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2008 DIGILAW 756 (PNJ)

Birender v. State of Haryana

2008-03-25

JAGDISH SINGH KHEHAR, SHAM SUNDER

body2008
JUDGMENT J.S. Khehar, J.:-The instant appeal has been filed by the accused/appellants Birender and Dharambir against the order passed by the Additional Sessions Judge, Rewari, in Sessions Case No.39 of 2002, decided on 24.9.2004. All the three accused Birender, Dharambir and Badri Bahadur were held guilty of having committed rape on the prosecutrix Sunita, and as such, guilty of the offence under Section 376 read with Section 34 of the Indian Penal Code. In the conclusion drawn by the trial Court, it was held, that the accused/appellant Birender was the only one, who committed the actual rape, whereas, the other two accused Dharambir and Badri Bahadur had facilitated the commission of the rape. By a separate order passed on the following date i.e. on 25.9.2004, the Additional Sessions Judge, Rewari sentenced the accused/appellant Birender to undergo rigorous imprisonment for twelve years and to pay a fine of Rs.2,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. For the offence under Section 323 of the Indian Penal Code, the accused/appellant Birender was sentenced to undergo rigorous imprisonment for six months. In so far as the accused/appellant Dharambir is concerned, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for nine months. Additionally, he was sentenced to undergo rigorous imprisonment for six months for the offence under Section 323 of the Indian Penal Code. Likewise, Badri Bahadur was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for nine months. It was directed that all the substantive sentences awarded to the accused would run concurrently. 2. The determination of the Additional Sessions Judge, Rewari, noticed in the foregoing paragraph was subject to challenge in Criminal Appeal No.838-DB of 2004. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for nine months. It was directed that all the substantive sentences awarded to the accused would run concurrently. 2. The determination of the Additional Sessions Judge, Rewari, noticed in the foregoing paragraph was subject to challenge in Criminal Appeal No.838-DB of 2004. The aforesaid appeal was disposed of by a Division Bench of this Court vide order dated 23.11.2005 with, inter-alia, the following observations:- “...In the present case after having found the appellants guilty under Section 376(2) (g), IPC, the Court after deciding that a sentence of 10 years was inadequate had no option but to punish the appellants with sentence of life imprisonment. This position, which has been settled by a Division Bench of this Court in Satbir’s case (supra) had not been followed. Similarly, the Court had not imposed any sentence qua the offence under Section 323 read with Section 34 IPC in the case of Badri Bahadur. On both these counts, the judgement of the trial Court in the present case in relation to the sentence alone should be set aside and the case remanded back to the trial Court for a fresh decision. In view of the above, the sentence imposed by the Court below in the present case cannot be upheld and we, accordingly, set aside the judgement in relation to the sentence alone and remand the case back to the trial Court which will after giving the appellants another opportunity of hearing on the question of sentence pass a fresh order in accordance with law. The entire process would be completed within one month from the date of receipt of a certified copy of this order. In case the appellants are dissatisfied with the sentence, it would be open to them to challenge the conviction and sentence by filing a fresh appeal.” 3. In view of the aforesaid directions issued by this Court on 23.11.2005, while disposing of Criminal Appeal No.838-DB of 2004, the accused/appellant Birender and Dharambir were heard on the question of sentence afresh. Whereupon, by an order dated 1.4.2006, the accused/appellant Birender was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, for having committed the offence under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. Whereupon, by an order dated 1.4.2006, the accused/appellant Birender was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, for having committed the offence under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. For the offence under Section 323 read with Section 34 of the Indian Penal Code, the accused/appellant Birender was sentenced to imprisonment for a period of six months and to pay a fine of Rs.500/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month. In so far as the accused/appellant Dharambir is concerned, he was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year. Likewise, for the offence under Section 323 read with Section 34 of the Indian Penal Code, the accused/appellant Dharambir was sentenced to imprisonment for six months and to pay a fine of Rs.500/-. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for a period of one month. 4. The judgement rendered by the Additional Sessions Judge, Rewari dated 24.9.2004 and the sentence awarded to the accused/appellant Birender and Dharambir vide order dated 1.4.2006 are subject matter of challenge at the hands of the accused/appellants through the instant appeal. 5. The prosecution version of the incident is based on three complaints. The first complaint was made by Rai Singh PW3 on 12.9.2001 to the Sarpanch, Gram Panchayat, Tumna. The second complaint was made by the prosecutrix Sunita PW1 to Head Constable Karam Singh at Police Station, Kosli on 12.9.2001. The last of the three complaints was made by Rai Singh PW3 and his wife Rajbala PW2 to the District Manager, Integrated Women’s Empowerment and Development Project, Rewari (hereinafter referred to as the IWEDP, Rewari) dated 19.9.2001. The details and the particulars of the aforesaid three complaints are being narrated sequentially in the following three paragraphs. 6. On 12.9.2001, Rai Singh PW3 made a complaint to the Sarpanch, Gram Panchayat, Tumna, disclosing that he has been residing in his farm at village Tumna, close to the boundary of the adjoining village Badoli, for the last 25 years. The details and the particulars of the aforesaid three complaints are being narrated sequentially in the following three paragraphs. 6. On 12.9.2001, Rai Singh PW3 made a complaint to the Sarpanch, Gram Panchayat, Tumna, disclosing that he has been residing in his farm at village Tumna, close to the boundary of the adjoining village Badoli, for the last 25 years. He also stated that while going to village Tumna from his house, he has to pass the poultry farm of the accused/appellant Birender. In his complaint dated 12.9.2001, Rai Singh PW3 asserted that his daughter Sunita was a student of class10+2 and used to leave for school in the morning at 8.00 AM. She used to pass in front of the poultry farm of the accused/appellant Birender to go to school. One day, when she was going to school, the accused/appellant Birender started urinating in her presence. Sunita protested to the accused/appellant Birender. Whereupon, the accused/appellant Birender replied that he would continue to do the same. On her way back from school at 12.00 Noon while Sunita was passing the poultry farm of the accused/appellant Birender, one of his servants threw dirty water at her. The complainant Rai Singh PW3 in his complaint has alleged that the servant had done so earlier as well on different occasions. Since the servant had repeated the same thing for the fifth time, the complainant Rai Singh PW3 had made a complaint to Shish Ram i.e. the father of the accused/appellant