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2007 DIGILAW 181 (PNJ)

Jai Singh v. State Of Haryana

2007-01-31

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. By this common judgment, I propose to dispose of both the aforementioned appeals. 2. The appellants have assailed the judgment and order of the Addl. Sessions Judge, Sonepat dated 4.12.1992 and 5.12.1992, respectively convicting them and awarding a sentence of 5 years and to pay a fine of Rs. 500/- each in default of payment of fine to further undergo rigorous imprisonment for six months under Section 366 of the Indian Penal Code (in short the Code) and further sentence of 10 years and to pay a fine of Rs. 2,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year each, under Section 376(g) of the Indian Penal Code. Both the sentences were ordered to run concurrently. 3. The appellants were arrayed as accused in FIR No. 121 dated 16.9.1990 under Sections 366 and 376(g) of the Code registered at Police Station Baroda which was recorded on the basis of statement of Nirmala prosecutrix, who stated that she is the daughter of Jaswant resident of village Bichhpari and is married with one Surta of village Rindhana. About a few years ago she had delivered two children from the loins of Surta. On 15.9.1990 at about 2.30 or 3.00 p.m. she left Rindhana in a bus for Bichhpari to see her parents and came to Gohana. While waiting for a bus bound for Bichhpari at Baroda Mor, accused Jai Singh and Mukesh came in a Maruti van along with some lady and enquired from her as to why she was sitting there. She told them that she was waiting for a bus. On that the lady occupant of the van told her that there was a strike of the buses and since they were going towards Safidon she could board their van and in this manner she will reach Bichhpari early. The complainant accepted the offer and boarded the van along with both her sons. The lady occupant of the Maruti van made her to smell something after they had covered a small distance, upon which she had become semi-conscious. After sometime the lady got down from the van and three more persons boarded the van and all the accused persons took her in the area of village Chhichhrana in a Kotha of tube well, removed her salwar and committed rape one after the other. She was forcibly administered liquor. After sometime the lady got down from the van and three more persons boarded the van and all the accused persons took her in the area of village Chhichhrana in a Kotha of tube well, removed her salwar and committed rape one after the other. She was forcibly administered liquor. In the morning she was taken by Jai Singh and Mukesh towards Delhi. She heard the accused saying that a black flag be hoisted on the Maruti van and they should go direct to Delhi. But instead of going to Delhi they went to village Ghelod, stopped the van, locked it and thereafter both the accused went inside the village. She regained her consciousness, raised noise along with her both the sons which attracted the residents of the village. They broke open the window panes and took her out along with the children and then made her to sit at the house of Ganga Dutt whose brother is married to a lady namely Bohti of village Bichhpari. In the meantime, both the accused came. They objected as to why the residents of the village Ghelod had taken the complainant out of the van. But the villagers overpowered them and made them to sit in the Chaupal with the help of the Sarpanch. Ganga Dutt was sent to village Bichhpari who came with Ram Chander uncle of the prosecutrix. Ram Chander met Nirmala and came to know about the entire happening and went to inform the police which met him at the bus stand of village Ghelod. An application Ex.PL was handed over to the police on which an endorsement was made and the same was sent to the police station for registration of the case. Thereupon the police went to village Ghelod and found the accused Jai Singh and Mukesh present there. Nirmala prosecutrix was also found in the house of Ganga Dutt. She was dispatched with her uncle and police officials for medical examination and both the accused persons were also sent for medical examination. The prosecutrix was medico-legally examined by Dr. Mrs. Ranjana Gupta and the accused were similarly examined by Dr. C.D. Sharma and Dr. S.S. Malik. The police inspected the place of abduction at Baroda Mar and then went to village Chhichhrana, the place of occurrence. Site plan was prepared and the van was taken into possession. The prosecutrix was medico-legally examined by Dr. Mrs. Ranjana Gupta and the accused were similarly examined by Dr. C.D. Sharma and Dr. S.S. Malik. The police inspected the place of abduction at Baroda Mar and then went to village Chhichhrana, the place of occurrence. Site plan was prepared and the van was taken into possession. The remaining accused, namely Ranbir, Randhir and Rajbir were also taken into custody. Clothes of the prosecutrix and the accused were separately sent to the Director, Forensic Science Laboratory, Madhuban. After completing the investigation all the accused were challaned. 4. The case was thereafter committed to the Court of learned Sessions Judge, Sonepat. 5. Finding a prima facie case against Jai Singh and Mukesh under Sections 366 and 376 of the Code they were charged accordingly. The remaining three accused including the two aforesaid were also charged for committing an offence under Section 376(g) of the Code. 6. The prosecution in order to bring home the guilt of the accused persons examined various witnesses including the doctors who had examined the prosecutrix and the accused as also the report of the FSL besides examining other official witnesses in support of its case. 7. The accused in their statements under Section 313 of the Code of Criminal Procedure took the plea of false implication on account of political animosity and pleaded their innocence. They, however, did not produce any evidence. 8. The trial court after appraisal of the evidence before it accepted the plea of the prosecution and accordingly convicted the appellants and sentenced them to undergo rigorous imprisonment for 10 years under Section 376(g) and to pay a fine of Rs. 2,000/- each. In default of payment of fine they were directed to undergo rigorous imprisonment fora period of one year each. The appellants were also sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 500/- each after having been convicted under Section 366 of the Code. 9. The appellants are aggrieved by the aforesaid judgment and have assailed the same. 10. Mr. J.S. Bedi, learned counsel for the appellants pointed out the glaring discrepancies in the case of the prosecution. It was contended that the prosecution has miserably failed to establish its case as right from the beginning the case was built upon on false allegations. 