Punjab-Haryana High Court
Jaswant Singh@ Monu vs State Of Haryana on 3 April, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Appeal No.3179-SB of 2010 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: APRIL 03, 2012
Jaswant Singh@ Monu
.....Appellant
VERSUS
State of Haryana
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. P.L.Singla, Advocate,
for the appellant.
Mr. R.S. Rai, Senior Advocate with
Mr. D.S. Brar, Advocate
Mr. Sandeep Wadhawan, Advocate.
Mr. Rajesh Gupta, Advocate.
Mr. M.K. Tiwari, Advocate.
Mr. Ankit Gautam, Advocate for
Mr. Ramesh Sharma, Advocate.
Mr. Navjot Sidhu, Advocate for
Mr. Hemant Bassi, Advocate.
Mr.Saurabh Mohunta, DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
Fourteen accused persons faced prosecution for gang Criminal Appeal No.3179-SB of 2010 :2: rape of a minor girl (name not being mentioned to hide her identity), besides other offences of abduction, forcible confinement and administering her intoxicant. Thirteen accused persons were held guilty for offence of gang rape and also under Sections 363 and 342 read with Section 34 IPC. One of the accused Deepak, however, was acquitted of the charges against him. Upon their conviction, they were sentenced to suffer RI for ten years alongwith fine of Rs.2000/- each for commission of an offence under Section 376(2)(g) IPC. Three of the accused were further sentenced to undergo imprisonment for seven years alongwith fine of Rs.1000/- each upon their conviction for an offence under Section 363 read with Section 34 IPC. Two persons were further sentenced to undergo imprisonment for one year coupled with fine of Rs.500/- each upon their conviction under Section 342 read with Section 34 IPC. They have now filed these different appeals No.2350-SB, 2872-SB, 2872- SB, 2985-SB, 3051-SB, 3054-SB, 3179-SB of 2010, 33-SB, 231-SB, 291-SB and 1256-SB of 2011 to impugn their conviction and the sentence as imposed. The facts are being taken from Criminal Appeal No.3179-SB of 2010.
The incident of gang rape surfaced when police received a telephonic information at 7.10 P.M. on 22.12.2009 that one girl had been kept locked in a house near G.R.P.Police Station, Railway Colony, Kalka. ASI Gurdev Singh, EASI Angrej Singh and Constable Dhan Singh reached the spot which is house No.T-120-C/D of one Saurav Sharma @ Meenu. The police officials noticed that number of persons from public had collected in front of the house which was Criminal Appeal No.3179-SB of 2010 :3: locked from outside. ASI Gurdev Singh got the house opened with the help of public and other police officials and took the girl out of the house. After getting information about the particulars of the girl and of her parents, she was taken to her parents house. Her statement was then recorded in the presence of her parents, when she revealed her tale of woes wherein she was subjected to a gang rape for about two days by these fourteen accused persons. FIR was accordingly registered on 23.12.2009, which led to investigation, arrest of these fourteen accused persons, thirteen of whom are appellants before this court.
The complaint, which the girl had made reveals that in the month of October, 2009, she had gone to attend a Jagran at Railway Ground accompanied by her mother. From there, she was allured by Saurav @ Meenu alongwith two other boys Vicky @ Bawa and Deepak @ Pathan. These three persons took the girl on a road to Naina Devi Mandir, where they allegedly raped her turn by turn. The girl would further allege that she was advanced a death threat by showing knife if she disclosed this incident to anyone. Thereafter she was left at the Jagran.
