PUNJAB AND HARYANA HIGH COURT (DB)
Before :- R.L. Anand and Virender Singh, JJ.
Criminal Appeal No. 583-DB of 2001. D/d. 6.2.2003
Vikram Singh - Appellant
Versus
State of Haryana - Respondent
For the Appellant :- Mr. Gorakh Nath, Advocate. For the Respondent :- Mr. Sanjay Vashist, DAG, Haryana
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Cases referred :
State of Punjab v. Gurmit Singh and others, 1996(1) RCR (Cri.) 533 (SC) : AIR 1996 SC 1393.
Prem alias Ballu v. State of Haryana, 2003(1) RCR (Criminal) 237 (SC).
State of Karnataka v. Krishnappa, 2000(2) RCR (Criminal) 459.
State of Rajasthan v. N.K. accused, 2000(2) RCR (Criminal) 471.
Sat Pal v. State of Punjab, 1997(1) Recent CR 93.
R.L. Anand, J. - By this judgment we dispose of four criminal appeals - No. 583-DB-2001 titled Vikram Singh v. State of Haryana, No. 373-SB-2001 titled Bhagmal & others v. State of Haryana,
No. 539-SB-2001 titled Raj Singh @ Titu v. State of Haryana and No. 658-SB-2001 Pankaj v. State of Haryana - as, in my opinion, all the four appeals can be disposed of by a common judgment.
2. All these appeals have arisen from the judgment dated 23.2.2001 passed by Addl. Session Judge, Rewari, who came to the conclusion that all the appellants are guilty for the offences under Sections 376(2)(g), 342, 323 and 506 read with Section 34 of the Indian Penal Code and vide order dated 27.2.2001 Vikram Singh was sentenced for life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine to undergo RI for 2-1/2 years, for the offence and other six appellants, namely Bhagmal, Sukhbir @ Sheru, Mehtab, Jai Parkash, Raj Singh @ Titu and Pankaj were sentenced to undergo RI for 10 years each and to pay a fine of Rs. 4,000/- each and in default of payment of fine to further undergo RI for two years each, under Section 376(2)(g) of the Indian Penal Code. All the appellants were further sentenced to undergo RI for one year each under each section for the offence punishable under Sections 323 and 342 and RI for 2 years each under Section 506 of the Indian Penal Code. All the sentences were ordered to run concurrently.
3. The seven appellants, referred to above, were charge-sheeted with the allegations that on 21.12.1998 at about 6.00 p.m. in the area of Rewari in furtherance of their common intention they wrongly confined Ramesh Devi and thereby committed an offence punishable under Section 342/34 of the Indian Penal Code. Secondly, on the same date, time and place and in furtherance of their common intention they voluntarily caused simple hurt to said Ramesh Devi and thereby committed an offence punishable under Section 323/34 of the Indian Penal Code. The third charge against the appellants was that on the same date and time and in furtherance of their common intention they threatened the prosecutrix to kill her and thereby allegedly committed an offence punishable under Section 506/34 of the Indian Penal Code. And the last charge against them was that on the same date, time and place they committed gang rape with Ramesh Devi and thereby committed an offence punishable under Section 376(2)(g) of the Indian Penal Code.
4. Present is a case which has shaken our conscience on going through the evidence and allegations of the prosecution. Vikram Singh appellant is none else but the husband of Ramesh Devi. To what extent he can go for defaming his wife not only through himself but also with the assembly of his companions can be well judged on going through the statements of the prosecturix made before the police and in the trial Court and also before the Magistrate under Section 164 Cr.P.C. Ramesh Devi made a statement before SI/SHO Baldev Singh of Police Station, Sadar Rewari in the company of her mother on 23.12.1998 at about 8.15 a.m. stating therein that she is a resident of Berli Khurd. Her father expired in her childhood and thereafter she started residing with her mother. She was married with Vikram son of Mam Raj, caste Ahir, resident of Dahina, Police Station Khol on 5.6.1994 according to Hindu rites and ceremonies and out of this wedlock she gave birth to one male child, namely, Ankit, aged about 2 years at the time of this incident. The prosecutrix was young girl of 20 years at that time and she further stated that she was living with her mother in the village for the last about 8/10 months and she started serving as nurse in Virendra Hospital, Rewari. On 21.12.1998 when she was returning to bus stand Rewari from the hospital, on the way her husband Vikram Singh called her by name. At that time he was sitting in a white Maruti car bearing No. DL-4C.3051 which was being driven by Titu alias Raj Singh resident of Ladhuwas. Her husband was sitting on the rear seat of the said car and one more person belonging to village Ladhuwas was also sitting in the car. Her husband called her saying that he would drop her at bus stand or Naiwala Chowk. She reposed confidence in her husband and sat in the car. She was made busy in conversation and due to this reason her last bus missed. Her husband told her that firstly they would take liquor and then they would drop her. Her husband and his companions became busy in taking liquor. It is alleged by the complainant that she was forced to consume Pepsi which was in a plastic bottle. Some intoxicant was mixed in the Pepsi and that was the reason that after 10/15 minutes she started feeling giddiness and her limbs were unable to move. Upon this her husband Vikram told to his companion Titu that now she was fully intoxicated and they will take her to Ladhuwas. Thereafter they took her to a house in village Ladhuwas and she was in a position to identify the same. On reaching that house she observed that two persons were already sleeping in the Chobara of the said house. Her husband forcibly committed sexual intercourse with her in the Chobara and then he went out. Thereafter the two persons, who were already sleeping in the Chobara tried to sexually assault her but she resisted and raised alarm. On hearing her cries, her husband told Titu that on hearing such cries villagers would attract to the spot. He suggested to take her to the well. Thereafter all the five persons forcibly took her in the car to the hut made of gunny bags. In the hut three persons were already present, all those persons also committed rape with her turn by turn and on her refusal they gave her beating and many photographs were taken by them in a forcible manner. Throughout the night they had been committing rape upon her forcibly one after the other. On the following day at about 5.00 a.m. they dropped her near Mahendergarh Chowk, Rewari. Due to tiredness and pain she straightaway went to village Berli Khurd to her mother. On the day of reporting, after she recovered, she accompanied by her mother Giano Devi came to the police station for lodging the report. It was also stated by the prosecutrix that those persons while leaving her threatened that in case she tried to go to the police station for lodging the report, she would be killed. Also it was stated by the prosecutrix that all those persons were young in age and she could identify them as and when they were produced before her. It was further averred by the complainant that she left her clothes at home which she was wearing on 21.12.1998. Necessary action be taken against the culprits. On the basis of that statement FIR Ex.PA was recorded. It was read over and explained to the prosecutrix who signed the same in token of correctness and was attested by SI Baldev Singh.
