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2003 DIGILAW 443 (PNJ)

Brijesh v. State Of Haryana

2003-03-25

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. This judgment shall dispose of two Criminal Appeals filed by Brijesh and Nanak bearing Crl. Appeal No. 958.SB of 2002 and Mahavir bearing Crl. Appeal No. 1144.SB of 2002 as both arise out of common judgment and order dated 9.5.2002 passed by Additional Sessions Judge, Fast Track Court-11, Faridkot, whereby the appellants were found guilty and convicted under Sections 366/34, 342/34, 323/34, 376(2)(g) and 506/34 IPC and sentenced to undergo RI for 5 years and a fine of Rs. 500/- each under Section 366/34 IPC, in default of payment of fine, the defaulter was further sentenced to undergo simple imprisonment for 2 months to undergo RI for 1 year under Section 342/34 IPC, to undergo RI for 6 months under Section 323/34 IPC and to undergo I year RI under Section 506/34 IPC. They were also sentenced to undergo RI for 10 years each and a fine of Rs. 1,000/- under Section 376(2)(g) IPC, in default of payment of fine, defaulter was further sentenced to undergo RI for 4 months. However, all the substantive sentences were ordered to run concurrently. 2. Briefly stated, the facts are that PW.5-Nisha prosecutrix was present in her house in Hanuman Nagar, Gali No. 9, Kheri Road, Faridabad. On 17.3.2000, it was "Id" (festival). At about 12 noon, she was to go to meet her friend. Brijesh-appellant was on visiting terms with the family of Nisha. He visited the house of the prosecutrix in a car and when Nisha started to go out to meet her friend, then the appellant gave her lift and told that he was to go that very side. The prosecutrix-Nisha sat in the car. Instead of taking her to the house of her friend, Brijesh-appellant took her to the fields situated opposite to the house of her friend. Nisha objected and questioned him but Brijesh-appellant told her that he had got some work for about 2 minutes. He then took her to a nearby room (kotha) situated in the fields and locked the same. After some time, Brijesh appellant entered in the room and slapped her and also abused her. She got frightened. He made her naked and committed rape on her. Nanak and Mahavir-appellants, who were also sitting outside the room, committed rape upon her one by one. After some time, Brijesh appellant entered in the room and slapped her and also abused her. She got frightened. He made her naked and committed rape on her. Nanak and Mahavir-appellants, who were also sitting outside the room, committed rape upon her one by one. All of them held out a threat that if she disclosed about the occurrence to any one, then her parents would be killed. After some time, Mahavir-appellant went away on his motor cycle followed by Nanak-appellant on his tractor. Thereafter, Brijesh-appellant brought her in the car on the road and dropped her there. He, while dropping her, threatened that if she disclosed any thing about the occurrence to any one, then she would have to face dire consequences. From there, Nisha went to her house. After some time, she told the whole occurrence to her mother. Her father PW.6-Machhinder Rao was not at the house and had gone out of station. He returned to the house on the next day i.e. 18.3.2000. On his return, his wife told that yesterday, their daughter Nisha was taken away by Brijesh-appellant, in the fields where 2 other persons, namely, Nanak and Mahavir were present and all of them committed gang rape upon their daughter. Immediately, Nisha and her father went to the Police Station. Nisha made a written complaint, Ex.PH with the police upon which case bearing FIR Ex.PH/1 was registered. Statements of her parents under Section 161 Cr.P.C. were recorded. 3. Nisha was medico-legally examined by PW.3-Dr. Meenu Kapoor at about 11.15 PM on 18.3.2000 and opined that she was approximately aged about 16 years and there was a 1.5 cm x 5 cm reddish brown abrasion present just below the umbilicus, She further stated that hymen was torn with old healed irregular margins and no fresh tear or bleeding was present and the vagina admitted two fingers easily. She next stated that possibility of sexual intercourse with her could not be ruled out. She proved carbon copy of the M.L.R. Ex.PF. She denied that the age of the prosecutrix was more than 20 years. PW.7-Ram Dutt, Sub Inspector, on 19.3.2000 visited the spot and prepared rough site plan Ex.P1 with correct marginal notes. He apprehended the appellants and got them medico-legally examined. She proved carbon copy of the M.L.R. Ex.PF. She denied that the age of the prosecutrix was more than 20 years. PW.7-Ram Dutt, Sub Inspector, on 19.3.2000 visited the spot and prepared rough site plan Ex.P1 with correct marginal notes. He apprehended the appellants and got them medico-legally examined. He got recorded the statement of the prosecutrix- Nisha under Section 164 Cr.P.C. from the Ilaqa Magistrate, He took into possession