Birender. It is alleged that Shish Ram responded to the complainant Rai Singh PW3 by suggesting that he should give a beating to the concerned servant. On which, the complainant Rai Singh PW3 responded that the said servant was an employee of Shish Ram and that he (Rai Singh PW3) could not give a beating to him. In his complaint dated 12.9.2001 made to the Sarpanch, Gram Panchayat, Tumna, complainant Rai Singh PW3 also recited another incident to the effect that a servants of the accused/appellant Birender had kicked his son Vinod, when he was on his way to the village to purchase some house hold items. The aforesaid incident was allegedly brought to the notice of the accused/appellant Birender. It is, however, pointed out that the accused/appellant Birender did not take any action in the matter against his servant. The aforesaid incident was allegedly brought to the notice of the accused/appellant Birender. It is, however, pointed out that the accused/appellant Birender did not take any action in the matter against his servant. In his complaint, complainant Rai Singh PW3 alleged that in his opinion the servants of the accused/appellant Birender were acting at the instance of their employer. He, therefore, sought protection from the panchayat so that such kind of behaviour is not repeated in the future. 7. On 12.9.2001 i.e. on the same day, when the first complaint (referred to in the foregoing paragraph was made by Rai Singh PW3 to the Sarpanch, Gram Panchayat, Tumna) the prosecutrix Sunita PW1 alongwith her father Rai Singh PW3 went to Police Station, Kosli at 10.20 PM. At the police station, the prosecutrix Sunita PW1 made a statement to Head Constable Karam Singh, disclosing that she was aged 17 years and was studying in class 10+2 at the Girls School at Kosli. She also stated that she has been residing in a house in the fields in village Tumna alongwith her family. She further stated that before coming to the police station, her father had gone to the village sarpanch in connection with the same matter. In her statement, she asserted that she (the prosecutrix Sunita PW1) alongwith her sisters Mukesh and Sarita had gone to the village to call their father. Since they could not find their father in the village, they were returning to their house. When the three sisters reached the passage in front of the farm of the accused/appellant Birender, at about 8.45 PM, the accused/appellant Birender and Dharambir were consuming the liquor at the poultry farm. The accused/appellant Birender hurled filthy abuses at the three sisters. When the prosecutrix Sunita PW1 protested, he took up a “dantali” and ran towards them. The accused/appellant Dharambir also followed the accused/appellant Birender. The accused/appellant Dharambir then caught hold of the prosecutrix Sunita PW1 and the accused/appellant Birender gave her a blow with the “dantali”, which the prosecutrix Sunita PW1 allegedly warded of with both her hands. The accused/appellant Birender then gave the prosecutrix Sunita PW1, fist blows on her chest and also bit the thumb of her right hand. The accused/appellant Dharambir then caught hold of the prosecutrix Sunita PW1 and the accused/appellant Birender gave her a blow with the “dantali”, which the prosecutrix Sunita PW1 allegedly warded of with both her hands. The accused/appellant Birender then gave the prosecutrix Sunita PW1, fist blows on her chest and also bit the thumb of her right hand. Thereafter, the accused/appellant Birender’s two servants also came to the spot and started slapping and giving fist blows to her (the prosecutrix Sunita PW1), and to her two sisters Mukesh and Sarita. The accused/appellant Birender then told his companions to take all the sisters to a room, at which point, the complainant claims to have raised an alarm, whereafter her mother Rajbala PW2 came to the spot and rescued the three sisters. The prosecutrix Sunita PW1 also stated that during the aforesaid episode, her “jumper” was torn from the shoulder. She requested that action be taken against the culprits. After the aforesaid statement of the prosecutrix Sunita PW1, a Daily Diary Report bearing No.23 was registered at Police Station, Kosli. Head Constable Jawahar Singh made a note to the effect that he had noticed a wound on the right thumb of the prosecutrix Sunita PW1, as also, swelling in the middle of her forehead. He also made a note that the prosecutrix Sunita PW1 was complaining of pain in the chest. Head Constable Jawahar Singh, accordingly, deputed Constable Vijay Singh to take Sunita to the Primary Health Centre, Kosli for medico-legal examination. The medico-legal examination of the prosecutrix Sunita PW1 revealed three injuries on her person. The Medical Officer at the Primary Health Centre, Kosli, who had conducted the medico-legal examination, advised x-ray of two of the three injuries. Accordingly, x-rays were taken of the specified two injuries on 14.9.2001. No bony injury was found. Thereafter, the accused/appellants Birender and Dharambir and their Nepali servant, were challaned under Sections 107 and 151 of the Criminal Procedure Code, before the Sub Divisional Magistrate, Kosli. 8. The third complaint was made by Rai Singh PW3 and his wife Rajbala PW2, to the District Manager, IWEDP, Rewari on 19.9.2001 stating that on the evening of 12.9.2001, their daughter Sunita, aged 17 years, had gone to find the complainant Rai Singh PW3. 8. The third complaint was made by Rai Singh PW3 and his wife Rajbala PW2, to the District Manager, IWEDP, Rewari on 19.9.2001 stating that on the evening of 12.9.2001, their daughter Sunita, aged 17 years, had gone to find the complainant Rai Singh PW3. On her way, when she was near the poultry farm of the accused/appellant Birender, the accused/appellants Birender and Dharambir alongwith their Nepali servant forcibly put their daughter Sunita in a vehicle and took her into the poultry farm. Since she was protesting, she was beaten mercilessly. Thereafter, rape was committed on the prosecutrix Sunita PW1. The prosecutrix Sunita PW1 was brought to the road by women folk of the village. At about 10.30 AM, Sunita was taken to Police Station, Kosli, and from there, to the Primary Health Centre, Kosli, but the prosecutrix Sunita PW1 was not attended to at the Primary Health Centre, Kosli. Instead, it was advised that she be taken to the hospital at Rewari. The doctors at Rewari examined the prosecutrix Sunita PW1 and advised that she was all right and that she should go back home. The complainant Rai Singh PW3 then brought her home. Since the prosecutrix Sunita PW1 was unconscious, she was again taken to the hospital at Rewari by her father Rai Singh PW3 on the following day i.e. on 13.9.2001, where she was admitted for treatment. It is alleged that she was treated till 15.9.2001. It is alleged that on 15.9.2001, she was discharged in an unconscious state. After her discharge, the prosecutrix Sunita PW1 was brought back home. It was alleged by the complainants in their complaint dated 19.9.2001 that the prosecutrix Sunita PW1 was in a state of shock as she was still unable to speak and had also not eaten anything. It was alleged that she be provided proper medical treatment, and that, a First Information Report be got registered so that the culprits can be punished. The aforesaid complaint was referred to by the IWEDP, Rewari to the District Administration. The complaint dated 19.9.2001 was marked by the Superintendent of Police to the Station House Officer, Police Station Model Town, Rewari for getting the prosecutrix Sunita PW1 medico-legally examined. The prosecutrix Sunita PW1 was, accordingly, medico-legally examined by