5. PW18 SI Baldev Singh, after recording FIR Ex.PA deputed Constable Maya Rani and HC Munshi Ram to get the prosecutrix medically examined at Civil Hospital, Rewari. He also recorded her supplementary statement on the same day outside the police station. He also recorded the statement of the mother of the prosecutrix and thereafter the prosecutrix was sent to the hospital. After the medical examination of the prosecutrix, HC Munshi Ram produced the underwear and swabs taken by the doctor in a sealed parcel to the Investigating Officer and those articles were taken into possession vide recovery memo Ex.PL.
6. On 24.12.1998, the prosecturix, her mother and other persons met the Investigating Officer at Naiwali Chowk, Rewari when the prosecturix produced her suit and Salwar and those were taken into possession vide recovery memo Ex.PM. Thereafter the Investigating Officer visited the place of occurrence. He prepared rough site plan Ex.PZ. He also went to village Ladhuwas and prepared rough site plan Ex.PAA of the Chobara of the house on the pointing out of Ramesh Devi. During the course of inspection he took into possession a Dari from the hut in village Ladhuwas and a Dupatta from the Chobara at village Saharanwas vide recovery memos Ex.PK and PJ, respectively. On the same day he took into possession the car bearing No. DL-4D-3051 vide recovery memo Ex.PN.
7. On 27.12.1998, the prosecutrix was produced before the Magistrate for the purpose of recording her statement under Section 164 Cr.P.C. Her statement was recorded in Hindi and the same can be described in the following manner :-
8. The prosecutrix stated that she has three brothers and sisters and she was married with Vikram about four years ago. It may be mentioned here that her statement was recorded on 27.12.1998. She was serving with Dr. Virender as Nurse. On 21.12.1998 at about 6 O'clock when she was returning to her house after doing her job, a Maruti car on Garhi-Boni road crossed her and she heard the noise but ignored the same. When she walked just 8/10 feet the same voice came from the Maruti car which was following her. Then she say that her husband Vikram was sitting in the car. He asked he asked her to sit in the car but she did not agree. Again he asked her to sit in the car and this time she was taken forcibly in the car. Her husband Vikram asked her that he would drop her at the bus stand. He further told that he was going to his house and that she should accompany him. She asked her husband to drop her at the bus stand and he may go in the car. She was not dropped at the bus stand. Her husband told her she would be dropped at Naiwali. Upon this the prosecutrix told her husband that Naiwali has come and she may be dropped there. Her husband again told that first he would get some petrol in the car and then she would be dropped. After taking the petrol her husband did not drop her from the car. Two more persons were also sitting in the car. After taking petrol her husband asked Titu to return. They reached at Naiwali. The complainant enquired from the bus stand as to whether the last bus had already left, she requested her husband to drop her at her house. Her husband assured her that she would be left at her house but first of all he has to take liquor. The prosecutrix requested her husband not to take liquor and if he wants to take liquor he may take the same at house. Her husband did not agree. He purchased liquor and started taking the same. The liquor was consumed by her husband and one other occupant of the car. Then her husband told her to take Pepsi. The complainant was reluctant to take the Pepsi but her husband asked her companion Sunda (Bhagmal) to offer Pepsi to the complainant. When Sunda offered Pepsi, she refused. Thereafter they entered inside the car and asked Titu (Raj Singh) to start the car. There was only road at that place and there was no shop or house. Then her husband again asked the complainant to take Pepsi. She refused and upon this her husband gave her 4/5 slaps and compelled her to take Pepsi, otherwise she will be beaten. Due to the fear she took Pepsi. After about 10 minutes of taking Pepsi she was in such a condition that she could not stand. Her husband asked Titu alias Raj Singh that she should be taken to Ladhuwas. When she heard the name of Ladhuwas, she asked her husband that she be taken to her house and why she was being taken to Ladhuwas. Upon this her husband said sorry and asked his companion Titu alias Raj Singh to take the complainant to Berli. After covering some distance she say that they were taking her to some other place instead of her house. She made a noise and enquired from them as to where she was being taken. Her husband told her that they were taking her to Berli. She was again beaten. At about 8.00 p.m. she observed that the car has turned towards village Saharanwas. Those persons took her to a Chobara and asked Mehtab to open the door. It was opened and her husband took her in the Chobara and she say inside the Chobara Mehtab, who opened the door, and one more person were present. Thereafter her husband asked Mehtab who is the second person, upon which Mehtab told that he was his friend Pankaj, thereafter her husband asked Mehtab to go out of the