IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Yad Ram Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1736/2007) 2. Natthu Ram Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1708/2007) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 29-9-2007 in Sessions Case No.10/2007 passed by Shri R.C.Ramdhari, RHJS, Additional Sessions Judge Kotputli District Jaipur. Date of Judgment: February 28, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Mr. Arvind Kumar Gupta] for the appellants. Mr. Praveen Balwada ] Mr. Rohitash Chaudhary] Mr. Ashvini Sharma, Public Prosecutor for the State. Mr. Ravi Shankar Sharma, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) `P' (name with held by us) a married lady of 30 years was gang raped by Yad Ram and Natthu Ram, appellants herein, who were put to trial before learned Additional Sessions Judge Kotputli District Jaipur. Learned Judge vide judgment dated September 29, 2007, convicted and sentenced each of them under Section 376 (2) (g) IPC to undergo imprisonment for life and fine of Rs.10000/- in default to further suffer two years rigorous imprisonment. 2. The prosecution story is woven like this: P along with her small child aged four years had come to her Peehar (parental house) Nangdiwas. On December 21, 2006 she left Peehar with her nephew Ranveer (Pw.17). They came to Bus-stand Kotputli in a Jogad (local made vehicle). From Kotputli P wanted to go to her Sasural (in-laws house) Dhanwas. In the afternoon while they were waiting for the Bus to go to Dhanwas, Natthu came to them and asked as to why they were standing. Ranveer told him that he came to see off his Bhua (father's sister) who was going to her Sasural Dhanwas. Natthu then immediately said that he was also going in the jeep to Dhanwas and he would drop P there. Jeep No. RJ-14C-1085 was standing at Bus Stand and Yad Ram was sitting in the jeep. P along with her child and baggage boarded the jeep. But Natthu and Yad Ram on the pretext to leave P to Dhanwas took her to some other lonely destination in the forests of Kharkadi and committed rape on her. She somehow came back to her Peehar and informed about the incident. On December 22, 2006 her brother Ram Karan (Pw.14) submitted a written report (Ex.P-14) at Police Station Kotputli. On that report case under sections 376/511 and 379 IPC was registered and investigation commenced. Statements of witnesses were recorded, accused were arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Kotputli District Jaipur. Charge under section 376 (2) (g) IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. One witnesses in defence was examined. Learned trial Judge considered the testimony of P sufficient to prove guilt and convicted the appellants as indicated herein above. 3. In support of the appeals, learned counsel for the appellants canvassed that the prosecution version is highly improbable. The manner in which the incident is alleged to have taken place, clearly demonstrates that it was a false charge. Furthermore, the evidence of P is highly unreliable. She is a lady of easy virtue and earlier also she falsely implicated many persons and recovered lacs of rupees. From the appellants also she demanded a sum of Rs.10 lacs and the trial court should not have acted on her evidence. It is further contended that the written report which was scribed by an Advocate, case under section 376/511 IPC was registered but it was falsely magnified under section 376 IPC. Placing reliance on Radhu Vs. State of MP [JT 2007 (11) SC 91] it is urged that this court should bear in mind that false charges of rape are not uncommon these days and the instant case is founded on the false report since P wanted to blackmail the appellants. 4. Per contra learned Public Prosecutor contended that in our traditional bound country a rural woman would not tarnish her own reputation and image by voluntary to falsely claim that she had been raped and defiled. According to him the evidence of P not only shows the intention to commit the rape and attempt to do it and successful completion thereof. Therefore the evidence of P cannot be discarded. 5. The Apex Court in Pradeep Kumar v. Union Admn. (2006)10 SCC 608 observed that in order to establish the charge of gang rape following ingredients are required to be proved:- “(i) that more than one person had acted in concert with the common intention to commit rape on the victim; (ii) that more than one accused had acted in concert in commission of offence of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. Common intention would be action in concert in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the element of participation in action or by inaction when the action would be necessary. The prosecution would be required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and (iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming the group.” 6. In her deposition P stated that around 12 in the noon while she and her nephew Ranveer were standing at Kotputli Bus-stand and waiting for the Bus to go to her Sasural at village Dhanwas Nathu came over there and asked that he was also going in the jeep to Dhanwas and he would take P in the jeep and drop her at Dhanwas. Since Ranveer knew Nathu, she boarded the jeep along with her child. One other person (whom she identified in the court as Yad Ram) was also sitting in the jeep. After proceeding to some distance, the jeep took turn towards other road which was not going to Dhanwas when she objected, they told her that they would drop her at Dhanwas. After sometime when Nathu touched her breast, she raised alarm and her child began to weep. Nathu then threatened her that if she continued to make hue and cry, they would kill her child. Nathu then removed her `Lehanga' and committed rape on her. At that time Yad Ram was driving the jeep. After ravishing her Nathu started driving the jeep and Yad Ram came back. In the meanwhile she put on `Lehanga' and started seeing outside in search of person, but nobody could be seen. Yadram then lifted her `lehanga' and committed rape on her. She then saw a house and pretended to vomit. At that time she removed the curtains of the jeep and made attempt to jump from the jeep. She simultaneously raised hue and cry. People from outside rushed towards the jeep and took her back in `Jogad' to Kotputli where her brother and nephew met her. Seeing her weeping her brother asked as to what had happened but she did not tell him about the incident. After she reached her Peehar she narrated the incident to her Bhabhis. In her cross examination P explained that she did not disclose the names of the appellants to the police because her nephew knew their names. She was sitting on the rear seat of the jeep and immediately after the jeep took turn, the curtains were put on by Nathu. She was made to lie on the seat and then ravished. Semen was discharged. She handed over her `lehanga' to police. When she jumped from the jeep she did not sustain injury. 