Punjab-Haryana High Court
Criminal Appeal No. 2524-Sb Of 2009 vs State Of Haryana on 2 November, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Appeal No. 2524-SB of 2009
Manoj
... Appellant
Versus
State of Haryana
... Respondent
2. Criminal Appeal No.2528-SB of 2009
Kuldeep
... Appellant
Versus
State of Haryana
... Respondent
3. Criminal Appeal No.2614-SB of 2009
Leela
... Appellant
Versus
State of Haryana
... Respondent
4. Criminal Appeal No.2858-SB of 2009
Suresh Kumar
... Appellant
Versus
State of Haryana
... Respondent
Date of decision: 2nd November, 2011
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ram Niwas Kush, Advocate for the appellant
in CRA No.2524-SB of 2009;
Mr. Rajat Panjeta, Advocate for the appellant
in CRA No.2528-SB of 2009;
Dr. (Ms.) Deepa Singh, Advocate for the appellant
in CRA No.2614-SB of 2009.
Mr. Yashwinder Paul Singh, Advocate for the appellant
in CRA No.2858-SB of 2009;
Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 2
Mr. Anupam Sharma, Assistant Advocate General, Haryana
for the State.
1. Whether Reporters of Local Newspapers may be allowed Yes
to see the judgment?
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Four appeals viz. (1) CRA No.2524-SB of 2009 preferred by Manoj, (2) CRA No.2528-SB of 2009 filed by Kuldeep, (3) CRA No.2614-SB of 2009 filed by Leela and (4) CRA No.2858-SB of 2009 preferred by Suresh Kumar shall be decided by this common judgment.
In all the four appeals, appellants have assailed the judgment dated 24th September, 2009 rendered by the Court of Additional Sessions Judge (Fast Track Court), Bhiwani whereby the appellants namely Suresh, Manoj and Leela were held guilty under Sections 342, 366, 376(2)(g) and 506 read with Section 34 IPC, whereas appellant Kuldeep was convicted for an offence punishable under Sections 342 and 366 read with Section 34 IPC. However, all the four appellants were acquitted under Section 363 IPC. Vide a separate order dated 29th September, 2009, all the four appellants were sentenced to undergo rigorous imprisonment for a period of nine months under Section 342 read with Section 34 IPC. They were further sentenced under Section 366 read with Section 34 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- each, in default of payment of fine to undergo further imprisonment for three months. Under Section 376(2)(g) read with Section 34 IPC appellants namely Suresh, Manoj and Leela were Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 3 sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/- each and in default thereof to undergo further imprisonment for six months. Appellants Suresh, Manoj and Leela were further sentenced under Section 506 read with Section 34 IPC to undergo rigorous imprisonment for a period of one year. All the substantive sentences were ordered to run concurrently.
All the four appellants were nominated as accused in a case arising out of FIR No.60 dated 07.03.2008 registered at Police Station Civil Lines, Bhiwani under Sections 342, 363, 366, 376 and 506 IPC on the basis of a written application Ex.PE/3 submitted by the prosecutrix PW-8 (name withheld to protect her identity). The application Ex.PE/3 when translated into English reads as under:
"To SHO Sahib, Police Station Civil Lines, Bhiwani. Sir, It is submitted that I (prosecutrix) am daughter of Bhagwan Dass, caste Harijan (Chamar), resident of village Baliyali, Tehsil Bhiwani Khera, District Bhiwani. I am a student of BA (II) in Adarsh Women College, Bhiwani. On 28th February, 2008 at about 8.15 a.m. I was going from my village in a private bus to Bhiwani. At about 9.30 a.m. I alighted from the bus near the crossing of Court and was going towards my college. When I reached near Giri Gas Service, then Suresh Kumar son of Balbir Singh, who is resident of my village accompanied by Manoj Kumar, Leela, Kuldeep all residents of village Sui, Tehsil Bhiwani Khera arrived at the spot. They forcibly made me sit in a vehicle. Kuldeep remained there. The vehicle was being driven by Manoj. They brought me to Bawal where Suersh had kept a room and took me there. There Suresh and Manoj committed bad act with me. Then Manoj and Leela remained there and on 4th March, 2008 Suresh brought me to his maternal uncle's house at village Patwapur. In village Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 4 Patwapur, maternal uncle of Suresh has built a house in the fields. There also Suresh performed bad act with me. On 4th March, 2008 my family members convened a Panchayat in the village and pressurized family members of Suresh. Then family members of Suresh made enquiries regarding me at village Patwapur. Then Suresh fled away from there and family members of Suresh handed over me to my family members. I was unlawfully detained in a room at village Bawal by Suresh, Manoj and Leela. They used to threaten me and said that in case you disclosed anything to any of your family members you will be liquidated. On my arrival at my house, I disclosed everything to my mother and told her that Suresh and Manoj had performed bad act with me and everything had happened due to connivance of Leela and Kuldeep. Legal action be taken against them and justice be administered to me."
