Gopal and others vs State of Haryana

Gurdev Singh, J.—This appeal has been preferred by the appellant/accused, Gopal, Harish and Parveen Kumar, against the judgment/order dated 14/15.6.2002 passed by the Additional Sessions Judge, Gurgaon, vide which they were convicted for the offences under Sections 376(2)(g) and 506 IPC and were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 3,000/-each and in default thereof to further undergo rigorous imprisonment for a period of two months for the former offence and to undergo rigorous imprisonment for a period of two years for the latter offence. Both the sentences were ordered to run concurrently.

The prosecution story, in brief, is that the prosecutrix (PW-4A) (the name is not being disclosed in the judgment) had been residing in a tenanted accommodation in village Charkarpur. On 4.1.2000, after working in the houses situated in DLF colony, she was going back to her quarter. When she reached near her quarter, she found that all the three accused were standing in the street. By making use of the opportunity, they gagged her mouth, physically lifted her and took her into the ditches in the land belonging to the panchayat, where they committed rape on her one after other. Thereafter, they left the place after extending a threat to kill her, in case she disclosed this fact to anyone. On 6.1.2000, she moved written application Ex. PE, containing all these facts, before the police and on the basis thereof, FIR Ex. PG was recorded. The investigation was conducted by Charan Singh, ASI (PW-6), who went to the place of occurrence and after inspecting the same, prepared rough site plan Ex. PH with correct marginal notes. The prosecutrix was medically examined by Dr. Suman Bishnoi (PW-9), who found abrasions on her private part. She took the vaginal swabs, which were sent to FSL but no semen was detected therein. In the course of investigation, all the accused were arrested and were medically examined and were found fit to perform the sexual intercourse. After completion of the investigation, challan was put in before the CJM, Gurgaon, who committed the same to the Court of Session, as the offence u/s 376(2)(g) IPC was exclusively triable by that Court.

On appearance of the accused, in the court, copies of all the documents sent alongwith the police report and relied upon by the prosecution were supplied to them, as per the mandatory requirements of Section 207 Cr.P.C. From the perusal of those documents and after hearing PP for the State and the accused in person, the learned Additional Sessions Judge found sufficient grounds for presuming that the accused committed offences punishable under Sections 376(2)(g) and 506 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial.

To bring home the guilt of the accused, the prosecution examined Nirmala, HC (PW-1), Naresh Kumar, Draftsman (PW-2), Ravinder Singh (PW-3), Arvind Kumar, HC (PW-4), the Prosecutrix (PW-4A), Dr. Mahesh Parkash (PW-5), Charan Singh, ASI (PW-6), Baljit Singh, C. (PW-7), Ombir Singh, DSP (PW-8) and Dr. Suman Bishnoi (PW-9).

After the close of the prosecution evidence, the accused were examined by the trial court and their statements were recorded u/s 313 of the Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. They were called upon to enter on their defence and they examined Anil Kumar (DW-1) in their defence evidence.

After going through the evidence, so produced and hearing PP for the State and the learned defence counsel for the accused, the trial court convicted and sentenced the accused, as aforesaid.

I have heard learned counsel for both the sides.

It has been submitted by the learned counsel for the appellants/accused that there is a delay of two days in lodging the FIR, which itself makes the prosecution version doubtful. The prosecution rests on the solitary statement of the prosecutrix, which does not find corroboration by the medical evidence and, in fact, that statement is totally contradicted by the medical evidence. The doctor, who conducted the medical examination of the prosecutrix totally ruled out the possible of any sexual intercourse with her. From that, it stands established that the prosecutrix was never subjected to any such forcible sexual intercourse. Her statement also becomes doubtful on account of the fact that, as per her version, the rape was conducted on her in the ditches, whereas no injury was found on her buttock or other parts of the body during the medical examination. In these circumstances, the conviction of the accused cannot be sustained and they are entitled to acquittal.

On the other hand, it has been submitted by the learned State counsel that the delay in lodging the FIR has been explained by the prosecutrix, who during the intervening period was trying to ascertain the name of the third accused and who had been threatened by the accused with dire consequences, in case she reported the matter to anyone. In such like cases of rape some delay is bound to be there and that itself cannot be made a ground for disbelieving the prosecutrix. It cannot be said that the statement of the prosecutrix stands contradicted by the medical evidence, as it is not the requirement of the completion of the offence of rape that there must be some ejaculation. The doctor who conducted the medical examination of the prosecutrix based her opinion on the basis of the FSL report, who had not found any semen in the vaginal swabs of the prosecutrix. The prosecution was only to require to prove that there was penetration for proving the act of rape and not ejaculation. There was no requirement of law that the statement of the prosecutrix must be corroborated by some other evidence before recording the conviction of the accused. The prosecutrix can never be treated as accomplice. The absence of any injury on the person of the prosecutrix cannot be made a ground for disbelieving her in view of the cogent and convincing statement made by her in the court.

