Rajasthan High Court - Jaipur
Lokesh And Anr vs State Of Rajasthan Through P.P on 10 May, 2017
1
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH, JAIPUR.
ORDER
S. B. CRIMINAL APPEAL No.881/2012.
1. Lokesh S/o Shri Gopal, B/c Khati, R/o Indra Colony, Matunda Road,
Bundi, District Bundi.
2. Mukesh S/o Shri Gopal, B/c Khati, R/o Indra Colony, Matunda Road,
Bundi, District Bundi.
Versus
State of Rajasthan through P.P.
Date of Order :: 10.05.2017
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. Amit Jindal, for the appellants.
Ms. Meenakshi Pareek, P. P. for the State.
BY THE COURT
Heard learned counsel for the parties.
By way of this appeal under Section 374 Cr.P.C. the accused- appellants, who are real brothers, have challenged the judgment of conviction and order of sentence dated 28.9.2012 passed by the Additional Sessions Judge No.1, Bundi in Sessions Case No.137/2011 whereby learned trial Court after holding the appellants guilty for offence under Section 376 (2) (g) IPC sentenced each of them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- each and in default thereof to suffer simple imprisonment for one year.
Brief relevant facts for the disposal of this appeal are that prosecutrix (PW.1) appeared before Mahila Thana, Bundi on 27.10.2011 at 12:15 am i.e. at midnight of 26.10.2011 and 27.10.2011 alongwith her father and submitted a written report (Ex.P/1) alleging therein that she on 26.10.2011 at about 9-10 pm on the occasion of festival of Diwali visited 2 house of her friend residing nearby and when she was returning back alone from there to her home in the way near 'Bada of Brahmins' appellant- Lokesh, brother of her friend, caught her and at the same time appellant- Mukesh, elder brother of Lokesh, also came there from behind and after lying her on the ground and removing her pant and underwear both of them committed rape on her one by one. It was averred that when she tried to cry they shut her mouth and after committing rape she was left alone. It was also averred in the report that after returning home she narrated the entire incident to her mother upon which her mother went to the house of appellants to complain about the incident but appellants instead of feeling sorry quarreled with her mother. On the basis of written report so submitted, FIR No.07/2011 for the offences under Sections 341, 376 & 34 IPC came to be registered against appellants and after usual investigation charge-sheet was filed against them. Appellants were charged and tried for offence under Section 376 (2) (g) IPC and in order to prove the charge prosecution produced oral as well as documentary evidence whereas appellants in their statements recorded under Section 313 Cr.P.C. denied the evidence produced by the prosecution and it was specifically stated by them that the prosecutrix used to visit to their house in the night and some times on the pretext of coming to their house she used to visit some other places and when they and their parents objected her visit to their house in the odd hours of the night, she and her parents got annoyed and due to this annoyance they have been falsely implicated. Appellants did not produce evidence in defence. Learned trial Court after considering the submissions made on behalf of the respective parties and appreciating and evaluating the evidence made available on record convicted and sentenced 3 the appellants as already stated.
Before adverting to the appeal on merit, application under Section 391 Cr.P.C. filed by the appellants on 16.2.2013 with a prayer to permit them to lead evidence in defence, is required to be considered and decided.
It has been averred in the application that appellant-Lokesh was having long standing love affair with proseuctrix and on account of the said affair there was scuffle between their families on the night of the alleged incident and it is due to this scuffle, they have been falsely implicated. It has further been averred in the application that they were not advised by their counsel in the trial Court that evidence is required to be produced in defence regarding scuffle, which took place just before the lodging of FIR and love affair between appellant-Lokesh and prosecutrix. It was prayed that persons named in the application including their parents may be permitted to be produced as witness in defence.