Her story further is that on 20.12.2009 while she was going to meet her father at Railway Station, Kalka, she happened to meet Vicky @ Bawa, who took her to the house of Saurav @ Meenu, located at Railway Colony. There another person named Puneet came and took the prosecutrix to his house at about 7.00 PM. At that time no body was present in the house and there Saurav @ Meenu, Vicky @ Bawa, Puneet and their another friend known Paharia @ Criminal Appeal No.3179-SB of 2010 :4: Rajiv raped her turn by turn against her wishes. The girl was kept in the house during night when Puneet had telephonically called another friend, whose name was also Rajiv. He also raped the prosecutrix against her wishes and thereafter left the place some time in the morning. As per the allegation, Saurav @ Meenu, Bawa, Puneet and Paharia @ Rajiv kept the girl in the same house with them by advancing her threat of death. At about 8.00 PM another friend of Vicky @ Bawa, whose name is not known to the girl, but she can identify him on seeing, came to the house and took her on a motorcycle to Parwanoo. After taking her ahead of a petrol pump, this person who had taken her returned whereas two other friends of Vicky @ Bawa, whose names again she does not know, came in a car and took her to a Dhaba, which was 10-12 kms, away from Parwanoo. Allegation is that three persons, namely, Vicky @ Bawa alongwith these two friends turn by turn raped her in a hotel room, besides giving her drugs. These three boys then had left the girl in a Grain Market, Kalka at about 4.30 AM on 22.12.2009. At that time she was in the state of intoxication. While being there, she again came across Saurav @ Meenu, who was accompanied by three of his friends, namely, Jaswant, Himmat and Baldev. While being in the state of intoxication, these four boys again took her to a hut of a saint located beyond broad gauge line where they all again raped her. From there she was taken to house of Saurav @ Meenu in a three wheeler. Saurav threatened her and confined her in the house by putting a lock outside the door and went away. Finding herself alone she cried for help. Hearing her cries, many persons from the locality Criminal Appeal No.3179-SB of 2010 :5: got collected and thus, the police was called and it reached the scene at 7.30 PM. She was accordingly rescued from the house of Saurav @ Meenu. She had then disclosed her identity and location of her parents leading to registration of an FIR on the basis of her statement as has been noticed above.
Investigations were then conducted by the police leading to arrest of all the fourteen accused persons. The case was committed to the court of Sessions for trial on 10.4.2010. The appellants were charged for offences under Sections 342, 366-A, 328, 376(2)(g) and 506 IPC on 29.4.2010. The appellants pleaded not guilty and claimed trial. The prosecution examined the prosecutrix, her mother, besides the police officials and the doctors, who had conducted the medical examination of the girl concerned. The then Civil Judge, Panchkula was also examined as a prosecution witness since she had recorded the statement of the prosecutrix under Section 164 Cr.P.C. Two other Judicial Officers also appeared as witnesses, besides the Investigating officer and a doctor, who had examined the appellants. Some of the witnesses were given up either being unnecessarily or being won over.
The appellants have denied the allegations besides pleading their false implication. They also examined two witnesses in defence. After detailed appreciation of the evidence led by the parties, the trial Judge, in a well considered judgment, found thirteen appellants guilty of the offence of gang rape alleged against them. The trial Judge, however, found that the offence under Section 366-A was not established, but was of the view that the offence under Criminal Appeal No.3179-SB of 2010 :6: Section 363 read with Section 34 PC was made out against the appellants, besides the offence under Section 342 IPC read with Section 34 IPC. The appellants were accordingly sentenced as already noticed and hence they are before this court through the present appeals.
Number of counsels have made submissions, but learned Senior counsel Mr.R.S.Rai was the lead counsel, who made submissions in detail in this case supplemented by other counsel appearing in different appeals. The main ground of attack on behalf of the appellants is the contradiction in the version of the prosecutrix in three statements made by her. The counsel would also plead false implication of the appellants and in support would very strenuously urge that if this minor girl had been subjected to a gang rape by as many as fourteen persons, her condition would have been not what she was found to be during her medical examination. Plea is that conviction of the appellants cannot be maintained as it would not be safe to rely upon the sole testimony of the prosecutrix, who was found to have been making contradictory statements at the different stages of the case. The counsel have also raised serious doubts about the identity of the appellants as they could not be or have not been properly identified by the prosecutrix and in this regard have highlighted the different names given by the prosecutrix with which the appellants were not known. It is accordingly pleaded that the identity of the appellants was not fully established by the prosecution in view of this position of the evidence and, therefore, there would remain a doubt about the identity of the appellants, benefit of which Criminal Appeal No.3179-SB of 2010 :7: may accrue to the defence and resultantly to the appellants.