When the prosecutrix entered the witness box as PW-4A, she deposed about all the facts stated in her application Ex. PE, on the basis of which FIR Ex. PG was recorded. She stated that on 4.1.2000, she was returning to her house after finishing the work at the house of Mohit, where she was employed as a maid. When she reached near the bundh at 9.30 p.m. the accused accosted her. Praveen Kumar caught hold her by her neck, whereas she was caught hold by her legs by Gopal and thereafter all the accused bodily lifted her and took her to the ditches on the side of the bundh. She tried to rescue her from their clutches, but the accused slapped her and threatened to kill her. Rape was committed on her by Parveen, while her legs and arms were held by the other two accused in order to facilitate the commission of sexual intercourse. Thereafter, the other two accused committed rape on her one after the other and she was allowed to leave that place only in the morning at 4 a.m., though throughout the night she had been pleading for mercy and asking the accused to let her go.

After the FIR was registered, the prosecutrix was produced before Dr. Suman Bishnoi (PW-9), who medico legally examined her. According to the doctor, there was no injury on her back, including thigh, but on local examination, an abrasion was found on the anterior part of vulva. In addition to that, another abrasion was also found on the right side of posterior of vulva. She also stated that she had taken vaginal swabs, which were sent to FSL and report of the FSL was that no semen was found and on the basis of that report she stated that possibility of sexual intercourse is ruled out.

Merely on account of the opinion expressed by that doctor, it cannot be held that the prosecutrix was not subjected to rape. The possibility of the presence of semen would have been there in case of ejaculation by the accused in the act of commission of sexual intercourse. It is now well settled that to complete an act of sexual intercourse, it is not necessary that there must be some ejaculation. For constituting the offence of rape, mere penetration is enough. The Court is to revert to the oral evidence produced by the prosecution to determine, if the prosecutrix was subjected to forcible sexual intercourse or not ?

The statement of the prosecutrix cannot be discarded merely on the ground that she did not approach the police immediately for reporting the matter. In fact, she tried to explain that delay and the explanation offered by her appears to be reasonable. She stated that after she was set free by the accused she wanted to report the matter to the police and she was planning to proceed to the police post, but when the accused inquired as to where she was going, she got scared and apprehended that she might be done to death. Therefore, she did not proceed to the police post and instead went to her house. She also stated that after reaching the house, she made inquiries to ascertain the details of names and addresses of the accused. However, this delay on the part of the prosecutrix requires this Court to scrutinize her statement with much care and caution, as on account of that delay, it can be said that there was an opportunity with her to falsely implicate the accused and to introduce a false version.

It has also been submitted by the learned defence counsel that the prosecutrix was of loose character who had been indulging in the act of prostitution and, as such, was ordered by the Panchayat to leave the village and she was shunted out from the other village also, on the same ground. In support of those submissions, he referred to photographs Exs. D.1 to D.3 and the evidence produced by the accused in their defence.

As per that defence evidence consisting of the statement of Anil Kumar (DW-1), a Panchayat was convened after information was given to it by some of the villagers regarding bad character of the prosecutrix and a resolution was passed, vide which she was shunted out of the village. When that fact was put to the prosecutrix during her cross-examination, she admitted the same. She also admitted that the photographs Exs. D.1 to D.3 relate to her. It can easily be made out from those photographs as to what type the character she was possessing. She might be having a loose character but the same does not give right to the accused to commit rape on her. Neither any evidence was produced in the defence nor any fact could be elicited, during the cross-examination of the prosecutrix, on the basis of which it can be said that they have been falsely implicated by her. Keeping in view the character which the prosecutrix was possessing, it can be said that she would not have cared for her reputation by leveliing such like allegations against the accused, but there must be some sound reason for making false averments against the accused. No doubt, there was an occasion for her to concoct a version during the intervening period, but a minute perusal of her statement makes it clear that she did not utilize that period for concocting the version. It is pertinent to note that her statement that she was subjected to sexual intercourse by the accused was not challenged during her cross-examination. The accused themselves suggested to her that no force was exercised by them and that she herself got involved in the commission of the act of sexual intercourse and sucking the penis of the accused. Thus, according to the accused also, they had sexual intercourse with her but, according to them, it was the prosecutrix who initiated the same. Therefore, the only question which arises for determination is, whether this sexual intercourse was at the instance and with the consent of the prosecutrix or was a forcible act and without her consent?

It is an admitted fact that no injury was found on the person of the prosecutrix when she was medically examined but mere absence of such injury will not amount to her consent. She categorically stated, during her examination-in-chief, that she was caught hold by her legs and arms by two other accused and then Parveen Kumar committed sexual intercourse with her and that the said accused throttled her neck and made her to suck his penis forcibly and that the other accused slapped her on the face. That shows the use of force by the accused and by using force they committed sexual intercourse with her. It cannot be said that it was at the instance of the prosecutrix or that the same was with her consent.

I do not find any illegality or infirmity in the findings of the trial court that the accused committed sexual intercourse with the accused without her consent and they criminally intimidated her by extending threat of death in case she disclosed that fact to anyone.

There is no merit in this appeal and the same is hereby dismissed. The accused be taken in custody for undergoing the sentence so imposed on them.

This order be certified to the trial court for necessary compliance.

Records of the case be returned to the trial court.