Husband committing intercourse with his wife without her consent - Husband is guilty of offence of Rape

PUNJAB AND HARYANA HIGH COURT

Before :- V.K. Aggarwal, J.
Criminal Appeal No. 290-SB of 1995. D/d. 9.5.1996

Darshan Ram - Appellants Versus State of Haryana - Respondent

For the Appellants :- Mr. A.S. Virk, Advocate.
For the Respondent :- Mr. S.K. Kapoor, AAG, Haryana.

A. Indian Penal Code, Section 376 - Gang rape on a married woman under threat of death - No injury on the person of prosecutrix - She resisted only by giving blows with her legs - It does not rule out the possibility of rape when there was threat to death. 1987(1) Recent Criminal Reports 398 (SC) relied.
[Para 15]
B. Indian Penal Code, Section 376 - Gang rape on a married woman - Medical examination cannot show the number of persons who committed the rape - It is also difficult to pin point possible time - Statement of prosecutrix has to be taken into consideration - Prosecutrix is not an accomplice - Her statement does not require corroboration. 1990(1) Recent Criminal Reports 411(SC) relied.
[Para 12]
C. Indian Penal Code, Section 376(1) Explanation I - Gang rape - Accused caught hold the prosecutrix - Three others committed rape one after the other - All the four accused are guilty of offence of rape under Section 376(1) Explanation I - By legal fiction under Section 376(1) IPC, if a woman is raped by a group of persons, then each of the person who acted in furtherance of common intention is deemed to have committed the rape.
[Para 17]
D. Indian Penal Code, Sections 376(1) and 375 - Gang rape - Husband wanted to get rid of his wife as she did not bear child - Husband alongwith three others committing rape on wife - Mother of accused suggested the wife to commit suicide in view of molestation - All the accused including husband guilty of offence of rape - Contention that husband could not be held guilty of offence of rape even if he committed sexual intercourse without consent of his wife - Contention repelled - Even if case of husband did not fall under Section 375 IPC, still by virtue of Section 376(1) Explanation (1), he will be deemed to have committed the offence.
[Para 17]
E. Indian Penal, Code, Sections 375, 375 - Husband committing intercourse with his wife without her consent - Husband whether guilty of offence of rape (Yes). [Para 17]

JUDGMENT

V.S. Aggarwal, J. - "A shameless woman is worst of men" Young (Love of fame).
2. This is the precise argument raised by the appellants' counsel while he assails the prosecution version. But the factual matrix leading to the filing of this appeal, gives an account of a sordid and obnoxious incident where the appellants who are close relatives of the prosecutrix, created a hell of a situation in Letter disregard of the moral Code, human dignity but also in flagrant violation of the law of the land.
3. The brief facts of the shameless acts in-revelled by the prosecution at the trial are as follows:-
4. Prosecutrix Sona Devi was married to Roshan Lal appellant son of Babu Ram sometimes in the year 1992. Right from the very beginning, she was never liked by her husband and the other relatives. They levelled frivolous allegations upon her and asserted that she would not be kept by them. Threat was being given that she would be defamed and turned out of the house.
5. On 19.8.1993 Sona Devi alongwith her mother-in-law were present in the house. At about 3.00 P.M. her father-in-law Babu Ram and one of his relative Ladhe Ram came to their house, Ladhe Ram is a resident of Durga Nagar, Ambala City. Darshan son of Nikka Ram is the son of the brother-in-law of Babu Ram. He was also present in the house. The husband of the prosecutrix and his younger brother Laxman were also there. All these persons sat in a corner and were talking slowly. At about 7.00 P.M. the father-in-law of the prosecutrix and his relations Ladhe Ram went out of the house. At the time when he went out of the house, he had said that whatever was talked about, the work should be completed at night. The husband of the prosecutrix, Darshan, Pappu and Laxman remained in the house. They went out to sleep in the open at about 10.00 P.M. The prosecutrix went inside the room. After putting on the fan, she went to sleep. The mother-in-law of the prosecutrix had kept her cot in front of the door of the room. At about 11.00 P.M. the prosecutrix heard the noise of the Tape Recorder music which was being played on a high pitch. She woke up and found that the light of the room was on. Pappu, Darshan, Laxman, Som Nath and her husband were in the room.
6. The door was bolted from inside. Darshan and Pappur caught hold of her and threatened that if she raised an alarm she would be put to death. Her clothes were removed. The husband of the prosecutrix sat on the cot towards her head. He gave a similar threat to the prosecutrix that in case she raised an alarm, she would be put to death. The prosecutrix tried to raise an alarm but she was stopped by doing so by her husband. Even her husband had sexual intercourse with her. They told her that now she had been ruined and she could kill herself of her own.
7. On the next day, she was confined in the house of Soma till 27.8.1993. On 27.8.1993 her maternal uncle Chuhar Singh came to the house of Som Nath. The prosecutrix revealed all the facts to him. Her maternal uncle took her to the police station. On the way ASI Raj Kumar met them at the bus stand. The statement of the prosecutrix was recorded. On this information ruqa was sent for registration of the case, resulting into lodging of the First Information Report. The prosecutrix was taken to the Hospital where she was examined. Her clothes were taken into possession. The underwears of her husband, Joginder Singh were seized vide separate memos. They had been sent for chemical analysis. Semen was found on the salwar of the prosecutrix and underwear of the prosecutrix. On these broad facts, challan under Section 173 Cr.P.C. was filed against the appellants and others.
8. The learned Additional Sessions Judge, Kurukshetra framed charges against the appellants and others with respect to offences punishable under Section 120-B/342/34, 506/34 and 376(2)(g) of the Indian Penal Code. The appellants pleaded not guilty and claimed trial. During the course of trial, the prosecution examined 16 witnesses.
9. Statements of the accused persons were recorded. The prosecution evidence was put to them in the form of different questions. It was denied by each of the accused that they had any hand with respect to the alleged assertions. The defence of all the appellants and others was similar. Roshan Lal husband of the prosecutrix in answer to question No. 47 had stated:-

