Punjab-Haryana High Court
Crl.A. No.317-Sb Of 2007 vs State Of Punjab on 26 July, 2013
Crl.A. No.317-SB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Crl.A. No.317-SB of 2007
DATE OF DECISION: July 26, 2013
BALJINDER SINGH @ BINDER ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
2. Crl.A. No.193-SB of 2007
AVTAR SINGH & ANOTHER ...APPELLANTS
VERSUS
STATE OF PUNJAB ...RESPONDENT
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes
PRESENT: MR.MANSUR ALI, ADVOCATE FOR THE APPELLANT
IN CRL.A. NO.317-SB OF 2007.
MR.P.S.AHLUWALIA, ADVOCATE FOR APPELLANT NO.2
& AMICUS CURIAE FOR APPELLANT NO.1
IN CRL.A. NO.193-SB OF 2007.
MR.RAJESH BHARDWAJ, ADDL.A.G., PUNJAB.
M.JEYAPAUL, J.
1. Accused Baljinder Singh @ Binder and Avtar Singh @ Gogi were convicted under Section 376(2)(g) IPC and were sentenced to undergo R.I. for 10 years and to a fine of `25,000/- each and in default to undergo a further period of 1 year R.I. Accused Veerpal Kaur was convicted under Section 376(2)(g) read with Section 109 IPC and was sentenced to undergo R.I. for 10 years and to a fine of `10,000/- each and in default to undergo a Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -2- further period of 8 months R.I. Accused Avtar Singh and Veerpal Kaur have jointly preferred Crl.A. No.193-SB of 2007 and accused Baljinder Singh has separately preferred Crl.A. No.317-SB of 2007.
2. The brief case of the prosecution is that about 6 months prior to the lodging of the complaint on 7.4.2006, the prosecutrix who was about 15-16 years years old was enticed by accused Veerpal Kaur by giving `10/- for purchasing Guava fruit from a shop and sent the girl to the room where accused Avtar Singh and Baljinder Singh were present. Accused Baljinder Singh first raped her against her consent. Thereafter accused Avtar Singh also committed rape upon her forcibly against her will. Accused Baljinder Singh and Avtar Singh threatened her not to disclose the act to anyone else. One month thereafter both the accused again committed rape upon her forcibly in the public toilet of the village. The prosecutrix had pain in her stomach one month thereafter. She informed her parents. PW4 Bikkar Singh the father of the prosecutrix lodged a complaint with the police. Based on the complaint, the accused were booked for gang rape. PW1 Dr.Asha Kiran conducted medico-legal examination of the prosecutrix on 7.4.2006. She found that there was abdominal mass palpable upto 26 weeks of uterus size. The hymen was found ruptured and healed. The vagina admitted one finger. The prosecutrix was advised for ultrasound examination for conformation of pregnancy. On receipt of ultrasound report, she opined that the prosecutrix was 26 weeks pregnant which would mean that she was subjected to sexual intercourse. PW2 Dr.Vijay Kumar Singla, Medical Officer attached to Civil Hospital, Mansa took X-ray of the Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -3- prosecutrix and assessed her age between 14-17 years. He has deposed that ossification test would not conclusively determine the age.
3. PW3 Dr.Vijay Kumar Singla, Dental Surgeon attached to Civil Hospital, Mansa who was a Member of the Medical Board examined the prosecutrix for determining her age and deposed that the prosecutrix was above 13 years as 2nd Molar was found erupted. But she was below 17 years as 3rd Molar was found absent. It is his opinion that 3rd Molar would erupt only at the age of 17 years. He would also depose that the prosecutrix could be of 14 years of age.
4. PW7 S.I. Harpal Singh who took up the case for investigation and filed an application to the SMO, Civil Hospital, Mansa for subjecting the accused Baljinder Singh and Avtar Singh to medical examination, but the same was declined. PW9 S.I. Nachhatar Singh seized the copy of the bed head ticket (Ex.PH) of the prosecutrix from Civil Hospital, Mansa. The same would reflect that the prosecutrix was blessed with a baby. PW7 having completed the investigation laid final report as against the accused.
