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2006 DIGILAW 4399 (PNJ)

Vijay Kumar v. State (U. T. ) Chandigarh

2006-11-22

T.P.S.MANN

body2006
Judgment , J. 1. By this common judgment i intend to dispose of the present appeal i. e. Cri. Appeal No.422-SB of 1991 filed by Vijay Kumar alias Ajay appellant and connected appeal i. e. Cri. Appeal No.427-SB of 1991 filed by Ranjit Singh alias Babbal appellant. 2. The aforementioned two appellants, namely, Vijay Kumar alias Ajay and Ranjit singh alias Babbal were tried by Additional sessions Judge, Chandigarh under Sections 376/34, IPC on the allegations that on 26-10-1990 they along with one Muna, raped the prosecutrix. Vide judgment and order dated 7-11-1991, the trial Court convicted the appellants under Sec.376 read with section 34, IPC and sentenced them to undergo RI for ten years and to pay a fine of rs.250/- each. In default of payment of fine, the defaulter was directed to undergo further RI for three years. 3. The case of the prosecution was that the prosecutrix, who was an unmarried girl of about 16 years of age and living with her parents, was a student of 10th class. On 26-10-1990 at about 6.30 p. m. ; she was returning from the house of her friend in village Burail. When she was moving on the road by the side of mango trees behind a college in Sector 32, Chandigarh, Ranjit singh alias Babbal, Vijay Kumar alias Ajay and Muna caught hold of her and dragged her forcibly to the place under the mango trees. While Ranjit Singh alias Babbal caught hold of her from her hands and Muna from her legs, she was raped by Vijay Kumar alias Ajay. Thereafter when Vijay Kumar placed his hands on her mouth and Muna kept on holding her legs, Ranjit Singh alias babbal committed rape. Last of all, accused muna committed rape and at that time Vijay kumar alias Ajay was gagging her mouth and Ranjit Singh alias Babbal holding her legs. All this time she had been crying. Her cries attracted two policemen and her father to the spot. In fact her father had left the house for searching her. The two policemen and her father were able to apprehend ranjit Singh alias Babbal at the spot, whereas, Vijay Kumar alias Ajay and Muna managed to escape. 4. The prosecutrix was thereafter taken to the Police Station but on the way SI Sushil kumar met her, who recorded her statement ex. The two policemen and her father were able to apprehend ranjit Singh alias Babbal at the spot, whereas, Vijay Kumar alias Ajay and Muna managed to escape. 4. The prosecutrix was thereafter taken to the Police Station but on the way SI Sushil kumar met her, who recorded her statement ex. PJ on the basis of which formal FIR Ex. PJ/1 was registered in Police Station South, chandigarh. 5. After the completion of the investigation of the case, final report under Sec.173, Cr. P. C. was submitted against the two appellants whereas third accused Muna could not be apprehended and was thus declared a proclaimed offender. 6. At the trial of the case, the prosecutrix was examined as PW11 and she deposed regarding the allegations which she had earlier made against the accused while making statement Ex. PJ before the police. Her testimony was corroborated by her father, who appeared as PW12 as well as by C. Amrik singh PW 13, 7. Dr. (Mrs.) Meenal Kumar PW1 deposed about her having conducted medico-legal examination of the prosecutrix on 26-10-1990 at 10.45 p. m. in General Hospital, chandigarh She observed that the breasts of the prosecutrix were well developed and there was no mark of injury on her abdomen, vulva or vagina. She was 145 cm in height 35 Kgs. in weight and was having 14 teeth in each jaw. Her vagina admitted one finger easily, her hymen was torn having old healed tears. She was in her periods and was having bleeding from her vagina. 8. Dr. S. P. Bhardwaj PW2 proved the report Ex. PC about the ossification test conducted on the prosecutrix as per which the skeletal age of the prosecutrix was between 14 to 16 years with a difference of two years on oil her side. 9. Dr. J. R. Chauhan PWS medico-legally examined Vijay Kumar @ AJay Accused on 15-11-1990 while Dr. A. S. Gill PW4 medico-legally examined accused Ranjit singh alias Babbal on 26-10-1990. According to their opinions, there was nothing to suggest that they were incapable of doing sexual inter-course. 10. Smt. Harbans Kaur PW10 proved certificate Ex. PK and the School Leaving certificate Ex. PK/1 wherein it was reflected that the date of birth of the prosecutrix was 16-10-1974. 11. According to their opinions, there was nothing to suggest that they were incapable of doing sexual inter-course. 10. Smt. Harbans Kaur PW10 proved certificate Ex. PK and the School Leaving certificate Ex. PK/1 wherein it was reflected that the date of birth of the prosecutrix was 16-10-1974. 