Crl. Appeal No. 598-SB of 1999 -1- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 598-SB of 1999 Date of decision, February 29, 2008 Balwan Singh ....... Appellant/accused Versus State of Haryana ........ Respondent Crl. Appeal No. 599-SB of 1999 Date of decision, February 29, 2008 Shamsher Singh ....... Appellant/accused Versus State of Haryana ........ Respondent Crl. Appeal No. 600-SB of 1999 Date of decision, February 29, 2008 Krishan Kumar ....... Appellant/accused Versus State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.Kanwaljit Singh, Senior Advocate with Mr. Tajinder Bishnoi, Advocate for the appellants in Crl.Appeal Nos.598,599 and 600-SB of 1999. Mr. Kartar Singh, AAG, Haryana for the respondent. Sham Sunder, J. This judgment shall dispose of three Criminal appeals Crl. Appeal No. 598-SB of 1999 -2- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 bearing No. 598-SB of 1999 filed by Balwan Singh, 599-SB of 1999 filed by Shamsher Singh and 600-SB of 1999 filed by Krishan Kumar arising out of the judgment dated 6.4.1999 rendered by the Court of Additional Sessions Judge, Panipat vide which it convicted the accused/appellants and sentenced them as under:- Name of the convict Convicted for the offence Sentence awarded Balwan Singh 376 (2)(g) RI for a period of 10 years and to pay a fine of Rs.4,000/- in default of payment of fine to further undergo RI for a period of six months. 344 RI for a period of 1 year and to pay a fine of Rs.500/- in default of payment of fine to further undergo RI for a period of three months. Shamsher Singh 376 (2)(g) RI for a period of 10 years and to pay a fine of Rs.4,000/- in default of Crl. Appeal No. 598-SB of 1999 -3- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 payment of fine to further undergo RI for a period of six months. 344 RI for a period of 1 year and to pay a fine of Rs.500/- in default of payment of fine to further undergo RI for a period of three months. 366 IPC RI for a period of 3 years and to pay a fine of Rs.1,000/- in default of payment of fine to further undergo RI for a period of four months. 506 RI for a period of six months. Krishan Kumar 376 (2)(g) RI for a period of 10 years and to pay a fine of Rs.4,000/- in default of Crl. Appeal No. 598-SB of 1999 -4- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 payment of fine to further undergo RI for a period of six months. 344 RI for a period of 1 year and to pay a fine of Rs.500/- in default of payment of fine to further undergo RI for a period of three months. The substantive sentences of the appellants were ordered to run concurrently. 2. The facts, in brief, are that the father of the prosecutrix was originally a resident of Village Vidya Nagar, Bhiwani. At the time of occurrence he was residing in House No.49, situated in Eight Marla Colony, Panipat, being posted as a Clerk, in the office of the District Ayuervedic Officer. On 2.5.1996, the prosecutrix was alone, in her house, as her parents had gone to the market. At about 7.00 P.M., Shamsher Singh, accused, came to he house of Bahadur Singh, father of the prosecutrix, and told her that her grand mother was ill and had called her. He asked her to accompany him to her grand mother. The prosecutrix expressed her inability, to accompany the accused Shamsher Singh, on the ground, that her parents had gone to the market. Shamsher Singh, accused, however, told that the distance was not too much and she will be able to return very soon. Crl. Appeal No. 598-SB of 1999 -5- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 The prosecutrix then accompanied Shamsher Singh, accused. She was taken to the house of Balwan Singh, accused. Wife of Balwan Singh, asked him about the prosecutrix, but she was beaten by the accused and turned out of the house. Krishan Kumar, accused, was also present there. On that night, the prosecutrix was forcibly subjected to sexual intercourse, turn by turn by all the three accused. On the next day, she was beaten and taken to the native Village Malseri Khera of Krishan Kumar, situated in Jind District. One day, she was taken to Jind, by the accused where a document was got reduced into writing from an Advocate. Thereafter, she was taken to Village Malsari Khera by Krishan Kumar and Balwan Singh. One day Shamsher Singh, accused, came to the house of Krishan Kumar and told that the situation had become serious. It was further stated that the prosecutrix was threatened, at the point of knife, to depose in favour of the accused, otherwise, she would be killed. Thereafter, the prosecutrix was taken to Panipat by the accused and she was allowed to go to her house. It was further stated that the prosecutrix remained in the house of Krishan Kumar for about 20 days and during this period, she was forcibly subjected to sexual intercourse, by all the three accused. The prosecutrix stated that she returned to her house on 21.5.1996. The father of the prosecutrix had already lodged a missing report. On the basis of the statement made by the father of the prosecutrix, an FIR was registered. The prosecutrix was got medico-legally examined. The accused was arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were Crl. Appeal No. 598-SB of 1999 -6- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Sections 363,366,376(2) (g),344 and 506 IPC, was framed against them, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Balbir Singh,Constble, PW-1, Suresh Kumar, PW-2, Dharambir, PW-3, Hari Singh, PW-4, Ram Bhagat, Constable, PW-5, Dr. S. S. Kalra, PW-6. Dr. C.V. Singh, PW-7, Ms. Anu Arora, PW-8, Mrs. Neerja Kulwant Kalson, PW-9, Shashi Bala, PW-10, Bhagat Singh, ASI,PW-11, Ramesh Malik, PW- 12, Zile Singh, ASI, PW-13, Smt. Chandna Chaudhary,PW-14, Bahadur Singh , PW-15 and Rajinder Singh, PW-16. Report of the FSL, Madhuban, Ex.PU was tendered into evidence by the Additional Public Prosecutor and he closed the same. 5. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Accused Balwan Singh stated that the prosecutrix was having love affair with accused Krishan Kumar. It was further stated that she contracted marriage with him on 6.5.1996. It was further stated by him that she had left her home, on her own. He also stated that no rape was committed by him, as well as Shamsher Singh, with the prosecutrix. It was further stated by him, that he was falsely implicated, in the instant case, as he was instrumental in getting performed the marriage of the prosecutrix with Krishan Kumar. 6. Shamsher Singh, accused, in his statement under Section Crl. Appeal No. 598-SB of 1999 -7- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 313 Cr.P.C, also took up the similar plea. 7. Krishan Kumar, accused in his statement under Section 313 Cr.P.C., stated, that in fact, the prosecutrix had left with him of her own. She contracted marriage with him on 6.5.1996. It was further stated by him that he was falsely implicated in the instant case. 8. In defence, the accused examined, Mohan Dass, Advocate, Notary Public Jind, DW-1 and closed the defence evidence. Thereafter, they closed the defence evident. 9. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 10. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the aforesaid three appeals, were filed by the accused/appellants. 11. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellants, at the very outset, contended that the prosecutrix left her house of her own and she was never kidnapped by any of the accused. He further contended that the prosecutrix contracted marriage with Krishan Kumar of her own free will, as she was of the age of maturity, and was not below 16 years of age. It was further contended that since she contracted marriage with Krishan Kumar of her own, it was a case of consent and he (Krishan Kumar) never committed rape with her. It was further contended that the prosecutrix remained in the house of Krishan Kumar for a period of more than 20 days, and even travelled with him in Crl. Appeal No. 598-SB of 1999 -8- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 buses and other vehicles as also went to the Court and other places but, she never raised any alarm that she had been kidnapped by Krishan Kumar or other accused and rape had been committed with her. It was further contended by him that even no mark of injury on the body of the prosecutrix was found by the doctor who medico legally examined her. He further contended that the prosecutrix returned to her home on 21.5.1996 but her father lodged the report on 28.5.1996 i.e. after a period of about 7 days, which also clearly showed that she was a consenting party. He further contended that a false FIR was got registered, against the accused by the father of the prosecutrix. It was further contended that the trial Court, was thus, wrong in recording conviction and awarding sentence to the accused/appellants. 13. On the other hand, learned Counsel for the respondent contended that the prosecutrix, stated that she was threatened by the accused that she would be killed, and, under such threat, she was subjected to rape. It was further contended that she did not accompany Shamsher Singh, of her own, nor she contracted marriage with Krishan Kumar of her own. He further contended that the alleged marriage was under threat. It was further contended that the trial Court, was correct, in recording conviction and awarding sentence. 14. Whether, the prosecutrix, who was certainly above the age of 17 ½ years, as per the school leaving certificate Ex.PL produced by Smt. Chandna Chaudhary, PW-14, Principal Govt. Girls Senior Secondary Model School G.T. Road, Panipat, and above 18 years, according to the trial Court, was kidnapped by Shamsher Singh, accused or accompanied him of Crl. Appeal No. 598-SB of 1999 -9- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 her own on 2.5.1996 is the first question that is required to be answered. On 2.5.1996, the date of alleged kidnapping, she was mature enough, and could distinguish between her good and bad. The statement of the prosecutrix, who appeared as, PW-10, to the effect that she was taken away, from her house, when she was all alone present there, as her parents, had gone to the market, by Shamsher, on the pretext that her grand mother was ill, and she was called by her, appears to be most unnatural and improbable. According to the prosecutrix, it was at about 7.00 P.M. on 2.5.1996, that Shamsher came to her house, and told her that her grand mother was ill and had called her. She further stated that she did not want to