she had consented to sexual intercourse. iii) PW-4 Kapur Singh has made improvements, which make his testimony unreliable. 9. We have gone through the evidence on record and considered the aforesaid three submissions, in the light of the prosecution evidence and the statement of the appellant, under Section 313 of the Code of Criminal Procedure. 10. According to explanation (1) to Section 376(2)(g) IPC, offence of rape becomes offence of gang rape, if rape is committed by one or more persons, in a group, in furtherance of their common intention. As per this explanation, it is not necessary that rape should be committed by two or more persons. Commission of rape, even by one person can amount to gang rape, provided he is a member of a group. What is required for constituting the offence of gang rape is that there should be a group of two or more persons at the time of the commission of act of rape by one or more of the persons constituting the group and the act should be in furtherance of the common intention of all the members of that group. 11. In the present case the acts of rape by the appellant and his accomplice Suman Kumar were not committed as members of a group. First, the appellant took the prosecutrix to a guest house known as Happy Restaurant and there he committed rape on her. It was much after his …7… committing the acts of sexual intercourse that his accomplice Suman Kumar reached outside the said guest house and the appellant handed the prosecutrix over to him. The appellant and his accomplice did not form a group, at the time when the appellant committed act of rape. Similarly, they were also not in a group when his accomplice Suman Kumar is alleged to have committed the act of rape. So, we accept the submission of the learned counsel that this is not a case of gang rape. 12. During the course of trial, appellant took the plea of total denial. He did not throw any suggestion either to the prosecutrix or any other witness examined by the prosecution that this was a case of consensual sexual intercourse. He denied having taken the prosecutrix to any guest house and having committed sexual intercourse with her. He even denied having carried the prosecutrix in his taxi to the temple. Under these circumstances, merely for the reason that the prosecutrix was past sixteen years of age and there were no injury marks on her person or that she did not put up any resistance or did not struggle would not mean that she was a consenting party to the sexual intercourse by the appellant. It has come in the evidence, per testimony of PW-4 Kapur Singh, that when the prosecutrix was seen in the bazaar of Lanj by him and PW-3 Tarlok Chand she was looking frightened and had been running with her pair of Chappals in her hands. The fact clearly suggests that the prosecutrix was subjected to sexual intercourse by being put in fear, as testified by her. …8… 13. Learned counsel has argued that the testimony of PW-4 Kapur Singh about the prosecutrix looking frightened or running away with pair of Chappals, in her hands, is an improvement over his statement, under Section 161 of the Code of Criminal Procedure, with which he was duly confronted. The statement is Ex. PW-18/E. We are unable to accept this submission for the reason that statement Ex. PW- 18/E of this witness is a sketchy one, which suggests that the police did not record the statement of the witness in detail. Secondly, the fact stated by the witness cannot be said to be improvement in the strictest sense of the word, because the witness was not knowing the accused, even when in the witness box nor did he say anything directly implicating the appellant or his accomplice in the commission of the crime. His alleged improvement is only with regard to the conduct of the prosecutrix, which he may not even be knowing would be a relevant fact for establishing the charge against the appellant and his accomplice. 14. Learned counsel further stated that PW-4 Kapur Singh testified that he had been shown tooth-bite marks on her breasts by the prosecutrix in the presence of the police, but PW-2 Dr. Rama Thakur, who conducted the medico legal examination of the prosecutrix, did not find any such mark. The witness claims to have seen the marks on 4th July, 2002. Prosecutrix was examined by PW-2 Dr. Rama Thakur on 5th. May be that during this intervening period the tooth-bite marks, which the prosecutrix showed to the witness and the …9… police people, disappeared. Learned counsel further submits that no police official stated that any tooth-bite marks were seen on the breasts of the prosecutrix. Merely for the omission on the part of the police official to testify the fact, PW-4 Kapur Singh’s testimony to the aforesaid effect can neither be disbelieved nor branded as improvement over his statement to the police. 15. Another submission made on behalf of the appellant is that no test identification parade was got conducted by the police for the identification of the appellant and his accomplice by the prosecutrix, during investigation. The submission is fallacious. Appellant had been in the company of the prosecutrix on 2nd July, 2002 from morning till late in the night and had had sexual intercourse with her four times. He also disclosed his name as Arjun Singh to the prosecutrix, when accompanying her to the temple. The prosecutrix also noticed number of the taxi of the appellant. She disclosed the name of the appellant and the number of the taxi to the police, while lodging the FIR. Under these circumstances, where was the need for an identification test. 16. Last submission made on behalf of the appellant is that the sentence awarded by the trial Court is too harsh. It is submitted that since it has been held by this Court, hereinabove, that this is not a case of gang rape, the sentence of ten years rigorous imprisonment, which is the minimum prescribed sentence for gang rape, should be reduced. No doubt, we have held hereinabove that this is not a case of …10… gang rape but a case of rape, punishable under sub-section(1) of Section 376 IPC, but the manner, in which the appellant has conducted himself, does not call for reduction of sentence awarded by the trial Court. The appellant finding a helpless girl all alone, first himself committed rape on her and then handed her over to his accomplice Suman Kumar, who kept her with him for two nights and repeatedly subjected her to sexual intercourse. This depravity, on the part of the appellant, does not entitle him to any sympathy or leniency in the matter of award of punishment. 17. As a result of the above discussion, we dismiss the appeal with this modification in the judgment of the trial Court that the appellant is guilty, not of the offence of gang rape, punishable under Section 376(2)(g) IPC, as held by the trial Court, but of the offence of rape, punishable under Section 376(1) IPC. Rest of the judgment of the trial Court, including the sentence for rape, is upheld. Appeal stands disposed of. ( Surjit Singh ), J June 23, 2008(sd) ( Surinder Singh ), J