Punjab-Haryana High Court
Criminal Appeal No. 878-Sb Of 1999 vs State Of Haryana on 3 March, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 878-SB of 1999 1
Criminal Appeal No. 2021-SB of 2002
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Appeal No. 878-SB of 1999
Satyawan
...Appellant
Versus
State of Haryana
...Respondent
AND
2. Criminal Appeal No. 2021-SB of 2002
Raja
...Appellant
Versus
State of Haryana
...Respondent
Date of Decision: 3rd.03.2010
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Bahadur Singh, Advocate
for the appellants.
Mr. Sunil Nehra, Senior Deputy Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J.
By this common judgment, Criminal Appeal No. 878-SB of 1999 preferred by Satyawan and Criminal Appeal No. 2021-SB of 2002 preferred by Raja, shall be decided together.
Both the appellants were named as accused in case FIR No. 164 dated 21.7.1994 registered at Police Station Model Town, Panipat, Criminal Appeal No. 878-SB of 1999 2 Criminal Appeal No. 2021-SB of 2002 under Sections 363, 366 and 376 IPC and they were tried by the Court of Additional Sessions Judge, Panipat, who convicted them for offence under Sections 366 and 376(2)(g) IPC and sentenced them to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.3,000/- each under Section 366 IPC. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for six months. They were further sentenced to undergo rigorous imprisonment for ten years each and to pay a fine of Rs.5,000/- each under Section 376(2)(g) IPC. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for seven months each. Both the sentences were ordered to run concurrently.
FIR in the present case was lodged on the statement Ex.PB made by Raghbir Singh, father of the prosecutrix (As per the orders of Hon'ble the Apex Court, name of prosecutrix is withheld to protect her identity). Raghbir Singh made his statement on 21.7.1994 at Prithi Chowk, Panipat at 4.05 P.M. He met Dharampal, Assistant Sub Inspector of Police Station Model Town, Panipat, on the way to the Police Station. Complainant Raghbir Singh was originally resident of village Vichpari. He got a son named Kuldeep Kumar and daughter aged 13/14 years. His wife had expired in the year 1982. His daughter was having a limp in her right foot as she was affected by Polio. She was under medical treatment at Panipat. The complainant had taken a room on rent in the house of an Army man adjacent to Food Corporation of India's godown. Room was occupied in the month of May. The complainant was carrying on work of bicycles repair at the back side of Criminal Appeal No. 878-SB of 1999 3 Criminal Appeal No. 2021-SB of 2002 the room taken on rent. On 5.7.1994, son of the complainant's sister fell sick and he along with his son came to Model Town, Panipat, to see his sister's ailing son. When he returned home in the evening at about 5.30 P.M., he found that his daughter was missing. The inquires made to reveal that his daughter had gone to take medicines. The daughter of the complainant had not returned till 9.7.1994. The complainant made a report in the Daily Diary Register regarding the fact that his daughter was missing. On 20.7.1994, complainant learnt that his daughter was seen at the Kiosk of Satyawan, resident of village Binjhol. Thereafter, she stayed in the house of accused Raja in village Binjhol for three/four days. The secret inquiries of the complainant revealed that his daughter was not available in the house of Raja. The complainant expressed his suspicion that his daughter had been abducted by Satyawan and Raja, accused, as she was enticed away by them and they were also concealing her. On the basis of above statement, formal FIR Ex.PB/2 was registered. On 6.10.1994, statement of prosecutrix Ex.PF was recorded under Section 164 Cr.P.C. by the Chief Judicial Magistrate, Panipat. A perusal of the FIR reveals that prosecutrix had left her house on 5.7.1994 and she returned on 4.10.1994.
The above said FIR was investigated. Report under Section 173 Cr.P.C. was submitted.
The case along with the accused was committed to the Court of Sessions and was entrusted to the Court of Additional Sessions Judge, Panipat, for trial.
