IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1238-SB of 2005 Date of decision: 24th February, 2010 Sanjay and another … Appellants Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vishal Taneja, Advocate with Mr. Rahul Vats, Advocate for appellant No.1. Mr. S.S. Siao, Advocate for appellant No.2. Ms. Hemlata Balhara, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Sanjay son of Inder Kumar and Rajesh son of Chander Pal. They were named as accused in case FIR No.392 dated 13.07.2003 registered at Police Station Kotwali under Sections 363, 366, 376(2)(g) IPC. The Court of Additional Sessions Judge, Faridabad vide impugned judgment dated 16th July, 2005 found both the appellants guilty of offence under Sections 363, 366, 376(2)(g) IPC. A separate order of sentence was passed on 18th July, 2005 and both the appellants were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- each under Section 363 IPC, in default of payment of fine to further undergo rigorous imprisonment for six months. They were further sentenced under Section 366 IPC to undergo rigorous imprisonment for five years and to pay a fine Criminal Appeal No.1238-SB of 2005 of Rs.1000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months. Both the appellants were also sentenced under Section 376(2)(g) IPC to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months. Substantive sentences awarded upon the appellants were ordered to run concurrently. Present appeal is directed against the order of conviction and sentence. Name of the prosecutrix has been withheld to protect her identity. Prosecutrix lodged a report Ex.PJ with the In-charge, Police Post No.2, Kotwali, in which she stated that she was working as a domestic help in various Kothis situated in Town No.2, NIT Faridabad. On 10th July, 2003 at about 4.00 p.m. when she was returning to her house after finishing her work, then near the chowk of NIT 1 and 2, Rajesh, who was her neighbour, met her. He was working as a driver of Van bearing registration No.DLC-9311. At that time, another boy was sitting in the Van. They offered the prosecutrix to drop her at her house. The Van was taken towards DCA Club. After parking the Van, Rajesh appellant committed rape with the prosecutrix. At that time, the other boy was looking outside carefully. Thereafter, the prosecutrix was taken in the Van to Gurgaon. There also, accused Rajesh committed rape upon her. On 13th July, 2003, Rajesh left her at Neelam chowk and went away. After recording the above said FIR, statement of the prosecutrix was recorded under Section 164 Cr.P.C. The FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Additional Sessions Judge, Faridabad on 3rd November, 2003 charged the appellants for offence under Sections 363, 2 Criminal Appeal No.1238-SB of 2005 366, 376(2)(g) IPC. Both the appellants pleaded not guilty and claimed trial. At the first instance, medical evidence can be noticed. Dr. A.K. Gupta, PW-1 had medico legally examined appellant Sanjay and opined that there was nothing to suggest that he was not capable of performing sexual intercourse. Dr. S.K. Mittal, PW-2 on 17th July, 2003 had examined appellant Rajesh. This witness also opined that there was nothing to suggest that Rajesh was not capable of performing sexual intercourse. Prosecutrix was medico legally examined by Dr.Meenu Kapoor PW-14 on 13th July, 2003. The age of the prosecutrix disclosed was 14 years. She was referred to x-ray and dental department for age verification. There was no external mark of injury anywhere on her body. Hymen of the prosecutrix was torn with old and healed irregular margins. There was no fresh tear or bleeding. Vagina admitted two fingers loosely. This witness had taken vaginal swabs and had sent the same in a vial to the Laboratory. In cross examination, she stated that she had disclosed the age as given by the prosecutrix. Prosecutrix herself appeared as PW-3. In the Court she stated that when she was taken in the Van, both the accused committed rape upon her one by one. Then the accused took her to Gurgaon. There also both the accused committed offence of rape and they kept her somewhere for 2/3 days. When she returned to her house, she disclosed the incident to her mother. She was confronted with her statement recorded by the Magistrate under Section 164 Cr.P.C. The witness was subjected to a lot of cross examination to elicit her age. However, in cross examination, this witness admitted that a quarrel had taken place between the accused Rajesh and his brother along with father of the witness. She denied that her father and brother were arrested by the 3 Criminal Appeal No.1238-SB of 2005 police. However, she admitted that a compromise had taken place between them in the Police Station. Rajpal, father of the prosecutrix appeared as PW-4. He deposed regarding what was told to him by the prosecutrix, his daughter. In the Court, this witness was not able to give the correct date of birth of the prosecutrix, however, he stated that she was 14/ 14 ½ years of age. This witness admitted that a quarrel had taken place between him and the family of Rajesh accused, prior to the incident and a