go with him, but Shamsher told him that she will come back soon. The parents of the prosecutrix, as per her version, had gone to the market, and not to out station. There is nothing, on the record, that Shamsher was already known to the prosecutrix or her parents. The grand mother of the prosecutrix, as per the evidence, brought on record, was residing in District Jind, whereas, the prosecutrix, at the relevant time, was residing with her parents at Panipat. The distance between the two places is long enough. Had the prosecutrix been not willing, she would have certainly told Shamsher Singh, that she could not accompany him, until and unless her parents came back to the house. She, however, did not wait for her parents, and willingly accompanied Shamsher Singh. No girl of the age of the prosecutrix, in the circumstances, referred to above, would all alone accompany a stranger, especially, when her parents had only gone to the market, and not to out station. Even otherwise, her parents could be said to be more concerned with the illness of her grand-mother,than her. By no stretch of imagination, Crl. Appeal No. 598-SB of 1999 -10- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 it could be said that Shamsher made the prosecutrix to accompany him, on the pretext, that her grand mother was ill. Since she was willing, she accompanied him, in the absence of her parents, from the house. She was on the look out of an opportunity, to accompany Shamsher Singh, accused, and when she found that opportunity, in the absence of her parents, she did not lose even a minute, to accompany him, knowing well, that her grand-mother was residing at a far off distance from Panipat. In these circumstances, by no stretch of imagination, it could be said that she was kidnapped by Shamsher Singh. The trial Court was wrong in holding that she was kidnapped by Shamsher Singh. 15. Now coming to the factum, as to whether, the prosecutrix was a consenting party, to the act of sexual intercourse or not, it may be stated here, that from the evidence, on record, as would be discussed hereinafter, it was proved beyond doubt, that she was a consenting party. It was stated by her, that, in the first instance, she was taken to the house of Balwan, in the area of Panipat, where his wife was also present but she was given beatings and turned out of the house and, thereafter, Shamsher, Balwan and Krishan Kumar, committed rape with her. Had the things happened, in the manner, stated by the prosecutrix, while appearing as PW- 10, wife of Balwan, who was beaten and turned out of her house, would not have kept silent. She would have certainly told the neighbourers, about the incident. She would have also approached her relations, if any, residing at Panipat. She would have also approached the friends of her husband, or her acquaintances, that Balwan along with two others was going to commit an illegal act, and he should be prevented from doing so. A married lady, Crl. Appeal No. 598-SB of 1999 -11- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 could not be expected to keep mum, when her husband, along with two of his friends, was going to subject a young girl to sexual intercourse. 16. Not only this, it was further stated by the prosecutrix that on the next day all the three accused took her to Malsari Khera, District, Jind where the house of Kirshan Kumar is situated. They must have travelled in some bus or other vehicle. Had she been not a consenting party to the act of sexual intercourse, allegedly committed with her on the previous night, in the house of Balwan, she would have certainly told the passengers, in the bus, or the people at the bus stand about the illegal act. She would have also raised hue and cry, at the bus stand, or in the vehicle that an illegal act had been done by the accused, with her and she be saved which would have certainly attracted a number of persons who would have certainly taken her to the Police, where she would have lodged a complaint, as to what had happened with her, at the hands of the accused. It is not known, why she had kept mum, when she was being taken to Village Malsari Khera, District Jind, a far off place, from Panipat especially when she was having sufficient opportunity to disclose the alleged illegal act done against her, by the accused. This clearly proved that she was a consenting party and no rape was committed with her, in the house of Balwan. 17. According to the prosecutrix, she was kept in the house of Krishan Kumar for a period of 15 to 20 days, where all the three accused committed rape with her. She further stated that one day Krishan Kumar and Balwan took her to Civil Court, Jind, where both of them forcibly took her signatures, and threatened her that if she gave statement against them, Crl. Appeal No. 598-SB of 1999 -12- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 she would be killed. During her cross-examination, she stated that, in the house of Krishan Kumar, accused, she was being introduced by her parents, as their daughter-in-law, to the people, who used to come to meet them. In case, the prosecutrix was not willing or had been subjected to rape, by the accused, then she could certainly tell those persons, that she was not their daughter-in-law