Vipin and Another vs State of U.P.

Vinod Prasad, J.

You took away my pride, you took away my dignity. But most of all I am hurt, that you took my virginity. The person who broke me, is yet a mystry. All that is left for me, is whole hearted misery. ........................... ........................... My eyes get heavy, and I take my last breath. I close my eyes, and prepare my self for death. (unknown)

Such is the gloomy dejected sorrow and mental tormentation of a damsel who was stripped of her most precious honour in a dehumanising act of raptus.

Present two connected appeals deals with one such situation wherein the three Appellants Vipin, Vikas and Sukhveer have challenged their conviction for offence of gang rape u/s 376(2)(g), I.P.C. and imposed sentence on each of them of ten years R.I. with fine of Rs. 50,000/- and in default in payment of fine to serve two more years of R.I recorded by Additional Sessions Judge, Court No. 1, Meerut, in S.T. No. 603 of 2005 State v. Vipin and Ors. vide his impugned judgment and order dated 17.5.2006.

Shorn of unnecessary details and stated briefly, charge against the Appellants are that on 2.5.2005 at 8.30 p.m., they had gagged the mouth and had physically lifted victim PW1 ,daughter of informant Devendra Singh Kashyap, while she was going to attend marriage ceremony of Renu, daughter of a co-villager Om Prakash, and took her to a nearby sugarcane field of Vijay Pal, where they all, one by one, outraged her modesty and escaped from the place. Victim, thereafter toddled to her house and narrated the ignomi-nous incident to her parents, whereupon, her father PW2 scribed a FIR, Ext. Ka2, about the incident and lodged it same night at 1.30 a.m. at P.S. Partapur, District Meerut, at a distance of 7 kilometers.

PW5 Const. Clerk, Indavir Singh registered the offence as crime No. 101 of 2005, u/s 376, I.P.C., prepared chik FIR Ext. Ka 5, and corresponding GD entry Ext. Ka 6. Anil Kumar PW6, SHO , Police Station Partapur commenced the investigation, copied Chik and GD, interrogated PW5 informant and the victim, prepared site plan, Ext. Ka 8, after conducting spot inspection and thereafter got statement of victim recorded u/s 164, Code of Criminal Procedure on 9.3.2005. Concluding investigation, PW6, the I.O., charge-sheeted Appellants on 25.5.2005, vide Ext. Ka 9.

At the earliest, PW 3, Dr. Manju Malik, Gynecologist, district hospital, Meerut, medically examined the victim on 3.5.2005 at 6 a.m., who was brought to her by CP 861, Harpal Singh and had prepared her Medical examination report, which is Ext. Ka-3. Regarding her physical appearances and internal examination, PW 3 has noted following facts.

Victim was 5 feet in height with 40 kg weight, her colour was fair hymen was old torn healed, it admitted one finger easily.

On internal examination, doctor detected 1/2 cm superficial tear at 6 O-clock position on her fourchette, which oozed blood on touch. Her uterus was normal and no external mark of injury was found on the outer surface of vagina. In the opinion of the doctor, perineal injury was caused by some blunt object which could be some male organ as well suggestive of rapuit carnaliter cognovit or raptus(rape) and duration of that injury could have been at or about the date and time of the incident. P.W.3 had prepared victim''s vaginal smear slid for pathological examination, which she had sent through Constable CP 861 Harpal Singh. Victim was referred by PW3 to Emergency Medical Officer, P.L. Hospital, Meerut for her medico legal examination. Pathologist Dr. Vikram Singh''s vaginal smear slide report Ext. Ka 4, showed absence of spermatozoa in the slide. Dr. Suresh Chandra Yadav P.W. 6 had examined the victim on 3.5.2005 and had prepared her medico legal examination report Ext. Ka 7, which records following injuries on her person:

red contusion on lateral aspect of Rt. Leg 6cm x 1cm, 9cm above Rt. Ancle.

C/o pain, neck, lip and mouth Lt. Knee Rt. Elbow.

Opinion... injury No. 1 caused by her blunt object duration about half day, old simple in nature.

According to PW 6 victim''s injuries corresponds time and date of the incident.