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. Except appellant Suresh, the other accused namely Kuldeep, Manoj and Leela alias Surender were found innocent and were kept in column No.2. After the charge was framed against accused Suresh, statement of the prosecutrix was recorded and later-on an application was filed for summoning the remaining accused under Section 319 Cr.P.C. The application was accepted vide order dated 29th September, 2008 and the accused namely Kuldeep, Manoj and Leela were summoned to stand trial. On their appearance again charges were framed against all the accused on 5th November, 2008. The charge stated that all the four appellants on 28th February, 2008 at about 9.30 a.m. had wrongfully confined the prosecutrix for five days in the area falling within the jurisdiction of Police Station Civil Lines, Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 5 Bhiwani and thereby committed an offence punishable under Section 342 read with Section 34 IPC. The second charge stated that all the accused with common intention had kidnapped the prosecutrix and thereby committed an offence punishable under Section 363 read with Section 34 IPC. Thirdly, since kidnapping was done with an intent to seduce and force the prosecutrix to illicit intercourse, offence punishable under Section 366 read with Section 34 IPC has been committed. Furthermore, since all the accused except Kuldeep had committed sexual intercourse with the prosecutrix at village Bawal they had committed an offence under Section 376(g) IPC and also under Section 506 read with Section 34 IPC.
The appellants pleaded not guilty and claimed trial. Prosecution commenced its evidence.
Dr.Amrita Bhardwaj PW-1 on 7th March, 2008 on the police request Ex.PA had medico-legally examined the prosecutrix, whose age noticed at that time by this witness is 18 ½ years. She also noticed that there was a history of prosecutrix having absconded from her house on 28th February, 2008 and subjected to sexual assaults. On examination, this witness had found following injuries on the person of prosecutrix:
"1. Superficial healed abrasion present on the right hand back 1 cm x 1 cm scab brownish in colour.
2. Superficial abrasion present on the right fore- arm, ventral aspect 0.5 x 0.25 cm. Healed scab formation."
In her clinical examination, this witness found that hymen was torn and tag was present at 6'O clock position. No external injury was found however, as per opinion of the doctor, vagina of the Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 6 prosecutrix admitted two fingers loosely. After receipt of report of the Forensic Science Laboratory Ex.PB, this witness had opined that possibility of sexual intercourse cannot be ruled out. In cross- examination, this witness stated that both the injuries were of same nature and age. They were having scab. There was no pus in the wounds. Scab formation commenced from 5th to 6th day. This witness further stated that no semen was detected on the clothes and other articles including pubic hair and vaginal swab as per the report of Forensic Science Laboratory.
Dr.Anil Chaudhary, Medical Officer, General Hospital, Bhiwani appeared as PW-2. He had medico legally examined appellant Suresh and had stated that there was nothing to suggest that appellant Suresh was incapable of performing sexual intercourse.
Kanwar Pal, Draftsman appeared as PW-3 and proved scaled site plan Ex.PD of the spot. In cross-examination he stated that he had not visited the spot. On the request made by Public Prosecutor, this witness was re-examined.
HC Rajender Singh PW-4 stated that he had received written application with endorsement Ex.PE and he had recorded formal FIR Ex.PE/1. Constable Surinder Kumar PW-5 tendered his affidavit Ex.PF to prove link evidence. Inspector Ramphal PW-6 had prepared the report under Section 173 Cr.P.C. In cross-examination, he stated that during his verification of the investigation, he found accused Manoj, Leela and Kuldeep as innocent. The investigation was supervised by Sumandar Singh, the then DSP Headquarters. Constable Rajpal Singh PW-7 had delivered the special report.
Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 7 Prosecutrix herself appeared as PW-8. She reiterated as to what was stated in her complaint Ex.PE/3. In cross-examination, the prosecutrix was confronted with her previous statement recorded in the Court on 1st September, 2008 before summoning the other accused under Section 319 Cr.P.C. In cross-examination, prosecutrix stated that before the period of occurrence accused Suresh was working in the hospital but she has not been able to tell his designation. However, she stated that appellant Suresh belongs to the same caste and village to which she belongs. She further stated that application Ex.PE/3 was got typed by her at Hansi Gate, Bhiwani at about 1.30 p.m. on 7th March, 2008. At that time she was accompanied by her parents and no other person was with them. The prosecutrix was confronted with her earlier statement Ex.DA, wherein she had stated that at the time of typing of the application, her uncle Dharampal was present. She further stated in cross-examination that she had never met either Suresh or the other three accused namely Leela, Manoj and Kuldeep at any time prior to the occurrence. She further stated that she stayed at village Bawal for 2-3 days. She was unable to tell the number of rooms in the house at village Bawal but she stated that one bathroom was attached to the room in which she was made to stay. She stated that her date of birth was 10th September, 1989. She further stated that at the time when she alighted from the bus at Bhiwani, the nearby shops were closed.
Mr.Ram Niwas Kush, Advocate appearing on behalf of appellant-Manoj, has pointed out following portion of cross-examination of the prosecutrix:
Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 8 "Accused persons took me in a different Maruti car to village Patwapur. We traveled from Bawal to Patwapur throughout the day and reached there in the evening and it become dark. I have not seen any town or city in between Bawal and Patwapur."
Investigating officer ASI Mukthayar Singh appeared as PW-
9 and proved various facets of the investigation. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. All the accused pleaded innocence and false implication.
In defence, Maman was examined as DW-1. He tendered his affidavit Ex.DB, which was sworn to prove alibi on the part of accused Leela. This affidavit stated that on 28th and 29th February, and 1st of March, 2008 Leela son of Dharam Chand was present in the house of this witness. Prem Chand DW-2 has also sworn an affidavit Ex.DC to prove alibi of Leela.
Whereas Prem Singh DW-3, Sunil DW-4 and Tejbir DW-5 proved alibi of appellant Manoj.
Ram Kishan DW-6 and Sadhu Ram DW-7 stated that during investigation of the case, police had visited their village and had found Kuldeep to be innocent.
Vijay DW-8 stated that on 28th February, 2008 he along with Dhup Singh, Karambir, Munshi Ram, Dharmbir, Suresh son of Sube had gone to village Patwapur and brought the prosecutrix from there.
Mangat Ram DW-9 stated that he is maternal uncle of accused Suresh. About 1 ¼ years ago he found one girl standing near Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 9 the bus stop at about 4.00 p.m. He learnt that the girl belonged to village Baliyali and upon particulars furnished by her this witness informed her relatives at village Baliyali. Then Munshi Ram and five other persons of village Baliyali came to his house and he had handed over the prosecutrix to them.
Mr. Kush has contended that the prosecution had given up Parbhati, Sunehri, Prem Singh, Rampal, Sunil Kumar, Pritam, Subhash, Prem Chand, Ram Kishan, Sadhu Ram, Maman Panch and Om Parkash, who were cited as witnesses. Counsel has stated that for non- examination of independent witnesses, an adverse inference should be drawn against the prosecution, especially when except the sole testimony of prosecutrix no other evidence is available on the file. It is further contended that parents of the prosecutrix even though had accompanied her on 7th March, 2008 for typing of the application, they have not been examined. Counsel has further stated that it is the case of the prosecutrix that she had narrated the incident to her parents, and therefore, they were necessary witnesses to lend corroboration to the testimony of prosecutrix.
During the course of arguments, Mr.Kush has further submitted that in the present case prosecutrix reached at her house on 4th March, 2008 whereas the written application Ex.PE/3 was submitted to the investigating officer only on 7th March, 2008. Thus, there is a delay of three days in moving the complaint and no explanation is forthcoming. Furthermore, once the parents were disclosed about the incident they have also not made any effort to lodge a report to the police. Counsel has further contended that there is not only delay in lodging the report Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 10 but parents of the prosecutrix have made no effort to approach the police to state that their daughter is missing since 28th February, 2008. According to the counsel, no Daily Diary Report was recorded to the effect that the prosecutrix was missing. Counsel has stated that in these circumstances, significance ought to be attached to the testimony of Dr.Amrita Bhardwaj PW-1, wherein she had noticed the history of case that the prosecutrix was absconding from her house.