On consideration of submissions made on behalf of the respective parties regarding application under Section 391 Cr.P.C. in the light of evidence and material available on record and the relevant legal provisions, the same being meritless is liable to be dismissed for the following reasons :
No suggestion was made to any of the material prosecution witness including the prosecutrix that she was having a long standing love affair with appellant-Lokesh and on account of said affair there was some scuffle or hot talks between the two families in the night of the alleged incident and it is due to this dispute they have been falsely implicated. The main defence taken by appellants during trial was of total false implication. 4 Appellants in their statements recorded under Section 313 Cr.P.C. took a specific plea that the prosecutix on the pretext of visiting their house in the night at odd hours used to visit some other places and when it was objected by them and their parents, prosecutrix and her parents got annoyed and due to this annoyance they have been falsely implicated. When a specific plea has been raised during trial for their false implication, no new ground can be allowed to be raised in the appeal. During the course of cross-examination of prosecutrix, it was suggested that they have been falsely implicated by the reason that they and their parents and their sister disliked her visit to their house in the night at odd hours, which annoyed her and her parents. It is further to be noted that without showing any specific reason of dispute between the two families, during the course of cross-examination of parents of prosecutrix it was suggested on behalf of the appellants that there was dispute between the two families for last one year and they were not in talking terms and due to this enmity and dispute appellants have been falsely implicated. No suggestion was made to them that family of prosecutrix was annoyed due to love affair between appellant-Lokesh and prosecutrix or due to displeasure shown by the family of appellants towards visit of prosecutrix to the appellants' house in the night. As per the Section 391 Cr.P.C., additional evidence can be taken only when the Appellate Court finds it necessary to be taken. In my opinion evidence cannot be permitted to be produced in appeal to support a defence which was not taken during trial.
In support of the appeal on merit, learned counsel for the appellants raised the following grounds :
(I) It is highly improbable and even behind any imagination 5 that appellants, who are real brothers, or any of them, would dare or even think to commit rape upon the prosecutrix, a close friend of their sister or even to touch her improperly with intention to outrage her modesty at the alleged time and place on a day of festival of Diwali when she was returning to her home after visiting their house when it was most likely that many of the neighbors would be out of their houses and would be near around to celebrate the festival of lights and when there was every chance of their being seen by them while indulging in such a act. The appellants have been falsely implicated in the case due to annoyance of prosecutrix and her parents as appellants and their family members objected the visit of prosecutrix to their house in the night at odd hours and on the pretext of such visit she used to go to some other places, which was disliked by the appellants and their family. It is an admitted fact that in the night of incident mother of prosecutrix visited the house of appellants and some hot talks took place between them and immediately thereafter the FIR was lodged.
(II) Sole statement of prosecutrix is not sufficient to base the conviction of appellants for such a grave offence more particularly in view of the several material contradictions, improvements, infirmities and inconsistencies in her court statement and in view of the fact that it is also not supported by the medical evidence. No injury was found on the private parts of the prosecutrix in the medical examination, which itself belies the claim of the prosecutrix that two persons forcely committed rape upon her one after another without her consent and against her will. In medical evidence, it was found that her hymen was old torned and it was healed.
No sign of recent intercourse was found. As per the prosecution case, 6 incident took place on 26.10.2011 at 10:00 pm while prosecutrix was examined on 27.10.2011 at 9:35 am i.e. within 12 hours of the incident, but even then definite opinion of rape could not be given. Although sample of vaginal swab was taken for FSL examination, but report was not produced during trial.
(III) During trial prosecutrix deliberately changed the place where the appellants caught her when she was returning home so that it can accord with the place shown in the site map prepared at her instance during investigation and also to show that she herself did not go towards 'Bada of Brahmins', but she was forcely taken by the appellants towards it. It was purposely done just to meet out the defence taken by the appellants in the alternative that even if the appellants or any one of them had sexual intercourse with the prosecutrix, it was with her free consent and will. In the FIR, it was specifically stated by her that in the way when she reached near the 'Bada of Brahmins', appellant-Lokesh caught her and immediately his brother appellant-Mukesh also came there from behind and after lying her on the ground they committed rape upon her whereas in her examination-in-chief she has stated that she was returning to her home and in the way appellant-Lokesh met her and he after gagging her mouth with his hands took her to the street where appellant-Mukesh also came and both of them committed rape upon her one by one.