Appellant accused were summoned by the Magistrate and their case was committed to the Session''s Court for trial where it was registered as S.T. No. 603/2005. Sessions Judge, Meerut, on 8.8.2005, charged them u/s 376, IPC and since they all refuted that charge and claimed to be tried hence it necessitated trial procedure to be observed to establish their guilt.

During the trial prosecution examined victim P.W. 1 and her informant father Devendra Singh P.W. 2 as the two witnesses of facts to prove the charge besides leading other supporting evidences of formal witnesses of Dr. Manju Mullick P.W. 3, Dr. Vikram Singh P.W. 4, Constable Indravir Singh P.W. 5, Dr. S.C. Yadav P.W. 6 and Investigating Officer S.I. Anil Kumar P.W. 7.

Accused Appellants in their examination u/s 313, Cr. P.C. denied incriminating circumstances appearing in prosecution evidences against them and pleaded the defence that victim was of licentious character and had an affair with Deepak, Hari Om and Yogendra, regarding which a village panchayat(Conglomeration) was convened, in which Appellants Vipin and Vikash had deposed adversely against the victim, who had also demanded Rs. 50,000/- from them and since they did not oblige, therefore, for that ulterior motive, she had roped them in the crime. Appellant Sukhveer''s, defence stand was that there was an altercation between victim''s father because of sugarcane crop and that he used to park his truck in front of the informant''s house and for the twine reasons he has been implicated in a false case.

Additional Sessions Judge, Court No. 1 Meerut, to whom the Sessions Trial meanwhile was transferred believed and relied upon prosecution witnesses and reposing confidence in victim''s testimony convicted all for the Appellants for the offence of gang rape u/s 376(2)(g), IPC and sentenced each one of them to ten years Rigorous Imprisonment with fine of Rs. 50,000/- and in default of payment of fine to undergo two years additional RI. Hence this appeal challenging the said judgement.

I have heard Mrs. Tahira Qazmi and Mohammad Farooq advocates for the two Appellants Vipin and Vikas and Sri Apul Mishra, learned Counsel for Appellant Sukhveer and have perused the entire trial court record. Sri K.N. Bajpai, learned AGA has been heard in opposition for the appellee State.

Assailing the impugned judgement all the counsels for the Appellants contended that entire prosecution story has a ring of unnaturality and does not inspire confidence. Narration of the incident by the victim is untruthful and she being a trollop had illicit connections, which was objected to by the Appellants and therefore she manufactured a story of gang rape, If her honour was ravished by three'' persons for over an hour, her physical examination as well as medical report would not have indicated such scanty injuries, and consequently medical report does not lend credence to the charge of gang rape. Evidence of the three doctors coupled with pathologist report does not supports victim''s version and indicates that the whole prosecution allegations are cooked up. Sri Apul Mishra, learned Counsel additionally submitted that, in fact, the prosecution has suppressed the real incident and has brought forth a manufactured version and it is because of this reason that the victim has not sustained graver physical injuries nor her clothes were torn off nor the same were sent for serologist examination. He further submitted that though the accused were alleged to be from affluent families, yet they were arrested within two days of the incident. No medical examination was conducted on them to establish charge of carnal intercourse by them. Learned Counsel further submitted that absence of severe physical injury with hymen old torn and healed indicate that the victim was used to sexual contacts and this lend credence to the defence story of she being a girl of easy virtue. No injury was detected on the outer surface of victim''s vagina and her uterus was of normal size and all these data rules out gang rape and falsifies prosecution version. It was further contended that there is no corroborative piece of evidence for ravishing the chastity of the victim by three persons after physically lifting her. It was further submitted that the Appellants were charged for the offence u/s 376, IPC simpliciter and consequently their recorded conviction u/s 376(2)(g), IPC is not sustainable, as they were misled by the framed charge. Concluding submission was that both the appeals be allowed by recording a judgement of acquittal. All the counsels relied upon decisions of Lalli Ram v. State of M.P. (Criminal Appeal 791 of 2006 decided on 15.9.2008) : (Reported in AIR 2008 SC 6046 , Dilip and Another Vs. State of M.P., Dilip and Anr. v. State of M.P., Hanuman Prasad and Ors. v. State of Rajasthan (64) 2009 ACC 292 : AIR 2008 SC 1107 to farther their arguments.