Dr.(Ms.) Deepa Singh, Advocate appearing on behalf of appellant-Leela, has contended that appellant Leela has not performed sexual intercourse with the prosecutrix and therefore, he cannot be convicted for the offence of gang rape. Learned counsel has referred to the cross-examination of prosecutrix wherein she had stated that she was caught hold by Manoj and Suresh. Counsel has stated that no overt act has been attributed to appellant-Leela. Counsel has further stated that as per admission made by the prosecutrix in her cross-examination, the house where she was confined at village Bawal had 3-4 rooms and she herself was going to the attached bathroom to ease herself. It is stated that the house being located in a thickly populated locality, there was enough opportunity for the prosecutrix to raise noise and attract the neighbourers.
Mr. Yashwinder Paul Singh, Advocate appearing for appellant-Suresh, has submitted that no semen was found on the cloths as per the report Ex.PB of Forensic Science Laboratory and therefore, it is sufficient to infer that no sexual intercourse was preformed. Counsel has further stated that in examination in-chief the prosecutrix had nowhere stated that she was under threat. Learned counsel has Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 11 submitted that in this context it must be noticed that from village Bawal to village Patwapur, the prosecutrix had traveled alone with Suresh and in the way she made no attempt to raise noise and attract anybody. Counsel has further contended that the prosecutrix had stated that in the bus 10-12 other students were traveling but no such student has been examined by the prosecution. Mr.Singh has further stated that as per the prosecution story, the prosecutrix was abducted at about 9.30 a.m. in front of a gas agency, but no person from such locality has been cited or examined by the prosecution, especially when the investigating officer had admitted that the place, from where the prosecutrix was abducted, is a residential area and near to the Court premises.
Sum and substance of the arguments advanced by counsel for the appellants is as follows:
(a) That in spite of the availability of independent witnesses, their non-examination is sufficient to discard the solitary testimony of the prosecutrix as prosecution has failed to adduce any evidence which could corroborate her testimony;
(b) That the prosecutrix was abducted on 28th February, 2008.
According to prosecution case, she was handed over to her parents on 4th March, 2008; yet the FIR has been recorded on 7th March, 2008 and thus, there is a delay in lodging the report and non-explanation for the same should be construed fatal to the prosecution;
Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 12
(c) That accused-appellant Leela had not performed sexual intercourse with the prosecutrix, hence he could not be convicted for the offence of gang rape;
(d) That non-presence of semen on the cloths of the accused is sufficient to hold that they have not committed offence of rape;
(e) That conduct of the prosecutrix in not raising any noise or informing anybody during the period she was confined in village Bawal is improbable, unnatural and unconvincing;
(f) That all the accused-appellants except Suresh Kumar were found innocent by the investigating agency, hence they are entitled to acquittal.
Now it is time to deal with the arguments raised by counsel for the appellants.
The first argument has been examined by various High Courts and Hon'ble the Supreme Court of this country on numerous occasions. It was held that in case testimony of the prosecutrix aspires confidence and the same is reliable, the Court should not treat the prosecutrix as an accomplice and should not seek corroboration for her testimony. In the present case, the prosecutrix is just above 18 years of age. She has neither any animus nor motive to falsely implicate the accused. She was medico-legally examined on 7th March, 2008. There were two superficial abrasions present on the right hand back and right forearm. There was scab formation on these abrasions. Thus, duration of sufferance of the abrasions is sufficient to infer that the prosecutrix Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 13 had resisted her abduction and forcible sexual intercourse. The prosecutrix was forcibly made to board a vehicle by Suresh, Manoj and Leela. She was taken to village Bawal, where Suresh and Manoj had committed bad act with her. At that time, Leela was also present.
In 'Moti Lal v. State of M.P.' 2008(3) RCR (Criminal) 796, Hon'ble the Apex Court has observed as under:
"6. In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in 'Rameshwar v. The State of Rajasthan' (AIR 1952 SC 54) were:
'The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...' Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 14
7. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix.
In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour."
In the light of observations made by Hon'ble the Supreme Court, noticed above, even presence of semen is not necessary and due credence is to be given to the testimony of the prosecutrix PW-8.