The counsel appearing for the appellants have made an oblique attempt to raise an issue of the age of the prosecutrix, but were not forthright in pressing this plea hard. None of the counsel, however, pleaded it to be a case of consent. Obviously, the counsel were aware that if they were to raise the plea of consent on the part of prosecutrix, then determination of her age being minor would sweep them of their feet away and may in itself lead to their conviction. Obviously, the plea of consent could have been raised only after admitting the sexual intercourse by the appellants, which they could ill-afford and had neither pleaded so nor is it pleaded now. In an oblique manner they did raise an issue about the age of the prosecutrix and in this regard an incidental issue about the name of the prosecutrix also cropped up.
Since the appellants had raised an offence of total denial, the submissions on these lines about the age would be insignificant. Still, it may be noticed that this issue was pressed hard before the trial court and on the basis of evidence that was led before the court, the court had found the prosecutrix to be minor and also that she was known by two names, one of which was alias.
The prosecution counsel, on the other hand, has rather highlighted the plight of this minor, who was subjected to this vulturous attacks on her body leaving a life long trauma for her to bear. This minor girl was taken from place to place and subjected to forcible intercourse by as many as fourteen persons. The State counsel would emphasis that defence had not raised any ground or Criminal Appeal No.3179-SB of 2010 :8: plea for which this minor girl would make false allegations against as many as fourteen people. In this regard, the counsel would point out that defence even has not raised a plea of consent, which could to an extent, have given them some opening to make allegation of false implication because of some spite.
Really no reasons are either available on record or are forthcoming, for which the prosecutrix would make such serious and false allegations against as many as fourteen different persons This issue cropped up during arguments before this Court but none of the counsel appearing in the case could show any reason or cause of false implication by the girl. It is not the case of defence that these appellants did not know each other. In this background, the allegations by the prosecutrix that they kept on calling one person after another and took her from one place to another to commit repeated violation of her body at different places would only show that these lust loaded boys did so to satisfy their sexual appetite.
Though the name of the prosecutrix has not been mentioned here in this order, but it was so mentioned by the trial Judge as the name in itself was an issue raised by the prosecution. The version of the prosecutrix would clearly show that she had given clear and cogent evidence. Her father was in employment of the Railway department and on 20.12.2009 she was going to serve food to him. Three of the appellants, named as Neenu, Bawa and Bhola allegedly caught hold of her and forcibly took her on a motorcycle to the house of Meenu. There these three persons raped her. In the court, the prosecutrix identified Saurav as Meenu, Yogesh as Vicky Criminal Appeal No.3179-SB of 2010 :9: @ Bawa, but stated that Bhola was not so present in the Court. As per her version, Puneet also came there and raped her and in this regard pointed out towards Karan identifying him as Puneet. To identify Paharia as named by her, she pointed out towards Rajiv @ Rinku, who had also raped her at the same place. Person named Shibu, who had come there in the morning had also raped her. While identifying Shibu she pointed out towards Shadbhan Khan. As per her testimony, the prosecutrix was kept in this room till the next day when she was taken by Bawa and Rinku. She identified Pankaj son of Jagdish as Rinku in the Court. Her version further is that thereafter she was taken to a hotel, name not known to her, where Karan and Bhola raped her. In the Court, she identified Pankaj son of Mohan Lal as Karan. Neeraj present in the court was another person identified by her who had raped her in the hotel room. These persons had left at about 4.00 AM in the morning, when appellant Saurav @ Meenu took her to a hut where he raped her. He had called about eight other boys telephonically, who came there and raped her. These persons had been identified present in the court as Himmat Kumar, Amit Kumar, Baldev and Jaswant, who were amongst these persons. Thereafter, Himmat, Saurav and Jaswant took her to an unknown place in an auto, finally to be taken to a house by Saurav, where she was locked. The girl was subjected to medical examination and had made a statement before a Magistrate, which was recorded. Copy of the same is also produced. She had demarcated the places where she was subjected to forcible sexual intercourse.