the car which was used in carrying Nisha to the place of occurrence, vide recovery memo. Ex.PJ from its owner Bhagwat. He sent the sealed parcles to Madhuban. After the completion of the investigation, challan was put up in the Court of Judicial Magistrate Ist Class, Faridabad, who, in turn, vide his order dated 25.5.2000, committed the case to the Court of Sessions. Having made out a prima facie case, the appellants were charged under Sections 363/34, 342/34, 366/34, 376(2)(g), 323/34 and 506/34 IPC to which they pleaded not guilty and claimed trial. In order to prove allegations, the prosecution examined 8 witnesses. After close of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C., wherein they denied the allegations of the prosecution and pleaded false implication. Brijesh-appellant further stated that Nisha-prosecutrix was very well known to him before the alleged occurrence and some-how she had got fancy for him and wanted to marry him but he firmly declined the offer due to various reasons including that they belonged to different caste and on his refusal, she falsely implicated him in the case. In defence, the appellants examined DW.1-Umesh Pal Singh Chauhan and DW.2-D.P. Bhanot, Principal of Rama Krishana Public School, Sector 9, Faridabad. PW.5-Nisha prosecutrix and her father PW.6-Machhinder Rao were also further cross-examined. 4. After hearing learned PP for the State and the defence counsel, the appellant were found guilty and convicted under Section 366/34, 342/34, 323/34, 376(2)(g) and 506/34 IPC, vide judgment dated 9.5.2002 passed by Additional Sessions Judge, Fast Track Court-II, Faridabad and sentenced, vide order of even date, as stated in the earlier part of this judgment. However, they were acquitted of the charge under Section 363/34 IPC. 5. Aggrieved by the said judgment and order dated 9.5.2002, Brijesh and Nanak-accused filed a joint appeal bearing Criminal Appeal No. 958.SB of 2002, while Mahavir-accused filed separate appeal bearing Criminal Appeal No. 1144.SB of 2002. The complainant has also filed Criminal Misc. However, they were acquitted of the charge under Section 363/34 IPC. 5. Aggrieved by the said judgment and order dated 9.5.2002, Brijesh and Nanak-accused filed a joint appeal bearing Criminal Appeal No. 958.SB of 2002, while Mahavir-accused filed separate appeal bearing Criminal Appeal No. 1144.SB of 2002. The complainant has also filed Criminal Misc. No. 34458 of 2002 claiming compensation of Rs. 3 lacs to her:(prosecutrix-Nisa) on the basis of judgment of Honble Apex Court in a case Delhi Domestic Working Womens Forum v. Union of India, (1995)1 S.S.C. 14. This application is also being disposed of alongwith the above said appeals. 6. I have heard Shri R.S. Ghai, Sr. Advocate, with Mr. Bipin Ghai, for the appellants in Crl.. Appeal No. 958.SB of 2002, Shri R.K. Jain, Advocate, for the appellant in :Crl. Appeal No. 1144.SB of 2002, Shri Sudhir Nehra, AAG, Haryana, Shri Sanjay Bansal. Advocate for the complaniant and carefully gone through the record of the case. 7. The first question to be seen is as to what was the age of the prosecutrix PW.5-Nisha, at the time of alleged occurrence on 17.3.2000. PW.5-Nisha had staled her age to be 16 years when her statement was recorded in the Court on 5.9.2001. In cross-examination, she slated that she was a student of 10th Class at Delhi in, Radha Krishna International Public School and prior to it, she had studied in Rama Krishna Public School, Faridabad from 8th Class to 9th Class in the year 1997-98 but she fell ill in the year 1998. However, she was got admitted in Rama Krishna School at Faridabad by her lather in the :year:1997. She further stated that prior to it, she was studying in Madangir, Delhi in Govt. School, situated in Saket, Delhi as her parents used to reside at Saket at that time. However, she expressed her ignorance as to who admitted her in that School and in which year as she was a child. She admitted that she might have appeared 5-6 times in the annual examinations in the Saket School PW.6-Machhinder Rao, father of the prosecutrix, had claimed the date of birth of his daughter as 13.5.19.84. DW.1-Umesh Pal Singh Chauhan, teacher of Rama Krishana Public School, Sector 19, Faridabad stated that he had been working as a teacher in the School since 6.11.1989. DW.1-Umesh Pal Singh Chauhan, teacher of Rama Krishana Public School, Sector 19, Faridabad stated that he had been working as a teacher in the School since 6.11.1989. He next stated that the said school was recognized with the C.B.S.E. He further stated that Yashoda Rani was admitted in their school on 15.7.1996 in 8th Class, vide admission No. 1163. He next stated that she was given admission in their School, on the basis of transfer certificate/School leaving certificate of the previous school i.e. Govt. Girls Composite Model Middle School, MB Road, New Delhi. He further stated that he had brought the original thereof whose photostat copy