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2005 DIGILAW 412 (PNJ)

Bhup Singh v. State Of Haryana

2005-03-22

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of four criminal appeals bearing Crl. Appeal No. 26-SB, 22-SB, 29-SB and 39-SB of 1993, filed by Bhup Singh, Surinder Singh and Sunil Kumar, Bijender Singh and Ram Phal, respectively, against the judgment of conviction dated 9.1.1993 and order of sentence dated 12.1.1993, passed by Additional Sessions Judge, Sonepat, by which each of the appellant was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 376(2)(g) IPC. Besides this, appellant Bhup Singh was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- for the offence punishable under Section 366 IPC. 2. During the pendency of these appeals, appellant Surinder Singh has expired, therefore, Crl. Appeal No. 22-SB of 1993 qua him stands abated. 3. In brief, case of the prosecution is that on 31.3.1990, Mst. Khatun, mother of the prosecutrix, made a written complaint to the police of Police Post Sikka Colony, Sonepat, that her daughter Sharda was missing since 29.3.1990 after she left the Indo-Asian factory at 11.00 a.m. She apprehended that her daughter was abducted by one Phule son of Ram Kishan. On the said complaint, FIR No. 222 dated 31.3.1990 was registered at Police Station City Sonepat under Sections 363/366 IPC. It is further alleged that in the night on 2.4.1990, a telephonic message was received by a lady Constable in Control Room, Delhi that one boy and one girl were in a room on the first floor of Post Office building in Shakurpur Basti. The police party consisting of Head Constable Rajbir Singh, ASI Vijay Singh, one lady Constable Bimla and one more Constable, raided the said premises, where they found prosecutrix Saira Bano alias Sharda and accused Bijender Singh in the said room. Statement of the prosecutrix was recorded, in which she stated that she was an employee of Indo-Asian factory, and on 29.3.1990 in day time, three boys namely Bhup Singh, Ram Phal and Bijender took her to the jungle of their village after enticing her and committed rape with her, from where accused Bijender took her to his house in the night time and threatened her to keep quite. Subsequently, she was brought to Delhi. Subsequently, she was brought to Delhi. She further stated that these persons enticed her and committed rape with her and that she may be sent to her house. Thereafter, the Sonepat police was informed, who arrested the accused and started investigation. The police also took the prosecutrix to the room of Post Office Building and recorded her statement under Section 161 Cr.P.C. One towel, one raxin bag, one half woven sweater and wool were also taken onto possession by police from the room. The prosecutrix was medico-legally examined by Dr. Vibha Dua (PW-7) on 3.4.1990, who prepared MLR Ex. PJ. Accused Bijender was also medico-legally examined by Dr. S.S. Wadhwa (PW-3) on 4.5.1990, who prepared MLR Ex. PD. 4. On 4.4.1990, Judicial Magistrate Ist Class, Sonepat, recorded statement of the prosecutrix under Section 164 Cr.P.C., where she gave her age as 15 years. She stated that on 29.3.1990 at 7.30 a.m. she went to the Indo-Asian factory where she was employed. All of sudden, at 10.00 a.m., she felt pain in her stomach, therefore, she left the factory to take medicine at Geeta Bhagwan, where a boy (Bhup Singh), who usually remain standing outside the factory gate, met her and asked where was she going. On his asking, the prosecutrix told him that she is going to take medicine. Thereafter, he told her that he will arrange an employment for her for Rs. 1,500/- per month. Then she accompanied him without taking medicine. He took her to Kharkhoda, where his two friends met him and they took her on tractor to village Khandsa. There was a jungle, where all the accused committed rape with her. Thereafter, accused Bhup Singh took her to his room. In the morning, he took her to Najabgarh after threatening her, where Sunil and Surinder, friends of Bhup Singh met them. They took her in an office. The whole day, accused Bhup Singh kept on wandering her in buses. In the evening, all the three committed rape with her in the office. She remained with them throughout the night. Thereafter Bijender took her to Alipur where she was taken to the house of one Raju, where she remained throughout the night. They took her in an office. The whole day, accused Bhup Singh kept on wandering her in buses. In the evening, all the three committed rape with her in the office. She remained with them throughout the night. Thereafter Bijender took her to Alipur where she was taken to the house of one Raju, where she remained throughout the night. Thereafter, in the morning, accused- Bijender took her to the house of his friend Harpal in Rajouri Garden, where also Bijender committed rape with her, from where she was taken to house of Ram Kumar, friend of Bijender, in J.J. Colony. Bijender and Ram Kumar consumed liquor in her presence. She further stated that she went in another room and bolted the door from inside. They asked her to open the door. She did not open the door. On hearing noise, somebody telephoned the police. Ram Kumar ran away from there, whereas she and Bijender were apprehended by the police. 