The first charge stated that on 5.7.1994, in the area of Criminal Appeal No. 878-SB of 1999 4 Criminal Appeal No. 2021-SB of 2002 Panipat, accused/appellants kidnapped prosecutrix aged about 13 years in order that she was subjected to seduction and forcible sexual intercourse and thereby committed an offence under Section 366 IPC. Secondly, the appellants were charged for having committed gang rape on the prosecutrix, between 5.7.1994 to 11.7.1994 and thus, committed an offence of rape under Section 376(2)(g) IPC. The accused pleaded not guilty and claimed trial.
The prosecution commenced its evidence and examined Dr.Anu Arora, Medical Officer, Civil Hospital, Panipat, as PW.1. On 6.10.1994 at 5.30 P.M. she medicolegally examined prosecutrix aged 14 years. The witness has referred the prosecutrix to Radiological Department for confirmation of her age. She stated that vagina of prosecutrix admitted two fingers, hymen was having old rupture and margins were well healed. This witness further stated that the prosecutrix was subjected to sexual intercourse.
Sube Singh was examined as PW.3. He stated that he was working as Cobbler in front of Fertilizer Factory at Panipat. About an year ago, he was coming to his village from the place of work. At about 7.00 P.M. he found Sat Narain and Raja, accused present in the Court, going towards the village. They were accompanied by a girl who was having a limp. On the enquiry made by him, Raja told him that he was coming back from Mumbai and the lady coming with him was his wife's sister. Some days after, on an enquiry made by Raghbir, he had passed this information to him (Raghbir Singh). At that stage, the Court called upon the prosecutrix. However, PW.3 Sube Singh stated that the girl Criminal Appeal No. 878-SB of 1999 5 Criminal Appeal No. 2021-SB of 2002 present in the Court was not the girl who was accompanying the two accused persons. In cross-examination, he stated that the house of both the accused were situated in a thickly populated area of the village. They were living along with their families. He has seen the prosecutrix going on foot while he was going on a bicycle.
PW.4 Shiv Charan stated that Raghbir, father of the prosecutrix, was his friend. On 9.7.1994, Raghbir Singh came to him and informed that his daughter was missing since 5.7.1994. Thereafter, he and Raghbir Singh jointly searched for the prosecutrix but she was not found. A report was made to the police which was recorded in the Daily Diary Register. Raghbir Singh lateron informed that he had seen the prosecutrix in the house of Raja, accused. When they searched, both were not available.
PW.5 Dr. C.V. Singh, on 12.11.1994 at 12.40 Noon, had examined accused Satyawan, whereas Raja at 12.50 P.M., respectively. According to the opinion of the doctor, there was nothing suggestive of the fact which made these accused incapable of performing sexual intercourse. In cross-examination, this witness stated that "it is correct that the right hand of Satyawan is amputated".
PW.6 Dr. S.S. Wadhawan, Radiologist, had conducted the ossification test and determined the approximate radiological age of prosecutrix between 15½ to 17 years.
Prosecutrix appeared as PW.7. She stated that she remained student of Government Girls School, Gohana, from the year 1991 to 1993. She further stated that during the days of present occurrence, she Criminal Appeal No. 878-SB of 1999 6 Criminal Appeal No. 2021-SB of 2002 used to stay with her parents near FCI godowns, Panipat. The two accused, present in the Court, were known to her. They were residents of village Binjhol. On 5.7.1994 at about 3.00 P.M. when she was going to take medicines from the doctor, Satyawan accused met her. She further stated that she has a limp in her right leg. She faced difficulty while walking. The accused Satyawan told that he had a bicycle and would take her to the doctor by giving her lift. Instead of taking prosecutrix to the doctor, he took her to the canal at the outskirts of Panipat town. At that place, accused threatened her and, thereafter, he took her to his village Binjhol. She kept on weeping. He kept her in the khokha for the whole night and the accused committed rape with her forcibly. The rape was committed inside his khokha. During night Raja, friend of Satyawan came. He took her to the canal bank on his bicycle. Thereafter, he made her to sit on the canal bank and kept