(IV) The conduct and behaviour of the prosecutrix during the course of entire incident is suggestive of the fact that either no such incident took place at all or it was with her free will and consent. She made no resistance, did not try to escape from the custody of the appellants, did not cry or made noise to attract attention of persons residing nearby. 7 Admittedly, it was a Diwali day and, therefore, presence of lot of people can easily be visualized at nearby places including on the way where the prosecutix was caught and in the houses situated nearby. It is well settled legal position that absence of resistance, absence of injuries on the body of the prosecutrix despite resistance, absence of tearing of cloths despite resistance are some of the circumstances, which may lead to infer that no such incident took place or consent on the part of the prosecutrix. Complete absence of any injury or even scratches on the person of prosecutrix in the present case is a very clear indication of the fact that it is a case of false implication or even if intercourse took place between prosecutrix and appellants or any of them it was with her free will and consent.
(V) From the medical evidence available on record, it is clear that at the time of alleged incident age of the prosecutrix was at least 17 years, but learned trial Court has wrongly found her age below 16 years on the basis of a school leaving certificate, which is inadmissible in evidence, as the source on the basis of which her date of birth was entered into the school record has not been clarified and in absence thereof her date of birth entered in the school record cannot be taken to be correct. Oral evidence of parents of prosecutrix about her age is also not reliable and relevant. If at the time of incident prosecutrix was above the age of 16 years and the intercourse was with her consent then no offence is made out.
In support of his submissions, learned counsel for the appellants relied upon the following decisions :
Rajoo & Ors. Vs. State of M.P. reported in WLC (SC) Criminal 2009 (1) 248, Bhawani Singh Vs. State of Rajasthan reported in 2005 (3) RCC 1232, Musauddin Ahmed Vs. State of 8 Assam reported in WLC (SC) Criminal 2009 (2) 213, Kamrujma Vs. State of Rajasthan reported in RCC 2008 (3) RCC 1245, Bibhishan Vs. State of Maharashtra reported in WLC (SC) Criminal 2008 (1) 254, Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp) SCC 604, Lalta Prasad Vs. State of M.P. reported in Cr.L.R. (SC) 1979 115 and Chhigan Lal S/o Suvalal & Anr. Vs. State of Rajasthan reported in 2007 (2) RCC 629.
On the other hand, learned Public Prosecutor supporting the impugned order and judgment submitted that the learned trial Court after appreciating and evaluating the evidence made available on record and the well settled legal position has passed a well considered judgment requiring no interference by this Court.
I have considered the submissions made on behalf of the respective parties in the light of evidence available on record as well as relevant legal provisions and the well settled legal position. My findings with reasons are as below :
Age of the prosecutrix In order to prove the age of the prosecutrix at the time of alleged incident prosecution has mainly relied upon Ex.P/12-Transfer Certificate dated 2.11.2011 issued by Government Parveshika Sanskrit School, Bundi, Ex.P/13-Fresh Student Admission Form, Session 2009-2010 Government Parveshika Sanskrit School, Bundi, Ex.P/14-Scholar Register of aforesaid school and Ex.P/15-Transfer Certificate dated 2.7.2009 issued by Government Middle School, Devpura. All these documents have been proved by Smt. Archna Sharma (PW.6)-Headmistress of Government Parveshika Sanskrit School, Bundi.9
Hon'ble Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp) SCC 604 has held that :
"The entries regarding date of birth contained in the scholars register and the secondary school examination have no probative value, if no person on whose information the date of birth of the candidate was mentioned in the school record is examined. The entry contained in the admission form or in the scholars register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry is made on the basis of the information given by a stranger or by someone else, who had no special means of knowledge of the date of birth, such an entry will have no evidencary value. The truth or otherwise of the facts in issue, namely; date of birth of the candidate as mentioned in the documents must be proved by admissible evidence i.e. by the evidence of those persons, who can vouchsafe for the truth of the facts in issue"
It is thus clear that according to Hon'ble Supreme Court date of birth of a person entered into scholar register and other documents carries no evidencary value to prove age of a person unless it is shown from what source the entries about date of birth were made.
