Gang Rape - One of the accused was only present, but did not commit rape - Held, he would be guilty of offence of Gang Rape

Punjab Haryana High Court -Gang Rape - One of the accused was only present, but did not commit rape - Held, he would be guilty of offence of Gang Rape

PUNJAB AND HARYANA HIGH COURT

Before :- T.P.S. Mann, J.
Crl. Appeal No. 357-SB of 1993. D/d. 26.4.2007

IMPORTANT
Gang rape - One of the accused was only present, but did not commit rape - Held, he would be guilty of offence of gang rape.

Sanjay - Appellant
Versus
State of Haryana - Respondent


For the Appellant :- Mr. H.S. Mann, Advocate.
For the Respondent :- Mr. Y.P. Malik, Asstt. Advocate General, Haryana.

A. Indian Penal Code, Section 376(2)(g) - Gang rape - One of the accused was only present, but did not commit rape - Held, he would be guilty of offence of gang rape - Held :-
Once the presence of the two accused was shown at the place where the prosecutrix was subjected to rape , it was immaterial whether both the accused had committed rape or only one of them did it.
[Para 16]
B. Indian Penal Code, Section 376(2)(g) - Gang rape on girl aged 13 years - Delay of two days in lodging FIR as father of prosecutrix was away - Delay explained by Prosecution - Further held :-
Even otherwise, merely on account of the delay in lodging of the FIR, the prosecution version cannot be discarded particularly when there is sufficient evidence available on the file to prove the complicity of the accused in the crime.
[Para 13]
C. Indian Penal Code, Section 376(2)(g) - Evidence Act, Section 114A - Gang rape - Evidence of prosecutrix that she did not give consent - There is legal presumption under Section 114A of Evidence Act that prosecutrix did not consent.
[Para 19]
D. Indian Penal Code, Sections 376 and 376(2)(g) - Rape case - Semen on the vaginal swab and the glass slides will not be sufficient to hold that the prosecutrix was not subjected to rape - The law does not require ejaculation by the accused for holding him liable for the commission of offence of rape - Mere penetration is sufficient - The prosecutrix had clearly deposed that the two accused committed rape upon her, which by itself is sufficient for holding the accused liable for the offence.
[Paras 20 and 21]
E. Indian Penal Code, Section 376 - Delay in lodging in FIR - Prosecution cannot be discarded when there is sufficient evidence to prove complicity of accused in crime. [Para 12]