The counsel appearing for the appellants have made Criminal Appeal No.3179-SB of 2010 : 10 : some attempt to point out to the contradiction in the version given by the prosecutrix before the court and the one which she had made earlier before a Magistrate which was recorded under Section 164 Cr.P.C. The first variance, which is highlighted, is that the prosecution has now completely missed the incident and happenings of 26.10.2009, which she had disclosed in her statement recorded under Section 164 Cr.P.C. marked on record as Ex.PAD/1. This, in my view, cannot be called as a contradiction. It may be an omission. No one, including the court, questioned the prosecutrix in this regard from which it could be urged that she has given a contradictory statement. Otherwise, she has given statement which is almost on the lines with the statement she has made before the court. This statement is accompanied by a certificate given by the Judicial Magistrate Ist Class, Panchkula certifying that before recording the statement of the prosecutrix, she had informed her that she was not bound to make any statement and had asked her if she was willing or volunteer to make a statement. She had replied in the affirmative and then had made a voluntary statement. It is further certified that the Magistrate has recorded whatsoever was stated by the prosecutrix. Application moved by SHO Dharam Singh for recording the statement is also on record. Thus, there is no major contradiction noticed in these statements, which would create a doubt on the version as given by the prosecutrix.
The counsel appearing for the appellants would next contend that there was doubt about the identity of the appellants. They were not named by their actual names and had been named Criminal Appeal No.3179-SB of 2010 : 11 : by the prosecutrix with some different names. The prosecutrix may have named these appellants by some names but she had clearly identified them in the court as the persons, who had raped her and the names to which she was referring to explain as to why the names of the appellants were mentioned in the evidence can be discerned from the record itself. In fact, the appellants were addressing each other by such names as has been disclosed by the prosecutrix. The appellants, in my view, may not have a case to raise this plea. It is on record that the prosecution had moved an application for holding the identification parade of the appellants, but they all had refused to undergo the identification parade. The reason for not submitting themselves for identification parade may be that they had earlier been shown to the prosecutrix. All the appellants simply refused to undergo the identification parade. Accordingly, they cannot now be heard to say that they were not properly identified or their identification for the first time before the court would be meaningless. If they were so sure, they could have exercised the option to submit themselves for the identification parade. It should not be taken to mean that any adverse inference is being drawn against them on this count but it is so noticed to test their plea of being not identified properly.
The counsel would next contend that the medical evidence would not substantiate the version of the prosecutrix, who was alleged to have been gang raped by fourteen persons. Plea is that if the prosecutrix, who is of young age, had been subjected to a forcible sexual intercourse by fourteen people, her physical condition Criminal Appeal No.3179-SB of 2010 : 12 : would have been much worse and not what has been found to be by the doctor. As per the evidence of Dr.Sanju Singh (PW-11), there were small bruise bluish in colour present near the left nipple on medial side. The doctor did not notice any mark of external injury on the private parts of the prosecutrix, but hymen was found torn at several places. The separation of thigh was noticed to be painful. Insertion of two fingers was painful but one finger could easily be inserted. Merely because no external marks of injury are found on the private parts of the prosecutrix, it would not be enough to disbelieve her. There are enough indication that she was subjected to a sexual intercourse which may be a forced one. Hymen was found torn and so also the other tell-tale signs indicating a forcible intercourse. As per the opinion of a doctor, the possibility of rape of the prosecutrix could not be ruled out. This is again highlighted by the counsel for the appellants to state that there is no positive opinion that she was subjected to rape. This argument, in my view, is more of frustration than anything else. The possibility of sexual intercourse would further be proved from the clothes and the vaginal swabs. In fact, the prosecutrix has been subjected to the medical examination by the board, which was constituted for this purpose. As per the FSL report, human semen was detected on the salwar, underwear, vaginal swab and accordingly the Doctor (PW-11) had opined that possibility of rape could not be ruled out. This evidence, in my view would be enough and sufficient to show that the prosecutrix had been subjected to rape. The fact that the doctor did answer which is recorded to certain questions about the number of Criminal Appeal No.3179-SB of 2010 : 13 : persons or that whose semen it was, would be of no help. This evidence would not, in any manner, go to negate the version given by the prosecutrix to positively name all the appellants, who had violated her body. There is an evidence on record that all the appellants are fully capable of performing sexual intercourse.