5. The accused have come out with a defence in their respective statements under Section 313 Cr.P.C. that they were innocent but a false case was foisted on them on account of party faction in the village.
6. On the side of the defence, DW1 Jaswinder Kaur was examined to speak about the fact that she had not produced accused Veerpal Kaur to the police. DW2 Angad Dass was examined to show that the name of accused Veerpal Kaur has been registered in Nagar Council, Tappa. DW3 to DW5 were examined to speak about the party faction in the village. DW6 spoke about the residence of accused Veerpal Kaur in Nagar Council, Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -4- Tappa.
7. The trial Court having completely relied upon the evidence of PW5, the prosecutrix in this case returned a verdict of conviction and sentence as stated supra.
8. Learned counsel appearing for the appellant Baljinder Singh @ Binder would vehemently submit that there was a delay of 6 months in reporting the alleged gang rape committed by accused. After much deliberation such a criminal case has been lodged as against the accused. Therefore, the delay was fatal to the case of the prosecution. As far as the second occurrence alleged to have taken place at the public toilet, no site plan was prepared by the investigating official. Further, the case of the prosecution that there was a gang rape committed by accused Baljinder Singh and Avtar Singh at a public toilet is found to be quite unnatural. The medical evidence does not clinchingly establish the exact age of the prosecutrix. No medical examination of the accused was done. Even the child allegedly born to the prosecutrix was not subjected to DNA test. Lastly, he would submit that the sentence imposed on the appellant may be reduced.
9. Mr.P.S.Ahluwalia, Advocate appeared for the appellant Veerpal Kaur. It was his submission that accused Avtar Singh had already taken away his brief from him. As it is found that Mr.P.S.Ahluwalia, Advocate had originally filed vakalat for accused Avtar Singh and Veerpal Kaur in Crl.A.No.193-SB of 2007 and no one had appeared for accused Avtar Singh to argue the matter, Mr.P.S.Ahluwalia, Advocate was appointed as Amicus Curiae to argue the appeal on behalf of accused Avtar Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -5- Singh as well and assist this Court. It is his submission that there was no corroboration for the evidence of prosecutrix. Just to save the honour of the prosecutrix who became pregnant, the case was formally booked as against the accused. As regards the age when two views are possible, the view which would go to the benefit of the accused shall be taken by the Court. As far as accused Veerpal Kaur was concerned, there was no role assigned to her as regards the second occurrence of gang rape. No motive also was attributed to her. The other two accused were not connected with Veerpal Kaur. The documents on record would go to show that she was living in a different village. As regards the enticement, three versions had been put forth by the prosecutrix; one through the first information report, another through the mouth of PW4 and yet another thorough the mouth of PW5. Such an inconsistent version creates a doubt in the version of the prosecutrix. There is no allegation that accused Veerpal Kaur ever threatened the prosecutrix. It is his last submission that no offence under Section 376(2)(g) read with Section 109 IPC was made out as against accused Veerpal Kaur, as she had allegedly enticed the prosecutrix and facilitated the other accused to have intercourse with her. Therefore, accused Avtar Singh and Veerpal Kaur are also entitled to acquittal, it is submitted.
10 I also heard the submissions made by learned Addl.A.G., Punjab supporting the verdict of conviction and sentence passed as against the accused-appellants.
11. The entire evidence on record was thoroughly scanned and analyzed be me in the background of the above rival submissions made. Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -6- PW2 Dr.VijayKumar Singla, Medical Officer attached to Civil Hospital, Mansa has determined the age of the prosecutrix between 14-17 years. He has categorically deposed that the ossification test he conducted would not conclusively determine the age of the person. Therefore, the approximate age on the basis of the ossification test PW2 Dr.Vijay Kumar Singla has fixed the age of the prosecutrix between 13-17 years.