a board of doctors at the General Hospital, Rewari. The complaint dated 19.9.2001 was marked by the Superintendent of Police to the Station House Officer, Police Station Model Town, Rewari for getting the prosecutrix Sunita PW1 medico-legally examined. The prosecutrix Sunita PW1 was, accordingly, medico-legally examined by a board of doctors at the General Hospital, Rewari. The board of doctors in their report opined that the possibility of sexual intercourse with the prosecutrix Sunita PW1 could not be ruled out. On the receipt of the aforesaid medico-legal report, a First Information Report bearing No.119 was registered at Police Station, Kosli on 19.9.2001 at 6.15 PM. 9. The accused Badri Bahadur was arrested on 25.10.2001 and the accused/appellants Birender and Dharambir were arrested on 21.11.2001. After completing the investigation and other police formalities, a challan was presented in the Court of the Judicial Magistrate Ist Class, Rewari on 5.12.2001. The Judicial Magistrate Ist Class, Rewari by his order dated 2.1.2002, arrived at the conclusion that a prima-facie case under Sections 323 and 376 read with Section 34 of the Indian Penal Code was made out against all the accused. Since the offence under Section 376 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Rewari by an order dated 2.1.2002 committed the case for trial to the Court of Session. 10. By an order dated 13.2.2002, the Additional Sessions Judge, Rewari charged the three accused Birender, Badri Bahadur and Dharambir for having committed the offence under Section 323 read with Section 34 of the Indian Penal Code for voluntarily causing simple injuries to the prosecutrix Sunita PW1. Additionally, all the accused were also charged with the offence punishable under Section 376 (2)(g) of the Indian Penal Code for committing gang rape on the prosecutrix Sunita PW1, 11. The accused were confronted with the charges levelled against them. They pleaded not guilty and claimed trial. 12. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution before the trial Court, is being summarised hereinafter. The statement of the prosecutrix Sunita was recorded, first of all, as PW1. During the course of her examination-in-chief, she asserted that at about 8.45 PM on 12.9.2001, she alongwith her younger sister Mukesh, was going to their house from the village side. The statement of the prosecutrix Sunita was recorded, first of all, as PW1. During the course of her examination-in-chief, she asserted that at about 8.45 PM on 12.9.2001, she alongwith her younger sister Mukesh, was going to their house from the village side. When they reached the poultry farm of the accused/appellant Birender, they saw that the accused/appellants Birender and Dharambir, alongwith two other persons, were sitting in front of the poultry farm. Out of the four persons, she asserted that three were present in Court. She also asserted that one of the servants, who was present on the date of occurrence, was not present in Court. She further alleged that all the four accused caught her and took her inside the poultry farm of the accused/appellant Birender. She asserted that the accused/appellant Dharambir had caught hold of one of her hands, while one servant had caught hold of her other hand. The second servant had tied her mouth with a “chuni”. Thereupon, the accused/appellant Birender had committed rape on her. On seeing the occurrence, her sister Mukesh ran away from the spot. She asserted in her cross-examination that she had not made a statement to the police. She also asserted that her medico-legal examination was conducted after the occurrence. She denied having stated to the police that the accused/appellant Birender had tried to give her a blow with the “dantali” which she had warded of with her hands. She, however, acknowledged during the course of her cross-examination, that the accused/appellant Birender had given a fist blow on her chest and that he had bitten the thumb of her right hand. She also confirmed that the two servants of the accused/appellant Birender, had given fist and slap blows to both her sisters. She also asserted that when she raised an alarm, she was rescued by her mother Rajbala PW2. She further asserted that her shirt was also torn from the shoulder. She also confirmed that the accused/appellants Birender and Dharambir were taking liquor while sitting in front of the poultry farm. During the course of her cross-examination, she asserted that she had remained under shock after the occurrence till 21.9.2001. In this behalf, she asserted that she was not aware where she was taken and by whom, during the aforesaid period (from 12.9.2001 to 21.9.2001). During the course of her cross-examination, she asserted that she had remained under shock after the occurrence till 21.9.2001. In this behalf, she asserted that she was not aware where she was taken and by whom, during the aforesaid period (from 12.9.2001 to 21.9.2001). She asserted that she had remained at the Civil Hospital, Rewari upto 21.9.2001, and that, she was examined by doctors on 21, 22 and 23.9.2001. In the cross-examination, she also asserted that the accused/appellant Birender had committed rape in front of the main gate of the poultry farm of the accused/appellant Birender. She stated that she had remained in the poultry farm of the accused/appellant Birender for about 2/3 minutes. She stated that she had fallen unconscious inside the poultry farm of the accused/appellant Birender. She denied the suggestion that all the villagers including women folk, had told the Investigating Officer, as well as, the superior officers of the police that it was a case of casual “mar-peat” (beating), and that, no rape had been committed on the prosecutrix Sunita PW1. The statement of Rajbala i.e. the mother of the prosecutrix Sunita PW1, was recorded as PW2. She claimed to be returning from the village, soon after the departure of her daughter Sunita PW1. She reiterated the factual position narrated by the prosecutrix Sunita PW1. She also stated that she had rescued her daughter by throwing sand on the accused persons, and that, all the four accused persons had run away. She further stated that on hearing the noise of the occurrence, villagers were attracted to the place of occurrence. She asserted that she had taken the prosecutrix Sunita PW1 to the village road with the help of her daughter Mukesh, where she laid Sunita on the cot. After 5/7 minutes, her husband Rai Singh PW3 had reached the place of occurrence. When the accused persons were running away from the spot in a car, they were stopped by the villagers and the tyres of their vehicle were deflated. The statement of Rai Singh, father of the prosecutrix Sunita PW1, was recorded as PW3. He reiterated the facts narrated by his wife Rajbala when she appeared before the Court as PW2. He stated in his examination-in-chief that he narrated the whole story to the police, but had concealed the factum of rape as the honour of his family was at stake. He reiterated the facts narrated by his wife Rajbala when she appeared before the Court as PW2. He stated in his examination-in-chief that he narrated the whole story to the police, but had concealed the factum of rape as the honour of his family was at stake. He also stated that when Sunita was taken to the Primary Health Centre, Kosli, as there was no lady medical officer present, the prosecutrix Sunita PW1 was referred to Civil Hospital, Rewari. He also asserted that on 17.9.2001, the incharge of “Sanjivani” came to the hospital and took him to the office of the Deputy Commissioner. He stated that he had made a complaint to the incharge of “Sanjivani” Ex.PA and that the same bears his signatures. Dr. Chitranjan, Medical Officer, Primary Health Centre, Kosli appeared before the trial Court as PW4. He stated that on 2.11.2001, he had conducted the medico-legal examination of the accused/appellant Birender. On the basis of the medico-legal examination conducted by him, he opined that there was nothing to suggest that the accused/appellant Birender was not capable of performing sexual intercourse. The statement of Dr. Sharda Debas, Medical Officer, General Hospital, Rewari was recorded as PW5. She stated that consequent upon a request made by the police on 17.9.2001, a board of doctors, was constituted by the Civil Surgeon, Rewari, whereupon Dr. Sharda Debas PW5 alongwith Dr. Saroj Mann PW8 and Dr. Vipula Garg, had conducted the medico-legal examination of the prosecutrix Sunita PW1. On external examination, no injury was found on her face, breasts, abdomen, thighs, buttocks and back. However, on the examination of her genital, she deposed as under:- “.....On local examination labia majora healthy, raw are about 2cm x 2cm on both side in between labia minora and majora. No laceration or tear. Hymen was ruptured freshly. Laceration seen of .5 x .5 at 8 O’ clock position in the inferior aspect of hymen. Slight ooze (blood) seen at the sites, dark coloured bleeding was seen coming out per vagina. PS examination:- all fornices were healthy. Cervix was healthy. Altered blood seen coming through internalos (menstrual). Swabs taken & slides & test tubes were prepared. PV examination:- cervix backwards uterus anterverted, nulliperous size, vaginal orifice admits two fingers with slight difficult...” 13. Slight ooze (blood) seen at the sites, dark coloured bleeding was seen coming out per vagina. PS examination:- all fornices were healthy. Cervix was healthy. Altered blood seen coming through internalos (menstrual). Swabs taken & slides & test tubes were prepared. PV examination:- cervix backwards uterus anterverted, nulliperous size, vaginal orifice admits two fingers with slight difficult...” 13. During the course of her cross-examination, she inter-alia asserted as under:- “It is correct that if an area is described as raw and shown as fresh the maximum possibility of same within 24 hours of the injury. It is correct that the raw area as mentioned in the MLR Ex.PE can be caused by the poor hygiene and scratching of the same by the prosecutrix. Raw area can be created by friendly hand. Hymen ruptured can be caused by cycling, jumping and doing other works. Sunita was conscious throughout her examination. It is correct that as per patent had experienced sexual intercourse more than once as two fingers passed slight difficult. It is incorrect to suggest that I alongwith board members have given opinion without basis and the opinion of the board is wrong.” 14. The statement of Dr. Ashok Kumar, Medical Officer, General Hospital, Rewari was recorded as PW6. He asserted that he radiologically examined the prosecutrix Sunita PW1 on 24.9.2001. He tendered into evidence his report Ex.PF and the x-ray films Ex.P5 to Ex.P9. The statement of Dr. Chander Shekhar, Medical Officer, General Hospital, Rewari was recorded as PW7. He stated that he had medico-legally examined the prosecutrix Sunita PW1 on 13.9.2001. He also stated that the prosecutrix Sunita PW1 had been presented for examination at the request of the police with the history of assault at about 8.45 PM on 12.9.2001. On her medico-legal examination, Dr. Chander Shekhar PW7 found the following three injuries on the person of the prosecutrix Sunita PW1:- “There was diffuse swelling on the middle of forehead. Slight and tenderness were present. X-ray was advised. Patient was complaining of pain on both side of the chest in upper part. No visible injury was seen. Tenderness was present. X-ray was advised. There was semi-circular lacerated wound of size 1.5 x .5 cm over right thumb. Slight fresh bleeding was present. Movement was free.” 15. In the opinion of Dr. Chander Shekhar PW7, he referred injuries No.1 and 2 for x-ray examination. No visible injury was seen. Tenderness was present. X-ray was advised. There was semi-circular lacerated wound of size 1.5 x .5 cm over right thumb. Slight fresh bleeding was present. Movement was free.” 15. In the opinion of Dr. Chander Shekhar PW7, he referred injuries No.1 and 2 for x-ray examination. In so far as injury No.3 is concerned, the same was described as simple. The statement of Dr. Saroj Maan was recorded as PW8. She stated that on an application made by the police, she alongwith Dr. Sharda Debas PW5 and Dr. Vipula Garg, had examined the prosecutrix Sunita PW1, wherein it was opined that the duration of the injuries to the hymen could have been, from 1 to 5/6 days. The prosecution then produced ASI Jag Ram as PW9. His statement is formal in nature. ASI Jag Ram PW9 asserted that on the receipt of ruqa Ex.PA, he had recorded the formal FIR Ex.PI in this case. The prosecution then produced Suresh Kumar Patwari as PW10. He had prepared the scaled site plan of the place of occurrence Ex.PJ. He further stated that he prepared the site plan Ex.PJ at the instance of the Investigating Officer. The statement of Head Constable Lal Chand was recorded as PW11. He asserted that he had taken into possession vide recovery memo Ex.PK, certain sealed parcels presented by SI Hari Kishan PW15. The statement of Constable Ram Chander was recorded as PW12. He asserted that he had taken two sealed parcels, which were given to him by SI Hari Kishan PW15 and had handed over the same to the doctor. Head Constable Bhoj Raj appeared on behalf of the prosecution as PW13. He tendered into evidence his affidavit Ex.PM. A perusal of his affidavit reveals that on 24.9.2001, one parcel containing underwear, salwar, kameej and bra, which was duly sealed, two slides, two test tubes etc. were deposited by him in the Malkhana. He also asserted that he had handed over a parcel to Head Constable Mahadev Parshad PW16 for depositing the same at the Forensic Science Laboratory, Madhuban. He also asserted that after the parcels were deposited with the Forensic Science Laboratory, Madhuban, receipts thereof were handed over to him. The statement of Constable Lal Chand was recorded as PW14. He tendered into evidence his affidavit Ex.PN. He also asserted that after the parcels were deposited with the Forensic Science Laboratory, Madhuban, receipts thereof were handed over to him. The statement of Constable Lal Chand was recorded as PW14. He tendered into evidence his affidavit Ex.PN. He affirmed that he had taken the parcels handed over to him by Head Constable Bhoj Raj PW13, to the Forensic Science Laboratory, Madhuban, intact, and had, deposited the receipt thereof on his return, to Head Constable Bhoj Raj PW13. The prosecution then produced the Investigating Officer SI Hari Kishan as PW15. He stated that he had taken over the investigation of the case from ASI Jag Ram PW9, on 20.9.2001. He stated that he visited the place of the occurrence and had prepared the rough site plan thereof Ex.PO alongwith its marginal notes. He also stated that he had recorded the statements of Rajbala PW2 and Mukesh Kumari on 20.9.2001. He further stated that he recorded the statement of the prosecutrix Sunita PW1 under Section 161 of the Criminal Procedure Code. He also stated that he moved an application Ex.PH for obtaining an opinion regarding the duration of injuries, on which the concerned Medical Officer had given the opinion Ex.PH/1 on 27.9.2001, to the effect that the duration of the injuries could have been between 1 to 5/6 days. He stated that he had arrested the accused