report to this effect was lodged with the police and the matter had ended into compromise. Constable Satpal PW-5 had taken into possession the clothes and vaginal swabs of the prosecutrix from the hospital. Surender Singh SI PW-6 had summoned Anoj Kumar Draftsman, who prepared a scaled site plan. He had also recorded the statement of MHC regarding sending of swabs to Forensic Science Laboratory, Madhuban. Constable Vishwamitar PW-7 had arrested Rajesh appellant. Anoj Kumar Draftsman PW-8 proved scaled site plan Ex.PG. Constable Sanjay Kumar PW-9, HC Dharampal PW-12 and Constable Sanjay Kumar PW-13 tendered their affidavits Ex.PH, PL and PM respectively to prove link evidence. These witnesses were not cross examined. Dharambir Singh Inspector PW-10 had submitted report under Section 173 Cr.P.C. Parkash Chand ASI PW-11 on receipt of ruqa, had registered formal FIR Ex.PJ. SI Ram Sawroop PW-15 was the Investigating Officer. He proved various facets of the investigation. 4 Criminal Appeal No.1238-SB of 2005 Sh. A.D. Dewan, Judicial Magistrate (1st Class), Palwal PW- 16 had recorded statement of the prosecutrix under Section 164 Cr.P.C. Thereafter, 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. In defence, accused had examined HC Daya Ram as DW-1. He proved Ex.D1 as correct photocopy of DDR No.3 dated 17th July, 2000 and Ex.D2 as correct photocopy of DDR No.18 dated 30th July, 2000 to prove prior incidents which had taken place between Rajesh and father of the prosecutrix, which ended into compromise. Mukesh DW-2 brought on record two letters mark D-3 and D- 4 allegedly written by the prosecutrix. It is stated that the prosecutrix had demanded Rs.20000/- and blackmailed him. This witness was examined to impeach the credibility of the prosecutrix. Mr. S.S. Siao, Advocate appearing for appellant Rajesh, has submitted that prosecution has miserably failed to prove the age of the prosecutrix. Furthermore, it is submitted that there was no external or internal mark of injury present on the body of the prosecutrix. Her vagina admitted two fingers, her hymen was also torn and she was habitual to sexual intercourse, therefore, no offence of rape is made out, as it is a case of consent. Mr. Rahul Vats, Advocate appearing for appellant Sanjay, has submitted that in the FIR Ex.PJ, act of rape has not been assigned to the appellant Sanjay. It is stated that the appellant Sanjay was carefully watching outside from the Van. It is submitted that it is lateron in the Court that prosecutrix made an improvement in her version and stated that appellant Sanjay had also committed rape upon her. Learned counsel has drawn my attention to the cross examination of the prosecutrix, where she has been confronted with her statement recorded 5 Criminal Appeal No.1238-SB of 2005 under Section 164 Cr.P.C. and it is submitted that it is not safe to rely upon the testimony of prosecutrix qua appellant Sanjay, as she had been shifting her stand and divulging different versions at different times. Ms. Hemlata Balhara, Assistant Advocate General, Haryana has submitted that testimony of the prosecutrix PW-3 aspires confidence. True it may be that prosecution has not proved the age of the prosecutrix. For the sake of argument, even if the age of the prosecutrix is assumed to be more than 16 years, nobody can commit sexual intercourse forcibly. From the facts of the case, consent of the prosecutrix to the sexual intercourse, is not discernible. Appellant Rajesh had offered lift to the prosecutrix in the Van. The Van was taken to a secluded place, where rape was committed upon her. Thereafter, prosecutrix was taken in the Van to Gurgaon. There also rape was committed upon her. The prosecutrix had not traveled in a public transport, therefore, she could not come in contact with anybody to whom she could disclose about the conduct of the accused. When the prosecutrix was released from the clutches of the accused, she immediately informed the police, therefore, offence of rape is established against the accused Rajesh. A perusal of explanation I to section 376 IPC, which defines ‘gang rape’, makes it apparent that it is not necessary that rape should be committed by more than one person. The explanation specifically states that even if one person commits rape in a group, the offence of gang rape is complete. Testimony of the prosecutrix PW-3 aspires confidence. She has specifically stated in Court that accused Sanjay also committed rape in the Van and at Gurgaon. Much has been said about the earlier dispute pending between the parties. The witnesses have been truthful. They have admitted that there was earlier dispute between the parties and father of the prosecutrix was taken to the Police Station, where the matter 6 Criminal Appeal No.1238-SB of 2005 ended into compromise. The allegation that the earlier dispute was the cause of false implication, can equally be construed as a grudge for the accused to commit offence of rape. Hence, there is no merit in the present appeal and the same is dismissed. Conviction and sentence awarded upon the appellants is maintained. [KANWALJIT SINGH AHLUWALIA] JUDGE February 24, 2010 rps 7