"I am innocent and I have been falsely implicated in this case. In fact the parents of Sona Devi wanted to contract a second marriage of Sona Devi for consideration and for that purpose the present case has been foisted against me/us. The parents of Sona Devi contracted the second marriage of Sona Devi about a month back with the son of one Bahadur Chand of village Sadhugarh (Punjab) and has received a sum of Rs. 60,000/-

By and large similar was the answer given by all other accused-appellants. The learned trial court on appraisal of the evidence held that there is no ground to disbelieve the prosecutrix. The contention that appellants would not commit sexual intercourse in presence of elderly members was rejected. However, the learned trial court did not accept the version of the prosecution that prosecutrix was confined from 19.8.1993 to 27.8.1993 in the house of Soma. The defence version that the prosecutrix had to be sold was not accepted. All the accused were acquitted of the offences punishable under Sections 342/34 IPC.
As against Guddo Devi, Babu Ram and Ladhe Ram the learned trial court did not find the evidence to be cogent and sufficient. But appellants Darshan Lal, Roshan Lal, Joginder, Laxman and Som Nath were held guilty of the offences punishable under Sections 506/120-B and 376(2)(g) of the Indian Penal Code. By the subsequent order of sentence, the learned trial court sentenced Roshal Lal to 10 years rigours imprisonment and a fine of Rs. 1,000/- for the offence punishable under Section 376 IPC. In default of payment of fine, he was to undergo further rigorous imprisonment for 6 months. The other appellants were sentenced to 3 years rigorous imprisonment for the offence punishable under Section 376 IPC. As regards Section 506 IPC each of the appellants was sentenced to undergo rigorous imprisonment for one year. The sentences were to run concurrently.
10. Aggrieved by the same, the present appeal has been filed.
11. Learned counsel for the appellants at the outset set urged that the medical evidence did not support the prosecution version that there was a gang rape on the person of the prosecutrix. Reliance was placed on the statement of Dr. Sudha Parihar PW-4. She had examined prosecutrix Sona Devi. In the opinion of the doctor as stated by her in examination-in-chief, after perusing the report of the Forensic Science Laboratory, Sona Devi was subjected to sexual intercourse. The witness was cross-examined and testified that she could have been raped but she could not state if she was subjected to sexual intercourse before the medical examination. The witness could not tell as to for how many days earlier to medical examination, she might well have been subjected to sexual intercourse. This opinion of Dr. Sudha Parihar certainly does not establish that the prosecutrix was raped or that there was a gang rape. However, in this regard it is the statement of the prosecutrix which is important. Medical evidence does not always establish conclusively, if there has been a gang rape on the person of the prosecutrix or not. On medical examination it is not possible to say about the number of persons who have committeed rape on a girl. The prosecutrix in the present case was a married woman. Therefore, it is difficult to pin point the precise time. Dr. Sudha Parihar rightly could not have pointed out if prosecutrix was subjected to sexual intercourse before the medical examination. Necessarily, therefore, one has to travel to the statement of the prosecutrix.
12. To urge that there should be corroboration to the statement of the prosecutrix, would be an incorrect legal proposition. In India the law is positively taken a shape. The prosecutrix is not an accomplice. The corroboration is not required to hear the statement. The decision of the Supreme Court in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990(1) Recent Criminal Reports 411 : AIR 1990 SC 658 provides the guidelines in paragraph 17. The said principle referred to above was accepted and it was observed :-

"We think it proper, having regard the increase in the number of sex-violation cases in the recent past, particularly case of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases to visit on coroboration exception in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime."

In this background the statement of Sona Devi who appeared as PW-11 can well be looked into. Sona Devi was aged about 18 years when she was examined in Court by the learned Additional Sessions Judge. Before the alleged incident she had been married 2-1/2 years ago. She did not bear any child. She states that her in-laws were treating her badly. She was assaulted. On 19.8.1993 at about 6.00 or 7.00 P.M. Babu Ram her father-in-law left the house stating that the goal should be achieved. The appellants and the mother-in-law of the prosecutrix remained there. At night she had gone to sleep. Thereafter pertaining to the injuries in the words of the prosecutrix it was recited:-

"The accused threatened me that if I would make a noise or cry or give shriek, I would be killed. My husband Roshan Ram was sitting on the head side of my cot. He gagged me (by mouth). Accused Darshan then committed forcible sexual intercourse with me. Thereafter accused Pappu also committed forcible inter-course without my consent. Thereafter Laxman Ram committed sexual inter-course with me without my consent and then my husband Roshan Lal committed sexual inter-course with me without my consent. They repeated the committed forcible sexual inter-course with me without my consent even thereafter during the whole night. My mother-in-law Guddo Devi then made a rhetoric to me that now I have been sexually molested and inter-course and I should commit suicide.

