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2000 DIGILAW 154 (PNJ)

Rajbir Singh v. State Of Haryana

2000-02-08

A.S.GARG, HARJIT SINGH BEDI

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Judgment A.S.Garg, J. 1. The four appellants - Rajbir Singh aged 45 years, Pala 24, Manphool Singh aged 28, and Mahabir Singh 20 years have been convicted under Sections 363, 366, 376(g) and 506 of the Indian Penal Code and under Section 3(xii) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 and have been sentenced to undergo imprisonment for five years and to pay a fine of Rs. 1000/- each. In default of payment of fine to undergo rigorous imprisonment for one year under Section 363 I.P.C. ; to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/- each and in default of payment of fine to undergo rigorous imprisonment for one and half years ; to undergo imprisonment for life and accused Manphool Singh, Pala and Mahabir shall pay a fine of Rs. 5000/ - each and accused Rajbir Singh to pay a fine of Rs. 20,000/- and in default of payment of fine, all the accused were ordered to undergo rigorous imprisonment for two years each under Section 376(g) of the Indian Penal Code, to undergo rigorous imprisonment for three years each and they were further sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs. 2000/- each and in default of payment of fine to undergo rigorous imprisonment for six months under Section 3(xii) of the Scheduled Caste Scheduled Tribes (Prevention of Atrocities) Act, 1989, for the alleged gang rape. Accused Rajbir Singh was sentenced under Section 506 I.P.C. to undergo rigorous imprisonment for three months. The learned trial court further directed that all the sentences were ordered to run concurrently. The trial Court further ordered that from the fine, if realised, a sum of Rs. 30,000/ - shall be paid to Kumari Bibi victim of the sexual assault. 2. The prosecutrix Bibi alias Memo Devi (PW-9) daughter of Sohan Lal (PW7), then aged about 13 years a Harijan girl was sleeping on the intervening night of 10-11.7.1994. in village Kamoda, within the area of Police Station Pehowa, district Kurukshetra (Haryana). Her father Sohan Lal (PW7) was also sleeping in the said house along with other members of the family. In the mid-night Rajbir - appellant allegedly entered in the house after scaling over a small wall of the house and picked up Bibi from her shoulders and brought her to a little distance. Her father Sohan Lal (PW7) was also sleeping in the said house along with other members of the family. In the mid-night Rajbir - appellant allegedly entered in the house after scaling over a small wall of the house and picked up Bibi from her shoulders and brought her to a little distance. He spread a Khes (Ex.P6), where he was joined by the three other appellants named above. The mouth of Bibi was cupped with hand. The trouser (Salwar) Ex.P1 of the girl was removed and she was made naked and each of the aforesaid four persons committed forcible sexual intercourse with her. Her mouth was kept shut by the hand right from the time when she was picked up and was taken to the place where she was subjected to sexual intercourse. Ex.PW10/D is the rough site plan of the place of occurrence. She was threatened that if she raised alarm, she would be strangulated and was going to be killed. In this process, she received injuries on her right eye, neck, lips and foot. 3. The statement of Sohan Lal Ex.PW7/A was got recorded at 11.30 p.m. at Gupta Petrol Pump, Pehowa, by the then Station House Officer/Sub Inspector - Ram Chander (PW 10) from the M.H.C. Hukam Singh. The special report reached the learned Illaqa Magistrate around 4 p.m. on 11.7.1994. 4. Bibi (PW-9) was admitted in the Health Centre, Pehowa, and her medico- legal examination was conducted by Dr. Sunita Jain (PW/6). She found the following injuries on her person : 1. Defused swelling over the right orbit with sub-conjuctival haemorrhage. 2. Defused swelling on the right upper part of the lip with contusion on the mucosal part. Tenderness present. 3. Clotted blood on the left nostril. 4. Diffused contusion on the left cheek upper part. 5. Abraded area on the front of the neck in the upper part in 7 cm x 5 cm area. 6. 1 cm x 2 cm abraded area on the back of the left elbow. 7. 1cm x half cm on the back of the right elbow. 5. On local examination, blood-stained discharger was present on labia - majora. It was also present on the clothings. Clothings removed and sealed. 6. Lecerations were present on the posterior commissure. Hymen was lacerated. It was red swollon and tender which bled on touch, Vagina orifice admitted one finger tightly. 