JUDGMENT


T.P.S. Mann, J. - By a common order, I intend to dispose of the present appeal filed by Sanjay and also the appeal (Crl. Appeal No. 464-SB of 1993) filed by Vishnu.
2. The appellants, namely, Sanjay and Vishnu, were tried by Additional Sessions Judge, Panipat for offences under Sections 376(2)(g) and 366 IPC. Vide impugned judgment and order, the trial Court convicted them under Sections 376(2)(g) IPC and sentenced them to undergo RI for ten years and to pay a fine of Rs. 2,500/- each, in default of payment of fine to further undergo RI for three months. Sanjay appellant was also convicted under Section 366 IPC and sentenced to undergo RI for four years and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for one month. Vishnu was, however, acquitted under Section 366 IPC.
3. The FIR was registered on the basis of statement Ex. PJ made by prosecutrix to the police. She alleged therein that she was the student of 5th class. Her father was working as a Peon in the school situated in the village itself. All of them lived in a house located near the school. On 16.3.1992 at about 8.00 p.m., she went to the pits behind the school in order to answer the call of nature. On the way, Sanjay accused met her. He asked her to accompany him for seeing the dance programme performed by women-folk in his street on the eve of Holi festival. She accompanied him towards that side. When she reached near the house of the accused, he gagged her mouth and took her into his house, which was lying vacant. After some time, Vishnu accused also came there and bolted the door of the house with a chain. Both the accused then raped her without her consent. She raised an alarm, which attracted Rakesh and Suresh, who pushed the door open and entered the house. On seeing them both the accused ran away. She was taken to her house. At that time, her father was away in connection with some domestic work, who came to the village on 18.3.1992. On his return, she narrated the entire occurrence to him. On the basis of the aforesaid-mentioned statement, the FIR was registered at Police Station, Samalkha.
4. The prosecutrix was taken to Civil Hospital, Samlakha for her medical examination but no lady doctor was available there. She was then brought to Civil Hospital, Panipat, where Dr. Abha Bhawan examined her.
5. Both the accused were arrested. They were medico-legally examined by Dr. A.L. Arora, who found nothing which could render them unfit for performing sexual intercourse.
6. During the investigation of the case, school record, regarding the admission of the prosecutrix, was taken into possession. As per the same, the date of birth of the prosecutrix was 1.9.1978.
7. After the completion of the investigation, challan was presented and the case committed to the Court of Session, where charges, as mentioned above, were framed.
8. In support of its case, the prosecution examined ASI Dharam Pal as PW-1, Dr. A.L. Arora as PW-2, Puran Parkash Kapoor, Draftsman as PW-3, Headmistress Shanti Chaudhary as PW-4, the prosecutrix herself as PW-5, Suresh son of Hukam Chand as PW-6, Dr. Abha Bhawan as PW-7, father of the prosecutrix as PW-8 and SI Pirthi Singh, Investigating Officer as PW-9.
9. When examined under Section 313 Cr.P.C., both the accused denied the prosecution allegations and pleaded false implication. They stated that on the eve of Holi festival, they along with some other boys threw colours on the girls, including the prosecutrix. The father of the prosecutrix took the matter to the village Panchayat, where he demanded money for compromise, which they did not pay. Then the father of the prosecutrix, in connivance with the village Panchayat, got the present case registered against them. However, the accused did not produce any defence evidence in support of their aforementioned plea.
10. The age of the prosecutrix at the time of occurrence assumes importance. Its determination can have direct bearing on the outcome of the two appeals.
11. At the time when the FIR was registered on the basis of her statement Ex. PJ, the prosecutrix disclosed her age as 13 years. When she was medico-legally examined, Dr. Abha Bhawan PW-7 noted her age as 13 years. Smt. Shanti Chaudhary, Headmistress of the school, in which the prosecutrix remained admitted, proved on record the certificate Ex. PE, mentioning her date of birth as 1.9.1978. When the prosecutrix appeared as PW-5 in the Court, she described herself to be 15 years of age. She had appeared as PW-5 on 3.2.1993 in the trial Court. Her father also mentioned her age as 15/15-1/2 years. It may also be noticed, as is clear from the school record, that the prosecutrix was admitted in the school on 10.9.1987 in first class. She studied in the said school upto 5th class. Apparently, she was student of 5th class in the year 1992 when the present occurrence had taken place. Dr. Abha Bhawan found, on examination, that the prosecutrix had not achieved menarche though, her secondary sexual characters were normal. Even on vaginal examination, there was a crucial opening which admitted one finger tightly. The evidence, as mentioned above, thus, conclusively shows that the prosecutrix was between 13 to 14 years of age at the time of the occurrence. There is no material available on the record from which it could be made out that she was more than 16 years of age.