Chobara and her husband started removing her clothes. When the complainant objected to her husband that as to what he was doing in the presence of other persons, her husband told her that other man was in sound sleep. Her husband removed her clothes and committed sexual intercourse with her and then he left the room. Then other persons were called inside the room. It was stated by the complainant in her statement under Section 164 Cr.P.C. that her husband got committed rape upon her by other persons. She further complained that as and when she wanted to resist the sexual intercourse of other persons, she used to be beaten. On one side her husband was standing and on the other side Titu alias (Raj Singh) was standing. As and when she tried to cry, Titu started beating her with his belt and her husband used to give her kicks. She stated that inside the Chobara five persons, namely, Pankaj, Mehtab, Titu @ Raj Singh, Vikram Singh and Sunda alias Bhagmal committed rape with her one after the other. She further stated that when they tried to commit rape upon her second time, she made a noise. On this her husband asked his four companions to take her at the well. Her husband enquired from Mehtab, who will be present on the well and upon this Mehtab replied that Sheru and Chotia might be available there. Further, the prosecutrix deposed that she was in naked condition and she was brought to the well by covering herself with a Dari. When she was raped, the same Dari was being used in the Chobara. Her husband and his companions all put her in the car and took her to the well. There was only one hut. No well was there. Two more persons met there. Those two persons also committed rape upon her one after the other. The names of Sheru and Chotu became known to her as they were calling their names. The complainant further alleged that one person was taking her photographs and all the aforesaid persons committed rape during the night with her and also gave her beating. As and when she wanted to obstruct she was given more beating. So much so her urine fell on the Darri which was put on a cot. At about 4.00 a.m. they threatened her with dire consequences. She requested her husband and his companions not to kill her but all the persons continuously threatened her with dire consequences. When she cried again, one of them told that she may be killed lest she may not report the matter to the police. Upon this the complainant told them that she would not go anywhere nor she would narrate the incident to anybody. On this condition they allowed her to sit in the car after covering with the same Dari and then they gave her clothes for wearing and she wore her clothes in the car. Thereafter these persons left her at Narnaul road at about 5.00 a.m. At that time there was darkness. She sat near the road under a tree. After some time she slept there. At about 7.00 a.m. she woke up. Thereafter she stood near the road and saw same persons coming in the car. Vikram, Sunda and Titu were the occupants of the car. She again became afraid of them. Thereafter she went to Berli by bus and after reaching there she narrated the whole story to her mother. On that day she was provided with heat by her mother. Finally the prosecutrix stated before the Magistrate that her health became too weak to walk. On 23.12.1998 she along with her mother went to the police station in the evening and narrated the entire story in the police station. The statement Ex.PB was read over and explained to the prosecutrix by Shri Nazar Singh, Judicial magistrate Ist Class, Rewari and was signed by the prosecutrix.
9. The Investigating Officer SI Baldev Singh arrested Raj Singh, Sukhbir @ Sheru, Jai Parkash, Mehtab Singh, Bhagmal @ Sunda and they were medically examined about their capability to perform sexual intercourse. After their medical examination the doctor handed over to the Investigating Officer 5 underwears which were being worn by the five accused and those were taken into possession vide memo Ex.PU. From the possession of Raj Singh 38 negatives were recovered vide memo Ex.PT.
10. On 27.12.1998, PW3 Dr. P.D. Mehra medico-legally examined Bhagmal alias Sunda son of Banwari and issued certificate Ex.PD on police request Ex.PD/1 to the effect that this persons was capable of performing sexual intercourse. On the same day he also examined Jai Parkash and vide report Ex.PE declared him fit to perform sexual intercourse. The opinion was given on police request Ex.PE/1. Further, this very doctor examined Raj Singh @ Titu and as per his opinion Ex.PF he was also fit to perform sexual intercourse. He further examined Mehtab son of Bachan Singh appellant and opined vide Ex.PG that there was nothing to suggest that he was not capable to perform sexual intercourse. Still further Dr. Mehtab medico-legally examined Sukhbir alias Sheru and he was also declared fit to perform sexual intercourse vide opinion Ex.PH which was given on request Ex.PH/1. The doctor also took into possession the samples of the pubic hair besides underwears of these five persons.
11. On 19.1.1999 PW2 Dr. Karan Singh along with Dr. O.P. Dawas and Dr. Kawar Singh examined Pankaj son of Asha Nand and gave opinion Ex.PC that he was fit to perform sexual intercourse.