12. PW3 Dr.Vijay Kumar Singla, Dental Surgeon attached to Civil Hospital, Mansa was one of the Members of the Medical Board constituted for the purpose of determining the age of the prosecutrix. The Medical Board having thoroughly perused the entire materials including ossification test report Ex.PE submitted by PW2 on the basis of X-ray he had taken has come to the unassailable scientific conclusion that the prosecutrix was above 13 years as 2nd Molar was found erupted and she was below 17 years as the 3rd Molar was found absent. The Board has categorically opined that inasmuch as the 3rd Molar which would erupt only at the age of 17 years had not erupted, the prosecutrix would be around 14 years of age.
13. The above medical evidence on record would clinchingly establish that the prosecutrix was below 16 years. As per Section 375 IPC, an intercourse with a girl aged under 16 years of age would amount to rape even if the girl had given consent for intercourse.
14. Learned counsel appearing for the appellant has submitted the decision of Hon'ble Supreme Court in Alamelu and another vs. State Rep. by Inspector of Police, 2011 (1) RCR (Criminal) 498 wherein the margin of error in the age that is fixed on the basis of ossification test has been recognized. In the instant case, the age of the prosecutrix was fixed Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -7- between 13-17 years. The age of the prosecutrix in-between this margin will have to be taken as her age.
15. The prosecutrix aged below 16 years has come out with a categoric version that accused Veerpal Kaur enticed her by giving `10/- for purchasing Guava fruit and sent her to accused Baljinder Singh and Avtar Singh for committing gang rape. She has clearly deposed that both the accused committed rape upon her and thereafter they wielded a threat to her.
16. The evidence of PW1 Dr.Asha Kiran who examined the prosecutrix would go to establish that the prosecutrix was subjected to intercourse and that she was pregnant by 26 weeks at the time when PW1 examined her on 7.4.2006. PW9 S.I. Nachhatar Singh has recovered the bed head ticket Ex.PH of the prosecutrix which would establish that the prosecutrix was blessed with a child. PW4 Bikkar Singh who heard the unfortunate incident from his daughter after 6 months time has set the law in motion by lodging the complaint. In my considered view, the prosecution has established the charges as against the accused-appellants.
17. Learned counsel appearing for the appellants submitted a decision of this Court in Ilyas & others vs. State of Haryana, (2007) 3 RCR (Criminal) 1065. The delay of 4 days in lodging the first information report was also one of the grounds on which the accused who was charged with gang rape were acquitted. In my considered view, the delay alone was not the primary ground on which the accused in that case were acquitted. In the instant case, there had been a threat to a minor girl who was subjected to gang rape. In my view, the delay has been satisfactorily explained in this case. Therefore, the above ratio will not apply to the facts of this case. Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -8-
18. The Hon'ble Supreme Court in Vijayan Vs. State of Kerala, (2008) 14 SCC 763 has held as follows:-
"5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant- accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially wen the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence. It is unsafe to convict the Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -9- accused."
In the aforesaid case, there was no evidence to show that the accused threatened the prosecutrix from making public the occurrence. Infact, it was a sexual intercourse based on a promise made by the accused to marry her. Further, in the above case, the prosecutrix was a major. Therefore, I find that the above ratio is factually distinguishable and therefore, the same cannot be applied to the present case.
19. Of course, there is a delay of 6 months in lodging the complaint with the police. Firstly, I find that the prosecutrix was just 16 years old at the time when the occurrence took place. Secondly, the evidence of the prosecutrix who was examined as PW5 would go to establish that there was a threat wielded by accused Baljinder Singh and Avtar Singh. As she became pregnant, the entire episode had come to light.