threatening her. Thereafter, he took her to his house in village Binjhol at 3.00 A.M. He kept her there till 11.7.1994. On the next night, he committed rape with her. He kept on doing so till 11.7.1994. Satyawan, once or twice, came to the house of Raja but had not committed any rape. On 11.7.1994, in the morning, both the accused along with wife of Raja brought her to Railway Station, Binjhol. Then both the accused took her to Delhi. At Delhi, they were short of money and they sold her gold ear rings for Rs.600/- to a jeweller. Then they handed over a railway ticket and address of Mumbai to the prosecutrix. The prosecutrix slept in the railway compartment and thereafter, reached at Railway Station, Mumbai Central. She searched for the person at the given address. But Criminal Appeal No. 878-SB of 1999 7 Criminal Appeal No. 2021-SB of 2002 that person was not available. At Mumbai, she met Lal Bahadur who took her to the house of Nimai Dass who informed the parents of the prosecutrix. The parents reached there and brought her back to Panipat. The prosecutrix admitted in the cross-examination that she had been brought to village Binjhol. Many persons met her on the way, when she was taken by the accused to village Binjhol, then from village Binjhol to the Railway Station at Binjhol, and then to Delhi. However, she had not spotted any police personnel at Panipat or village Binjhol. However, she saw many police officials at Delhi and Mumbai. She had not told to anybody the fact that she was raped by the accused. She had also not told this fact to the wife of accused Raja. In examination-in-chief, she stated that the wife of accused Raja had brought her to Railway Station. The meals of the house at Mumbai did not suit her, therefore, she used to cook her own food. There were three persons in the family at Mumbai. Nimai Dass was living there with his wife and a child. She had reached in the morning of Wednesday at Mumbai as the train left Delhi on Monday at 9.00 P.M. On the way to Mumbai, the train stopped at many stations, but she neither get down nor complained to anybody. She had never seen the Mumbai before. She denied that she married Nimai Dass. She further stated that in her school certificate, her date of birth was recorded as 10.5.1981. According to the witness, her correct age was 15 years.
PW.8 Parmanand stated that both the accused along with the prosecutrix came to the shop of V.K. Jewellers, 1250 Kacha Bagh, Chandni Chowk, Delhi. He was working there as an employee. They Criminal Appeal No. 878-SB of 1999 8 Criminal Appeal No. 2021-SB of 2002 sold gold ear rings for Rs.600/-.
PW.9 Dharampal, Assistant Sub Inspector, stated that he had recorded the statement Ex.PB of Raghbir Singh, father of the prosecutrix. He made his endorsement Ex.PB/1, on the basis of which formal FIR Ex.PB/2 was recorded. This witness had investigated the case from 21.7.1994 to 23.7.1994. He made an attempt to arrest the accused but they were not available.
PW.10 Ram Chander, Sub Inspector, stated that on 6.10.1994, he had produced prosecutrix before the Chief Judicial Magistrate, Panipat, who recorded her statement Ex.PF under Section 164 Cr.P.C. For the first time, Raghbir Singh with his daughter (prosecutrix) met this witness on 6.10.1994.
PW.11 Bachan Singh, was posted as Station House Officer, Model Town, Panipat. He had partly investigated the case.
Inder Singh, Lecturer, Government Girls Senior Secondary School, Gohana, appeared as PW.12. He stated that in the school record, prosecutrix's date of birth recorded was 10.5.1981. Certificate, Mark A, was issued by Shakuntla Chahal, Principal. He was conversant with the handwriting of the Principal and, therefore, certificate Mark A was exhibited as Ex.PJ.
PW.13 Maman Ram stated that on 18.7.1994, he had gone to Railway Station, Binjhol at 2.00 P.M. He saw both the accused there with a girl having a limp.
PW.14 Anil Taneja, Draftsman, proved the scaled site plan Ex.PM.
Criminal Appeal No. 878-SB of 1999 9Criminal Appeal No. 2021-SB of 2002 Thereafter, the prosecution closed its evidence. The statement of accused under Section 313 Cr.P.C. was recorded. Appellant Raja denied all the incriminating circumstances and pleaded false implication. Satyawan, appellant, pleaded false implication, denied all incriminating circumstances and stated that his right arm was amputated from the shoulder and he was unable to commit rape.