12. Finally the sealed parcels of the clothes of Ramesh Devi, slides, swabs, pubic hair, Darri, Salwar, lady shirt and underwears of the accused were sent to the office of the director. Forensic Science Laboratory, who vide report Ex.PX opined that human semen was there on the Darri, underwears but the semen could not be detected on the slides, swabs, pubic hairs of the prosecutrix, Salwar and the lady shirt.
13. During the course of investigation the negatives which were recovered from the possession of Titu alias Raj Singh were got developed and those are Exs.P1 to P37.
14. On completion of the investigation of the case the present appellants were challaned in the court of Area Magistrate under Sections 376, 342, 506, 323 read with Section 34 of the Indian Penal Code. The learned Magistrate supplied the copies of the documents to the accused as required under the law and vide commitment order dated 4.5.1990 committed the appellants to the Court of Session.
15. In order to prove the charges, the prosecution examined PW1 Ramesh Devi, whose statement shall be dealt by us in detail. Further, the prosecution examined PW2 Dr. Karan Singh, who on 19.1.1999 medico-legally examined Pankaj appellant and declared him fit to perform sexual intercourse. Five appellants, namely, Bhagmal alias Sunda, Jai Parkash, Raj Singh @ Titu, Mehtab and Sukhbir alias Sheru were medically examined by PW3 Dr. P.D. Mehra and they were declared fit to perform sexual intercourse. PW4 is Ram Kumar who deposed that on 24.12.1998 he had gone to village Saharanwas with the police in connection with the investigation of this case and from the Chobara at village Saharanwas a Dupatta was taken into possession by the police vide memo Ex.PJ. This dupatta was identified by the prosecutrix who was also with the police at that time. From there they went to village Ladhuwas and from a hut a Dari was taken into possession by the police vide memo Ex.PK and the Dari was identified by Ramesh Devi. The police also showed Salwar and Jamphar to the prosecutrix and the same were identified by her. PW5 is Nazar Singh, HCS, who deposed that on 27.12.1998 he was posted as Judicial Magistrate Ist Class, Rewari and on that day he recorded the statement of the prosecutrix which is Ex.PB and it was so recorded on police request Ex.PD/1. He passed order Ex.PB/2 and PB/3 regarding the compliance of Section 164 Cr.P.C. PW6 is HC Munsi Ram who deposed that on 23.12.1998 he accompanied the prosecutrix to Civil Hospital, Rewari along with lady Constable Maya Rani and the prosecutrix was medically examined there. After her medical examination one parcel of underwear of the prosecutrix and one parcel of swabs sealed with the seal of the doctor were handed over to him with the copy of the M.L.R. and one envelope and he handed over these articles to SI/SHO Baldev Singh, who took these articles into possession vide memo Ex.PL. PW7 is ASI Devi Lal, who deposed that on 24.12.1998 he joined the investigation of this case with SI Baldev Singh and in his presence the prosecturix Ramesh Devi handed over her Salwar and Jamphar to the SHO at Naiwali Chowk, Rewari and those were taken into possession vide memo Ex.PM. Thereafter he along with the police party went to village Saharanwas and from a Chobara one Dupatta was taken into possession in the presence of Ramesh Devi and it was taken into possession vide memo Ex.PJ. Thereafter they went to village Ladhuwas and from a hut a Darri was taken into possession vide memo Ex.PK. From Ladhuwas a Maruti car bearing registration No. DL-4CD-3051 was taken into possession, which was lying parked in front of the house of Raj Singh alias Titu, vide memo Ex.PN. PW8 is Sanwat Singh, Advocate, District Courts, Rewari, who deposed that under the orders of the Addl. Chief Judicial Magistrate, Rewari from the negatives, which were recovered in this case, positives were got developed from Astha laboratory, Rewari in his presence and that of ASI Anil and complainant Ramesh Devi. The developed photographs were taken into possession vide memo Ex.PO. The photographs are Exs.P1 and P37. PW9 HC Inder Singh and PW10 Constable Abdul Karim tendered their affidavits Exs.PP and PQ respectively. PW11 is HC Hazari Lal, who deposed that on 23.12.1998 he delivered the special report of this case to the Ilaqa Magistrate at his residence. PW12 Constable Naresh Kumar deposed that he prepared scaled site plan Ex.PR of the place of occurrence on the pointing out of Ramesh Devi. PW13 Rajpal Singh, revenue Patwari deposed that he prepared site plan Ex.PS on the pointing out of Ramesh Devi. PW14 ASI Mahender Singh deposed that he partly investigated this case. On 18.4.1999 he arrested Vikram Singh and got his medically examined. PW15 is ASI Anil Kumar, who deposed that on 27.12.1998 five accused were arrested by SI Baldev Singh. 38 negatives were recovered from the possession of Raj Singh and those were taken into possession vide memo Ex.PT. He got the five accused medically examined. After the medical examination he handed over the sealed parcel of the underwears which were taken into possession vide memo Ex.PU. on 18.1.1999, he arrested Pankaj in the area of bus stand Rewari and he was also medically examined on the same day. On 9.2.1999 the negative photographs were got developed from Aggarwal Colour Lab, Rewari on the orders of the learned Addl. Chief Judicial Magistrate, Rewari and the same were taken into possession vide memo Ex.PO, attested by Sanwat Singh, Advocate and Ramesh Devi, prosecutrix. The photographs are Exs.P1 to P37 and negatives are Exs.P38 to P77. The witnesses further deposed that two negatives could not be developed. PW16 is Dr. Sunita Garg, who medico-legally examined Ramesh Devi prosecutrix and deposed as follows :-
- "Examination
- Breast well developed. Pubic & axillary hari well developed. Few pubic hair near labia majora and matted, out and sent for semen analysis. Stain present on underwear and sent for semen analysis.