The defence had also made an attempt to raise doubt about the name of the prosecutrix and in this regard has also made an attempt to challenge the age of the prosecutrix. There is clear and cogent evidence available on record which was given by the prosecutrix at the first available opportunity that she was less than 16 years of age and had been studying in Class-VII. She had also deposed that she did not know the accused persons much by name, but could identify them from their appearance which she did in the court. Her mother has come to corroborate her version as she had disclosed the entire incident to her at the first available opportunity.
The age of the prosecutrix was proved by examination of the headmaster of the School where she had been studying. Though her statement during investigation was recorded under a particular name, but she was able to establish that she was also called by another name. Her statement recorded under Section 164 Cr.P.C. is almost in line with the first complaint which she made and is exhibited on record as Ex.PA. The minor contradiction or variation, which has been highlighted, is on the fringes and not on the core of testimony, which would not, in any manner, lead to creating any doubt on her version.
The counsel appearing for the appellants have highlighted Criminal Appeal No.3179-SB of 2010 : 14 : some portion of her evidence to show that identification of the appellants was on the basis of their having been shown by the police. In my view, this is being so stated by not reading the evidence in entirety. In fact, the appellants had been named and their identity disclosed leading to they being detected, arrested and made to face prosecution. In this background, it cannot be accepted that the prosecutrix had identified the appellants on the asking of police. The police is not attributed with any motive or purpose for falsely implicating the appellants in this case. Even no motive is alleged either in the cross examination or otherwise for which the prosecutrix could have made any false implication against any of the appellants. No such efforts were made to show that the police has falsely named the appellants.
The version of the prosecutrix otherwise would have to be appreciated in the light of law now laid down by the Apex court, which is to the effect that the conviction can be based on the solitary statement of the prosecutrix. It is observed that if a victim of rape states on oath that she had been subjected to sexual intercourse, her statement even if uncorroborated can be accepted unless material on record shows that the entire incident was improbable or imaginary. It is in this context observed that the evidence of sexual assault victim stands at par with the evidence of an injured witness. The injured witness who has sustained injury would be a best witness in the sense that the victim is not least likely to exculpate real offence or to inculpable anyone who is not actually involved. It has rightly been observed that seeking corroboration to the evidence of a rape victim Criminal Appeal No.3179-SB of 2010 : 15 : before placing reliance on her version may lead to adding insult to the injuries.
Firstly in a case of this nature, a young minor girl has been subjected to a brutal sexual assault by as many as fourteen people and they now wish to seek corroboration of the version given by this victim of the assault. It is not without the reasons that the offence of rape is considered to be a crime against human dignity where this not only leaves a serious physical but mental injury to the victim, who perhaps has to endure and live with it throughout her life. It leaves a feeling of humiliation and degradation. Such victims obviously would be shaken altogether and would take time to recover from the trauma that she would have suffered. That is why the requirement of seeking corroboration is no more insisted upon by the courts of law if the evidence of prosecutrix is considered to be probable. In the present case, no major contradiction and improvement are pointed out or seen in the version of the prosecutrix, who has consistently maintained that she was subjected to gang rape. Minor variations here or there would not be material and are to be appreciated in the background that the victim was subjected to this trauma and this horror would visit her again while narrating the incident time and again while appearing in the Court. A minor girl of less than 16 years would certainly be overawed by the atmosphere available in the Court where searching eyes of counsel, accused, fourteen in number, would be staring at her and she is subjected to searching uncomfortable questions by these legal eagles, who somehow would be looking to scare the young girl to slip Criminal Appeal No.3179-SB of 2010 : 16 : while making statement. Such variations may be because of method of narration and are not on the core of testimony in any manner. There is no reason to doubt the version of the prosecutrix and there are no reasons available on record why her testimony should not be believed even if it is uncorroborated.
