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2006 DIGILAW 2016 (PNJ)

Dinesh v. State Of Haryana

2006-05-10

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of Crl. Appeal No. 1122-SB of 2001, filed by Dinesh and Crl. Appeal No. 1215-SB of 2001, filed by Nath and Jawala. Both these appeals have been directed against the judgment of conviction dated 11.8.2001 and the order of sentence dated 16.8.2001, passed by the Court of Additional Sessions Judge, Sonepat, whereby all the three accused have been convicted and sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs. 2,000/- each under Section 376(2)(g) IPC. Accused Dinesh has been further convicted and sentenced to undergo RI for a period of two years and to pay a fine of Rs. 1,000/- under Section 363 IPC and to undergo RI for a period of six months under Section 506 IPC. 2. On 14.7.1998, one Dall Chand resident of Mohalla Tara Nagar, Sonepat, father of the prosecutrix Gomti, made a complaint to Police station Sonepat that his daughter Gomti, who was aged about 13/14 years and studying in 8th class, was missing since 9.7.1998. Subsequently, on 22.7.1998, the prosecutrix Gomti appeared before Incharge, Police Station Sanghipur, Partapgarh (UP) and made statement that about 15 days back, accused Dinesh, who was a tenant in their house at Sonepat, took her to drain (nala) on the pretext that he wants to have some discussion with her, from where she was taken to Delhi under threat. She was taken to the house of accused Jawala, where she was kept for two days. It was further alleged that she was being raped by accused Dinesh and Jawala and one other person. Thereafter, accused Dinesh took her to his sisters house in District Partapgarh where he also committed rape upon her against her wishes. She further stated that one day, Dinesh and his sister had gone out of home, then his brother-in-law Nathu also committed rape upon her. She further stated that the accused were planning to sell her to some third person. When no body was at house, she escaped from their custody, came to the police station and made statement. After recording the aforesaid statement, the police of Police Station Sonepat was informed. The accused were arrested and on the basis of the aforesaid statement of Gomti, FIR No. 421 dated 3.8.1998 was registered against the accused at Police Station City Sonepat under Sections 363/372/376/506 IPC. After recording the aforesaid statement, the police of Police Station Sonepat was informed. The accused were arrested and on the basis of the aforesaid statement of Gomti, FIR No. 421 dated 3.8.1998 was registered against the accused at Police Station City Sonepat under Sections 363/372/376/506 IPC. After completion of investigation, the accused were sent to face trial under Sections 363, 372, 376, 506 IPC. 3. In support of its case, the prosecution examined 14 witnesses and produced some documents. In their statements under Section 313 Cr.P.C., all the three accused pleaded innocence and claimed that they were falsely implicated, but they did not lead any evidence. 4. On the basis of statements of PW-4, Dall Chand, father of the prosecutrix, PW-2 Dr. Anil Kumar, Dental Surgeon, who conducted the dental examination of the prosecutrix, PW-11 Dr. Ms. Kiran Malik, Medical Officer, PHC Charwa, District Koshambi (U.P.), who medico-legally examined the prosecutrix Gomti on 24.7.1998, PW-14 Dr. Promila Jain, Medical Officer, General Hospital, Sonepat, who conducted radiological examination of Gomti and the birth certificate, Ex. P-6, of Gomti, issued by Sub-Registrar Birth and Death, Municipal Council, Sonepat, the trial Court came to the conclusion that at the time of the commission of the alleged offence, the prosecutrix Gomti was aged about 14-1/2 years. Further, the trial Court, while relying upon the statement of PW-3 Gomti, the prosecutrix, being reliable and trustworthy, corroborated by medical evidence i.e. the statement of PW-11 Dr. Ms. Kiran Malik, has held that the rape was committed upon the prosecutrix, without her consent, by accused Dinesh at Sonepat, Delhi and in District Partapgarh, by accused Jawala at Delhi and by accused Nathu in District Partapgarh. Accused Dinesh was also found guilty of the offence under Section 363 IPC for adbudction of Gomti and under Section 506 IPC for giving threat to her life. The concluding portion of the judgment of the trial Court is re-produced below :- "37. In view of this decisions, the prosecution has been able to prove that the accused Dinesh has kidnapped Gomti, the prosecutrix without the consent of her father when she was just 14-1/3 years old on 9.7.1998 in the area of City Sonepat. It is also proved that on the same date, Dinesh threatened the prosecutrix to murder her in the area of City Sonepat. It is also proved that on the same date, Dinesh threatened the prosecutrix to murder her in the area of City Sonepat. The prosecution has also been able to prove that between 9.7.1998 to 22.7.1998, the accused Dinesh and Jawala committed rape upon the prosecutrix at Delhi while accused Nathu and Dinesh committed rape upon prosecutrix in village Raj Murtipur District Partapgarh. Thus, the accused Dinesh is hereby held guilty under Sections 376(2)(g), 363 and 506 IPC while remaining accused Jawala and Nathu are hereby held guilty under Section 376(2)(g) IPC." After conviction, the trial Court sentenced all the accused, as indicated in the first para of this judgment. 