12. The occurrence in question had taken place on 16.3.1992 at 8.00 p.m. The prosecutrix was brought to her house but her father was out of station. It was only on his return on 18.3.1992 that she narrated incident to him. Her father then took her along to the Police Station for lodging the report. They came across SI Pirthi Singh PW-9 at bus stand, Samalkha, who recorded her statement Ex. PJ on the same day at 12.30 p.m. The said statement was then sent to Police Station Samlakha, where formal FIR Ex. PJ-1 was recorded at 12.50 p.m. The prosecutrix was a young child of 13/14 years of age. She was not expected to go to the police to lodge the report in the absence of her father. Moreover, keeping in mind that the case involved honour of a minor girl, everyone around would have thought of waiting for the arrival of the father of the prosecutrix before bringing the matter to the notice of the police. Thus, whatever delay occurred in lodging of the FIR has been explained by the prosecution. Even otherwise, merely on account of the delay in lodging of the FIR, the prosecution version cannot be discarded particularly when there is sufficient evidence available on the file to prove the complicity of the accused in the crime.
13. While appearing as PW-5, the prosecutrix stated that when she accompanied Sanjay accused to his house, she was taken by him inside the house and no other person was present. After some time, Vishnu accused came there. He caught hold of her hands while Sanjay accused committed rape upon her. Afterwards, Vishnu accused committed sexual intercourse. She corroborated the prosecution case almost in entirety. However, she stated that when she was brought back to her house her father was not present in the village but he came after half an hour of the occurrence. On this, learned Public Prosecutrix requested the trial Court to declare her hostile as she was concealing the truth. After the grant of permission, she was cross-examined by learned Public Prosecutrix when she stated that her father had come to the village after two days of the occurrence and she had wrongly stated in the earlier part of her statement that her father had come after half an hour on the same day. Apart from this minor slip, there is no other material available on the record from which it could be said that the prosecutrix was not stating truthfully.
14. Suresh and Rakesh Kumar were attracted to the house of Sanjay accused on hearing the cries of a girl. They pushed open the door of the house and after entering the same, noticed Sanjay accused committing sexual intercourse upon her, while Vishnu accused had caught the prosecutrix from her hands. Suresh, while appearing as PW-6, fully corroborated the prosecution version. He even went to the extent of saying that he along with Rakesh Kumar took the prosecutrix to her house but her father was not there, who came back after two days of the occurrence. Suresh PW-6 is a resident of the same village as that of the prosecutrix and the accused. He described his vocation as a shop- keeper. No material has been brought on record by way of his cross-examination from which it could be made out that he was deposing falsely. Mere fact that the prosecutrix and her father were known to him for the last 13/14 years was no ground to reject his testimony. It may also be mentioned here that Rakesh Kumar was not examined by the prosecution as a witness as he had been won over by the accused. Even otherwise, we have satisfactory evidence available on the file to prove the involvement of the two accused in the commission of the crime.
15. It was pointed out by learned defence counsel that as per the testimony of the prosecutrix, she was first raped by Sanjay accused when at that time Vishnu accused caught her from her hands and thereafter Vishnu accused committed rape, but according to the statement of Suresh PW-6, he had only seen Sanjay accused committing sexual intercourse when Vishnu had caught hold of the prosecutrix from her hands and he did not state about the commission of rape by Vishnu accused. Thus, the allegation against Vishnu accused, who according to the prosecutrix had committed rape afterwards was not proved and therefore, he deserved the benefit of doubt.
16. On first impression, the argument appears convincing because according to the prosecution as is clear from the statement Ex. PJ of the prosecutrix, first Sanjay accused committed rape, while Vishnu accused did it later, whereas Suresh PW-6 does not talk about the commission of rape by Vishnu accused. He simply states about the commission of rape by Sanjay accused. On seeing the commission of rape, Suresh along with Rakesh Kumar had pushed open the door of the house and at that point of time both the accused ran away. However, it may be noticed that Suresh PW-6 stated towards the end of his examination-in-chef that the accused, who were present in the Court were the same persons, who had committed rape upon the prosecutrix. Even otherwise, once the presence of the two accused was shown at the place where the prosecutrix was subjected to rape, it was immaterial whether both the accused had committed rape or only one of them did it. The two accused were charged and finally convicted under Section 376(2)(g) IPC for committing gang rape. Explanation to Section 376(2)(g) IPC defines gang rape as follows :-
    "Where woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the said sub-section."
17. Thus, merely from the statement of Suresh PW-6 it cannot be held that Vishnu was not liable for the gang rape.
18. An argument was also raised that there was no external or internal injury on the prosecutrix and thus, she was a consenting party.