5. After completion of investigation, the police submitted challan against the five accused. The case was committed to the Session Court where charge under Section 376 IPC was framed against all the accused and charge under Sections 363 and 366 IPC was also framed against accused Bhup Singh. 6. In support of its case, the prosecution examined 13 witnesses, including Smt. Khatun (PW-1), mother of the prosecutrix, HC Rajbir Singh (PW-2), who apprehended the prosecutrix and Bijender in a room of Post Office Building and recorded the statement of the prosecutrix, Dr. S.S. Wadhwa (PW-3), who medico-legally examined accused Bhup Singh, Dr. Vibha Dua (PW-7), who medico- legally examined the prosecutrix; Shardha (PW-8) prosecutrix herself, Dr. D.P. Lochan (PW-9), who medico-legally examined accused Ram Phal and Mrs. Vivek Bharti Sharma (PW-11), Judicial Magistrate Ist Class, who recorded statement of the prosecutrix under Section 164 Cr.P.C. 7. The examination-in-chief of the prosecutrix was partly recorded in the pre-lunch session on 17.9.1992 and the case was ordered to be put up in the after-lunch session for recording her remaining statement. However, in the after-lunch session, accused Bhup singh and Ram Phal did not appear, therefore, further examination of the prosecution was deferred. 8. On 12.1.1992, when the prosecutrix appeared for further examination, she did not support the prosecution version at all. She was declared hostile on the ground that the accused have prevailed upon her. However, in the after-lunch session, accused Bhup singh and Ram Phal did not appear, therefore, further examination of the prosecution was deferred. 8. On 12.1.1992, when the prosecutrix appeared for further examination, she did not support the prosecution version at all. She was declared hostile on the ground that the accused have prevailed upon her. Thereafter, she was cross-examined by the State Counsel, but in the cross-examination also, she did not support the prosecution version. In spite of that, the trial Court convicted and sentenced all the accused. It was held that at the time of the alleged occurrence, age of the prosecutrix was not more than 16 years. On the basis of her statement recorded under Section 164 Cr.P.C., her examination-in-chief recorded on 17.9.1992 and the statements of other prosecution witnesses, it was held that the prosecutrix was raped by the accused against her wish. Since all the accused were held to be guilty of gang rape, therefore, they were punished to undergo rigorous imprisonment for ten years under Section 376(2)(g) IPC. 9. Learned counsel for the appellants assailed conviction of the appellants on two grounds, firstly that the finding recorded by the trial Court about age of the prosecutrix is without any valid evidence on record, and the evidence available on the record clearly indicates that at the time of the alleged occurrence, the prosecutrix was more than 18 years of age. Secondly, statement of the prosecution is not reliable, particularly when in cross-examination she has not supported the prosecution version at all and merely on the basis of such evidence, when has not been corroborated by any other evidence, conviction of the appellants under Section 376(2)(g) IPC is not safe. Thus, the prosecution has failed to prove the allegations against the appellants beyond reasonable doubt. 10. I have heard the arguments of learned counsel for the parties and have gone through the record of the case. 11. Firstly, I will deal with the point regarding age of the prosecutrix at the time of the alleged occurrence. In her statement recorded by Judicial Magistrate Ist Class under Section 164 Cr.P.C., the prosecutrix gave her age as 15 years. Khatun, mother of the prosecutrix, in her statement before the Court as PW-1 gave the date of birth of the prosecutrix as 2.4.1975, which indicates that at the time of the alleged occurrence, she was about 15 years. In her statement recorded by Judicial Magistrate Ist Class under Section 164 Cr.P.C., the prosecutrix gave her age as 15 years. Khatun, mother of the prosecutrix, in her statement before the Court as PW-1 gave the date of birth of the prosecutrix as 2.4.1975, which indicates that at the time of the alleged occurrence, she was about 15 years. The prosecution has also placed on record the school leaving certificate of the prosecutrix as Ex. PM, in which her date of birth has been recorded as 2.4.1975. These are the only evidence which the prosecution has led to establish the age of the prosecutrix, on the basis of which the trial Court has held her age to be below 16 years. There are some other evidence available on the record which indicates that at the time of the alleged occurrence, age of the prosecutrix was more than 16 years, but the same have not been considered by the trial Court. 