- INJURIES
- 1. A contusion of 13 x 4 cm present on anterolateral aspect of left thigh 2 inch above left knee joint and of bluish colour.
- 2. Semicircular abrasion of size 5 x .1 cm present on right cheek 5 cm away from right ala of nose, seems to be teeth mark.
- 3. Semicircular abrasion of 3 x 0.2 cm present on right side of face 4 cm below injury No. 2, seems to be teeth mark.
- 4. Abrasion of 0.5 x 0.2 cm present on right side of face 4 cm away from lateral angle of mouth.
- 5. Swelling of 3 cm x 3 cm present on ulnar side of left forearm in middle. Tenderness was present. Advised X-ray. Left forearm AP view and lat. view.
- 6. Also complaining of pain in the middle of left arm.
- 7. Complaining of pain on right side of back in scapular area.
- LOCAL EXAMINATION
- No injury mark over labia majora, perineum, breasts. Few bruises were present of size 2 cm x. 1 cm, 4 in number on labia minora near post fourchette. Hymen in reputed and replaced by carunculae myrtiformes. Vagina admit two fingers.
- L.M.P. 1.12.1998
- P.V. EXAMINATION
- Two swabs taken from vagina for semen analysis, slides made from vaginal secretion for semen analysis. For age verification referred to radiologist.
- IMPRESSION
- Final report will be given after receiving report of analysis from FSL, Madhuban, Karnal.
- After going through the report of FSL, Karnal, in my opinion the patient was subject to sexual intercourse. Ex.PV is the photo copy of MLR. I have brought the original MLR which is in my hand and it bears my signature. I had examined Ramesh Devi on Police application Ex.PV/1.
- HANDED OVER TO POLICE
- 1. A copy of MLR-S.G/3/98 dated 23.12.1998.
- 2. An envelope bearing 5 seal containing forwarding letter, copy of MLR, sample of seal addressed to FSL, Madhuban.
- 3. A pulanda bearing 5 seals containing underwear of patient.
- 4. A box bearing 7 seals containing two test tubes with vaginal swabs, 1 test tube with pubic cut hair and two slides addressed to FSL, Madhuban for semen analysis.
- 5. Two samples of seal."
17. The statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the persecution evidence were put to them. Their defence before the trial Court was that they have been falsely implicated in this case.
18. When called upon to enter into defence, accused examined DW1 Lal Singh and DW2 Daulat Ram and closed the case.
19. The learned trial Court believed the story of the prosecution and convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence the present appeals.
20. We have heard Mr. Gorakh Nath, Mr. T.P.S. Mann and Mr. P.R. Yadav, Advocates on behalf of the appellants, Mr. Sanjay Vashist, Deputy Advocate General, Haryana on behalf of the State and with their assistance have gone through the records of the case.
21. The entire case of the prosecution hinges upon the statement of PW1 Ramesh Devi, who is none else but the wife of appellant Vikram Singh. After going through the statement of this witness we are of the opinion that this gang rape has been committed not only by Vikram Singh who is none else but the husband of the prosecutrix but this man was so cruel to his wife that he even abetted and invited his companions to commit rape upon his wife with whom this gentleman had some strained relations. In order to put the lady into disrepute Vikram Singh not only kidnapped her forcibly against her will but also made her sedate. She was taken to a Chobara by three persons at the first instance where two more persons joined and all the five persons committed rape upon her one after the other. So much so she was severely treated. She was made naked. In order to put her into shame her naked photographs and some of the photographs in comprising position were taken. From there she was taken to a hut. Two more persons joined and again the prosecutrix became the victim of sexual lust at the instance of the appellants.
22. Before we deal with the case law as well as the contentions raised by the learned counsel for the parties, it will be proper for us first to make a reference of the substantive statement of Ramesh Devi who appeared in the trial Court as PW1. We have already reproduced above the contents of the FIR and the statement under Section 164 Cr.P.C. Of course there is some improvements in the statement of the prosecutrix but we are convinced that the genesis of the occurrence have not been broken and she has not concealed anything from her statement under Section 164 Cr.P.C. from which a benefit can be granted to any of the appellants.