An offence of rape generally is committed not in a public view where somebody can come forward to lend corroboration to such offences. The offence is committed in the close corners of some houses or premises or at a place which is isolated one and beyond the public view. Asking prosecution to show corroboration in such like cases, thus, would be insisting on something which is beyond the realm of reach. I am, thus, not prepared to accept these submissions made before me, especially so in the light of the provisions of Section 114-A of the Evidence Act. Section 114 of the Evidence Act makes a provision for the court to presume existence of certain facts. As per this section, court may presume that existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the particulars facts of the case. To further clarify this aspect of presumption, a legislature has now made a special provision in the form of Section 114-A, which provides that presumption as to the absence of consent in certain prosecutions for rape. This section provides that in a prosecution for rape under clause (a) clause (b), clause (c), clause (d), clause (e) clause (f) and clause (g) of sub-section of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved, the Criminal Appeal No.3179-SB of 2010 : 17 : question whether it was without consent of woman alleged to have been raped and where she states that she did not consent, the court shall presume that she did not consent. Though it is not specifically pleaded that the prosecutrix was a consenting party, but even if it is obliquely pleaded the same cannot be accepted as the presumption available under Section 114-A would stand to nullify the consent as she has denied to be a consenting party. There is nothing on record to show that she was a consenting party.
The oblique reference made to the absence of injury on the private parts of the prosecutrix to urge that she may be a consenting party would be against the clear evidence that the victim girl has stated that she was subjected to sexual assault forcibly, which would be enough to presume that she was so sexually assaulted and subjected to intercourse without her consent. It has been noticed in some of the cases that the absence of physically injury on the prosecutrix would not warrant a presumption that she was consenting party. It is also held that in a case of gang rape, once the sexual intercourse is proved which in the present case it is so proved, it is on the accused to prove that the victim consented to the intercourse. If they failed to do so, the presumption under Section 114-A would arise and can easily be raised. Thus, all these arguments asking to disbelieve the version of the prosecutrix on the ground that her testimony is uncorroborated or that there is contradiction or variation in her statement are arguments which cannot be accepted. There is no reason forthcoming or available on record to disbelieve the testimony of the prosecutrix. Criminal Appeal No.3179-SB of 2010 : 18 :
Another fact, which has been highlighted on behalf of the appellant is that the prosecutrix concededly was taken from place to place and she had more than one opportunity to leave but still did not escape. In this regard, reference is made to her version where she has stated that she was left at the Railway Station early in the morning and thereafter she was again picked up at 11.00 O'clock. The counsel for the appellants would contend that she could easily have left for her house. Perhaps the counsel are not realising that the prosecutrix claims to have been drugged while she was taken to Parwanoo and other places and she was left in a state of intoxication/ under drug at the Railway Station. She either was not in a position to leave or perhaps may have thought of not going to her home in that condition. While she was in the state of perplex, she was again picked up from the Railway Station, finally to be recovered from the room where she was kept locked.
Yet another fact which is highlighted is that the prosecutrix concededly had come to the Railway Station when she was picked up initially to meet her father or to bring food for her father. She did not reach either the father or also did not return to her house. In this background, the counsel would contend that her parents would have raised a hue and cry if the girl had really gone missing and had remained so for a period of 2-3 days. Normally that should have been the reaction. Another reaction could be that parents of the girl may have been searching for her and had thought of lodging a complaint only once they were unable to search the girl. In such a situation, the first attempt would be to search for the girl. Criminal Appeal No.3179-SB of 2010 : 19 : The family would be keen to save their honour and respect. Only after having failed in their efforts, the family would go to police. This is a possible reaction. Not approaching the police in this background at all would not go to negate the allegations as made by the prosecutrix where she has alleged a gang rape.