PW.6-Smt. Archana Sharma in her examination-in-chief has stated that prosecutrix took admission in their school in Class-VII on 18.7.2009 and in this regard entry was made in the scholar register maintained by the school at Page No.173 as Entry No.2537. She has further stated that prosecutrix left the school after passing Class-VII on 30.4.2010 10 and in this regard transfer certificate dated 2.11.2011 (Ex.P/12) was issued by her. The witness also proved the admission form (Ex.P/13) and has said that it bears her signature as well as signature of father of prosecutrix and according to scholar register maintained by the school the date of birth of prosecutrix is 30.10.1996. The witness in her examination-in-chief has further said that prosecutrix took admission in their school after getting transfer from a school situated at Devpura and in this regard transfer certificate (Ex.P/15) was also issued by the previous school. In her cross-
examination she has denied the suggestion that admission form (Ex.P/13) was not filled up in her presence. She had admitted that when prosecutrix took admission in their school, apart from transfer certificate issued by the previous school, no document of her age was produced. She has further admitted that when a student takes admission in their school his or her date of birth is normally entered on the basis of transfer certificate issued by the previous school and date of birth of prosecutrix was also entered in the admission form and scholar register on the basis of transfer certificate issued by the previous school.
Ex.P/15 is the transfer certificate dated 2.7.2009 issued by the Government Middle School, Devpura and in this certificate the date of birth of prosecutrix is 30.10.1996. It has further been mentioned in this certificate that prosecutrix took admission in the aforesaid school on 4.7.2008 in Class-VI vide Admission No.2717 and left the school on 2.7.2009 while she was pursuing her studies in Class-VII. Although, no one from this school was examined as witness during trial and it was also not clarified by the prosecution on what basis date of birth of prosecutrix was entered in this certificate, but from the statement of PW.6-Smt. Archana 11 Sharma it is revealed that when prosecutrix took admission in the Government Parveshika Sanskrit School at Bundi alongwith admission form this transfer certificate was also submitted. As per Ex.P/13 Fresh Student Admission Form Session 2009-2010 of Government Parveshika Sanskrit School, Bundi, this form was submitted by the parents of prosecutrix on 8.7.2009 for her admission in Class-VII in Government Parveshika Sanskrit School in which her date of birth was mentioned as 30.10.1996. This form bears signature of her father. As per the declaration form appended to the admission form, her father certified that all particulars including the date of birth mentioned in the form are correct to his knowledge. It is thus clear that father of prosecutrix declared that date of birth of prosecutrix is 30.10.1996. Alongwith this admission form transfer certificate issued by the previous school was also submitted. In the scholar register (Ex.P/14) maintained by the present school and transfer certificate dated 2.11.2011 (Ex.P/12) also date of birth of prosecutrix is 30.10.1996. In the transfer certificate (Ex.P/12), it is further mentioned that prosecutrix took admission on 8.7.2009 in Class-VII vide Admission No.2537 and left the school on 30.4.2010 after passing Class-VII. It is thus clear that in the scholar register and transfer certificate date of birth of the prosecutrix was recorded not only on the basis of transfer certificate issued by the previous school but also on the basis of date of birth mentioned in the admission form submitted by her parents on 8.7.2009. It is also clear that the source of date of birth as 30.10.1996 entered in the record of the last school attended by the prosecutrix well before the incident was not only on the basis of transfer certificate issued by the previous school but also on the basis of declaration made by her father in the admission form. In these 12 circumstances, it cannot be accepted that in absence of clear source of information only on the basis of transfer certificate or school record the date of birth mentioned in them, cannot be taken to be correct. Father of the prosecutrix is the best person to provide her exact and correct date of birth. Although the parents of the prosecutrix while appearing before the trial Court as witness did not say that they submitted admission form of prosecutrix in the school but appellants also did not dispute that admission form (Ex.P/13) alongwith declaration was submitted by them. The Investigation Officer of this case on being questioned in cross-examination has said that parents of prosecutrix submitted admission form after mentioning her date of birth as 30.10.1996 and on that basis in the transfer certificate also same date of birth was mentioned. In the present case, thus the requirement of proper source of information about date of birth of a person is completely fulfilled and, therefore, the transfer certificate (Ex.P/12) and scholar register (Ex.P/14) can be legally relied upon to ascertain the date of birth/age of the prosecutrix. If calculated from 30.10.1996, at the time of incident she was below the age of 16 years. As per the medical evidence produced by the prosecutrix, the age of the prosecutrix was found to be between 16 to 17 years on the basis of radiological and ossification test, but it cannot be given preference over the age of the prosecutrix as entered into her school record, as there is no certainty of correct age in medical evidence based on aforesaid medical examination, which may vary plus or minus two years as per the medical jurisprudence. When an authentic and reliable evidence in the form of school record is available, medical evidence losses its value. Medical evidence about the age of a person is relevant only in absence of any other 13 reliable evidence. Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Haryana reproted in (2013) Criminal Law Journal 3976 has held that Rule 12 of Juvenile Justice Rules, 2007 can be made basis for determining the age of a child, who is victim of a crime. As per this rule, the school certificate has to be given preference over medical evidence to conclusively determine the age of a child.
