Criminal Appeal No.1109-SB of 2001. -1- In the High Court of Punjab and Haryana at Chandigarh. 1. Criminal Appeal No.1109-SB of 2001. Date of decision:20-5-2009 Raj Kumar and others. ...Appellants. Versus State of Haryana. ...Respondent. ... 2. Criminal Revision No.291 of 2002. Date of decision:20-5-2009 Bhim Singh. ...Petitioner. Versus Raj Kumar and others. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gehlot,Advocate for the appellants. Mr. A.K.Jindal, AAG Haryana. Criminal Appeal No.1109-SB of 2001. -2- ... K. C. Puri, J. Judgment. The above mentioned Criminal Appeal and the Criminal Revision have been linked together, as the same have arisen from the common judgment/order dated 20.9.2001/24.9.2001 passed by Shri S.C.Goyal, the then Additional Sessions Judge, Faridabad, whereby the appellants have been convicted under Sections 363, 376(2)(g), 342 and 506 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- for offence under Section 363 IPC. In default of payment of fine, each of the appellants has been ordered to undergo rigorous imprisonment for a period of six months. They have been further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- under Section 366 IPC. In default of payment of fine, each of the accused has been ordered to undergo rigorous imprisonment for a period of nine months. They have also been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- for committing an offence punishable under Section 376 Criminal Appeal No.1109-SB of 2001. -3- (2)(g) IPC. In default of payment of fine, they have been ordered to further undergo rigorous imprisonment for a period of 2-1/2 years more. They have also been awarded rigorous imprisonment for a period of six months and to pay a fine of Rs.200/- under Section 342 IPC. In default of payment of fine, each of the accused has been further ordered to undergo rigorous imprisonment for a period of 45 days more. They have also been imposed a sentence of rigorous imprisonment for a period of six months and to pay a fine of Rs.200/- under Section 506 IPC. In default of payment of fine, each of the appellants has been ordered to undergo rigorous imprisonment for a period of 45 days more. All the substantive sentences of the appellants have been ordered to run concurrently. 3/4th of the fine, when realized, has been ordered to be paid to the prosecutrix by way of compensation. However, vide impugned judgment, co-accused Om Parkash alias Parkash, Smt. Maya, Smt. Sarla and Smt. Kusum have been acquitted of the charges framed against them. The factual matrix of the prosecution case is that on Criminal Appeal No.1109-SB of 2001. -4- 22.11.1996/23.11.1996 at about 4-00 PM, in the area of Palwal, accused Raj Kumar alias Raju, Suresh Chand, Bhim Chand and Om Parkash kidnapped the prosecutrix (her name is being with- held due to secrecy as per directions of the Hon'ble Apex Court) by means of inducement with an intent that she may be compelled to illicit intercourse and they committed gang rape on her,wrongfully confined her, criminally intimidated her with death and accused Maya, Sarla, Kusum and Om Parkash concealed their co-accused Raj Kumar, Suresh Chand and Bhim Chand. Bhim Singh complainant had four daughters and two sons. Eldest daughter is Vedwati and the prosecutrix is at number 3. She was married about two years prior to the occurrence to Rajan son of Kishan, resident of Darana, Police Station Hassanpura, according to Hindu rites and ceremonies. The prosecutrix could not adjust with her in-laws and a week ago, she came to village Darana after feeling ill-will against her in-laws. The complainant came to know that for a day, she also lived at Palwal and on the next day, she started for village Kanoli. When she reached at bus stop of village Mindkola and was in search of some vehicle for coming to village Kanoli, Parkash son of Sham Lal, Brahman, resident of village Mindkola took her to his home Criminal Appeal No.1109-SB of 2001. -5- after giving some allurement. The next day, the daughter of the complainant was taken to some other place. When the complainant came to know about the same, he started searching for his daughter and he was informed by Babu Ram son of Hukam Singh, resident of Kanoli and Sukh Ram son of Hira Lal, residents of village Mindkola that they knew the girl and she had been taken away by Om Parkash and Bhim Chand son of Om Parkash in a Jeep towards Palwal and the girl could not be recovered. A statement, in this regard, Exhibit PQ, was made by the complainant to the police and on its basis, formal F.I.R, Exhibit PQ/2 was recorded against the accused. Investigation then commenced. Rough site plans of the place of occurrence, Exhibits PM and PN respectively were prepared. The accused were arrested. The prosecutrix was recovered and got medico-legally examined. The statement of prosecutrix, under Section 164 Cr.P.C, was got recorded from Illaqa Magistrate. Statements of other witnesses were also recorded. After the completion of investigation, the accused were challaned. The accused were charge-sheeted accordingly to which Criminal Appeal No.1109-SB of 2001. -6- they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Dr. Sheela Kumari, PW-2 Anoj Kumar, Draftsman, PW-3 Constable Jai Singh, PW-4 Dr. V.K.Pahuja, PW-5 HC Ram Dayal, PW-6 Constable Shish Pal, PW-7 prosecutrix, PW-8 