19. Once it has been established on the file that prosecutrix was less than 16 years of age, the question of her consent did not arise. Otherwise also there is a legal presumption against the accused in a case of gang rape. Section 114-A of the Indian Evidence Act allows raising of presumption that the prosecutrix did not consent when the prosecution is for rape under Section 376(2)(g) IPC and the prosecutrix states in her evidence before the Court that she did not consent. We have clear and convincing evidence in the form of statement Ex. PJ of the prosecutrix wherein she said that the accused committed rape upon her against her will. While appearing as PW-5, she stated that Sanjay accused had gagged her mouth and then took her inside the vacant house. She resisted the act of the accused by raising noise, which had attracted Suresh and Rakesh Kumar to the place, who entered the house by pushing the door open.
20. One more aspect of the case may also be looked into. Dr. Abha Bhawan PW-7 did not find any external mark of injury. Vaginal examination revealed crucial hymen opening which admitted one finger tightly. There was no fresh injury or bleeding/tenderness. A vaginal swab and two slides smeared on one surface were taken. They were sent to the Forensic Science Laboratory, Madhuban. As per report Ex. PL, semen could not be detected on the vaginal swab and the two glass slides as well as on the salwar of the prosecutrix. Semen was found present only on the under-wears of the accused. On the basis of the report Ex. PL, Dr. Abha Bhawan PW stated in her cross-examination that the factum of rape was not confirmed. Accordingly, it was submitted on behalf of the appellants that the charge of rape was not established.
21. Absence or presence of semen on the vaginal swab and the glass slides will not be sufficient to hold that the prosecutrix was not subjected to rape. The law does not require ejaculation by the accused for holding him liable for the commission of offence of rape. Mere penetration is sufficient. The prosecutrix had clearly deposed as PW-5 that the two accused committed rape upon her, which by itself is sufficient for holding the accused liable for the offence.
22. The plea of the accused does not appear to be convincing and satisfactory. If it was a matter of simple throwing of colours by the accused on the prosecutrix and other girls, it did not require to be taken to the Panchayat. Only when the mater pertained to commission of rape by the accused and the honour of the girl was involved that it may be that the father of the prosecutrix brought the same to the notice of the Panchayat.
23. In view of what has been observed above, the conviction of the appellants for the various offences does not call for any interference and is, accordingly, affirmed.
24. Coming to the question of sentence, it may be noticed that the law prescribes imposition of rigorous imprisonment for a term, which shall be not less than ten years, but it may be for life, for an offence of gang rape. However, if the imprisonment for a term of less than ten years is to be imposed, adequate and special reasons are required to be mentioned in the judgment.
25. It was Sanjay accused, who had initially kidnapped the prosecutrix in order to seduce her to sexual intercourse. He had met the prosecutrix when she went towards the menure pits to answer the call of nature. He told her to accompany him for watching the dance programme performed by women-folk in his street on the eve of Holi festival. When they reached near his house, he gagged her mouth and took her inside his vacant house. At that point of time, Vishnu accused also appeared on the scene and bolted the door of the house with a chain. There was no allegation that Vishnu accused had kidnapped the prosecutrix for seducing her to sexual intercourse.
26. As per the testimony of Suresh PW-6, it was Sanjay accused, who was committing rape upon the prosecutrix. At that point of time, Vishnu accused had simply caught hold of the prosecutrix from her arms. Sanjay PW-6 did not clearly mention that Vishnu accused had also committed rape.
27. The aforementioned reasons are considered and found to be adequate and special reasons for imposing a sentence of imprisonment for a term of less than ten years upon Vishnu accused. Ends of justice would be amply met if his sentence of RI for ten years imposed under Section 376(2)(g) IPC is reduced to RI for seven years. No case, however, is made out for imposing a sentence of imprisonment for a term of less than ten years upon Sanjay accused.
28. Accordingly, the sentence of Vishnu appellant under Section 376(2)(g) IPC is reduced to RI for seven years. Sentence of RI for ten years imposed upon Sanjay accused by the trial Court is maintained. The fine of Rs. 2,500/- imposed by the trial Court on each of the appellants along with its default clause for the offence under Section 376(2)(g) IPC is maintained and so also the sentence of imprisonment and fine along with its default clause under Section 366 IPC in respect of Sanjay appellant. It is also made clear that both the substantive sentences of imprisonment imposed upon Sanjay appellant shall run concurrently. The direction regarding payment of fine to the prosecutrix is maintained.
29. Except for the modification in the sentence of Vishnu appellant, as indicated above, both the appeals are dismissed.

Appeals dismissed.

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