Place of Incident From the close perusal of the evidence available on record, it cannot be held that the prosecutrix during trial has deliberately tried to change the place of incident from the place mentioned in the FIR or in her statement recorded under Section 161 and 164 Cr.P.C. during investigation with the sole purpose to show her as a reliable witness. Otherwise also, the change of place coming up in her court statement is not so much contradictory as to doubt and discard the whole prosecution case. In the FIR for the place of incident, it was stated by the prosecutrix that appellants caught her near 'Bada of Brahmins' and after lying her on the ground committed rape upon her. According to her, appellants caught her in the way situated between their houses near 'Bada of Brahmins' when she was returning her home from the house of appellants. In her statement recorded under Section 161 Cr.P.C. (Ex.D/1) also similar statement was made by her about the place of incident whereas in statement under Section 164 Cr.P.C. it was not stated by her in so many words that appellants caught her near 'Bada of Brahmins'. During the course of investigation, site plan (Ex.P/3) was prepard in the presence and instance of prosecutrix. As per the site plan, prosecutrix was stopped by the appellants at the place which is shown in the map by mark 'X' whereas the place which 14 is shown by mark 'Y' is the actual place where the incident of rape took place. The actual place of incident shown by mark 'Y' is near and adjacent to a place, which is shown in the site plan by mark 'C'. Although in the site plan no place has been shown as 'Bada of Brahmins' but adjacent to the place of incident shown by mark 'Y', 'Bada of Shri Ganshyam' has been shown, which is marked as 'J'. From the evidence available on record, it is clear that 'Bada of Shri Ghanshyam', which is shown in the site plan by mark 'J' and which is exactly adjacent to the actual place of incident is known as 'Bada of Brahmins'. From the evidence available on record, it is clear that appellants caught the prosecutrix in the way at the place, which is shown in the site map by mark 'X' and from there she was brought at the place, which is shown in the map by mark 'Y' and exactly adjacent to it 'Bada' is situated and as per the site plan the distance between place 'X' and 'Bada' 'J' is 200 ft. In such a fact situation if in the FIR and statement under Section 161 Cr.P.C., it was stated by the prosecutrix that appellants caught her near 'Bada of Brahmins' instead of a place on the way leading to her house, it cannot be said that during trial she deliberately changed this place so that it can accord with the place shown in the site map. In her cross-examination she has rightly admitted that 'Bada of Brahmins' is not situated on the way which is between the house of appellants and her house. She has explained that she herself did not go towards 'Bada of Brahmins', but appellants took her towards it. It is to be noted that in her cross-examination she has said that houses of Hukum Singh, Joravar Singh and Roop Chand are situated opposite of 'Bada of Brahmins'. In the site plan also opposite to 'Bada of Ghanshyam' houses of these persons are shown, which further clarifies the fact that 'Bada of Brahmins' and that of 15 Shri Ghanshyam is the one and same place. In her cross-examination she has further said that rape was committed in a vacant plot of land, which is situated adjacent to the 'Bada of Brahmins' and where several plants of 'Babul' were standing. As per the site plan also several bushes of 'Babul' were found standing in the actual place of incident. Therefore, it cannot be said that the place where appellants caught her was changed. From the evidence available on record, it cannot also be accepted that prosecutrix at her own will left the way leading to her house and went towards 'Bada' of Shri Ghanshyam without any reason and this indicates consent on her part as otherwise no reason for her to go towards it.