is Ex DB/1 and according to the said document, the date of birth of Yashoda Rani is 13.5.1982 and the name of her lather is Machhinder Rao. He had also brought the admission form which contained the photograph of Yashoda Rani and Ex.DC is the photo copy of the same. DW.2-D.P Bhanot, Principal, Rama Krishana Public School, Sector 19, Faridabad also stated that he had brought the original admission form of Yashoda- Rani d/o Machhinder Raov as she had taken admission in their school in 8th Class in the year 1998 and according to the admission form, her date of birth is 13.5.1982 and admission form contained the signatures of Machhinder Rao, lather of Yashoda Rani. Thus, form their statements, it is conclusively proved that the date of birth of Yashoda Rani :d/o. Machhinder Rao is 13.5.1982. PW.5-Nisha and PW.6-Machhander Rao were further :cross-examined. PW.5-Nisha adniitted that her nick name was Yashoda. Thus, she was called by the name of Yashoda in the house. Therefore, her name is Nisha aiias Yashoda. PW.6-Machhinder Rao also admitted that/Nisha was called by the name of Yashoda in the house; He further admitted that earlier he had got her admitted in Govt. Girls Composite School, Delhi. He also admitted that he had got her admitted in National Open School at Delhi and affidavit was signed by him, photo copy of which is Ex.DD, wherein her date of birth is mentioned as 13.5.1984. Certainly, this date of birth, on the basis of affidavit, is wrong and it is conclusively proved from the school record that her date of birth is 13.5.1982. Thus, Yashoda was less than 18 years at the time of alleged occurrence. Certainly, this date of birth, on the basis of affidavit, is wrong and it is conclusively proved from the school record that her date of birth is 13.5.1982. Thus, Yashoda was less than 18 years at the time of alleged occurrence. The counsel for the appellants contended that there was inordinate delay in lodging the First Information Report, inasmuch as, the occurrence had taken place from 12 Oclock to 3 PM on 17.3.2000 but the report Ex.PH was lodged in the police Station on 18.3.2000 at 10.10 PM and it was delivered at the residence of the area Magistrate on 19.3.2000 and the time was utilized in the introduction of coloured version and thought out story and as such the prosecution story is not free from doubt. 8. In my opinion, the contention of the learned counsel is not tenable. It is in evidence that PW.6-Machhinder Rao, father of the prosecutrix, was present at the house when Birjesh accused had taken away PW.5-Nisha on the pretext of leaving her at the house of her friend and then Machhinder Rao left for outside station and returned only on the evening of 18.3.2000 and then they went to the police station and lodged the written complaint Ex.PH. In my opinion, mere delay in lodging the report can not be the ground by itself for throwing the entire prosecution case over-board. The Court has to seek an explanation for delay and decide the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. Otherwise also, the Court cannot overlook the fact that in sexual offences, delay in lodging of the First Information Report can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police station and complain about the incident which concerns the reputation of an unmarried girl and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged, In the present case, the father of the prosecutrix was away and her mother could not have taken a decision alone to lodge the report on 17.3.2000. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged, In the present case, the father of the prosecutrix was away and her mother could not have taken a decision alone to lodge the report on 17.3.2000. So, she waited for the return of her husband and he returned in the evening on 18.3.2000 and some time was taken to give a cool thought as to whether a complaint of sexual offence should be lodged or not and after giving a cool thought, the complaint was lodged. In such circumstances, there is no delay in lodging the report in the police station. 9. The counsel for the appellants next contended that the complaint Ex.PH submitted by the prosecutrix, which had been made the foundation of FIR, was actually not the F.I.R. He further contended that the statement of prosecutrix PW.5-Nisha revealed that initially she had submitted a different writing to the police but the same was destroyed and she was made to write the complaint Ex.PH on a different paper and earlier she had written a complaint in the evening at her house in the presence of her family members and, thus, the real report had been withheld. It was next contended that she was admittedly tutored by her father to write the complaint Ex.PH and as such it did not contain the true version and the appellants have been falsely implicated. 