11. The investigation of the case was proved by SI Sushil Kumar PW15, SI rajinder Singh PW9, MHC Om Prakash PW 7 and C. Jaswant Singh PW8. Jaswant Singh pw5 proved site plan Ex. PG prepared by him while Manjit Singh PW6 proved the photographs Exs. P7 to P9 taken by him at the spot. The prosecution had also examined nand Lal as PW14 regarding the extra-judicial confession said to have been made by Vijay Kumar alias Ajay accused before him but said Nand Lal did not support the case of the prosecution and was declared hostile. 12. After the conclusion of the evidence of the prosecution, both the appellants were examined under Sec.313. Cr. P. C. They denied the correctness of the prosecution allegations except their own medico-legal examinations. Both of them pleaded false implication. In defence the accused did not examine any witness but simply tendered into evidence documents Exs. DA, DB and dc. 13. Mr. K. G. Chaudhary, learned counsel appearing for both the appellants has challenged the judgment of conviction and sentence on the ground that a complaint had earlier been filed against the father of the prosecutrix by mother of Vijay Kumar alias ajay accused and on that account the present case was falsely set up by roping in vijay Kumar as an accused. Further, that complainant party was in the habit of making similar allegations as is clear from FIR ex. DA lodged by father of the prosecutrix against Bengali Ram and his sons for kidnapping the prosecutrix again on 11-1-1991 and on its basis FIR No.17 was registered in Police Station South, Chandigarh on 8-2-1991 under Sections 363, IPC to which offences under Sections 376, 361 and 366, ipc were later on added. The said case, arising out of FIR No.17, dated 8-2-1991, finally culminated in the acquittal of the accused therein. It was also submitted that as per the testimony of the prosecutrix, she had received scratches on her person while she was being raped and her bangles were broken but the medical evidence did not reveal any such injury on her person. It was also submitted that as per the testimony of the prosecutrix, she had received scratches on her person while she was being raped and her bangles were broken but the medical evidence did not reveal any such injury on her person. It was also submitted that the presence of father of the prosecutrix and the police officials at the spot was only chance presence and it could not be believed that they would reach the spot while the prosecutrix was being raped. 14. Learned counsel appearing for the state while supporting the judgment of conviction has stated that it was a case where the prosecutrix was subjected to gang rape and in such a situation there could not be any sign of struggle/resistance on her person when she was pinned down by the two persons at the time when the third committed forcible sexual inter course. Further, that merely because mother of Vijay Kumar alias ajay had made a complaint against father of the prosecutrix was no ground to disbelieve the prosecution version as no father would come up with false allegations of commission of rape upon his daughter. It has also been submitted that the acquittal of accused in FIR No.17, dated 8-2-1991 had no relevance to the facts and circumstances of the present case. No conclusion could be arrived at on the same that the prosecutrix had made false allegations in the present case as well. Regarding the presence of the father of the prosecutrix and police officials at the spot, it was submitted that their presence was corroborated by the fact that they were table to apprehend Ranjit Singh alias babbal accused at the spot. 15. I have heard arguments addressed by learned counsel for the parties and gone through the evidence minutely. 16. As per the prosecution case itself, the prosecutrix was more than 16 years of age, Smt. Harbans Kaur PW10 proved the date of birth of the prosecutrix as 16-10-1974. The occurrence in question having taken place on 26-10-1990, the prosecutrix was 16 years and 10 days old on that day. The father of the prosecutrix in his examination-in-chief stated that the prosecutrix was about seven years older to her younger sister, who was 10/11 years of age. Thus, it could safely be concluded that the prosecutrix was more than 16 years of age on the date of the occurrence. 17. The father of the prosecutrix in his examination-in-chief stated that the prosecutrix was about seven years older to her younger sister, who was 10/11 years of age. Thus, it could safely be concluded that the prosecutrix was more than 16 years of age on the date of the occurrence. 