In the case in hand, the incident is of 26.10.2011 at about 9-10 pm for which written report was lodged by the prosecutrix alongwith her father promptly at police station within three hours from the incident in which not only the appellants were named as accused but also the manner in which the incident took place was sufficiently narrated. It is well settled legal position that FIR is not the encyclopedia of the incident and it need not contain minute details. It is an acceptable legal position that promptness in filing FIR eliminates chances of embellishment and false implication of accused persons. As per the FIR, prosecutrix narrated the incident to her mother immediately upon coming to her home and her mother thereafter went to the house of the appellants to complain about the incident. During trial in her examination-in-chief prosecutrix has stated that on the day of incident when she was returning home from her friend's house on the occasion of Diwali in the way appellant-Lokesh met her and he after gagging her mouth by his hands forcibly took her towards a street and immediately thereafter appellant-Mukesh also came there and both of 16 them committed rape upon her one by one. In her cross-examination, she denied the suggestion that while returning home she herself went towards 'Bada of Brahmins'. According to her, appellants took her towards it. Although the prosecutrix in her examination-in-chief did not in so many words said at what exact place the actual incident took place but in her cross-examination she was given opportunity to clarify and specify that it took place in a vacant plot of land, situated adjacent to the 'Bada', in which some 'Babul' bushes were standing. Although she admitted that due to presence of such bushes, it was not easy to enter into this plot, but at the same time it was also said by her that there was a narrow path therein. Although there is some variance in the court statement of the prosecutrix in comparison to the FIR and her statement (Ex.D/1) recorded under Section 161 Cr.P.C. in respect of the manner in which the incident initially commenced and the manner in which she was taken by the appellants from the way leading to her house to the actual place of incident, but it is not of significant nature so as to doubt her version of the incident. This aspect of the matter has already been considered while dealing with the point about change of place by the prosecutrix. It is well settled legal position that evidence of a witness cannot be doubted merely on the basis of contradictions, omissions, inconsistencies or improvements, which are of minor and insignificant nature not adversely effecting the basic prosecution story. It has been admitted by the prosecutrix that near to and around the place where she was lifted by the appellant and the actual place of the incident, houses of several persons are situated and some of the houses have 'Varamada' in front thereof and most of the houses were having light inside, but at the same time she denied the suggestion that being a day of 17 festival of Diwali each and every house at the time of incident was well lit and their doors were open affording opportunity and chance to the persons residing in them to see the incident. She has also denied the suggestion that at that time all the persons were cracking fire works outside their houses and nearby places. According to her, no one was present nearby and all were inside their houses to do 'Diwali' pooja. She has denied the suggestion that she sustained injuries at various parts of her body during the course of forceful act committed upon her. The reason shown by her is that at the place of incident there was sand and it was not a hard surface. It is now well settled legal position that if the sole testimony of prosecutix is reliable, trustworthy and inspire confidence of the Court, corroboration by evidence of doctor, who conducted her medical evidence, is not required, nor absence of injuries on prosecutrix would render her testimony doubtful. Injury is not a sine qua non for deciding whether rape has been committed, but it has to be decided on the factual matrix of each case. It is also well settled legal position that the courts must deal with the rape cases with utmost sensitivity and should examine the broader possibilities of a case and not swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of fatal nature to throw out an otherwise reliable prosecution case. It is also the view of Hon'ble Supreme Court that no self-respect woman would come forward in a court just to make an humiliating statement against her own honour such as is involved in the commission of rape on her. In her cross-examination the prosecutrix has denied the suggestion that appellants, their parents and sister did not like her visit to their house in the night. According to her, on the date of incident she was called by her friend, sister of appellants, to visit her home 18 on the occasion of Diwali. She has further denied the suggestion that appellants have been falsely implicated in the case as she and her parents got annoyed due to objection made by the appellants about her visit to their house late in the night. It is hard to believe that appellants, who are brother of her close friend, would falsely be implicated only due to such annoyance.