Since the defence was unable to establish the age of the prosecutrix to be more than sixteen the consent on her part or she being friendly to one of the appellant would have not led to any benefit to the defence and that is why perhaps none of the appellants have come forward to plead so. The attempt of the appellants to obliquely plead and contest the age of the prosecutrix to be more than sixteen or that prosecution was not able to prove the age to be less than sixteen, apparently was aimed at this line of defence. Obviously, they were not bold enough to plead so positively and were rest contend by raising this plea in the manner as it is recorded so. To highlight that the prosecution was not able to satisfactorily prove the age of the prosecutrix, the appellants' counsel would refer to the evidence of a doctor (PW-11), who had in her version had advised X-ray of long burns for age determination and dental and ortho for age determination, which the prosecution never obtained. It is noticed that the prosecution had examined the Headmaster of the School where the prosecutrix was a student of 7th Class. Mohinder Pal (PW-9) appeared as a witness and had brought the original register regarding the admission in the school. He had proved the entry dated 10.4.2006, which was made at Sr.No.333 showing the date of birth of the prosecutrix, daughter of Amarjit Singh, as Criminal Appeal No.3179-SB of 2010 : 20 : 16.10.1994. No contrary evidence is available on record to doubt this evidence brought on record.
The submission that PW-9 did not establish properly that the certificate did not pertain to the prosecutrix may not be of much value and no question was addressed to this witness when he appeared in the witness box. A school register maintained in the course of business would be admissible evidence. This presumption being rebuttable one could be so rebutted, but no efforts were made by the defence to do so. An Attempt to create doubt on the basis of name of the prosecutrix is also without basis. She has clearly deposed in her version that she was known by both the names. Her name may have been recorded something differently than she was known in the house would not in itself be enough to disbelieve the evidence of age through PW-9. It was very easy for the defence to question PW-9 whether prosecutrix was the girl, to whom he referring to. Such an entry could not have been got recorded. This also has to be read in consonance with the evidence given by her mother. As per PW-3, the entry about the birth of the prosecutrix was recorded in the village Chowkidar register. The girl was admitted in the school when she was five years old. No efforts were made to summon the record by the defence. PW-3 has also given evidence that she had furnished an affidavit regarding the date of birth of her daughter at the time of her admission in the school. PW-3 was thoroughly cross examined by different counsel on this aspect, but she apparently stood the test. She has clearly given details about her other children and struck to the version that the prosecutrix was less than sixteen Criminal Appeal No.3179-SB of 2010 : 21 : years of age. She is the most natural person to know about the age. She had no reason to depose falsely on this aspect, when it is viewed in the background that the appellants are not even taken up the defence of the prosecutrix being consenting party.
The trial court, in my view, rightly placed reliance on the case of Vishnu @ Undrya vs.State of Maharashtra, 2006(1) SCC (Crl.) 217, where the court has observed that when there is a dispute over the age of prosecutrix in a rape case, then best evidence to prove age is of the father and mother. The court has further observed that their evidence would prevail. Even the medical evidence would not be binding on the witness of facts. Accordingly, the age of the prosecutrix was sufficiently established on the basis of a cogent and reliable evidence and no advantage on this count can accrue to the defence and the appellants. It would have been more appropriate for the Investigating Officer to go in for ossification test as was advised by the doctor, but in the absence thereof and in the absence of proof to the contrary, there would not be any reason or occasion for the court to draw any inference to the contrary , when the prosecution had made efforts and led evidence to prove the age of the prosecutrix.