17. However, it is a case where as per the prosecution, three persons committed rape upon the prosecutrix. Explanation 1 to Sec.376, IPC defines "gang rape" as under : - "where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. " 18. Section 114a of the Indian Evidence act raises a presumption of absence of consent in case of gang rape. In case where gang rape by the accused is proved by the prosecution and the question arises whether it was with the consent of the woman alleged to have been raped, the Court is required to presume that she did not consent in case she states in her evidence before the Court that she did not consent. The provisions of section 114a of the Evidence Act are reproduced hereinbelow: - "114a. Presumption as to absence of consent in certain prosecutions for rape.-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 Sec.376 of the Indian Penal Code, (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. " 19. In the present case it is the consistent stand of the prosecutrix that she was forcibly subjected to rape. Nowhere it has come during her testimony that she ever consented to the sexual intercourse. Under these circumstances the law allows the raising of presumption that the sexual intercourse was without her consent. Mere fact that the prosecutrix was more than 16 years of age would not be relevant especially when she has deposed in her testimony that she had not consented to the same. 20. Under these circumstances the law allows the raising of presumption that the sexual intercourse was without her consent. Mere fact that the prosecutrix was more than 16 years of age would not be relevant especially when she has deposed in her testimony that she had not consented to the same. 20. It has come in the testimony of the prosecutrix that the place where she was raped was a grassy plot. While appearing as a witness she did state that she received scratches on her back besides receiving injuries on her breast and her private parts. However, these facts were not stated by her when she had initially made the statement ex. PJ before the police. It appears that while deposing as a witness she tried to exaggerate the allegations by stating that she had been offering resistance and in the process received injuries on her back as well as on her private parts. The testimony of Dr. (Mrs.)Meenal Kumar PW1 clearly established that the prosecutrix was not having any injury on her body including her private parts. 21. In view of the above there is no escape but to conclude that the appellants along with Muna (proclaimed offender) committed rape upon the prosecutrix. The conviction of the appellants under Sec.376/ 34, IPC is, thus, confirmed. 22. Coming to the question of sentence, learned counsel for the appellants submitted that the occurrence in question had taken place in the year 1990. While Vijay kumar appellant was 17 years of age at that time, Ranjit Singh appellant was 18 years of age. Both of them were shown to be residents of the same neighbourhood to which the prosecutrix belonged. All these years the appellants have been facing the agony of criminal prosecution. Both of them are now married and well settled in their lives. A prayer was made for reducing the sentence of imprisonment. 23. Learned counsel for the State has opposed the said prayer made on behalf of the appellants by submitting that the law contemplates minimum sentence of RI for ten years in cases involving gang rape and thus, no leniency should be shown to the appellants. 24. It is an admitted fact that the appellants belonged to the same neighbourhood to which the prosecutrix belonged. The appellants were in their teens at the time of the occurrence in question. 24. It is an admitted fact that the appellants belonged to the same neighbourhood to which the prosecutrix belonged. The appellants were in their teens at the time of the occurrence in question. They have faced the agony of prosecution of the last more than 16 years. They have since rehabilitated themselves into the mainstream by getting married and raising their families. 25. In Iqlam V/s. State of Punjab, 2004 (4)RCR (Crl) 195, this Court considered the fact of the accused staying in the neighbourhood of the prosecutrix to be adequate and special reason for imposing sentence less than the one prescribed as minimum in the statute. Moreover, in the present case there is no charge framed against the appellants for gang rape. They were charged only under section 376, IPC. 26. In view of the above, I am of the view that the ends of justice would be amply met if the sentence of RI for ten years imposed upon the appellants is reduced to RI for seven years. However, sentence of fine along with the default clause imposed upon the appellants by the trial Court shall remain the same. Ordered accordingly. 27. Except for the modification in the order of sentence indicated above, both the appeals stands dismissed. Order accordingly. .