5 Learned counsel for the appellants submitted that in this case, the prosecutrix herself willingly went with accused Dinesh. At that time, she was aged about 18 years and it was a case of consent. Learned counsel for the appellants argued that the prosecutrix remained with appellant Dinesh from 9.7.1998 to 22.7.1998 and she was taken from Sonepat to Delhi and then from Delhi to District Partapgarh by bus, but she did not raise any alarm to attract the passengers and neighbours about the offence committed by the accused. These facts clearly indicate that the prosecutrix went with accused Dinesh with her consent and free will. The allegation of her abduction by giving threat to her life is tortally false and has not been established by the prosecution. Learned counsel for the appellants submitted that statement of the prosecutrix is not reliable and solely on the basis of her statement, conviction of the accused is not safe, particularly when there is no corroborative evidence. They further submitted that PW-11 Dr. Ms. Kiran Malik has categorically stated in her statement that there was no mark of injury on any part of the body of the prosecutrix. In her cross-examination, this witness stated that possibility of prosecutrix Gomti being habitual of sexual intercourse cannot be ruled out. This part of the statement of PW-11 indicates that no rape was committed upon the prosecutrix by use of force or against her wishes. Learned counsel for appellants Nathu and Jawala further submitted that statement of the prosecutrix regarding commission of rape by accused Nathu and Jawala is contradictory and actually, no rape was committed by these accused and they have been falsely implicated subsequently at the instance of father of the prosecutrix. Learned counsel for appellants Nathu and Jawala further submitted that statement of the prosecutrix regarding commission of rape by accused Nathu and Jawala is contradictory and actually, no rape was committed by these accused and they have been falsely implicated subsequently at the instance of father of the prosecutrix. In the last, learned counsel for the appellants further submitted that in the facts and circumstances of the case, it cannot be held that all the three appellants are guilty of gang rape under Section 376(2)(g) IPC and their conviction is not legal. 6. I have considered the aforesaid submissions of learned counsel for the appellants. In my opinion, in this case, the prosecution has clearly proved that at the time of commission of the offence, the prosecutrix Gomti was less than 16 years of age. The evidence led by the prosecution to prove this fact is reliable and trust worthy. According to the birth certificate, Ex. P-6, issued by Sub-Registrar, Birth and Death, Municipal Council, Sonepat, the date of birth of Gomti is 2.3.1984. As per this certificate, on the day of the occurrence, she was about 14 years and 3 months old. The birth entry from register of births is conclusive evidence regarding age of prosecutrix (see Sidheswar Ganguly v. State of West Bengal, AIR 1958 Supreme Court 143). PW-4 Dall Chand, her father, has categorically stated that at the time of the occurrence, she was 14 years of age. The suggestion put to him that his daughter was 16/17 years old at the time of the occurrence has been specifically denied by him. PW-2 Dr. Anil Kumar, Dental Surgeon, who conducted dental examination of prosecutrix Gomti, has stated that the probable age of the prosecutrix was 12 to 13 years, because the number of teeth present was upto number 7 i.e. second molar on both sides in each arch. In spite of the opportunity given, he was not cross-examined at all on behalf of the accused on the point of age. However, PW-14 Dr. Promila Jain, who conducted radiological examination of prosecutrix Gomti, stated that as per her examination, the age of prosecutrix was between 15 and 17 years. In spite of the opportunity given, he was not cross-examined at all on behalf of the accused on the point of age. However, PW-14 Dr. Promila Jain, who conducted radiological examination of prosecutrix Gomti, stated that as per her