but had been forcibly kidnapped by Krishan Kumar along with other accused illegally confined, in the house, and subjected to rape. She, however, did not do so, but kept mum. During her stay for 15 to 20 days, in the house of Krishan Kumar, she had many opportunities, to leave the said house, and come to the Bazar or to the Police Station to complain against the accused, in case, the rape had been committed or she had been illegally confined but she did not do so. Ex. DA is the letter dated 20.5.1996, in the hand writing of the prosecutrix, she admitted that the letter was written by her, but she stated that her signatures were forcibly obtained on the same. In the letter, it was stated by her, that on 2.5.1996, she left her house, and reached the house of Krishan Kumar. She further stated that she along with Krishan Kumar reached Village Malsari Khera, where the family of Krishan Kumar agreed to contract their marriage. She remained there up to 15.5.1996. She further stated that on 6.5.1996, he and Krishan Kumar contracted marriage in the Court of SDM. Ex. DB is the affidavit, which was sworn by the prosecutrix, where-in she stated that she had contracted marriage with Krishan Kumar, according to Hindu rites, and was residing with him, as his wife in Village Malsari Khera, District Jind. Ex. DC is the affidavit, which was sworn by Krishan Kumar, wherein, he stated that he had contracted marriage, with the prosecutrix, according to Hindu Crl. Appeal No. 598-SB of 1999 -13- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 rites and the child in her womb would be his child. All these facts go the prove that she was a consenting party, and Krishan Kumar and his co- accused did not commit rape with her. 18. Not only this, from the house of Krishan Kumar, according to the statement of the prosecutrix, she was brought to Panchkula and kept there for 2/3 days. There again, according to her, rape was committed with her. In case, she was unwilling or had been forcibly subjected to sexual intercourse, in the bus, or in any other vehicle, in which she had travelled with Krishan Kumar, she had an opportunity to tell the passengers, about the illegal acts of the accused. Even at Panchkula, she could tell the neighbourers that she had been illegally confined, by the accused, and they had committed rape with her. She,however, did not tell anybody. She stated that she was threatened by the accused that she would be killed. It could not be imagined that the threat continued for 20 days. It was all a managed affair. It means that the prosecutrix left her house, on her own, and went to the house of Krishan Kumar and after contracting marriage with him started living with him, and, ultimately, returned to her house. She was ultimately, pressurized by her parents, to make a statement, before the police, and before the Magistrate. It was, under pressure of her parents, that she was compelled to make a statement, before the police, and the Magistrate, and, ultimately, her father lodged a report falsely implicating the accused. The statement of the prosecutrix that she was subjected to rape by the accused, therefore, was completely belied by the aforesaid circumstances. 19. Not only this, even the medical evidence of Dr. Anu Crl. Appeal No. 598-SB of 1999 -14- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 Arora, PW-8, did not support the case of the prosecutrix that she was subjected to rape by the accused. She stated that there was no mark or any external injury present, on the person of the prosecutrix, when she was medico-legally examined on 1.5.1996, by her. She further stated that the hymen had ruptured and healed but there was no fresh injury, or bleeding. In case, the prosecutrix had been forcibly subjected to sexual intercourse, by the accused, she being a major girl, well built could have certainly put up stiffest resistance. In that event, marks of violence would have certainly been found on her body. Due to this reason also, the story of subjecting her to sexual intercourse forcibly could not be said to be correct. Taylor in “Principles and Practice of Medical Jurisprudence Volume II” while dealing with the cases of rape, on a grown up and an experienced lady, observed as follows:- “Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Crl. Appeal No. 598-SB of 1999 -15- Crl.Appeal No. 599-SB of 1999 Crl.Appeal No. 600-SB of 1999 Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of bruises, is, as was indicated in Volume I, a matter of some uncertainly in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused, for similar marks of bruises or scratches about the arms or face, and possibly evidence about his penis, though this is less likely.” In similar circumstances in Partap Misra Vs. State of Orissa AIR 1977 (S.C.) 1307, the accused were acquitted of the charge of commission of offence of rape when the marks of scratches or injuries, were not found, on their person and on the person of the prosecutrix. In the instant case, as stated above, there was no mark of scratches or external injury on the person of the prosecutrix. There was no fresh rupture of hymn of the prosecutrix. Even there was no mark of injury on their person of the accused who were medico-legally examined by Dr.