Badri Bahadur on 25.10.2001, and the other two accused Birender and Dharambir on 2.11.2001. He stated that he had got prepared the scaled site plan from Suresh Kumar Patwari PW10, and had also recorded the statement of other witnesses. After completion of the investigation, he asserted that he had prepared the report under Section 173 of the Criminal Procedure Code. He also stated that he had moved an application Ex.PQ for obtaining the date of birth of the prosecutrix Sunita PW1, whereupon the principal of the school gave her date of birth as 2.7.1983. The statement of Mahadev was recorded as PW16. He stated that he had been handed over the task of taking the special report to the Ilaqa Magistrate, and that, he had actually delivered the same to the Ilaqa Magistrate on 19.9.2001 at 9.00 PM. The statement of Sabha Chand was recorded as PW17. He confirmed that he had moved an application for getting the prosecutrix Sunita PW1 medico-legally examined at the General Hospital, Rewari. The statement of Sabha Chand was recorded as PW17. He confirmed that he had moved an application for getting the prosecutrix Sunita PW1 medico-legally examined at the General Hospital, Rewari. After recording the statement of Sabha Chand PW17, the prosecution evidence was closed by order. 16. The statements of the accused/appellants Birender and Dharambir were then recorded by the trial Court under Section 313 of the Code of Criminal Procedure. The accused/appellant Birender when confronted with the incriminating evidence appearing on the record of the case, denied the same stating that he was innocent and had been falsely implicated in the case. In his defence, he inter-alia, asserted as under:- “I am the victim of a framed up and cooked story. No such incident as alleged took place. I am residing with my family members in my poultry farm house and I had employed servants to look after the poultry farm house. The servants had thrown water in the passage inadvertently and that daughter of the complainant had fallen down and I made my servant to understand not to repeat such act in future but the complainant was not satisfied and because of that there was a casual marpeet on that day i.e. 12.9.2001. I was arrested in that regard u/s 107/151 Cr.P.C. Sunita alongwith her father got recorded rapat No.23 dated 12.9.2001 at PS Kosli and got medico-legally examined through police and no such allegation of alleged rape were mentioned therein but after a lapse of seven days the complainant and prosecutrix framed up this false story to malign my reputation and to take a revenge and with an ulterior motive. The then DSP, Kosli and the other police officials had verified the complaint of the complainant from the neighbours, villagers and the eye witnesses including male and female of whole the village and found that no such incident of rape had occurred and found the allegations as false.” 17. When the accused/appellant Dharambir was confronted with the incriminating evidence appearing on the record of the case, he denied the same. He also stated that he was innocent and had been falsely implicated in the case. 18. The accused/appellants Birender and Dharambir did not lead any evidence in their defence, despite the fact that they were afforded an opportunity to do so. 19. The Additional Sessions Judge, Rewari, delivered the judgement in Sessions Case No.39 of 2002, on 24.9.2004. He also stated that he was innocent and had been falsely implicated in the case. 18. The accused/appellants Birender and Dharambir did not lead any evidence in their defence, despite the fact that they were afforded an opportunity to do so. 19. The Additional Sessions Judge, Rewari, delivered the judgement in Sessions Case No.39 of 2002, on 24.9.2004. All the accused/appellants were held guilty of offence under Section 376 (2)(g) read with Section 34 of the Indian Penal Code. It would, however, be pertinent to mention, that the substantive offence of rape under Section 376 of the Indian Penal Code was stated to have been committed by the accused/appellant Birender. The other two accused were held responsible for facilitating the commission of the aforesaid offence. All the accused were also convicted under Section 323 read with Section 34 of the Indian Penal Code. After the order of sentence originally passed by the trial Court on 25.9.2004 was set aside by this Court vide order dated 23.11.2005 passed in Criminal Appeal No.838-DB of 2004, the accused/appellants Birender and Dharambir were again heard on the question of sentence. Whereupon, by an order dated 1.4.2006, the Additional Sessions Judge, Rewari sentenced both the accused/appellants Birender and Dharambir, to imprisonment for life and to pay a fine of Rs.2,000/- each, under Section 376 (2)(g) of the Indian Penal Code. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for one year. Additionally, both the accused/appellants Birender and Dharambir were sentenced to six months imprisonment and to pay a fine of Rs.500/- each, under Section 323 read with Section 34 of the Indian Penal Code. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of one month. The trial Court also directed both the substantive sentences imposed on the accused/appellants Birender and Dharambir, referred to above, would run concurrently. 20. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Rewari reveal that while convicting the accused/appellants Birender and Dharambir, reliance was placed on ocular evidence, as well as, expert medical evidence. In so far as the ocular evidence was concerned, reliance was placed on the statement made by the prosecutrix Sunita PW1, her mother Rajbala PW2 and her father Rai Singh PW3. In so far as the ocular evidence was concerned, reliance was placed on the statement made by the prosecutrix Sunita PW1, her mother Rajbala PW2 and her father Rai Singh PW3. In so far as medical evidence is concerned, reliance was placed on the statements of Dr. Sharda Debas PW5, Dr. Ashok Kumar PW6, Dr. Chander Shekhar PW7 and Dr. Saroj Mann PW8. On the basis of the ocular evidence referred to above, coupled with the expert medical evidence, the trial Court concluded that the prosecution had succeeded in establishing the guilt of the accused/appellants Birender and Dharambir, under Section 376 (2)(g), as well as, under Section 323 of the Indian Penal Code. 21. In order to assail the findings recorded by the trial Court, and in order to establish that the ocular evidence is not creditworthy, learned counsel for the accused/appellants has raised a number of pleas. Each of the pleas raised by the learned counsel for the accused/appellants is being dealt with in the succeeding paragraphs. 