20. Every delay in lodging the first information report would not prove fatal to the case of the prosecution. There was no question of deliberation to falsely implicate the accused in this case. There was no reason for the prosecutrix to name these accused for the rape committed upon her. Further, I find that by no stretch of imagination the case booked as against the accused could be classified as false case on account of the party faction. As it has been established that the prosecutrix had given birth to a child and the names of accused Baljinder Singh and Avtar Singh had been shown as father of the child. Under the above facts and circumstances, the delay does not loom large.
21. The prosecutrix has deposed that in a public toilet she was subjected to gang rape for the second occasion after one month of the first Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -10- occurrence. She had not specifically stated in her statement under Section 161 Cr.P.C. that she was subjected to gang rape for the second time in the public toilet. But she has stated that she was subjected to gang rape for the second time as well. There is no reason for the prosecutrix to come out with a false plea that she was subjected to second rape as well by accused Baljinder Singh and Avtar Singh. At any rate, I find that the prosecution has established the first gang rape committed by accused Baljinder Singh and Avtar Singh on the abetment of accused Veerpal Kaur.
22. PW7 S.I. Harpal Singh has spoken to the fact that the Judicial Magistrate declined the request made by him to subject accused Baljinder Singh and Avtar Singh to medical examination. Of course, the investigating official had not approached the Court concerned for revising the above decision taken by the learned Judicial Magistrate.
23. In the instant case, the evidence of the victim would go to show that both the accused who were capable of performing intercourse committed rape upon her forcibly against her will. Further, a child also was born to the prosecutrix. The prosecutrix has also chosen to name those two accused as fathers of the child.
24. In view of the above, the case of the prosecution cannot be rejected just because the accused were not subjected to medical examination.
25. Learned counsel appearing for the appellants have submitted a decision of Hon'ble Supreme Court in Ujjagar Singh vs. State of Punjab, 2008(1) RCR (Criminal) 305 wherein it has been held as follows:-
"8. We have heard the learned counsel for the parties and Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -11- gone through the record. We first take up for consideration the question of the conviction under section 376 of the IPC. We find from the medical evidence and from the chemical examiner's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen. There is however absolutely no evidence to suggest (even assuming that the intercourse had been committed by the appellant) that he had done so without Mukhtiar Kaur's consent or against her will. Some suspicions of rape could perhaps have been raised had some tell tale injuries been detected on Mukhtiar Kaur's person but we find that the two injuries other than the gun shot wounds i.e. injury No.3 being on the left pinna and No. 4 an abrasion near the right eye do not indicate any attempt to rape or the commission of rape. It is also significant that the investigators had made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse. The learned State counsel relying on the statement of PW14 Inspector Harjinder Pal Singh has however submitted that the examination had not been possible as the appellant had received a very serious gun shot injury and was hanging between life and death. We agree with the submission of the learned counsel that an examination could not have been carried out immediately but we see no justification in the omission of the prosecution to have him examined after he had recovered his health and been Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -12- discharged from hospital. We are further of the opinion that even assuming for a moment that sexual intercourse between the two had indeed taken place it cannot be said from the evidence before us that it was without the consent or against the wishes of Mukhtiar Kaur. We, therefore, find that Ujjagar Singh's conviction under section 376 of the IPC cannot be sustained."
26. Firstly, in the above case there was no evidence that the accused had intercourse with the victim against her will. In other words, the sexual intercourse had been performed by the accused with the consent of the victim. The Hon'ble Supreme Court in the above decision has made only a passing reference about the factual aspect that the accused were not subjected to medical examination to ascertain whether they were capable of performing sexual intercourse. The Hon'ble Supreme Court has not held in the above case that the failure to subject the accused to medical examination to ascertain their capability to perform sexual intercourse would culminate in acquittal. Even otherwise, in the instant case, as already pointed out by me, the prosecutrix's evidence was clear that she was subjected to rape by both the accused and she became pregnant and delivered a baby as well. In the above factual scenario, the above decision cited by learned counsel appearing for the appellants will not apply to the instant case.