Dr. S.K.Bhagat, PW-9 SI Ram Niwas, PW-10 ASI Umed Singh, PW-11 Sukh Ram, PW-12 Bhim Singh, PW-13 Inspector Ikbal Singh, PW-14 Dr. S.P.Jayanat, PW-15 Shri Sukhram Pal, the then Judicial Magistrate Ist Class, Palwal, PW-16 HC Sukhbir Singh and PW-17 SI/SHO Randhir Singh. ` When examined under Section 313 Cr.P.C, the accused denied the version of the prosecution in toto and pleaded false implication. A specific plea was taken by accused Kusum, Sarla, Maya, Om Parkash and Raj Kumar alias Raju that they have been falsely implicated in this case. However, accused Bhim Chand took the plea that at the time of alleged occurrence, he was attending his duties and lived in Police Lines, Delhi. Accused Suresh Chand also took a plea that he was posted as Radio and Telephone Operator and was on VVIP duty from 2.10.1996 to 12.12.1996. On 22.12.1996, he was deputed for Prime Minister duty at Nuh. He had gone there on 22.11.1996. During that period, he was present Criminal Appeal No.1109-SB of 2001. -7- on duty and had been falsely implicated in this case. The accused also examined DW-1 Inspector Vinod Singh and DW-2 Ahmad Jan. Feeling aggrieved against the said judgment, the appellants have filed Criminal Appeal No.1109-SB of 2001 for their acquittal whereas complainant Bhim Singh has filed connected Criminal Revision No.291 of 2002 for setting aside the impugned judgment vide which above-mentioned co-accused of the appellants have been acquitted and for enhancing the substantive sentence of the appellants as also the sentence of fine. Since both these cases arise out of same judgment and common questions of fact and law are involved, the same were heard simultaneously and are being disposed of by this common judgment. The learned counsel for the appellants has submitted that seven persons were arrayed as accused by the prosecutrix including three ladies namely Maya, Sarla and Kusum. The learned trial Court, on the same set of evidence, acquitted Om Parkash alias Parkash, Maya, Sarla and Kusum but has convicted the remaining appellants namely Raj Kumar alias Raju, Suresh Chand and Bhim Chand. A person aged 78 years namely Om Parkash Criminal Appeal No.1109-SB of 2001. -8- was arrayed as an accused. This fact clearly shows that the prosecutrix was interested to implicate the entire family members of the appellants. It has been further contended that the prosecutrix is a major grown up lady. She has stated that she was coming from village Darana to her parents house at Kanoli. She reached Palwal at about 3-00 PM where accused Parkash, Bhim, Suresh and Raju met her. She has further stated that she accompanied Raju to Palwal as her resister Radha was residing there. She has further stated that she stayed at Palwal in Radha's house at night. On the next day,Raju took her to village Mindkola. She was left at the shop of Parkash situated in village Mindkola and from there she was taken to the house of Parkash by Bhim and Raju. On that night, she stayed at the house of Parkash. She has further alleged that Bhim and Raju committed rape upon her in the house during the night against her wishes. She has further stated that on the next date, Bhim and Parkash took her to bus stand, Mindkola in a Jeep of one Satpal. She was taken to Palwal from village Mindkola. From Palwal, she was taken to Delhi by accused Bhim in a bus while Parkash remained at Palwal. After reaching Delhi, she was taken in a Maruti car by accused Bhim in a room, where he Criminal Appeal No.1109-SB of 2001. -9- committed rape on her. She has further stated that she remained in that room for eight days. After three days, Suresh accused also reached there and committed rape upon her. Thereafter Bhim accused brought her to Palwal and left her at the bus stand. Afterwards, she came to village Kanoli. By referring the above statement, it has been contended that it could not be possible that without the consent of prosecutrix, she can be taken from Palwal from Mindkola, then from Mindkola to Palwal and then from Palwal to Delhi in a bus. She remained at Delhi for eight days and during that period, Bhim remained on duty. It has been further contended that the prosecutrix has further admitted the fact that in the area of bus stand, police persons generally remain present. So, all these facts clearly suggest that it was a case of consent. The prosecutrix herself went to Delhi with Bhim Chand and all other accused have been falsely implicated. It cannot be believed that in the presence of all the family members, rape could be committed upon the prosecutrix at village Mindkola. Dis-believing the testimony of prosecutrix, Om Parkash and three ladies have been acquitted by the trial Court. It has been further contended that no force was allegedly used by the accused for taking the prosecutrix to village Mindkola,from village Mindkola to Palwal and then Criminal Appeal No.1109-SB of 2001. -10- from Palwal to Delhi. The prosecutrix had ample opportunity to raise hue and cry, during the journeys mentioned above. At Delhi, she could have narrated the incident to the neighbourers as there was no restraint on her as Bhim accused used to remain on duty throughout the entire day. It has been further contended that there is no medical evidence to prove the factum of rape. In case the prosecutrix had been subjected to rape by the accused, she must