It is to be noted that no suggestion was made to the prosecutrix that she was having a long standing love affair with appellant- Lokesh and even if on the day of incident intercourse took place between them it was with her consent and will. Prosecutrix has denied the suggestion that prior to the present incident also she had sexual intercourse with the appellant. Present case is of gang rape involving two persons punishable under Section 376 (2) (g) IPC. Hon'ble Supreme Court in the case of Jarnail Singh Vs. State of Haryana reproted in 2013 Criminal Law Journal 3976 has held that in a case of "gang rape"
involving more than one person consent on the part of prosecutrix is incomprehensible. In the present case, the prosecutrix being under the age of 16 years at the time of incident although her consent carries no legal value but otherwise also it being a case of gang rape presumption under Section 114-A of Evidence Act is to be raised. Under this provision, there is a presumption as to absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent as this presumption is based on the reasoning that nobody can be consenting party to several persons simultaneously. From the evidence available on record, the aforesaid presumption cannot be held to be rebutted by the appellants. In her cross-examination prosecutix has clarified that she tried to cry 3-4 19 times, but appellants gagged her mouth by their hands. Merely because this fact was not mentioned in so many words in the FIR or in her previous statements recorded during investigation, it cannot be said that she had made material improvement in her court statement. Otherwise also, mere absence of resistance on the part of prosecutrix a girl age of below 16 years, is not such a significant conduct on her part leading to the court to reject her whole testimony, which is otherwise reliable. In the facts and circumstances of the case, it cannot be considered highly improbable that appellants would dare to commit such a grave offence upon the prosecutrix at the alleged date, time and place when chances of their being seen were very high. It was in the knowledge of the appellants that prosecutrix is returning to her home alone after visiting their house and most of the neighbors are inside their respective houses to perform Pooja. A person having impulse to commit an offence does not refrain to do so merely by the fear of being seen by someone else. If it was so, most of the offences would not be committed.
The statement of the prosecutrix to some extent gets corroboration from the statement of her mother Smt. Bhanwari Devi (PW.3) for whom prosecutrix claims that she narrated the incident to her immediately after coming to her home. In her exmination-in-chief Smt. Bhanwari Devi has said that they performed "Laxmi Poojan" at 8:30 pm and thereafter taking her permission prosecutrix went to her friend's house and when she did not return for quite some time she went to her friend's house for her search where she was told that the prosecutrix had already returned from there long before upon which she returned to her house. It has further been said by her that after some time prosecutrix returned home weeping 20 and on being asked she narrated whole incident to her. She has also said that quarrel took place between the two families when complaint was made about the incident. Although the witness has improved her statement in court in comparison to her statement (Ex.D/3) recorded under Section 161 Cr.P.C. in respect of the manner in which the entire incident occurred but nothing has come in her cross-examination to hold that the prosecutrix did not narrate the incident to her immediately after the incident and only to that extent her statement is relevant as she is not an eye-witness of the incident. Being mother it was natural on the part of the prosecutrix to tell her about the incident. Although, suggestion was made to the witness in cross-examination about the dispute between the two families and they being not on talking terms for last one year from the incident, but no suggestion at all was given about the cause of the dispute. The witness denied the suggestion that prosecutrix was made a tool for levelling false allegation of rape against the appellants to take revenge for the dispute existing between them. Similarly in the cross-examination of father of prosecutrix Shri Birdi Lal-PW.2 reason of dispute between them was not suggested.
In view of the aforesaid discussions, I do not find any merit in this appeal and the same is liable to be dismissed.
Consequently, the impugned order dated 28.9.2012 passed by the Additional Sessions Judge No.1, Bundi in Sessions Case No.137/2011 is upheld and affirmed and the appeal being meritless is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-Reserved.