examination, the age of prosecutrix was between 15 and 17 years. In view of this statement, learned counsel for the appellants argued that age of the prosecutrix should have been taken as more than 16 years and since it was a case of consent, which has been clearly proved from the various contradictions in the statements of prosecution witnesses, the accused cannot be convicted for the commission of rape. While relying upon a decision of the Calcutta High Court in Anath Bandhu Kundu v. State of West Bengal, 1997(1) Recent Criminal Reports 35, learned counsel for the appellants contended that there is margin of error of two years in Radiological test on either side and benefit of error should go to the accused. I do not find any force in this contention of learned counsel for the appellants. In my opinion, there is overwhelming evidence on the record, as discussed above, which clearly establish that age of the prosecutrix at the time of the occurrence was much below 16 years. I do not find any illegality or infirmity in the aforesaid conclusion arrived at by the trial Court regarding age of the prosecutrix. 7. Once the age of the prosecutrix is proved to be less than 16 years at the time of the alleged occurrence, her consent is of no consequence and does not make any material difference. The act of co-habitation without consent will constitute an offence under Section 376 IPC. In this case, the allegation of rape committed by all the three accused has been clearly proved from the testimony of the prosecutrix. She has categorically stated that rape was committed against her wishes by all the three accused at difference places and at different time. There is no material on the record, on the basis of which it can be said that statement of the prosecutrix in this regard is not reliable and trustworthy. Merely on the basis of minor contradictions here and there, it cannot be said that the prosecutrix is telling lie and not stating truth. There is no material on the record, on the basis of which it can be said that statement of the prosecutrix in this regard is not reliable and trustworthy. Merely on the basis of minor contradictions here and there, it cannot be said that the prosecutrix is telling lie and not stating truth. Though statement of the prosecutrix in a rape case does not require corroboration as a rule of law, but as a matter of prudence, corroboration in such cases is required. The act of commission of rape has been corroborated by the medical evidence. In the instant case, the prosecution has fully established the charge of rape against all the three accused and the offence of abduction and threat to life against accused Dinesh. 8. Now, the question arises as to whether the present case is a case of gang rape and whether all the accused are liable to be convicted under Section 376(2)(g) IPC. In the instant case, the prosecutrix remained in the company of accused Dinesh from 9.7.1998 to 22.7.1998. During this period, she was raped by accused Dinesh, Jawala and Nathu at different time, on different days and at different places. There is no material on record to show that during the said period, rape was committed by all the three accused together, one after the other. Rather, as per the statement of the prosecutrix, rape was committed by all the three accused on different occasions and on different days. A Division Bench of this Court in State of Punjab v. Jagjiwan Ram, 1993(1) RCR(Crl.) 367 held that if two accused persons committing rape on prosecutrix one after the other is one transaction, it amounts to gang rape falling under Section 376(2)(g) IPC. But if the rape is being not committed by two or more accused one after the other in one transaction, the same does not amount to gang rape. Thus, in my opinion, it cannot be said that all the three accused have committed the offence of gang rape and they cannot be held guilty of offence punishable under Section 376(2)(g) IPC, but they are held to have committed the offence of rape simpliciter punishable under Section 376 IPC. 9. Thus, in my opinion, it cannot be said that all the three accused have committed the offence of gang rape and they cannot be held guilty of offence punishable under Section 376(2)(g) IPC, but they are held to have committed the offence of rape simpliciter punishable under Section 376 IPC. 9. In view of the aforesaid discussion, the conviction of appellants Dinesh, Jawala and Natha is converted from under Section 376(2)(g) IPC to Section 376 IPC and sentence is reduced from ten years to seven years rigorous imprisonment whereas conviction and sentence of appellant Dinesh under Sections 363 and 506 is upheld. 10. With the aforesaid modification of converting the offence of conviction and reducing the sentence, this appeal stands dismissed.