12. Dr. Vibha Dua (PW-7) who medico-legally examined the prosecutrix stated that her hymen was torn, vagina admitted 2 fingers and was slightly tender. In cross-examination, this witness stated that possibility of the prosecutrix being habituated to sexual inter-course cannot be ruled out. She also advised the prosecutrix for Radiologist and Dental Surgeons opinion to determine her age, but the prosecution neither got the opinion of the Radiologist or the Dental Surgeon nor took any step for ossification test for determining the age of the prosecutrix. Secondly, Sharda prosecutrix herself in her statement before the Court while appearing as PW-8 on 17.9.1992 stated her age as 22 years, meaning thereby that on the alleged date of occurrence, she was more than 19 years. Thus, her age recorded as 15 years in her statement under Section 164 Cr.P.C. and as so given to the doctor at the time of her medico- legal examination has not been affirmed by the prosecutrix in her statement before the Court. Though her statement recorded on 17.9.1992 has been relied upon by the trial Court, but the age as stated by her has not been considered. In these circumstances, the only evidence which remains available is the school leaving certificate, Ex. PM. The prosecution has not examined any witness to prove this document. No person from the school, who had issued this certificate, has been examined. In these circumstances, the only evidence which remains available is the school leaving certificate, Ex. PM. The prosecution has not examined any witness to prove this document. No person from the school, who had issued this certificate, has been examined. Even it has not been established that this certificate was issued by the said school, or who got recorded the alleged date of birth in the school record and what was basis of the same. A school leaving certificate issued by a school itself is not an evidence to prove the date of birth of a student. Such document is required to be proved before it can be relied by the Court. According to Section 61 of the Indian Evidence Act contents of a document may be proved either by primary or by secondary evidence. In this case, neither primary nor secondary evidence has been led to prove the school leaving certificate. In Ram Murti v. State of Haryana, 1970 PLR 1000, it has been held by the Supreme Court that the question of age is an important factor to be verified in cases under Sections 366 and 376 IPC, particularly when medical evidence of the prosecutrix indicates that she is habituated to cohabitation. In such cases, a close scrutiny of the evidence with regard to age of the prosecution is required. In the instant case, statement of the prosecutrix made under Section 164 Cr.P.C. before the Judicial Magistrate, where she gave her age as 15 years, and the statement of her mother as PW-1 before the trial Court where she gave date of birth of the prosecutrix as 2.4.1975 are not such evidence which can safely be relied on regarding age of the prosecutrix, particularly when she in her statement before the trial Court on 17.9.1992 has given her age as 22 years. Further, admittedly the prosecutrix was in service of Indo-Asian factory and as per the Industrial law, no person of less than 17 years of age can be employed in a factory. This fact also indicates that at the time of the alleged occurrence, the prosecutrix was not less than 17 years. In this case, the prosecution has neither got radiologist or dental surgeon opinion, in spite of the advise given by Dr. Vibha Dua (PW-7) nor got conducted the ossification test to prove her age. Such test would have been taken as an important corroborative evidence. In this case, the prosecution has neither got radiologist or dental surgeon opinion, in spite of the advise given by Dr. Vibha Dua (PW-7) nor got conducted the ossification test to prove her age. Such test would have been taken as an important corroborative evidence. Thus, from the evidence available on the record, it can be safely concluded that the prosecutrix was not less than 18 years of age at the time of the alleged occurrence. 