9. The appellants are aggrieved by the aforesaid judgment and have assailed the same. 10. Mr. J.S. Bedi, learned counsel for the appellants pointed out the glaring discrepancies in the case of the prosecution. It was contended that the prosecution has miserably failed to establish its case as right from the beginning the case was built upon on false allegations. It was contended that in the initial report to the police the complainant had stated that there was a lady in the van who had persuaded her to board the same and she was the one who had ultimately made her to smell some substance as a result of which she had become unconscious. No such lady was examined. Besides, even though it is the categoric case that it was a van in which she was abducted, yet in the evidence it was a Maruti car which was recovered from village Ghelod. Thirdly, throughout the case of the prosecution is that she was accompanied by her two children and on the fateful night when she was subjected to rape she was taken to the roof of the Kotha and even at that time it has been stated by the prosecutrix that she was accompanied by her children. Besides, the fact that it was unlikely that such an offence would be committed in the presence of children. It was also pleaded with reference to the statements of the witnesses that there was no staircase making it impossible to go to the rooftop, which totally belies the version of the complainant. 11. On the other hand, learned counsel for the State contended that it was a case of brutal assault upon the lady who had been subjected to gang rape and therefore no leniency can be shown to the appellants. Besides, the discrepancies were sought to be explained away by saying that they are minor in nature and do not affect the case of the prosecution. 12. I have heard the learned counsel for the parties and have gone through the records. PW8 Nirmala wife of Surta being the complainant had given an elaborate account of the occurrence. She had stated that she was persuaded to board the van by a lady who had made her to smell something which made her unconscious and thereupon two persons, namely, Jai Singh and Mukesh had subjected her to rape. PW8 Nirmala wife of Surta being the complainant had given an elaborate account of the occurrence. She had stated that she was persuaded to board the van by a lady who had made her to smell something which made her unconscious and thereupon two persons, namely, Jai Singh and Mukesh had subjected her to rape. She was taken somewhere thereafter in a semiconscious state. During the night she was taken to the roof top and again subjected to rape by three persons after making her to drink liquor forcibly and at that point of time also the complainant has stated that she was accompanied by her two children. If the version of the complainant is to be believed then she was allegedly picked up by the occupants of the van at about 4.00 p.m. in the evening and confined to a room the whole night and during this interregnum she was subjected to repeated rape by as many as 7/8 persons. She was recovered at 8.00 a.m. and the FIR was lodged at 3.50 p.m. and was medico-legally examined soon thereafter. The medical evidence of Dr. Ranjana Gupta is revealing. She stated as follows : "..... No mark of injury was seen on the genitalia and rest of the body except on the back were (1) three small abrasions of the sizes 0.4 cm x 0.2 cm, .2 x .2 cm and .3 x .3 cm present over the back of the trunk in its middle first being on its left side and others on the right side respectively. Scabs were present. (2) Reddish contusion of 2.1 cm x 1.9 cm over spine of L.2 vertebrae. (3) Reddish contusion of 1.8 cm x 1.5 cm situated over spine of L.3 vertebrae.......... No injury seen in the vagina." It is apparent that the complainant was not having any injury on her body except injuries No. 2 and 3. Injury No. 1 was obviously an old injury as scabs were found present. The opinion formulated is as below : "Nirmala prosecutrix is the same who was medically examined by us. No injury seen in the vagina." It is apparent that the complainant was not having any injury on her body except injuries No. 2 and 3. Injury No. 1 was obviously an old injury as scabs were found present. The opinion formulated is as below : "Nirmala prosecutrix is the same who was medically examined by us. I have gone through the report of FSL and of the view that sexual intercourse with Nirmala had taken place but it is not necessarily rape." Further in the cross-examination the doctor had submitted that since the semen was detected on the salwar, hence the possibility of sexual intercourse more than two to three days prior to the examination cannot be ruled out if the prosecutrix had been wearing the same salwar and it had been kept intact. It was also opined that the spermatozoa remains in the vagina after sexual intercourse for a period of 30 minutes up to a period of 9 days. The aforesaid medical opinion clearly casts a doubt as to whether the prosecutrix was subjected to rape by 7/8 men within a span of 16 hours out of which the probable duration after excluding the time for transit when she was being moved to and fro would have been roughly around 12 hours. 13 Besides, the prosecutrix has categorically stated that she was accompanied by her two children when she was taken to the roof top. The site plan prepared by the patwari shows that the height of the roof was about 8 ft. There is no evidence to suggest that there was a staircase which could have been used for going to the kotha. The prosecutrix has also alleged that the two children were with her at that point of time which makes the case doubtful as it is unlikely that the offence of such a nature would be committed in the presence of the children and even if possibility is accepted yet neither the children were examined nor is there anything to suggest that they were too small either to comprehend the situation or to testify. 14. Not only this, the prosecution story also suffers from the inherent flaw in its narration as right from the beginning the case of the prosecutrix is that she was persuaded to board the van by a lady who made her to smell something. 14. Not only this, the prosecution story also suffers from the inherent flaw in its narration as right from the beginning the case of the prosecutrix is that she was persuaded to board the van by a lady who made her to smell something. No such lady was arrayed as an accused by the police nor produced in support of its case which leaves a gaping hole in the case of the prosecution, as this lady acquired the status of a chief conspirator. 15. Another factor which belies the case of the prosecution is the absence of any evidence to show the consumption of liquor by the prosecutrix. It was her case that during the night she was forced to drink liquor which made her semiconscious and intoxicated. It was imperative for the prosecution to establish by way of medical evidence the presence of liquor. 16. In view of the above, there is a serious doubt cast on the version of the prosecution and it cannot be said that the case against the appellants has been established beyond any pale of doubt. 17. For the reasons recorded above, the present appeals are allowed and the judgment and order of the learned Addl. Sessions Judge awarding conviction to the appellants and the consequent sentence is accordingly set aside.