23. While appearing as PW1 Ramesh Devi deposed that in the month of December, 1998 she was working as a nurse in the hospital of Dr. Narender situated at Garhi-Bolni road, Rewari. On 21.12.1998 at about 6.00 p.m., after doing her duty in the said hospital, she was going towards bus stand for going to her village. On Garhi-Bolni road she passed by a Maruti car. She heard the calls Ramesh, Ramesh from that car but she ignored the same. After covering about 8/10 steps the same Maruti car again reached by her side and again she heard the calls of Ramesh, Ramesh. She looked into the car and found that her husband was sitting in the said car, who asked her to sit in the car. She refused to do so. He caught hold of her hand and made her sit in the car and told her that he was going to Berli Khurd and would drop her there. On the request of her husband she boarded the car only for going to the bus stand. But he did not drop her at the bus stand and told her to drop at Naiwali Chowk. Also he did not drop her at Naiwlai. He took petrol in the car and again came to Naiwali and by that time the last bus for her village had left. While sitting in the car she confirmed from one person whether the last bus for Berli Khurd had left or not. Thereafter she told to her husband to drop her at Berli Khurd, but her husband told to the contrary by saying that first of all he would take liquor and thereafter she would be dropped at Berli Khurd. The prosecutrix further stated on oath that she asked her husband not to take liquor but despite that he took wine in the car. Sunda and Titu were also with him. All these three persons were correctly identified by the prosecutrix in the court. The prosecutrix further deposed in the court that liquor was also taken by Sunda. Pepsi was offered to her by Raj Singh @ Titu and Bhagmal alias Sunda, but she refused to take the same. She further stated that Vikram also insisted her to take Pepsi and she refused to take the same. Thereafter on the asking of Vikram, Raj Singh, who was driving the car at that time took the car towards Narnaul Chowk at a place where there was no crowd. There Vikram gave her slaps and forced her to take Pepsi. After taking Pepsi she started feeling giddy and lost her senses, but was hearing everything. Then Vikram asked Raj Singh @ Titu to take her to village Ladhuwas. She objected. Thereafter Vikram said that I will be taken to Berli Khurd. She told Vikram that they were not going to Berli. Again he gave her a few slaps and she was thereafter taken to a Chobara at village Saharanwas by them. While outside the Chobara Vikram said "Mehtab open the Chobara." The witness also correctly identified Mehtab in the court. It has further come in the statement of the prosecutrix that thereafter Vikram took her inside the Chobara. One more person was sleeping in the Chobara. On being asked by Vikram, Mehtab told him that person sleeping in the Chobara was Pankaj and he was also correctly identified by the prosecutrix in the court. Vikram asked Mehtab to go out. Thereafter she was raped by Vikram against her wishes after removing her clothes. During that time Pankaj had remained in that room. Thereafter she was raped by Mehtab and during that period she was beaten by Vikram with kicks and Titu also hit her with the belt whenever she raised alarm. Thereafter she was raped by Sunda and at that time Titu and Vikram gave her beating when she tried to raise alarm. When Pankaj raped her, Titu and Vikram played the same role which was played by them earlier. While in the room Titu was taking her photographs. Thereafter Vikram suggested that she should be taken to the well and at that time Mehtab said that Sukhi and Chhote shall be there. Thereafter she was taken to the well. The witness correctly identified Sukhi (Sukhbir) and Chhoti (Jai Parkash). She further deposed that last of all she was raped by Titu (Raj Singh) and photographs were taken by Titu while she was being raped by Chhotia, Sukhi and Sunda. The witness also deposed that she was raped in a hut situated in the field. In fact, there was no well though during the conversation it was said that she was going to be taken to the well. She further stated that the names of the remaining accused except Vikram were not known to her and she came to know their names during their conversion. She further deposed that accused had also threatened to kill her, but on the asking of one of them they did not kill her and obtained an oral assurance from her to the effect that she will not narrate the matter of the police or anybody else. The witness further stated that she was left by the accused on the next morning at 5.00 a.m. at Naiwali Chowk, then she went to a place under a tree near Narnaul Chowk and slept for some time. She got up around 7.00 a.m. and again came to the road and saw that Sunda, Titu and Vikram were roaming in the car. She was frightened from them and again went to the field. Thereafter she took a bus for her village from the place near Narnual Chowk and visited her village and narrated the whole story to her mother. On that day she was unwell because of the gang rape. The matter was reported to the police on the next day. She visited the Police Station, Rewari at 9.00 a.m. and at that time her mother was with her. She further deposed that she was the author of FIR Ex.PA. She further stated that she had seen the photographs which were taken by Titu. In photographs Exs.P1, P2, P7, P9, P10, P13, P21, P22, P28, P33 and P37 Sunda alias Bhagmal is appearing. Photographs Exs.P5, P6, P14, P15, P17, P25 and P18 pertain to Mehtab. In photographs Exs.P24, P27, P35 Chhotia alias Jai Parkash has been shown. She further stated that in photograph Ex.P30 accused Titu (Raj Singh) and Sunda (Bhagmal) have been shown. She further deposed that she was medico-legally examined and Chobara and Jhopri were shown to the police by her. Finally, she deposed that she was raped in the Chobara and Jhopri and she made her statement under Section 164 Cr.P.C. It has also come in the statement of the prosecutrix that on 24.12.1998 she handed over the clothes which she was wearing on the day of occurrence to the police.