13. Now the question arises whether the evidence led by the prosecution, particularly the statement of prosecutrix is reliable and trust-worthy, so as to warrant conviction of the accused under Section 376(2)(g) IPC. In this case, admittedly on 31.3.1990, mother of the prosecutrix moved an application Ex. PA to the Incharge Police Post Sikka Colony Sonepat to the effect that her daughter Sharda, who was employed in Indo-Asian factory, was enticed by her neighbourer Phule and her whereabouts are not known since 29.3.1990. It was not her case that her daughter was forcibly abducted. Thereafter, the prosecutrix was apprehended with accused Bijender in a case room of the Post Office Building in Delhi by the police on 3.4.1990. When they were apprehended, one towel and some other articles like one raxin bag, on half woven sweater and wool were also found in the room. This also indicates that the prosecutrix was living there at her own will. Thereafter, statement of the prosecutrix was recorded by the Delhi police, in which she stated that on 29.3.1990 in the day time, three boys, namely Bhup singh, Ram Phal and Bijender took her to jungle after enticing, where they raped her and from where accused Bijender brought her to his house and thereafter she was brought to Delhi. In the said statement, she has only named aforesaid three persons and gave a different version which she gave subsequently to the Sonepat Police. Thereafter, her statement under Section 164 Cr.P.C. was recorded by Judicial Magistrate, in which she named five accused and narrated a different version and gave different places where rape was allegedly committed. Mrs. Vivek Bharti Sharma (PW-11), Judicial Magistrate Ist Class, Sonepat, in her statement stated that the statement of the prosecutrix under Section 164 Cr.P.C. was recorded in her chamber and at that time, no other person was present. Mrs. Vivek Bharti Sharma (PW-11), Judicial Magistrate Ist Class, Sonepat, in her statement stated that the statement of the prosecutrix under Section 164 Cr.P.C. was recorded in her chamber and at that time, no other person was present. In cross-examination, she stated that she did not know whether the prosecutrix had made the statement under police pressure or not, but she recorded her statement in chamber in absence of the police officers. She has further stated that she cannot say whether prosecutrix had been with police since the day she was apprehended. The prosecutrix in her examination-in-chief before the Court, which was recorded on 17.9.1992 in the pre-lunch session, supported the prosecution version and stated that she was raped by the accused. She stated that on 29.3.1990, she came out of the factory to take medicine, and at Geeta Bhawan Chowk accused Bhup singh met her to who, she was earlier known because he used to remain standing in front of the factory gate. She accompanied him as he assured her that he will arrange for her an employment for Rs. 1,500/- per month. Thereupon, without taking medicine, she accompanied him and went to various places, where she was being raped by the accused. When she was re-called for further examination on 12.11.1992, she did not support the prosecution version at all and stated that no such incident had occurred with her and whatever she had stated before the Court on 17.9.1992 was stated at the direction of the police. She further stated that when her earlier statement was being recorded by the Magistrate, the police officer was present and he directed her to make the statement as desired by him. She did not identify any of the accused present in the Court. She also stated that none of the accused committed rape with her. In view of the stand taken by the prosecutrix in her statement and in view of the medical evidence which shows that she had been used to sexual inter-course and was more than 16 years of age at the time of the alleged occurrence, in my opinion, the conviction of the appellants cannot be sustained merely on the statement made by the prosecutrix in the examination-in-chief without there being any corroborating evidence or some material particularly from some independent source. In this case, the other evidence available on the record is the statement of Khatun, mother of the prosecutrix, as PW-1 and the statement of HC Rajbir Singh as PW-2, the police official, who apprehended the prosecutrix and recorded her statement. The statements of both these witnesses regarding committing of rape was hearsay. The statement of prosecutrix made under Section 164 Cr.P.C. is again not such piece of evidence, on the basis of which conviction can be upheld, because that statement was not subject to any cross-examination by the accused, and it is also not clear whether the said statement was recorded by the Judicial Magistrate without any coercion of pressure upon the prosecutrix by the police. This evidence is not sufficient to be relied upon as corroborating evidence, particularly when the prosecutrix herself has not supported the prosecution case at all at the time of her cross-examination. In my opinion, statement of the prosecutrix given in her examination-in-chief is not reliable and trustworthy and merely on the basis of such a statement, conviction of the appellants cannot be sustained. The evidence available on the record itself is not sufficient to prove the alleged offence committed by the appellants beyond reasonable doubt. 14. In view of the aforesaid, all these four appeals are allowed. Consequently, the impugned judgment of conviction dated 9.1.1993 and the order of sentence date4d 12.1.1993, passed by Additional Sessions Judge, Sonpat, are set aside and the appellants are acquitted or the charges framed against them.