In defence, S.P. Sethi, Advocate, a Notary Public, was examined as DW.1. He stated that on 27.10.1994, he attested an affidavit of Vijay Kumar alias Bitta.
DW.2 Devki Nandan, Ahlmad (Criminal) in the Court of Chief Judicial Magistrate, Panipat, had brought the summoned record.
DW.3 Ramesh Kumar stated that he is brother of Satyawan. On 14.7.1994, police had arrested Satyawan. Satyawan had not committed any crime. On 16.7.1994, the police took father of the accused and Ramesh Kumar to Police Station. The police had arrested two boys of the village who were released within one or two days. This witness had given an application on 20.7.1994 to the police. Same was exhibited as Ex.D1.
Vijay Kumar appeared as DW.4. He proved that he had furnished affidavit Ex. D4 on 27.10.1994. He never produced the accused before the police.
One of the questions which requires consideration of this Court is, "Whether offence of gang rape is constituted in the present case or not?"
Criminal Appeal No. 878-SB of 1999 10
Criminal Appeal No. 2021-SB of 2002 Prosecutrix, in examination-in-chief, has stated as under:-
"He (Satyawan) committed rape on me inside his khokha. During night, his friend, accused Raja, also came there. Then Raja took me to the canal bank by making me sit on his cycle, on the pretext that he was to take me to my house. Then he made me sit on the canal bank and kept on threatening me. After that he took me to his house in vill. Binjhol. It was 3.00 a.m. at that time. In the morning he told his wife that he was to take me to my house. He kept me there till 11.7.1994. Then on the next night he committed rape on me, against my wishes. He kept on doing so till 11.7.94. Once or twice, even accused Satyawan came to his house and then went away and at his house he did not commit rape on me".
Act of rape attributed to Satyawan accused pertains to 5.7.1994. On next day Raja committed rape in his house on 6.7.1994. Where at the time of rape both the accused are not present and rape is not committed in one transaction but at different places on different dates, can it be said that both the accused have committed offence of gang rape. Explanation I to Section 376 IPC states that to constitute gang rape, woman is to be raped by one or more persons in a group of persons acting in furtherance of their common intention. In the present case, accused had not acted in a group. Therefore, offence of gang rape Criminal Appeal No. 878-SB of 1999 11 Criminal Appeal No. 2021-SB of 2002 is not made out. The offence, if any will fall under Section 376 IPC.
Now to examine, "Whether offence under Section 376 IPC has been committed or not?"
The prosecutrix was having a limp as she was affected by polio. Accused Satyawan is also a handicapped person. His arm is amputated from the shoulder. He is suffering from 80% handicapness. According to statement of PW.6 Dr. S.S. Wadhawan, ossification test was conducted. Prosecutrix was approximately aged between 15½ to 17 years. This opinion was based on the data of Dr. Hepworth published in Modi's Medical Jurisprudence. He further stated that there can be a variation of two or three years on either side.
PW.1 Dr. Anu Arora stated that hymen of the prosecutrix was having old rupture, margins were well healed and her vagina admitted two fingers tightly. There was no external or internal mark of injury on the body of prosecutrix. In para 22 of the judgment, the trial Court states as under:-
"22. The learned defence counsel further contended that as per medical evidence, there was no mark of injury on the private parts of the prosecutrix. Thus, this fact also shows that she was a consenting party. Of course this fact carries weight but in the present case, these are immaterial as prosecutrix was below 16 years of age on the date of commission of the offence".