Learned AGA, refuting the arguments submitted that the victim and her father have supported the prosecution story without faultering and their testimonies are fully corroborated by medical evidences of PW 3, PW4 and PW6 and therefore entire gamut of prosecution evidences unerringly, establish the charge against the Appellants. PW1 had no enimous to falsely implicate the Appellants and sacrifice her honour at the alter of non-existent imaginative vendetta. Injuries found on the body of the victim further lend credence to her being sexually abused. He further submitted that the imposed sentence is not excessive. Learned AGA relied upon Section 215 read with Section 264, Cr. P.C. to refute Appellants argument concerning framing of wrong charge and prejudiced caused thereby. He contended that unless the charge has occasioned in failure of justice, recorded conviction and sentence cannot be altered. He further submitted that all the Appellants instead of having remorse on their deeds, added insult to injury by pleading defence that the victim was of a licentious character. Learned AGA submitted that the prosecution has established it''s case beyond any shadow of doubt and anointed the guilt of the Appellants without any ambiguity and therefore, both the appeals lacks merit and deserves dismissal with confirmation of sentences.

In support of his argument, the learned AGA relied upon the judgement of the Apex Court in State of Punjab Vs. Ramdev Singh,

I have considered and cogitated over all rival submissions and have gone through the entire trial court record as well as record of this appeal.

Ab initio the issue of framing of wrong charge is taken up. The objection raised by learned Counsel for the Appellants is that no charge for the offence of gang rape was framed and therefore conviction under that offence is not sustainable. Charge does not mention words "Gang Rape" nor it mentions Section 376(2)(g), IPC and therefore Appellants were mislead by the charge. It was suggested that if the trial court wanted to try the accused for offence u/s 376(2)(g), IPC then that section should have been mentioned in the charge instead of Section 376 IPC only. It was further submitted that it is nowhere mentioned in the charge that the accused persons acted with id idem and therefore in absence of common intention not being mentioned in the charge, conviction of the Appellants u/s 376(2)(g), IPC is unsustainable. In support of the said argument learned Counsel for the Appellants relied upon the judgement of the Apex Court in Hanuman Prasad and Ors. v. State of Rajasthan (64) 2009 ACC 292 : AIR 2008 SC 1107 especially paragraph 7 thereof. Learned AGA has refuted the said argument by pointing out at Section 215 and Section 464, Code of Criminal Procedure

An analysis of rival contentions reveals that the argument of learned Counsel for the Appellants, though attractive is bereft of any real substance. In the charge, it is specifically mentioned that the accused persons committed rape oone by one with Kumari Neetu d/o Devendra Singh". Words ''one by one'' unerringly indicates that the accused persons were charged with gang rape. No ambiguity was pointed out in accused understanding of the said charge. Prosecution version right from it''s very inception from the stage of FIR is that of gang rape. The said fact was not unbe-known to the accused Appellants. It was on the said premise that the accused have cross-examined prosecution witnesses. They never raise any prejudice being caused to them during trial. Even when they were heard on the question of sentence they did not raise any objection regarding their conviction under the charge of gang rape. Thus, during the whole trial Appellants knew and were conscious of the case they had to meet and therefore question of prejudice being caused to them by not mentioning Section 376(2)(g) or words ''Gang Rape'' does not arise at all. Further Section 215 Code of Criminal Procedure lays down that any error or omission of charge by itself will not be sufficient to set aside the challenged conviction or sentence, unless it has occasioned in failure of justice, which is not the case at hand. Appellants have failed to point out that error in the charge has occasioned in failure of justice. For failure of justice, error or omission in charge must indicate that in fact the accused were mislead in their understanding of the same, which leads to serious consequences. Here in the present appeal F.I.R. was lodged for an offence of gang rape. Appellants were apprehended for the said charge. Perusal of trial court record further indicates that even at the stage of bail Appellants knew the charge for which they were apprehended. During trial P.W.1 and P.W.2 were cross-examined by all the accused persons knowing the charge of gang rape fully well. They had suggested the victim that her allegations of gang rape is false. All these circumstances indicate that neither the Appellants were misled nor any prejudice, which has occasioned in failure of justice, has been caused to them nor the same has been cropped up in the trial procedure. In fact the error in framing of charge is so trivial that it can be due to typing error as well. At no point of time Appellants were misled by the charge. Further sentence implanted on them is also neither excessive nor unjust and is commensurate with their guilt. Hence, it also can not be accepted that in matter of sentence also Appellants were misled. I am therefore not inclined to lean in favour of defence argument and consequently reject it. In my above view, I am fortified by the following judgements of the Apex Court. In State (N.C.T. of Delhi) v. Navjot Sandhu 2005 (11) SCC 797 , connected with State (N.C.T. of Delhi) v. Syed Abdul Rehman Gilani with Shaukat Hussain Guru v. State (N.C.T. of Delhi) and State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, it has been observed by the Apex Court as follows:

(ii) It is settled law that a ''fundamental defect'' should be found in the charges if the Court has to quash it. Whether the accused was misled and whether there was reasonable possibility of prejudice being caused to the accused on account of defective charges are relevant considerations in judging the effect of wrong or deficient charges. Section 215 of Cr. P. C. makes it clear that no error or omission in stating either the offence or the particulars required to be stated shall be regarded as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. The test of prejudice or reasonable possibility of prejudice was applied by this Court in Willie (William) Slaney Vs. The State of Madhya Pradesh, in testing the argument based on the omission, error or irregularity in framing the charges. The same test was also applied in State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, It has not been demonstrated in the instant case as to how the accused or any of them were misled or any prejudice was caused to them on account of the alleged defects in framing of charges. No such objection was even taken before the trial Court. As pointed out in William Slaney''s case (para 45 of AIR), it will always be material to consider whether the objection to the nature of charge was taken at an early stage. To the same effect are the observations in Ganeswar Rao''s case (supra). It is difficult to spell out with exactitude the details relating to the starting point of conspiracy. As pointed out in Esher Singh Vs. State of Andhra Pradesh, it is not always possible "to give affirmative evidence about the date of formation of the criminal conspiracy". We do not think that if instead of mentioning ''the first week of December, 2001'' the wording ''before December, 2001'' is employed, the prosecution should fail merely for that reason. The accused cannot be said to have been misled or prejudiced on that account. On the other hand, it is more than clear that the accused did understand the case they were called upon to meet...It is not uncommon that the offence alleged might seemingly fall under more than one provision and sometimes it may not be easy to form a definite opinion as to the Section in which the offence appropriately falls. Hence, charges are often framed by way of abundant caution. Assuming that an inapplicable provision has been mentioned, it is no ground to set aside the charges and invalidate the trial.

In State of West Bengal and Another Vs. Laisal Haque and Others, it has been laid down by the Apex Court as follows:

...We regret to find that there is complete non-application of mind on the part of the High Court and instead of considering the appeals preferred by the Respondents, it has passed an order for re-trial which is totally unwarranted. It was nobody''s case that the accused were, in fact, misled by any error or defect in the charges framed nor has the High Court explained as to how there has been a failure of justice. The High Court was clearly in error in directing a remand for retrial of the Respondents.

There are serious infirmities in the impugned order rendered by the High Court. Section 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. There is no material on record on which the High Court could have reached to such a conclusion. We may next refer to Section 221 of the Code which provides by Sub-section (1) that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. Sub-section (2) thereof provides that if in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

Next, See. 464 of the Code provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charges, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has, in fact, been occasioned thereby.

In the celebrated case of Willie (William) Slaney Vs. The State of Madhya Pradesh, Vivian Bose, J. speaking for the Court after an elaborate discussion observed that in judging a question of prejudice, as of guilt, the Courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself...The principles laid down by that very eminent Judge in Slaney''s case have throughout been followed by this Court.