7. P denied this suggestion that her husband and brother demanded a sum of Rs.10 lacs from the appellants to enter into compromise. After jumping from the jeep she did not narrate the incident to the persons gathered there because Nathu and Yadram had threatened to kill her son. 8. During cross examination P was asked as to in what posture she was raped. She was made to lie on the bench available in the trial court to demonstrate her posture. 9. It appears to us that while the victim was cross examined, the trial court was sitting as a silent spectator and did not effectively control the recording of evidence in the court. In State of Punjab Vs. Gurmit Singh (1996)2 SCC 384, the Supreme Court indicated that while every latitude should be given to the accused to test the veracity of prosecutrix and the credibility of her version through the cross examination, the court must also ensure that cross examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected, she may be too ashamed and even nervous or confused to speak and the silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions”. (Emphasis supplied) 10. The case which had laid down guidelines with respect to the treatment of the victim's evidence in a rape in a most direct and practical way is the judgment in Bhagwada Bhoginibhai Hirjibhai Vs. State of Gujarat (1983)3 SCC 217. The Apex Court held: “(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape- recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.” The Apex Court further held: “(9)... Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile.” 11. The discrepancies and inconsistencies pointed out by learned counsel for the appellants in the testimony of P in our opinion are not fatal to the prosecution case. The reasons for not stating the details of the incident to the police are obvious. She must have felt helpless. She must be terribly worried not only about her but also that of her child. She did not even narrate the incident to her own brother. Ordinarily an Indian woman is ashamed to speak about such violatious of her person. Even if we assume that she omitted to mention it, the said omission cannot weaken her evidence. The non-committal medical opinion cannot be said to run counter to the evidence of prosecutrix. It may be that evidence as to resistance may have been overstated, a tendency which is generally noticed in such cases arising out of a fear of being misunderstood by the society. That is not to say that she was in any way a consenting party. She was the victim of brute force and the lust of the appellants. 12. Ours is not a permissive society as in some of the western and European countries therefore it must be realised that ordinarily a woman will not stake her reputation by levelling a false charge concerning her chastity. The evidence of Sarbati (Dw.1) examined by the appellants to establish that P was a woman of easy virtue and was in the habit of blackmailing persons and extorting money from them, does not inspire confidence. Sarbati admitted that she was pursuaded to give statement by the father of Nathu. She failed to name the persons with whom P ran away and extorted money. 13. It is well settled that if evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. In the case on hand we find the testimony of P trustworthy. Despite lengthy cross examination her evidence could not be shattered. Even her testimony gets corroboration from the statements of Ranveer (Pw.7) and Ramanand (Pw.1). Ranveer, nephew of P, deposed that Nathu and Yadram took P in the jeep whereas according to Ramanand he had seen P raising alarm and a jeep was standing nearby. P told Ramanand that persons were teasing her when Ramanand reached near her, they fled away in the jeep. The woman had a child and a bag with her. 14. The submission of learned counsel that unexplained delay in lodging the FIR is fatal also devoid of merit. In State of Punjab Vs. Gurmit Singh (supra) the Supreme Court indicated that in sexual offences delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is lodged. 15. We also do not find any merit in the contention that absence of identification parade created doubt in the prosecution story. The prosecutrix correctly identified the appellants in the trial court and Ranveer knew them prior to the incident. Even jeep got recovered at the instance of appellant Yad Ram and it was registered in the name of brother of Yad Ram. 16. Thus, considered on the whole, we are of the opinion that the reasoning given by learned trial Judge and the findings recorded by him on appreciation of evidence in convicting the appellants have appealed to us and we find no reason to take a view different than the one taken by the learned trial Judge. 17. That takes us to the sentence imposed on the appellants. Learned trial Judge was required to incorporate special circumstances to call for the imposition of maximum sentence of imprisonment for life. The Apex Court in Pramod Mehto Vs. State of Bihar (AIR 1989 SC 1475) held that where there are no special circumstances to call for the imposition of maximum sentence of imprisonment for life, the ends of justice would be met by awarding minimum sentence of ten years rigorous imprisonment as it is by itself a severe punishment. 18. In the ultimate analysis we hold that charge under section 376(2)(g) IPC is established against the appellants beyond reasonable doubt. It is proved that the appellants had acted in concert in commission of offence of rape with pre-arranged plan, prior meeting of mind and with element of participation in action. In furtherance of such common intention, they actually committed offence of rape on victim. But in the facts and circumstances of the case, in our opinion, ends of justice would be served in awarding minimum sentence of ten years rigorous imprisonment. 19. For these reasons, we partly allow the appeals and while maintaining conviction of appellants under section 376(2)(g) IPC we reduce their sentence from imprisonment for life to ten years rigorous imprisonment and fine of Rs.10,000/- in default to further suffer one year rigorous imprisonment. The impugned judgment of learned trial Judge stands modified as indicated above. (Guman Singh),J. (Shiv Kumar Sharma)J. arn/