The case set out by the prosecutrix is that she had left her Criminal Appeal No. 878-SB of 1999 12 Criminal Appeal No. 2021-SB of 2002 house for taking medicines on 5.7.1994 at 3.00 P.M. Accused Satyawan had met her and took her to his kiosk in village Binjhol and had committed a rape with her. On the same night, accused Raja took her to his house. On next day i.e. 6.7.1994 Raja accused committed rape and kept prosecutrix in his house till 11.7.1994. It is further stated that Raja kept raping her till 11.7.1994. The wife of Raja was also present in the house. On 11.7.1994, in the morning, both the accused along with the wife of Raja had brought her to Railway Station, Binjhol, wherefrom they took her to Delhi. At Delhi, gold ear rings of prosecutrix were sold. A railway ticket was purchased for her journey to Mumbai. The prosecutrix stated that on 11.7.1994 she left for Mumbai and reached there after two days. Therefore, it can be safely inferred that the prosecutrix reached at Mumbai on 13.7.1994. She remained there till 4.10.1994. On receipt of letter, parents of the prosecutrix had gone there and brought her back to Panipat on 6.10.1994. From 5.7.1994 to 6.10.1994, for a period of three months, prosecutrix remained out of her house. She remained in the company of accused Satyawan only on 5.7.1994. From 5.7.1994 till 11.7.1994 she remained in the company of accused Raja. On 11.7.1994, both the accused facilitated her journey to Mumbai. The prosecutrix stated that at various Railway Stations, during the journey to Mumbai many persons were there but she had not disclosed factum of rape to anybody. She had not disclosed even this fact to the wife of Raja. From Railway Station, Binjhol, to Railway Station Delhi, she had not whispered a word regarding her rape to anybody. From Delhi Railway Station, she had accompanied the accused to the shop of a Criminal Appeal No. 878-SB of 1999 13 Criminal Appeal No. 2021-SB of 2002 jeweller in Chandni Chowk Bazaar. She herself had sold her gold ear rings. She had not disclosed the fact of rape to the jeweller or his employees. Thereafter, she alone travelled to Mumbai. She remained at Mumbai for more than two and a half month. At Mumbai also, fact of rape was not disclosed to anybody. In these circumstances, this Court has no hesitation to affirm the findings of trial Court that prosecutrix was a consenting party.
A number of circumstances, which have been narrated above, led the trial Court to say that "of course this carries weight but in the present case these are immaterial as prosecutrix was below 16 years". Thus, consent of the prosecutrix, to the trial Court was also apparent. However, since the prosecutrix was aged less than 16 years, it was held to be a case of rape. So far as the age of the prosecutrix is concerned, this Court cannot ignore the ossification test and the testimony of PW.6 Dr. S.S. Wadhawan who stated that the prosecutrix was approximately aged between 15½ to 17 years. Where the age of prosecutrix is on the border line of 16 years, benefit is to accrue to the accused. Thus, so far as offence under Section 376 IPC is concerned, benefit of doubt is to be granted to the accused.
From the entire conduct of the prosecutrix from 5.7.1994 to 6.10.1994, it can be safely concluded that she was a consenting party. Therefore, conviction of the appellants for offence under Section 376(2)
(g) IPC is set aside and they are acquitted of this charge.
However, the prosecutrix was less than 18 years of age. Both the appellants have facilitated escape of the prosecutrix from the lawful Criminal Appeal No. 878-SB of 1999 14 Criminal Appeal No. 2021-SB of 2002 guardianship of her father. Therefore, offence under Section 366 IPC is made out against them. Both the appellants have been sentenced under Section 366 IPC to undergo seven years rigorous imprisonment. While granting bail to appellant Raja on 20.2.2003, this Court noticed that he had undergone about six years of his actual sentence, out of substantive sentence of ten years. Appellant Satyawan had undergone more than three years of his actual sentence. Occurrence in the present case pertains to year 1994. The appellants have already suffered a protracted trial of more than 15 years.
Taking these circumstances into consideration, sentence of the appellants for offence under Section 366 IPC is reduced from seven years to three years rigorous imprisonment.
Thus, to conclude, both the appeals are partly accepted. The appellants are acquitted of offence under Section 376(2)(g) IPC, however, their sentence for offence under Section 366 IPC is reduced from seven years to three years rigorous imprisonment. The sentence of fine and default clause, thereunder, are maintained.
(Kanwaljit Singh Ahluwalia) Judge March 3rd, 2010 "DK"