have received any external injury on any part of the body. The prosecutrix is a married woman and in the absence of injuries, there is no possibility of gang rape. The learned counsel for the appellants has relied upon the following authorities, in support of his arguments:- 1.Pratap Misra and others v. State of Orissa, AIR 1977 Supreme Court 1307; 2.Dilip Versus State of M.P, 2001(4) R.C.R (Criminal) 383. In reply, the State counsel has supported the judgment of the trial Court and has submitted that the learned trial Court has rightly accepted the statement of the prosecutrix. Mere absence of injuries, does not dis-prove the case of the prosecution. The Criminal Appeal No.1109-SB of 2001. -11- prosecutrix was taken to various places under threat. So, a prayer has been made for the dismissal of the appeal. I have carefully considered the said submissions made by both the sides and have gone through the record of the case. In this case, besides the three appellants namely Raj Kumar, Suresh Chand and Bhim Chand, four other persons namely Om Parkash alias Parkash, Maya wife of Suresh Chand, Sarla wife of Bhim Chand and Kusum wife of Roshan were arrayed as accused while the appellants have been convicted and the remaining four accused have been acquitted. The learned trial Court dis-believed the testimony of the prosecutrix to the effect that three ladies and Om Parkash who were acquitted would be a party to the alleged rape by the other accused who are the appellants before this Court. The prosecutrix has not even spared the ladies and they were falsely implicated. A person more than 78 years has also been implicated for an offence under Section 376(2) (g) IPC. According to the prosecutrix, she was subjected to rape in the house. The learned trial Court has observed that the ladies accused would not allow their life partners to have a sex with another lady in the house. The elderly person in the family will also not permit the appellants to commit sexual intercourse with Criminal Appeal No.1109-SB of 2001. -12- the prosecutrix. Therefore, the trial Court has dis-believed the prosecutrix in respect of rape at village Mindkola. According to the prosecutrix, she was taken to Mindkola where she stayed during the night and was subjected to rape. So, that story of rape in the house did not find favour with the trial Court. The prosecutrix has further alleged that from Mindkola, she was taken to Palwal in a Jeep and from Palwal, she was taken to Delhi in a bus. She has further stated that at Delhi she remained for eight days where she was subjected to rape. From the testimony of the prosecutrix, it is revealed that from Delhi to Palwal, she again travelled in a bus along with the accused. The prosecutrix had ample opportunity to raise protest in the Jeep and also in the bus while travelling for a long distance from Palwal to Delhi and back. She could raise protest at Delhi. She has admitted the fact that she was alone in the house and accused Bhim Chand used to go for work. So, the conduct of the prosecutrix proves the fact that it was not a case of forcible rape against consent but the prosecutrix voluntarily accompanied accused Bhim Chand to Delhi and she remained there for eight days. There was no mark of any injury on the body of the prosecutrix leading to the conclusion that she was subjected to gang rape. Criminal Appeal No.1109-SB of 2001. -13- In authority in case Dilip (supra), the Hon'ble Apex Court acquitted the accused in a case of gang rape. In that case, the prosecutrix was above 16 years of age and had shown no resistance. It was found that the prosecutrix remained in a populated area but did not raise any protest. The Hon'ble Apex Court in authority in case Pratap Misra and others, (supra), weighed the medical evidence. In that case, the prosecutrix was a grown up lady and there were allegations that three accused had forcible sexual intercourse with her. The absence of any injury on the person of the accused or the prosecutrix created a doubt in the prosecution version. The Hon'ble Apex Court has held that the only irresistible inference that can be drawn is that the prosecutrix was a consenting party. In that case, there were concurrent findings of the Sessions Judge as well as of High Court regarding the guilt of the accused in a case of gang rape but keeping in view the medical report, the Hon'ble Apex Court has observed that the prosecution has failed to prove the guilt of any accused and consequently the accused/appellants were acquitted of all the charges framed against them. In the light of above discussion, the conviction of the appellants recorded by the learned trial Court cannot be up-held. Criminal Appeal No.1109-SB of 2001. -14- Consequently, this appeal stands accepted. The impugned judgment of the trial Court stands set aside and the accused stand acquitted by giving them the benefit of doubt. In view of the above findings whereby the appellants have been acquitted, there is no question of conviction of remaining accused namely Om Parkash alias Parkash, Maya, Sarla and Kusum and also for enhancement of sentence of the appellants. Therefore, the connected Criminal Revision lacks merit and is accordingly dismissed. A copy of this judgment be sent to the learned trial Court for strict compliance. May 20th, 2009. (K. C. Puri ) Jaggi Judge