22. The first and foremost contention of the learned counsel for the accused/appellants is that the alleged occurrence is stated to have taken place on 12.9.2001. Reference has been made to the complaint made by Rai Singh PW3 on 12.9.2001 to the Sarpanch, Gram Panchayat, Tumna so as to assert that no mention has been made therein to the commission of rape at the hands of the accused/appellant Birender on the prosecutrix Sunita PW1. It is further the contention of the learned counsel for the accused/appellants that another complaint was made by the prosecutrix Sunita PW1 on 12.9.2001 to Head Constable Karam Singh at Police Station, Kosli. Herein again, despite the fact that the occurrence in question had taken place on the same date i.e. on 12.9.2001, and that too prior to the time when the aforesaid complaint was made, no mention was made about the fact that the accused/appellant Birender had committed rape on the prosecutrix Sunita PW1. It is also the contention of the learned counsel for the accused/appellants that the medico-legal examination of the prosecutrix Sunita PW1 was conducted by Dr. Chander Shekhar PW7 on 13.9.2001. During the course of the aforesaid medico-legal examination, only three injuries were found on the person of the prosecutrix Sunita PW1, and that, neither any reference was made to the factum of rape committed on the prosecutrix Sunita PW1, to Dr. Chander Shekhar PW7 on 13.9.2001. During the course of the aforesaid medico-legal examination, only three injuries were found on the person of the prosecutrix Sunita PW1, and that, neither any reference was made to the factum of rape committed on the prosecutrix Sunita PW1, to Dr. Chander Shekhar PW7, nor did he record any finding in connection therewith. It is further the contention of the learned counsel for the accused/appellants that neither the prosecutrix Sunita PW1 herself nor her mother (Raj Bala PW2) and father (Rai Singh PW3) made any reference to the fact that the accused/appellant Birender had committed rape on her, till eventually a complaint was made by Rai Singh PW3 and Rajbala PW2 to the District Manager, of the IWEDP, Rewari on 17.9.2001, which was eventually marked to the Investigating Officer requiring him to have the medico-legal examination conducted on the prosecutrix Sunita PW1, so as to ascertain the veracity of her statement made on 17.9.2001, alleging rape at the hands of the accused/appellant Birender, for the first time. On the basis of the cumulative factual position referred to above, it is the vehement contention of the learned counsel for the accused/appellants that if rape had actually been committed on the prosecutrix Sunita PW1 then the matter would not have been hidden from the authorities by her for five long days. It is also the contention of the learned counsel for the accused/appellants that the occurrence under reference came to be reported without any delay by the prosecutrix Sunita PW1, on the basis whereof DDR bearing No.23 was registered at Police Station, Kosli, and further investigation in the matter was ordered. It is, therefore, the contention of the learned counsel for the accused/appellants that had there been any truth in the matter, the same would have been reported in the first instance. It is also submitted that the allegation against the accused/appellant Birender on the issue of rape, is merely trumped up by the complainant party. 23. The second contention of the learned counsel for the accused/appellants is inter-connected with the first contention and, it is, therefore, considered appropriate to narrate the same first, and thereafter, to deal with the two submissions collectively. 23. The second contention of the learned counsel for the accused/appellants is inter-connected with the first contention and, it is, therefore, considered appropriate to narrate the same first, and thereafter, to deal with the two submissions collectively. It is the second contention of the learned counsel for the accused/appellants that the only justification indicated by the complainant party while recording their statements (Sunita as PW1, Rajbala as PW2 and Rai Singh as PW3) for not disclosing the factum of rape, was the social stigma attached thereto. In order to repudiate the aforesaid excuse tendered by the complainant party, learned counsel for the accused/appellants has invited the Court’s attention to the statement of SI Hari Kishan PW15 i.e. the Investigating Officer of the case. Our pointed attention has also been invited to the cross-examination of the Investigating Officer wherein he, inter-alia, asserted as under:- “.....It is correct that during investigation conducted by me it was initially brought to my notice by the neighbourers to place of occurrence that no such incident of rape had taken place and during verification DSP Udai Singh had also found that no incident of rape as alleged had taken place and there was only a casual marpit (beating). This fact came to our notice after conducting enquiry from the neighbour which were male and female which were about 200/250 in number.....” 24. On the basis of the aforesaid statement, it is alleged that persons living in the vicinity had clearly informed the Investigating Officer that the dispute between the rival parties, was limited to “mar-peat” (beatings) and nothing beyond that. Additionally, it is contended that around 200-250 people had gathered at the place of occurrence, and therefore, whatever had taken place, was a matter of common knowledge of the residence of the village, and that, there was nothing for the complainant party to hide, when they had gone to the police station on the date of the occurrence itself to register a complaint. 25. We have considered the aforesaid submissions advanced by the learned counsel for the accused/appellants. In so far as the first complaint made on 12.9.2001 is concerned, the same was made to the Sarpanch, Gram Panchayat, Tumna, well before the occurrence of rape had taken place. 25. We have considered the aforesaid submissions advanced by the learned counsel for the accused/appellants. In so far as the first complaint made on 12.9.2001 is concerned, the same was made to the Sarpanch, Gram Panchayat, Tumna, well before the occurrence of rape had taken place. In the social background of the place where the occurrence took place, it would not be incorrect to conclude that sexual intercourse beyond the realm of marriage, is taboo. We express our agreement with the opinion expressed by the trial Court to the effect that an incident which reflects the chastity of a girl in the aforesaid social background, is looked down upon in the society and there is a danger of being socially ostracized, as also, stigmatised so as to be considered unworthy of marriage. In such circumstances, a conscious decision would have to be taken by the entire family, before making such an allegation. Since the allegation of the nature is sufficient to reflect on the chastity of a girl in such a society, it may well be that the prosecutrix Sunita PW1, who was a student of class 10+2, was conscious of the aforesaid social stigma, and may, therefore, have not disclosed the matter to her father. In such a society, it can not be expected of a girl to share such a sentiment with her father. Accordingly, in the complaint made to the police by the prosecutrix Sunita PW1 whilst her father Rai Singh PW3 was with her, it can well be expected of her to have hidden the incident of rape having been committed on her by the accused/appellant Birender. There can be no doubt that a daughter can share such an occurrence only with her mother. This is exactly what happened in this case. For the first time, Rajbala PW2 i.e. the mother of the prosecutrix Sunita PW1 was a party to the complaint made at the hands of the complainant side. She obviously felt morally pressurised that an occurrence of the nature as the one in hand having taken place against her daughter, should not be allowed to go by without any action as it raised an issue of injustice to her daughter. She obviously felt morally pressurised that an occurrence of the nature as the one in hand having taken place against her daughter, should not be allowed to go by without any action as it raised an issue of injustice to her daughter. She, therefore, obviously mustered courage and persuaded her husband Rai Singh PW3 to join hands with her so as to make a complaint to the District Manager, of the IWEDP, Rewari, where a clear and categoric allegation of rape having been committed on the prosecutrix Sunita PW1, was made by the parents of the prosecutrix. We would have been in two minds to deal with the instant issue, and