Thereafter Roshan Ram, Soma Ram, Darshan Ram, took me to village Gobind-Majra in the house of Soma where I was confined in a room and Soma Ram confined me there. He also used to watch me, keeping surveillance on me. I was also threatened of killing me by the accused if I would narrate the matter to anyone."

13. She was cross-examined and denied that she has falsely implicated the appellants. The witness admitted that the houses where she was raped is having two rooms. There are residential houses around it. There is a small window in the room near the door. The witness stated that the accused-appellant Soma did not commit sexual intercourse with her but he was present in the room. Soma is the real uncle of Roshan. He had also threatened the prosecutrix while she was being taken to village Gobind Majra that if she leaked the information about this incident, she would be put to death. The witness stated that she had given the blows with legs to the extent she could.
14. The testimony of the prosecutrix was criticised firstly on the ground that there has been an in-ordinate delay in getting the First Information Report recorded. Attention of the Court was being drawn to the fact that when there is so much delay, it proves that the version was not correct. To buttress the argument it was urged that the version of the prosecution that Soma Devi had been detained had already been found to be incorrect by the trial court. However, this is not the end of the matter. The prosecutrix was in the house of her in-laws. One would not be surprised that she immediately could not get the matter registered by reporting to the police. Chuhar Singh PW-10 IS is the uncle of the prosecutrix. It is evident from his testimony that he had gone to see the prosecutrix. Sona Devi had met him and told him as to what had happened. Thereupon he took Sona Devi with him and lodged the report. In identical terms was the statement made by Sona Devi. When Chuhar Singh had come she had raised an alarm and this explains as to how the information was given to the police and delay occurred. Once the delay has been explained, it will not prove fatal.
15. Reliance was further being placed on the plea that there was no injury on the person of the prosecutrix and it rules out the possibility of there being gang rape. The said contention is totally devoid of any merit. It is in evidence that she was under a threat that she would be put to death if she raised an alarm. It is explained by the prosecutrix that she had given certain blows with her legs only. When such was the threat, there could not be more effective resistance. Therefore, the contention necessarily has to fail and repelled. A similar argument had been advanced before the Supreme Court in the case of Balwant Singh and others v. State of Punjab, 1987(1) Recent Criminal Reports 398 : AIR 1987 SC 1080 and was rejected.
16. The reason why the appellants claim that why they have been falsely implicated, given is that the prsecutrix and the accused-appellants belong to Bazigar community. They wanted to contract second marriage of Sona Devi for money consideration. She was to be married to one Bahadur Chand and Rs. 60,000/- had been charged. The suggestion in this regard even had been given to the prosecution Sona Devi Denied that her father had taken Rs. 10,000/- from her in-laws and that she is to be re-married by getting Rs. 25,000/-. The argument by itself is fallacious and without substance. Not only such a custom is established but what knocks the bottom of such a suggestion is that even if the father of Sona Devi was greedy, there is nothing to indicate that Sona Devi would put her own chastity in jeopardy only to help her parents. In fact it transpires that Sona Devi was not bearing any child for more than 2 years and she was being maltreated. One cannot ignore her version that they wanted to get rid of her.
17. In that event learned counsel argued that so far as the husband of Sona Devi is concerned he cannot be held guilty of the offence punishable under Section 376 IPC because Sona Devi was above the age of 15 years and even if he had sexual intercourse with her against her wish, it would not be rape. Expression rape has been defined in Section 375 of the Penal Code in following words:-

"375. Rape. - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. - With or without her consent, when she is under sixteen years of age."

It is on the strength of this provision that the above said argument is built. In this regard there is no controversy. But explanation (1) of Section 376 IPC has been added specially to deal with gang rape cases. The said explanation (1) of Section 376 IPC reads as under :-

"Explanation 1. - Where a 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 this sub-section."

By legal fiction by virtue of the said explanation it has been incorporated that if a woman is raped by a group of persons, then each of the person who acted in furtherance of their common intention is deemed to have committed the rape. It is in evidence that husband of Sona Devi was gagging the mouth of the prosecutrix and threatened her. The intention is obvious. He was helping others, Even if his case did not fall under section 375 of the Indian Penal Code, still by virtue of Explanation (1) of Section 376 IPC, he will be deemed to have committed the said offence.
18. It is unfortunate that Sona Devi had been raped by near relatives which in the normal circumstances would not be believable, still human perversity is not unknown. The facts of the present case show that there is an exception to the general belief. The plea of the learned counsel for the appellants that Sona Devi in a shameless manner was falsely accusing the appellant cannot be believed.

19. For these reasons, the appeal being without merit fails and is dismissed.