24. The statement of the prosecutrix is corroborated by the medical evidence of lady Dr. Sunita Garg (PW16). On going through the statement of Dr. Sunita Garg, we are left in no doubt that the victim was subjected to cruelty and force. There was a contusion of 13 cm x 4 cm on the left thigh 2 inch above the left knee joint. The doctor also noticed some semicircular abrasion of 5 cm x 1 cm on the right side of the face, besides swelling on the left forearm. Also the injured was complaining of pain in the middle of the left arm and right side of the back. The doctor further deposed that there were few bruises of the size of 2 cm x 1 cm, four in number of labia minora near post and hymen was ruptured. Finally, the doctor gave the impression after the receipt of the report of the F.S.L. that the prosecutrix was subjected to sexual intercourse and she proved this fact vide report Ex.PV, which is M.L.R. of the prosecutrix.
25. So far as position of law while dealing such like cases is concerned, it has been amply explained by the Hon'ble Supreme Court in the famous case State of Punjab v. Gurmit Singh and others, 1996(1) RCR(Crl.) 533 (SC) : AIR 1996 SC 1393. Several aspects of such like cases have been discussed by the Hon'ble Supreme Court and in para No. 7 of this judgment it has been observed that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complainant of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter. Reverting to the facts in hand, the present occurrence took place on 21.12.1998. It started from 6.00 p.m. and continued during the night. On 22.12.1998 the victim was deserted. She was to return to the house of her mother. It is a case where seven persons including the husband of the prosecutrix committed rape one after the other and in these circumstances were can well imagine the condition of the victim when seven persons had tried to fulfill their sexual lust. Moreover, the husband of the prosecutrix was directly and mainly involved in this case. The relations, of course, between the husband and wife were strained. In these circumstances, the prosecutrix might have taken some time firstly to recover herself from the shock and then physically and then she must have taken into confidence her mother about the lodging of the FIR. Therefore, we are inclined to hold that there is no delay in the lodging of FIR in the present case.
26. The Hon'ble Supreme Court in Gurmit Singh's case (supra) has again laid down very vital guidelines in para No. 7 of the judgment as to how the testimony of a prosecutrix is to be appreciated. It was observed that a girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurrence, being conscious of the danger of being ostracized by the Society or being looked down by the society. Further it was observed that the Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. Further, the Hon'ble Supreme Court observed that the testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual is entitled to great weight, absence of corroboration notwithstanding, corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
27. Finally, the Hon'ble Supreme Court in para No. 20 of the judgment was pleased to observe as follows :-
- Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very should of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice, the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
- "In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
30. Reverting to the statement of the prosecutrix, it is established that she right from the very act resisted in the company of others when her husband asked her to come inside the car. She resisted even the taking of soft drink. In fact, the intention of the husband was bad. He wanted to take a revenge of the separation. He took liquor and took her own wife to a Chobara where two persons were already present and one after the other they raped her. Not only this, some photographs were taken by Raj Singh. From there she was taken to a hut. She was made naked and was brutally treated. She was given slaps. Violence was used. All this was so said by prosecutrix and her statement finds corroboration from the medical evidence and other circumstantial evidence which has been collected by the prosecution. The Dari which was collected during the course of investigation also establishes that there was sexual intercourse. Semen fell on the Dari and human semen was found by the Forensic Science Laboratory.
31. With regard to the presumption under Section 114A of the Evidence Act, this point has been dealt by the Hon'ble Supreme Court in Prem alias Ballu v. The State of Haryana, 2003(1) RCR(Criminal) 237 (SC) and it was observed by the Bench after relying upon State of Punjab v. Gurmit Singh, 1996(1) Recent CR 533 that the Court shall presume that the victim did not consent when the victim makes a statement before the Court that she did not consent. Also it was observed that mere absence of marks of external injury do no negate the prosecution case. To supplement the view of the Hon'ble Supreme Court reliance can also be placed on State of Karnataka v. Krishnappa, 2000(2) RCR(Criminal) 459 and State of Rajasthan v. N.K. the accused, 2000(2) RCR(Criminal) 471. In Sat Pal v. State of Punjab, 1997(1) Recent CR 93 this Court took the view that even if it is assumed that the prosecutrix was a lady of loose moral character, but it does not give a licence to the accused to have forcible sexual intercourse with her against her consent. Again it was observed in this very judgment that once the statement of the prosecutrix is found to be reliable which contained true account of occurrence of rape, it is not necessary for the prosecution to lead corroborative evidence of medical officer regarding commission of rape.
32. In Gurmit Singh's case (supra), the Hon'ble Supreme Court made observations that when the accused pushed the prosecutrix inside the car and gave threats and in such a situation if the prosecutrix does not raise any noise, the statement of the prosecutrix should not be discredited because in such a situation the poor helpless girl will not be able to cut the ice when the accused were out and out to outrage the modesty of the women.
33. The learned counsel for the appellants submitted that the entire case of the prosecution is doubtful and highly improbable. It was submitted that the conduct of the prosecutrix was such that it does not inspire confidence. She did not raise any noise when she was being kidnapped and was being taken to the Chobara. In fact, she was connived with some of the accused. She wanted to get rid of from her husband Vikram Singh who has been falsely implicated in this case. He submitted that the prosecutrix might be colluding with Raj Singh from whose possession allegedly the negatives were recovered by the police. After the arrest of Raj Singh the police developed a case against the remaining appellants. The learned counsel submitted that even in the statements under Section 313 Cr.P.C., which have been recorded by the learned trial Court, all the incriminating circumstances appearing in the prosecution evidence were not put to the accused and more pertinently with regard to the capability of the accused to perform sexual intercourse.