the matter may have well gone in favour of the accused/appellants, on account of the fact that the benefit of doubt always goes in favour of the accused. However, there are two compelling reasons for us not to accept the first two contentions advanced by the learned counsel for the accused/appellants. Firstly, it is not possible for us to accept the conclusion drawn by the learned counsel for the accused/appellants, on the basis of the statements of SI Hari Kishan PW15, relevant part whereof has already been extracted hereinabove. We are not prepared to accept that for an incident of mere “mar-peat” (beatings) which had taken place at about 9.00 PM in the month of September, there can be a possibility of 200-250 people gathering at the place of occurrence, which as per the admission of the rival parties, is beyond the “abadi area” of the village. It is only for a serious matter that people would gather in such large numbers at that hour of the night. In our view, therefore, some thing serious had happened which resulted in the gathering of such a large number of persons. Secondly, it would do injustice to the complainant party if the claim of the complainant party on its merit, is shut out merely on account of delay, keeping in mind that the prosecution has gone to great lengths to substantiate, whether or not, rape had actually been committed on the prosecutrix Sunita PW1, inasmuch as, as many as five doctors were examined and their expert opinion obtained on the basis of a series of medico-legal examinations conducted on the prosecutrix. In our view, authentic medical evidence emerging out of unbiased professionals, cannot be ignored merely on the basis of the inference suggested. In view of the above, we express our inability to reject the prosecution version merely on account of the first two submissions advanced on behalf of the accused/appellants Birender and Dharambir. 26. The third contention of the learned counsel for the accused/appellants deals with various discrepancies in the statements of the three primary witnesses which have been relied upon to substantiate the prosecution case, namely, the prosecutrix Sunita PW1, Rajbala PW2 and Rai Singh PW3. In order to substantiate the instant contention, learned counsel for the accused/appellants has invited our attention to the crossexamination conducted on the aforesaid witnesses so as to demonstrate that they have improved their version of the incident while appearing before the trial Court, over the statements recorded by them after the incident under reference. 27. The instant case is so strange that during the course of their deposition, the main witnesses referred to above, have made a substantial deviation from the statements recorded by them earlier. As for instance, although the collective case of the complainant party has been that the accused/appellant Birender has been misbehaving with the members of the family of the complainant party to the hilt, yet while appearing before the trial Court, the prosecutrix Sunita PW1 categorically stated that “there was no dispute with Virender or any of the accused with regard to throwing of dirty water of poultry upon me or any member of our family prior to the present occurrence. It is incorrect to suggest that there was a dispute of throwing of dirty water by the servant of Virender upon me or my family members. It is also incorrect to suggest that Virender failed to redress our grievance and that we had concocted this false story after due deliberations and consultations.” To the same effect is the statement of the mother of the prosecutrix Sunita PW1 i.e. Rajbala PW2. During the course of her crossexamination, she stated that “prior to the present occurrence there was no dispute about throwing of dirty water of poultry farm by the servant of Virender on any of members of our family. During the course of her crossexamination, she stated that “prior to the present occurrence there was no dispute about throwing of dirty water of poultry farm by the servant of Virender on any of members of our family. We never made any complaint to any body in this connection.” Despite the aforesaid submissions which were absolutely contrary to the case made out by the complainant party in the various complaints made, it would be interesting to notice the submission made by the accused/appellant Birender, under Section 313 of the Criminal Procedure Code, relevant extract whereof has been reproduced hereinabove, wherein the accused/appellant Birender acknowledged that his servants had thrown water in the passage which had fallen on the daughter of the complainants (Rajbala PW2 and Rai Singh PW3). In other words, the accused/appellant Birender himself acknowledged that his servants had thrown dirty water on the prosecutrix Sunita PW1. He further stated in his statement under Section 313 of the Criminal Procedure Code, that he had chastised the servant, who had done so and required him not to repeat such an act in future. He also acknowledged the “mar-peat” (beatings) between the rival parties on the date of the occurrence. From the aforesaid accepted version of various skirmishes between the parties, at the hands of the accused/appellant Birender himself, we have no doubt, whatsoever, that there was truth in the allegations levelled in the various complaints. The prosecutrix Sunita PW1, as well as, her mother Rajbala PW2 were probably over-awed by the Court, and on account of their having been extensively cross-examined, could not even affirm the truth of the matter. One cannot lose sight of the fact that in her deposition, the prosecutrix Sunita PW1 during the course of her cross-examination, stated that she was not in a position to state where she had remained from 12.9.2001 to 22.9.2001. She also stated that she was not aware as to where she was taken and by whom. She acknowledged that she remained in a state of shock upto 21.9.2001. In her statement she also stated that she could not affirm whether she had met her father after the alleged occurrence till 21.9.2001. She also asserted that she did not remember whether or not, she had gone to the Police Station, Kosli. She acknowledged that she remained in a state of shock upto 21.9.2001. In her statement she also stated that she could not affirm whether she had met her father after the alleged occurrence till 21.9.2001. She also asserted that she did not remember whether or not, she had gone to the Police Station, Kosli. In the first instance, she stated that she did not remember that she got recorded DDR bearing No.23 on 12.9.2001 at in Police Station, Kosli. It is, therefore, apparent that the occurrence under reference had caused a deep mental scar on the mind of the prosecutrix Sunita PW1. It is also apparent that her family was also under extreme social pressure on account of the occurrence, and as such, the discrepancies in their statements cannot be treated as a sufficient ground to reject their entire testimony. The discrepancies pointed out were not on any material point. In some aspects of the matter, the discrepancies were inconsequential, inasmuch as, the accused/appellant Birender had himself acknowledged the factual position (as noticed in the instant paragraph hereinabove). In case, the prosecution in this case is able to establish the commission of sexual intercourse with the prosecutrix Sunita PW1 on the date of occurrence, the same, in our view, would be sufficient to establish the guilt of the accused/appellant Birender, as also, his accomplice Dharambir. 