10. In my opinion, the contention of the learned counsel is not tenable. PW.5-Nisha has admitted in her cross-examination that she had taken a writing to the Police Station and shown to the police but she was directed to copy the same and she had copied it which is Ex.PH. Further, she did not remember whether the original was destroyed or not. Thus, it can not be said that the original complaint which she had written at the house was different from Ex.PH, which she had copied at the Police Station. She further stated that earlier writing was got written by her with the help of her father. She denied that her father dictated as noted in the complaint Ex.PH but she had stated in the complaint Ex.PH whatever happened with her. Thus, she has not been tutored by her father to write the complaint Ex.PH but she had stated whatever happened with her. She denied that her father dictated as noted in the complaint Ex.PH but she had stated in the complaint Ex.PH whatever happened with her. Thus, she has not been tutored by her father to write the complaint Ex.PH but she had stated whatever happened with her. Her father only told as to how to write a complaint and he did not tell about the facts. Thus, it can not be said the complaint Ex.PH does not contain the original version or it contained the tutored version. 11. The counsel for the appellants further contended that PW.5-Nisha was only known to Brijesh-appellant but she did not know Nanak and Mahavir-appellants earlier and it was Brijesh who took her to the fields and no identification parade was held to get Nanak and Mahavir identified from Nisha and, thus, the statement of Nisha for the first time in the Court that she identified Nanak and Mahavir-appellants was not believable and as such Mahavir and Nanak-appellants were liable to be acquitted on that score. For this contention, a reliance has been placed on State of H.P. v. Lekh Raj and Anr., (2000)1 Supreme Court Cases 247, in which it was observed that the test identification was not a substantive evidence but holding of test identification was a safe rule of prudence and could be used for corroboration purposes where the accused was neither a person already known to the proseculrix, nor was specifically named in the FIR. However, in the present case, Nanak and Mahavir-appellants are specifically named by the prosecutrix in the FIR Ex.PH/1. In such circumstances, there was no need of any test identification and the above said authority is not applicable to the facts of the present case. 12. PW.5-Nisha prosecutrix stated that on 17.3.2000, she was present at her house situated in Hanuman Nagar, Gali No. 9, Kheri Road, Faridabad. It was festival of "Id" on that day and she was to go to meet her friend. Brijesh-appellant visited their house and told her that he would take her to the house of her friend but instead of taking her to the house of her friend in the car, he took her to the fields in the opposite direction to the house of her friend. Brijesh-appellant visited their house and told her that he would take her to the house of her friend but instead of taking her to the house of her friend in the car, he took her to the fields in the opposite direction to the house of her friend. She next stated that she objected to her taking to that place but Brijesh-appellant told her that he had got work only for 2 minutes and 2 more persons were also present there and then he took her in a nearby room where she was locked. She further stated that after sometime, Brijesh-appellant entered the room and slapped, abused and threatened her. After putting her in fear, he raped her and thereafter Nanak and Mahavir-appellanls turn by turn also raped her. She next stated that thereafter Brijesh-appellant left her in the car on the road and then she went to the house. As she was frightened and was threatened to kill her parents, so she did not disclose any thing about the occurrence to any one but after some time, she told about the occurrence to her mother and on the next day she visited the police station alongwith her parents and lodged a written, complaint Ex.P11 which contained her signatures. She further deposed that she was medico-legally examined. In cross-examiantion, she stated that she had changed her clothes after reaching the house. The complaint whose copy is Ex.P11 was written under the guidance of PW.6-Machhinder Rao. Thus, PW.6-Machhinder Rao knew all the facts. PW.6 has also corroborated the statement of PW.5-Nisha. He, in the cross examination, stated that he had gone out of station on 17.3.2000 and returned to his house at 5/6.00 PM on 18.3.2000. PW.3-Dr. Meenu Kapoor also stated that the possibility of prosecutrix being subjected to sexual intercourse could not be ruled out. Thus, from their evidence, it is proved that the prosecutrix-Nisha was gang raped by the appellants. 13. It is a fact that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Thus, from their evidence, it is proved that the prosecutrix-Nisha was gang raped by the appellants. 