5. On local examination, blood-stained discharger was present on labia - majora. It was also present on the clothings. Clothings removed and sealed. 6. Lecerations were present on the posterior commissure. Hymen was lacerated. It was red swollon and tender which bled on touch, Vagina orifice admitted one finger tightly. From posterior fornices swab was taken and sent to FSL for chemical examiner. 7. The correct copy of the medico - legal report is Ex.PA. This medico - legal examination was conducted with the help of Medical Officer Dr. Rajan Kohli (PW- 1). The medico - legal examination of the appellants was conducted by Dr. Manoj Lamba (PW-2) and he found nothing to suggest that the appellants were unable to commit sexual intercourse. Their medico - legal reports were Exs. PB, PB/1, PB/2 and PB/3. The investigating officer made an application Ex.PA/l asking for opinion of the Doctor whether the prosecutrix was fit to make a statement but she was not found fit to do so. The investigating officer also went to the place of occurrence, and took into possession khes Ex.P6 vide memo Ex.P7/B. The investigating officer also took into possession the clothes of the prosecutrix handed over to him by a constable after the medico - legal examination. The clothes of the appellants as well as that of prosecutrix were sent to the Forensic Science Laboratory and a report to that effect was received vide memo Ex.PG that the salwar of the prosecutrix was stained with semen. In the further investigation statement of the prosecutrix under section 161 Cr.P.C. was recorded on 12.7.1994. Her statement under Section 164 Cr.P.C. was also recorded on 19.7.1994. In her statement under section 161 Cr.P.C. she had named the appellants. 8. At the trial, under Section 313 Cr.P.C. the plea of the appellants was that they had falsely been implicated in this case. Prosecutrixs father wanted to exploit the situation and wanted to black - mail them to secure money. They claimed that they were innocent. The appellants also produced DW-1 and claimed that in fact she was never admitted in the Health Centre at Pehowa. 9. However, on the testimony of the prosecutrix and her father coupled with the medical evidence, the appellants were convicted and awarded aforesaid sentence. 10. They claimed that they were innocent. The appellants also produced DW-1 and claimed that in fact she was never admitted in the Health Centre at Pehowa. 9. However, on the testimony of the prosecutrix and her father coupled with the medical evidence, the appellants were convicted and awarded aforesaid sentence. 10. The learned counsel for the appellants has made very strenuous efforts to bring out a case that the appellants are innocent and were not involved in the said episode. However, the defence expected in the case perhaps that there should have been a photographic or a kaleidoscopic view of the occurrence to have been preserved or to have been reproduced and, therefore, shifted the entire blame on the prosecution, prosecutrix and her father that they have projected a false and frivolous story. In our view, however, a reasonable inasmuch as a truthful version should always be there before any person can be convicted for a charge levelled against him and such a charge must be proved beyond a shadow of doubt, taking into consideration the accepted principles of appreciation of evidence in a criminal case. But, a photographic or video,film of the occurrence is not possible. 11. We have been taken through a brief examination of Bibi (PW-9) and her detailed cross-examination. The learned counsel for the appellants has argued that she in fact did not name the persons as to who were the members of the family residing in the nearby vicinity in various houses and huts of the appellants and the people residing in their neighbourhood. She was also asked in cross-examination as to if it was moon-lit night when the occurrence taken place or a dark night. A part of her cross-examination may be re-produced as such: "....... It was a moon-lit night. The moon had arisen when I had gone to sleep and when I was abducted and raped"....... 12. She was also confronted with a situation that the police had also interrogated some other persons in connection with this case. Besides what has been stated aforesaid, a part of her examination-in-chief is reproduced as follows : ........ "I know the accused standing in the court. My uncle Phool Singh had taken two killas of land on lease from Rajbir accused. I used to go to said fields to collect fodder/grass along with my aunty Om Pati wife of Phool Singh. Besides what has been stated aforesaid, a part of her examination-in-chief is reproduced as follows : ........ "I know the accused standing in the court. My uncle Phool Singh had taken two killas of land on lease from Rajbir accused. I used to go to said fields to collect fodder/grass along with my aunty Om Pati wife of Phool Singh. I used to see the accused there. I know the remaining accused who are the servants/employees of Rajbir accused. (the witness correctly named all the accused standing in the court)" ...... ...... "Then all the four accused took me to a Kacha path near the Gurudwara. There after Rajbir spread the Khes on the ground removed my Salwar and accused Manphool cupped my mouth and Rajbir accused committed rape upon me and thereafter Rajbir cupped my mouth and Manphool accused sexually assaulted me. Thereafter Mahabir accused cupped my mouth and Pala committed rape upon me and thereafter Pala accused cupped my mouth and Mahavir accused sexually assaulted me. During the course I was being sexually assaulted. I wanted to raise an alarm but I was silenced by Rajbir by attempted strangulation and threatened to kill me, in case, I raised any alarm......." " PW-7 Sohan Lal stated as follows : ....." She (his wife-Gero) informed me that Bibi (my daughter) is missing from her cot. We set out in search of my daughter Kumari Bibi. I found my daughter lying unconscious on the road leading to the fields running in front of the Gurdwara at a distance of three Killas from my house. I found her Salwar untied and lying at a distance of three feet from the spot where she was lying on a Khes Blood was oozing from her private parts and the Khes had stains of blood. I brought the girl to my house after wrapping her in a Khes. When we started sponging her with warm water, we noticed injuries on neck, lips, cheeks, eyes and on right foot......" 13. The father of the prosecutrix stated that her age was hardly 13 years and relied upon copy of the birth certificate Ex.D.1. Sohan Lal also stated in cross-examination that Ram Pal, Satish, Shiv Charan, Chander Bhan, Suresh, Prem and Phoola were also nabbed by the police for investigation of this case. 14. The father of the prosecutrix stated that her age was hardly 13 years and relied upon copy of the birth certificate Ex.D.1. Sohan Lal also stated in cross-examination that Ram Pal, Satish, Shiv Charan, Chander Bhan, Suresh, Prem and Phoola were also nabbed by the police for investigation of this case. 14. The learned counsel made a scathing attack and seriously assailed the prosecution version by the argument that when the occurrence had taken place on the night of 10-11.7.1994 and the prosecutrix knew the names of the assailants, why her statement was recorded on 12.7.1994 and thereafter a statement under Section 164 Cr.P.C. on 19.7.1994 after such a lapse of time. There was no definite evidence that the prosecutrix was unconscious and was not able to make a statement before the police. According to him, the prosecution improved the version with the passage of time. Even a supplementary statement of Sohan Lal was recorded to set the situation in order. Even a dog squad was summoned much later i.e. around 19.7.1994 and if the names of the assailants had been known, there would have been no necessity to do so. 15. He has further urged that only Rajbir appellant had purchased a small piece of land and the other persons are labourers and it is not expected that a landowner will pick up a girl to be, raped by the labourers and himself. He also urged that the place where the prosecutrix is shown to be sleeping in the site plan Ex.PW 10/D and if she had been lifted from that place Rajbir had to cover up 40 feet from that place upto the boundary wall. It would not be possible nor feasible that one could pick up and take such girl and there was no commotion or voice raised by the girl. According to him, she did not know any of the appellants and had no occasion to meet them or see them. So in the given situation, it may be stated that it cannot be expected from the prosecutrix that she could know the name and members of the family of the persons residing in various houses at a little distance from her house. She also could not be expected to know exactly as to how much of moon was standing in the sky on the said night at the time of rape. She also could not be expected to know exactly as to how much of moon was standing in the sky on the said night at the time of rape. She also could not be expected to know as to if other persons were rounded up by the police during the investigation of the case. PW-7 Sohan Lal did not mean that the persons named by him were actually arrested by the police or were joined in the investigation of the case. He is an illiterate labourer and he could not be aware of all the aspects of the