34. The submissions made by the learned counsel for the appellants, in our opinion, are totally devoid of any merit. In spite of the fact that the prosecutrix had strained relations with her husband, she would not tear her abdomen at the cost of her own honour and chastity. She was a young girl of 20 years and irrespective of the fact that some strained relations were there with her husband, she would not go to the extent not only naming her husband but also the other friends of her husband.
35. The present occurrence can be divided into three parts. Firstly, that the victim was picked up from the way to the hospital and she was thrown inside the car. Then she was taken to a Chobara were she was raped by five persons and thereafter she was taken to the hut where again she was raped by two more persons. During the course of rape some photographs were taken. People may lie but the circumstances may not. It is established on the record that the negatives were got developed into photographs Exs.P1 and P37. Prosecutrix Ramesh Devi has deposed in the examination-in-chief that in photographs Exs.P1, P2, P7, P9, P10, P13, P21, P22, P28, P33 and P37 Bhagmal figures. These photograph depict that Bhagmal was in compromising position with the prosecutrix. Photograph Ex.P22 is of such a posture which would show the helplessness on the part of the victim when she is being compelled to lick the private part of Bhagmal. These photographs do not reflect the consent. It is not believable that the prosecutrix would give consent for such an act of sexual intercourse in the presence of others. The learned counsel for the appellants have no answer to the photograph Ex.P3 when the victim is being compelled to smoke a Biri. This shows the height of depravity. Similarly, in photographs Ex.P16 she is being compelled to suck Hukka. From her expression it appears that she was weeping as she was beseeching to the accused not to be so cruel. Things do not rest here. In photographs Exs.P4, P19 and P20 she is being compelled to stand with her hands at the back so that she may not be able to conceal her private organs. In photograph Ex.P26 photographs she is beseeching with her folded hands to the accused not to expose her in that fashion. Even in photograph Ex.P8 the poor lady is trying to cover her chastity by wrapping her body with the help of a quilt. In photographs Exs.P14, P15, P23, P25 and P27 she is virtually weeping though she had subjected herself to sexual intercourse but definitely her consent and willingness was absent. To what extent she was helpless when seven persons were out and out to exploit the modesty and honour of the lady. We must confess that it has even become difficult for us to explain in proper words about the maltreatment and sexual exploitation given to the lady. We will not be wrong if we say that the appellants were wolves. They had no conscious (conscience ?) to give respect to the modesty of a woman. She was treated like a chattel. After losing her honour before seven persons how she is surviving can only be answered by the lady herself.
37. Even if we hold that some questions under Section 313 Cr.P.C. have not been properly put to the accused, still it is not a case of setting aside the acquital or remand as no prejudice has been caused to any of the appellants and the entire prosecution evidence has been recorded in their presence. Each one of the appellants knew that he was medically examined by the doctor regarding his potency. The appellants were given full opportunity to cross- examine the doctors. We have no reason to disbelieve the statement of the prosecutrix irrespective of the fact that her mother has not been examined by the prosecution in the trial Court. Here is a case where the prosecutrix can forget to mention few facts either in her police statement or in the statement under Section 164 Cr.P.C. She might have made some improvements here or there even in her substantive statement made before the trial Court, but by and large the statement of the prosecutrix inspires confidence. We are convinced that she was picked up at the first instance by three persons including her husband. Then she was taken to a Chobara where two more persons joined them. Again she was taken to a hut. She was raped, maltreated and beaten in the Chobara. Photographs were taken. In the hut photographs were again taken by Raj Singh alias Titu and when developed, the developed prints told a sad story of the matter.
38. It was a case of gang rape in which husband of the prosecutrix was also involved. A rapist not only violates the victim's privacy but also her personal integrity and such person does not deserve any sympathy of law or society. The honour of a woman has to be protected. This is the general sense (consensus ?) of the society.
39. Be that as it may, we are concerned with the legal aspects of the case which are that Ramesh Devi is the victim of sexual assault, her statement inspires confidence. Though her statement does not require corroboration as a matter of law but by way of abundant caution it is corroborated by the medical evidence as well as by the circumstantial evidence, the identity in this case is also not doubtful. In the FIR three persons were named. The supplementary statement of the lady was also recorded. The accused have not made any application to claim the identification from the lady. She has no axe to grind against any of the appellants. Of course, she had some strained relations with her husband but still it is not established on the record that she will go to that extent in implicating her husband and his friends.
40. In the finality, we do not see any merit in these appeals and dismiss the same.
41. Let intimation about the dismissal of these appeal be sent to the jail authorities and the concerned Chief Judicial Magistrate.
42. Before we part with this judgment, we are observing that the photographs Exs.P1 to P37 and the negatives Exs.P38 to P77 have been sealed by us in an envelope under the seal of the Court and the envelope have also been signed by us so that these photographs and negatives of the harassed woman may not fall in wrong hands. The Registry will ensure that the records of these cases will be kept in a double seal and will be produced in case of necessity before the Hon'ble Supreme Court as and when requisitioned.
Appeals dismissed.
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