I have read the testimony of prosecutrix PW-8. I have no hesitation to hold that the same aspires confidence and implicit reliance can be placed upon the same. In Moti Lal's case (supra), it was further held as under:
"8. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 15 must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in 'State of Punjab v. Gurmeet Singh' 1996(1) RCR(Criminal) 533 :
(1996(2) SCC 384).
9. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 16 same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short `Evidence Act') similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in 'State of Maharashtra v. Chandraprakash Kewalchand Jain' 1990 (1) RCR (Criminal) 411 : (1990(1) SCC 550).
The above said rules of appreciation fully justify the conclusion drawn by me regarding testimony of the prosecutrix.
Counsel for the appellants have made much emphasis on the delay in lodging the report to the police. It is to be noticed that on 28th Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 17 February, 2008 when the prosecutrix was abducted, it was but natural for the parents to make search for her in their relations and even after a Panchayat was convened and the prosecutrix was handed over to her parents, it required a conscious decision to be taken as to whether the matter should be reported to the police or not. This Court cannot become oblivious of the fact that the prosecutrix was of marriageable age. A victim of rape, in our society, suffers from humiliation and ignominy. It requires, for the concerned family, to muster a lot of courage to report the matter to the police.
Hon'ble the Supreme Court in 'Santhosh Moolya & Another v. State of Karnataka' 2010(2) RCR (Criminal) 819 while relying upon 'Sohan Singh and Another v. State of Bihar' 2010(1) RCR (Criminal) 182, has held as under:
"9. ... ... When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR."
Thus, in the facts and circumstances of the case, delay in lodging the report is of no consequence.
Explanation (1) to Clause (g) of Section 376(2) IPC makes it explicitly clear that all the accused will be guilty of an offence of rape once it is established that the accused persons had acted in concert and were present together when the victim was raped. Irrespective of the fact that the prosecutrix was raped by one or more of them, all the Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 18 accused will be guilty of the offence of rape. It is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim when they were more than one. In support of this, reliance can be placed upon 'Promod Mahto v. State of Bihar' AIR 1989 SC 1475.
In the present case, once the prosecutrix was thrown into the vehicle, all the three accused were accompanying her to village Bawal. Therefore, it will not be possible for the prosecutrix to raise noise in their presence. Furthermore, at village Patwapur the prosecutrix was confined in a house. She was kept detained there. Thus, it cannot be said that conduct of the prosecutrix was improbable and on this ground this Court should ignore her testimony. As held earlier, in the present case testimony of the prosecutrix is trustworthy and hence, the argument that conduct of the prosecutrix is improbable is liable to be rejected.
Thus, this Court has no hesitation to uphold the conviction of appellants-Manoj, Leela and Suresh Kumar. So far as appellant- Kuldeep is concerned, the only role assigned to him is that when the prosecutrix was put into the car, he was present there. He had not accompanied Manoj, Leela and Suresh Kumar in the car. Even the prosecutrix has stated in her cross-examination that she had never met accused Leela, Manoj and Kuldeep prior to the occurrence. Presence of Kuldeep in the entire occurrence was for a few minutes. Suresh Kumar, Leela and Manoj had accompanied the prosecutrix in the car. They stayed with her at village Bawal, whereas Kuldeep had only stood at the place from where the prosecutrix was abducted. Thus, the prosecutrix would have got a mere glimpse of appellant-Kuldeep. As to how and Criminal Appeals No.2524-SB, 2528-SB, 2614-SB and 2858-SB of 2009 19 when she came to know about Kuldeep, there is nothing on record. In the present case, mere mentioning the name of Kuldeep is not sufficient to uphold his conviction. Something more was required on the part of prosecution. It ought to have made an attempt to conclusively prove identity of appellant-Kuldeep. In these circumstances, as a matter of abundant caution, this Court shall grant benefit of doubt to appellant- Kuldeep.
Accordingly, CRA No.2528-SB of 2009 preferred by Kuldeep is accepted by granting him benefit of doubt. Consequently, conviction recorded and sentence imposed upon him is set aside and he is acquitted of the charges. Whereas, CRA Nos.2524-SB, 2614-SB and 2858-SB of 2009 filed by Manoj, Leela and Suresh Kumar respectively are dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE November 2, 2011 rps