13. It is a fact that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the Court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. This has been so held by Honble Apex Court Bench of 3 Judges in State of Rajasthan v. N.K. The Accused, (2000)5 Supreme Court Cases 30. It has been further observed that the statement of the prosecutrix that she was forcibly subjected to sexual intercourse should normally be believed unless there is material leading to an inference of her consent. Absence of marks of external injuries on the person of the prosecutrix by itself is not sufficient to draw an inference of consent of the prosecutrix. The prosecutrix-Nisha was aged about less than 18 years and all the 3 appellants were able bodied youths. So, she was over powered and as such, there is no question of her offering resistance. It is true that the vagina of Nisha admitted 2 fingers i.e. she used to sexual intercourse. Brijesh-appellant in his statement had stated that Nisha was in love with him as she had got fancy for him and wanted to marry him but he could not perform marriage as he and Nisha belonged to different caste. Even if it is presumed that Nisha was in love with Brijesh-appellant, then also it does not give a licence to Brijesh to rape her or to allow gang rape by his 2 other companions, namely, Nanak and Mahavir. It is true that the mother of Nisha to whom she had narrated the incident had not been examined. It would have been better if she had been examined. It is true that the mother of Nisha to whom she had narrated the incident had not been examined. It would have been better if she had been examined. However, no dent is caused by her non examination because she would have repeated the same story as narrated by her husband PW.6-Machhinder Rao. The testimony of Machhinder Rao, father of the prosecutrix, is trustworthy and unblemished. The prosecutrix PW.5-Nisha and her lather PW.6-Machhinder Rao had been subjected to a lengthy cross-examiantino but their evidence has been found reliable and there is nothing to disbelieve their testimony. A father would not ordinarily subscribe to a false story of sexual assault involving his own daughter and thereby putting at stake the reputation of the family and jeopardizing the honour and chances of marriage of his own daughter. The testimony of the prosecutrixs father is reliable and lends support to the narration of the incident by the prosecutrix. No reason has been proved, nor, even suggested during cross examination of any of the witnesses as to why the prosecutrix or any member of her family would falsely implicate the appellants roping them in a false charge of rape. In the circumstances, it is not possible to draw an inference as to the consent against the prosecutrix and to hold that she was a willing party to the sexual assault made by the appellants. The trial Court had rightly held that sexual assault amounting to rape was committed on her by the appellants. 14. At the cost of repetition, it may be stated that the mere fact that Nisha was in love with Brijesh-appellant, would not give a licence to Brijesh to allow her to be subjected to gang rape. Thus, I hold that the trial Court has rightly found the appellants guilty and convicted under Section 3 66 A 4, 342/34, 506/34 and 376(2)(g) IPC and sentenced, as stated above. 15. The counsel for the complainant contended that the Court had the jurisdiction to award compensation and could enforce fundamental rights even against the private bodies or individuals and also award compensation for violation of Fundamental Rights. He further contended that by putting her to gang rape, the right of life which included right to live with human dignity of Nisha-prosecutrix had been violated, in view of Article 21 of the Constitution of India and for this reason, she was entitled to compensation. He further contended that by putting her to gang rape, the right of life which included right to live with human dignity of Nisha-prosecutrix had been violated, in view of Article 21 of the Constitution of India and for this reason, she was entitled to compensation. He placed reliance on Bodhisattwa Gautam v. Subhra Chakraborty (Ms), (1996)1 Supreme Court Cases 490, which supported the above contention of the learned counsel. 16. In the aforesaid authority, even during the pendency of the proceedings, interim compensation to the tune of Rs. 1,000/- per month was granted. Since, the Fundamental Right of the prosecutrix-Nisha under Article 21 of the Constitution of India i.e. right to life which included right to live with human dignity has been violated, so I think that it will be in the fitness of the circumstances, if a sum of Rs. 50,000/- is awarded as compensation to Nisha which shall he shared jointly and severally by all the 3 appellants. 17. In view of the discussion made above, both the appeals arc dismissed, while the application filed by the complainant is accepted and the complainant-Nisha is awarded a compensation of Rs. 50,000/- which shall be shared jointly and severally by all the 3 appellants.