Turning now to the real issue that is merit of the appeal, summation of evidences of two fact witnesses, especially that of victim PW1 it is descernible that both the witnesses have supported prosecution story in it''s entirety. They did not faulter and stood the test of lengthy and tiresome cross-examination without any damaging statement. Victim narrated the incident unhesitatingly with clarity. She has deposed that the fateful day was a Monday and she was on fast, therefore she started to participate in the marriage after talcing her meal at home. The house of Om Prakash, where the marriage was to be solemnised was nearby in strait direction. Appellant Vipin is her co-villager and his house was also in close vicinity. She had proceeded only twenty or twenty five paces in ten minutes that the incident happened at a lonely place in darkness. Her mouth was gagged by Vikas Appellant and she was lifted supinely to the sugarcane field. All the three accused snatched her honour one by one and during ravishing act they kept on threatening her. She further stated that she had gone to the police station on a Metador cab along with P.W. 2 and from there she was taken to the hospital in police van. She admitted recording of her statement u/s 164 Code of Criminal Procedure by the Magistrate. P.W. 1 has further testified that she was bleeding from her private part and had sustained injuries on her mouth and neck. Her cloths were seized. I find her deposition confidence inspiring and credit worthy. She was cross-examined at length. She has stood the test of cross-examination with stead fastness and had replied all the quarries without any ambiguity. From her deposition defence has failed to bring out any favourable material to it and therefore, the version of the victim cannot be discarded. In our society it is seldom that an unmarried girl will make a mockery of herself by pouring a false charge of ravishing of her chastity only to seek revenge. Accused have failed to elicit any favourable evidence from her testimony.

PW 1 is well supported by her father PW2 who has proved lodging of FIR by him. His cross-examination also does not reveal any contrary evidences. Doctors have also lend credence to the testimony of PW1 as PW 3 is specific that victim was bleeding from her private part on touch. She was complaining of pain in her mouth and neck. Both the fact witnesses have catagorically denied defence suggestion that they have falsely implicated the Appellants and that victim was a trollop.

Coming to the most harangued argument that there are scanty injuries on the body of the victim, it is to be noted that according to the victim''s version, her mouth was gagged and she was physically lifted from the spot when she was going to see the marriage party. It is also her deposition that while her modesty was being outraged by one, the other two accused had gagged her mouth and the third was pressing her hands. In such a situation it is preposterously puerile to imagine that victim will sustain graver injuries on her person since she was unable to resist. Medical report of complaint of pain on her mouth and neck prove some physical pressure exerted on her. Evidence of P.W.3 further indicates that she was subjected to sexual intercourse to such an extent that even eight hours after the ignominy she was bleeding from her private part even on slight touch. P.W.3 is clear in her deposition that the injury sustained by P.W. 1 could be the result of sexual abuse performed on her.

Adding insult to injury is the defence taken by the Appellants. Firstly and foremost the defence suggestion is palpably false. But for ipse dixit of suggestion there is no other circumstance worth in name to support such a temerity and secondly accused failed to muster any evidence to support their claim. No co-villager or any other person countenancing their defence entered into the witness box to bolster up their defence case. There is no hitch in my mind to observe that the defence of the Appellants is per se untrue. Lastly but not the least, Appellant had no license to rape the victim , even if, according to them, she was not a virgin. Their act was not a licery. If the Appellants were confident of their suggestion they could have examined somebody from the village who was present in the alleged panchayat, which was allegedly convened for chastising the victim. It is not a case where the Appellants accused had not examine defence witness. They did examine D.W.I in respect of the place of the incident to show that the sugarcane crops were not of that height as was alleged by the prosecution. But they could not muster the courage to produce anybody in their defence in respect of the alleged panchayat. P.W.1 and P.W.2 bore no animous against the Appellants to rope them in a false charge of rape. There was no earthly reason for them to cook up a false story. It is all the more significant to note that the FIR was lodged at 1.30 in the night and therefore, it does not stand to reason that the victim and her father will go to the police station at a distance of 7 kilometers at that dead hour of the night with a false story to implicate the Appellants. But for ipse dixit, which does not at all appeal, Appellants have failed to bring out any material regarding the character of me damsel. I only reproduce the words of the Apex Court in State of Punjab v. Ramdev Singh (supra) in this respect;

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss. Subhra Chakraborty, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim''s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ''Constitution''). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

Considering the entire facts and circumstances, I find that the trial court has committed no error on facts and in law in convicting and sentencing the Appellants. Both the appeals lacks merit and are dismissed. Conviction and sentence of all the three Appellants, as has been recorded by the trial Judge through the impugned judgment is hereby confirmed. Appellants are on bail, they are directed to surrender forthwith. In the event of default in surrendering within a period of one month from today, trial court is directed to issue non-bailable warrant of arrest against them and lodge them in jail to serve out remaining part of their sentences.

Let a copy of this judgment be intimated to the trial court for follow up action.

Both the appeals are dismissed.