27. It is true that the child was not subjected to DNA test. But the evidence on record would go to establish that both the accused had committed gang rape upon the prosecutrix. The failure to subject the child to DNA test would not throw the case of the prosecution under Section 376 Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -13- (2)(g) IPC.
28. In a case of rape the Court shall not seek for any corroboration, inasmuch, as the rape is committed in seclusion.
29. It was contended that accused Veerpal Kaur was living in Tappa and not in the occurrence village. There is no dispute to the fact that accused Veerpal Kaur was born and brought-up in the occurrence village. Veerpal Kaur has her parental house in the occurrence village. Accused Veerpal Kaur may be living alongwith her husband in the matrimonial home. But when the parental house is their in the occurrence village, accused Veerpal Kaur cannot claim that she was a stranger to the occurrence village.
30. No motive need be attributed to such occurrence. Of course, in the first information report the father had come out with a story that for monetary consideration accused Veerpal Kaur indulged in such obnoxious act. During the course of evidence PW4 gave up such a stand taken by him in the first information report. PW5, the prosecutrix in this case deposed that accused Veerpal Kaur sent her to have sexual intercourse with accused Baljinder Singh and Avtar Singh saying that they were smart boys. In my considered view, there is no inconsistency in the version of the prosecutrix as regards the motive attributed to accused Veerpal Kaur. Even if there is no motive, the case of the prosecution does not fall flat.
31. Learned counsel appearing for accused Veerpal Kaur would submit that at best accused Veerpal Kaur could be convicted for abetment allegedly committed by her to pursuade the victim girl to have intercourse Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -14- with accused Baljinder Singh and Avtar Singh and not for the gang rape which was committed by them. It was also submitted by him that a charge under section 376(2)(g) IPC as against a woman would not lie He also cited a decision of Hon'ble Supreme Court in Priya Patel Vs. State of M.P. and another, (2006) 3 SCC (Cri.) 96. It was held therein as follows:-
"8. A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub- section(2)(g) provides that whoever commits "gang rape"
shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub- section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -15- intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC is that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g)."
32. It is true that a woman cannot be charged under section 376(2)
(g) IPC, taking advantage of the explanation found therein to the effect that the persons who share the common intention to commit rape shall also be deemed to have committed gang rape. As a woman cannot share a common intention to commit rape physically, but she could be charged under Section Gulati Sumit 2013.07.31 14:03 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No.317-SB of 2007 -16- 326(2)(g) read with Section 109 IPC in case she had abetted such gang rape. In my view, accused Veerpal Kaur was rightly charged and punished based on the evidence available on record that she abetted the commission of the offence under Section 376(2)(g) read with Section 109 IPC. What she abetted was only the gang rape. Therefore, she is liable to be punished under the aforesaid penal provision of law.
33. Very strong reasons will have to be assigned by the Court to reduce the minimum sentence fixed under Section 376(2)(g) IPC. The fact that accused have undergone major portion of the sentence cannot be a sufficient reason to reduce minimum sentence which was already awarded by the trial Court. Further, I find that a poor victim was subjected to gang rape. She became pregnant and delivered a baby as well. Under such circumstances, I am disinclined to reduce the minimum sentence imposed on the accused by the trial Court.
34. In view of the above, confirming the judgement of conviction and sentence passed by the trial Court, the appeal stands dismissed. Accused Veerpal Kaur is on bail. Her bail bond stands cancelled. She shall surrender within 15 days from the date of this judgement before the Chief Judicial Magistrate, Mansa, who shall send her to jail to undergo the remaining part of the sentence. If she fails to surrender, the learned Chief Judicial Magistrate, Mansa shall take coercive steps to secure her presence and send her to jail to undergo the remaining part of the sentence.
July 26, 2013 (M.JEYAPAUL)
Gulati JUDGE
Gulati Sumit
2013.07.31 14:03
I attest to the accuracy and
integrity of this document
High Court, Chandigarh