28. In the background of the aforesaid conclusion drawn by us, we shall now examine whether there is sufficient evidence on the record of the case to substantiate that the prosecutrix Sunita PW1 was assaulted sexually on the date of the occurrence i.e. on 12.9.2001. In this behalf, it would be relevant to mention that after the allegation of rape was made by Rai Singh PW3 and his wife Rajbala PW2 in their complaint to the District Manager, of the IWEDP, Rewari dated 17.9.2001, a fresh medico-legal examination of the prosecutrix Sunita PW1 was got conducted. At this juncture, a board of three doctors was constituted by the Civil Surgeon, Rewari, comprising of Dr. Sharda Debas PW5, Dr. Vipula Garg and Dr. Saroj Mann PW8 to conduct the medico-legal examination of the prosecutrix Sunita PW1, pointedly for ascertaining the allegations made in the complaint dated 17.9.2001. Out of the aforesaid three doctors, Dr. Sharda Debas appeared as PW5. Relevant extract of her statement has been reproduced while dealing with her testimony hereinabove. Sharda Debas PW5, Dr. Vipula Garg and Dr. Saroj Mann PW8 to conduct the medico-legal examination of the prosecutrix Sunita PW1, pointedly for ascertaining the allegations made in the complaint dated 17.9.2001. Out of the aforesaid three doctors, Dr. Sharda Debas appeared as PW5. Relevant extract of her statement has been reproduced while dealing with her testimony hereinabove. In her statement, Dr. Saroj Mann PW8 reiterated and clarified the opinion tendered by Dr. Sharda Debas PW5. Having gone through the aforesaid statements, we have no hesitation in concluding that when the board of doctors conducted the medico-legal examination of the prosecutrix Sunita PW1 after the receipt of the complaint dated 17.9.2001, she detected raw area of 2 x 2 cm on both sides between the labia minora and majora. The board also detected that the hymen of the prosecutrix Sunita PW1 had been “freshly” ruptured. She detected a laceration of .5 x .5 cm at 8 O’ clock position in the inferior aspect of hymen. On the basis of the aforesaid, it was conducted that the possibility of sexual intercourse could not be ruled out. During the course of crossexamination, she clarified that it was correct that an area described as raw and shown as fresh, makes possibility that the same had occurred within 24 hours of the examination. Dr. Saroj Mann PW8, however, clarified that the opinion given was, that the duration of the injury in the hymen could be from 1 to 5/6 days. During the course of her cross-examination, she clarified that on the issue of raw area, the opinion that the same had occurred within 24 hours of the examination, is applicable to other parts of the body, but not in the case of hymen. She also stated that in the case of hymen, an injury takes upto six days to heal. In so far as the case of the prosecutrix Sunita PW1 is concerned, it was asserted by Dr. Saroj Mann PW8 that at the relevant juncture, she was menstruating, and as such, friction of the pads would be a cause for the injuries to remain raw. In so far as the case of the prosecutrix Sunita PW1 is concerned, it was asserted by Dr. Saroj Mann PW8 that at the relevant juncture, she was menstruating, and as such, friction of the pads would be a cause for the injuries to remain raw. Cumulatively, on the basis of the statements made by the medical experts who had conducted medico-legal examination of the prosecutrix Sunita PW1, it can be concluded that the occurrence could have taken place upto 5/6 days prior to her medico-legal examination at the hands of the board of doctors. Thus viewed, we have no hesitation in concluding that the rupture of the hymen of the prosecutrix Sunita PW1 could have taken place on the date of the occurrence i.e. on 12.9.2001. A totally coincidental injury, however, links the accused/appellant Birender to the accusation of rape alleged by the prosecutrix Sunita PW1. The occurrence as “mar-peat” has been acknowledged by the accused/appellant Birender himself in his statement under Section 313 of the Code of Criminal Procedure. One of the injuries on her person, disclosed during the course of the medico-legal examination of the prosecutrix Sunita PW1 was a “.....semi-circular lacerated wound of size 1.5 x .5 cm over right thumb.....”. In so far as the instant injury is concerned, the prosecutrix Sunita PW1, during the course of her cross-examination stated, that the accused/appellant Birender had bitten the thumb of her right hand. If one is to accept the statement of “mar-peat” of the accused/appellant Birender, there can hardly be any occasion for Birender to bite the prosecutrix on her hand. But during the course of rape, if the woman is pushing away the assaulting man, her action in pushing away his face is quite understandable; and if the assaulting man’s face is being pushed, he may well bite the woman’s hand itself. We are of the view, that there can be no other justification for the presence of the instant injury on the right thumb of the prosecutrix. The discussion in the instant paragraph establishes that the accused/appellant Birender committed rape on the prosecutrix Sunita PW1. 29. The only further question to be determined is whether the prosecutrix Sunita PW1 (who was allegedly subjected to rape at the hands of the accused/appellant Birender) as also her mother Rajbala PW2, truthfully levelled the allegations against the accused/appellant Birender. The discussion in the instant paragraph establishes that the accused/appellant Birender committed rape on the prosecutrix Sunita PW1. 29. The only further question to be determined is whether the prosecutrix Sunita PW1 (who was allegedly subjected to rape at the hands of the accused/appellant Birender) as also her mother Rajbala PW2, truthfully levelled the allegations against the accused/appellant Birender. We have no hesitation, whatsoever, to conclude that their statements were truthful. In the social set up under reference, no parent, specially a mother. would acknowledge sexual intercourse with her daughter. The prosecutrix Sunita PW1 is a student of class 10+2; she is also aware of the social consequence of acknowledging that she has been sexually assaulted. If the mother and daughter had kept quiet about the matter, no one would have come to know about the same. It is apparent from the first medico-legal examination conducted on the prosecutrix Sunita PW1 by Dr. Chander Shekhar PW7 on 13.9.2001, that every thing remained undetected and unknown till the prosecutrix was subjected to further medico-legal examination. We, therefore, have no hesitation in concluding that neither the prosecutrix Sunita PW1 nor her mother Rajbala PW2, was stating lies in so far as the sexual assault at the hands of the accused/appellant Birender is concerned. 30. The finding in respect of the accused/appellant Dharambir, having facilitated the commission of the aforesaid crime on the prosecutrix Sunita PW1, would follow the finding recorded in respect of the accused/appellant Birender. Moreover, there has been no contest on this aspect of the matter at the hands of the learned counsel representing the accused/appellant Dharambir. 31. On the issue of the accused/appellants having caused simple hurt to the prosecutrix Sunita PW1, in our view, the statement of the accused/appellant Birender recorded under Section 313 of the Code of Criminal Procedure (relevant portion whereof has been extracted hereinabove) is sufficient to affirm the finding on the aforesaid aspect of the matter recorded by the trial Court. 32. No other issues besides those dealt with hereinabove, was canvassed at the hands of the accused/appellants. 33. For the reasons recorded hereinabove, we find no merit in the instant appeal, and the same is, accordingly, dismissed. ----------------------