From the material and evidence on record, the prosecution certainly was able to establish the offence of gang rape beyond reasonable doubt. It is noticed that there is no reason or cause to doubt the credibility of the prosecutrix, who had stood the test of cross-examination and had given evidence before the court, which is almost in line with the previous version given at the first Criminal Appeal No.3179-SB of 2010 : 22 : available opportunity. The identification of the accused was well proved before the court and apparently is not in doubt. The manner in which one person after another had been called would show that all this happened because of common intention on the part of all the appellants. In any case, it has not been urged in any manner before me that this was not a case of common intention on the part of the appellants. No submissions in this regard were made before me nor such submissions have been made before the trial Court. There is sufficient and reliable evidence available on record and there is no reason to doubt the same.
The reliance by the counsel for the appellants on the case of Sunil Vs. State of Haryana, 2010 Cri.L.J.839 would be of no assistance to the defence. This was a case where the prosecutrix was stated to be in love with the accused and a consenting party. The court has, therefore, observed that close and careful determination of the age of the prosecutrix became imperative. The ratio of this judgment would not apply to the facts of the present case. None of the appellants have come forward to plead consent on the part of the prosecutrix. The submission made on the basis of law laid down in Asraf Ali Vs. State of Assam, 2008(3) R.C.R. (Criminal) 835 again has just been pressed into service without any relevance. As per the appellants, where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Nothing has been pointed out before me as to which inculpatory material was not put to any of the appellant. The appellants, therefore, cannot take any Criminal Appeal No.3179-SB of 2010 : 23 : advantage from the ratio of law laid down in this case. Similarly the other cases placed before me are also not attracted to the facts of the present case. Heavy reliance has been placed on the case of Dalip Vs. State of M.P., 2001(4) R.C.R. (Criminal) 383=AIR 2001 (SC) 3049. The Hon'ble Supreme Court acquitted the accused person therein from the charge of a gang rape on the ground that prosecutrix, who was aged 16 years, did not show any resistance. The statement of the prosecutrix that she had sustained injuries and had bleeded from the private parts was belied by the medical version. There were certain facts, which were not stated in the FIR. The prosecutrix statedly had raised hue and cry, but no one was attracted. The place of occurrence was situated in populated area. These are the peculiar facts which led to acquittal in the said case. One cannot ignore an important fact in this case that ultimately the police was summoned and the prosecutrix was recovered from a room when she raised hue and cry. Her version is not belied in this case from any medical evidence. The medical evidence has shown some injuries and also pain which is clearly noticed in the evidence of a doctor. Similarly, the ratio of law in Rajoo & Ors. Versus State of M.P., 2009(1) RCR (Criminal) 310 was in the facts and circumstances of the said case, where the prosecutrix was found to be habitual to intercourse, but there was no scratch found on her person. That is not the case here. The prosecutrix has not been found to be habitual to any intercourse. The plea raised on the basis of the observations made by the Hon'ble Supreme Court that statement of the prosecutrix could not be taken as gospel truth has Criminal Appeal No.3179-SB of 2010 : 24 : been considered in detail and it has been found that her version is worthy of belief. Here the observations made by the Hon'ble Supreme Court in Ranjit Hazarkia vs. State of Assam, (1998) 8 SCC 635 may be noticed and are as under:-
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should Criminal Appeal No.3179-SB of 2010 : 25 : the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extend is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted , is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It may not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her Criminal Appeal No.3179-SB of 2010 : 26 : as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a causality. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
I am, therefore, not convinced that there is material available on record to doubt the version of the prosecutrix, for which there is need to seek any corroboration for her version. In my view, the prosecution has proved the case beyond reasonable doubt. The allegations against the appellants are clearly established and proved on the basis of cogent evidence on record. There is, thus, no merit in the appeals on any of the grounds as urged before me. All the appeals of the appellants are, therefore, dismissed. The sentence imposed in this case is adequate considering the nature and gravity of the offences alleged and would also not call for any interference.
April 03, 2011 ( RANJIT SINGH ) ramesh JUDGE