investigation. Such suggestions or questions were not put to the investigating officer as to which of the persons were also nabbed by him during the investigation or that he was still doubtful about the participation of the appellants in the case. As narrated above, it is more than sufficient that the prosecutrix has explained that she had been going out to the fields to cut grass and, therefore, since she had gone to the fields of Rajbir, she had known the accused. This is absolutely straight and simple and is believable. There may be many a rich people living in the village, but it does not mean that they are involved in rape cases for black-mailing them. The prosecutrix has named the appellants out of whom; three are labourers or simple agriculturists and one having some land. There is nothing in them for black mailing. Can a father use the daughter and would create a case of gang rape for exploiting or to extract money from persons of their own village? Would the father stake the reputation of the family as well as of the girl for extracting money like this ? The plea taken by the accused is wholly frivolous, unfounded and absurd. However, poor a person may be will never stoop so low. At 9 P.M. of the day of occurrence, a "Satsang" was performed at the house of Sohan Lal, PW-7 which shows that he is a respectable person having faith in some religion. 16. The learned counsel urged that Bibi was never admitted in Primary Health Centre and that medical reports were procured. At 9 P.M. of the day of occurrence, a "Satsang" was performed at the house of Sohan Lal, PW-7 which shows that he is a respectable person having faith in some religion. 16. The learned counsel urged that Bibi was never admitted in Primary Health Centre and that medical reports were procured. The witness DW-1 Kamlesh Kumari is only a nursing supervisor, who has stated that according to the Register, there was no entry of the admission of the prosecutrix in the said Health Centre, as against the same, three doctors have been examined by the prosecution and they never stated that she was not admitted there. Rather the very doctor has medico-legally examined her in that very Health Centre. All this reflects that the defence in fact right from the beginning had tried to detract the case from proceeding in the legal manner. The semen has been found on the clothes of the prosecutrix. It is not possible that a poor person like the father of the prosecutrix would get any such evidence created. In such a case the sole statement of the prosecutrix is more than sufficient. It is an accepted principle of appreciation of evidence that the prosecutrix alone can be relied upon in such case. Normally there is no other evidence except the statement of the girl herself in such cases. When a person in the passions has come with a determined will one can easily lift the girl in the manner claimed. It is not the case of either the Medical Officer or of Sohan Lal or herself that the prosecutrix was in coma or was unconscious. The situation explained is that she was not fit to make a statement. She was terrified and in a case where the girl has received the injuries in a gang rape, it is most likely that she has to make up herself and has to restore her confidence to make a statement. The argument of the learned Addl. Advocate General, representing the State are borne out from the record that the appellants and none else committed rape and ravished the girl and the case against the appellants had been proved beyond shadow of doubt. 17. The argument of the learned Addl. Advocate General, representing the State are borne out from the record that the appellants and none else committed rape and ravished the girl and the case against the appellants had been proved beyond shadow of doubt. 17. Regarding quantum of sentence, learned counsel for the appellants argued that Pale appellant has since committed suicide during the pendency of the appeal and the remaining appellants were named after sometime by the prosecutrix, therefore, looking to the circumstances of the case in entirety, it was not a case of awarding life sentence. However, it is immaterial that one of the appellants committed suicide during the pendency of the appeal nor we find that there is delay in pointing out of the names of accused but still in the entire circumstances, we feel that a sentence of ten years instead of maintaining life, imprisonment under Section 376(g) I.P.C. would meet the ends of justice. The appeal qua Pala abates because of his death. The appeal of aforesaid three appellants is declined except with the modification that they are to undergo rigorous imprisonment for ten years instead of life imprisonment.