Vir Singh and others vs The State of Haryana

Sham Sunder, J.—This appeal is directed against the judgment of conviction and the order of sentence, dated 03.02.96, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted the accused (now appellants), and sentenced them as under:- Name of the accused (now appellant)

Name of the accused (now appellant)

Offence for which convicted

Sentence awarded

1

2

3

Vir Singh

Under Section 366 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- in default thereof to further undergo rigorous imprisonment for a period of two years.

Under Section 376 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/- in default thereof to further under go rigorous imprisonment for a period of two years.

Rohtas

Under Section 366 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- in default thereof to further undergo rigorous imprisonment for a period of two years.

Under Section 376 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/- in default thereof to further under go rigorous imprisonment for a period of two years.

Parveen Kumar

Under Section 366 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- in default thereof to further undergo rigorous imprisonment for a period of two years.

Under Section 376 of the Indian Penal Code.

To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/- in default thereof to further under go rigorous imprisonment for a period of two years.

All the substantive sentences were ordered to run concurrently.

The facts, in brief, are that on 31.03.94, Desraj, his wife Veera, and his children, including the prosecutor, who was aged about 16 years, were sleeping in their house. At about 11.00 PM, the accused criminally trespassed into the house of Desraj. They woke up the prosecutor and took her outside the house. Desraj, and his wife, came behind them. In the meanwhile, Bhajan Lal, brother of Des Raj, and Salwinder, neighbourer, also came there. A jeep was standing outside the house of Desraj. The accused took the prosecutor in the said jeep by inducing her. Desraj, and his family members, tried to locate the prosecutor, but they could not succeed. Ultimately, a statement, on 05.04.94, was made by Desraj, which formed the basis of the first information report, exhibit PQ. Thereafter, Jhuthar Singh, who was posted as Assistant Sub Inspector, in Police Station Bhuna, accompanied by the complainant, as also his two companions, came to his house. He recorded the statements of the wife of the complainant, as also of Bhajan Lal, and Salwinder. The site plan of the said place exhibit PS, was prepared with correct marginal notes. The prosecutor and the accused were searched, but could not be located.

On 09.04.94, Jhuthar Singh, Investigating Officer, received secret information that the prosecutor and the accused were present in a canteen located in a cinema hall, at Bhuna. Bhajan Lal and Mange Ram, Sarpanch, were joined. The Police alongwith them went to the canteen and found the prosecutor sitting with the accused. The prosecutor was, thus, recovered and memo PR was prepared, in that regard. The accused was arrested. The statements of Mange Ram, Bhajan Lal, and the prosecutor were recorded. PT site plan of the place of recovery of the prosecutor and arrest of the accused was prepared. On the same day, the Investigating Officer, got the prosecutor medicolegally examined, from a lady doctor, from Civil Hospital, Fatehabad, by presenting a written request PL. After the medico-legal examination, the lady doctor handed over three sealed parcels to him. On the same day, he got the three accused medico-legally examined, from the doctor of Primary Health Centre, Bhuna. The three sealed parcels containing the underwear of the three accused, were taken into possession, by the Investigating Officer, vide memo PU.

On 15.04.94, the Investigating Officer, took the prosecutor to a Judicial Magistrate and got recorded her statement u/s 164 of the Code of Criminal Procedure. In the intervening period, the custody of the prosecutor was entrusted to her parents, vide memo PV. After the completion of investigation, the accused were challenged.

On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, Charge under Sections 366 and 376 (2) (g) of the Indian Penal Code, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined Dr. S.K. Dogra, Senior Medical Officer, General Hospital, Fatehabad (PW1), who on 11.4.94, on Police request PA, conducted the ossification test of the prosecutor.

Shamsher Singh, Draftsman, Hansi (PW2), prepared the scaled map PC, at the instance of Bhajan Lal, Desraj, and the prosecutor.

Dr. Suraj Kamboj, Medical Officer, Bhuna (PW3), on 09.04.94, at 5.10 PM, on the request of Police, contained in application PG, medico-legally examined Vir Singh, Rohtas, and Parveen Kumar, accused, and found that there was nothing to suggest that they were incapable of committing sexual intercourse. In respect of Rohtas, accused, he found the presence of smegma.

Dr. Ramesh Chakrawarti, Medical Officer, Civil Hospital, Fatehabad (PW4), conducted the medico-legal examination of the prosecutor on 09.04.94, at 6.00 PM. He did not find any mark of injury on the person of the prosecutor. There was no vulval injury. She was found bleeding per vagina, but it was slight bleeding due to the 4th day of menstrual period, which she was undergoing. Hymen was old ruptured. One finger could go inside her vagina easily. She handed over the trouser (salwar) and underwear, which were worn by the prosecutor, at the time of medico-legal examination, as also the sealed parcel containing pubic hair, two vaginal smear slides, and a sealed envelope, containing copy of the MLR and a letter to the Police.

The prosecutor appeared as (PW5), and stated that she had been made to sit, in a jeep, by the accused and thereafter she was taken at the pistol point. She also stated that the accused committed sexual intercourse with her, without her consent.

Des Raj, complainant, and father of the prosecutor appeared as (PW6), and made a statement, in terms of the allegations, contained the first information report.

Mange Ram (PW7), stated that on 05.04.94, Desraj, came to him and informed that the prosecutor was missing. He further stated that then they went in search of the prosecutor, and came to know that they had already left for Nagpur. He further stated that on 09.04.94, when they were returning from Nagpur and reached Bhuna, they noticed the accused and the prosecutor inside the canteen of the cinema and, ultimately, they were apprehended.

Jhuthar Singh, Sub Inspector (PW8), is the Investigating Officer. He conducted the investigation and proved various documents.

Sh. B. Dewakar, Sub Divisional Judicial Magistrate, Fatehabad (PW9), recorded the statement exhibit DB, u/s 164 of the Code of Criminal Procedure, of the prosecutor.

The Public Prosecutor for the State, tendered into evidence, reports of the Forensic Science Laboratory exhibit PBB and PBB/1, and closed the prosecution evidence.

The statements of the accused, u/s 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Vir Singh, accused, in his statement, u/s 313 of the Code of Criminal Procedure, stated that infact the prosecutor had love with him, and she wanted to perform marriage with him, but her parents wanted to perform her marriage with some other boy. He further stated that, on account of this reason, he was falsely implicated by the father of the prosecutor.

Rohtas, accused, in his statement u/s 313 of the Code of Criminal Procedure, stated that the prosecutor was in love with Vir Singh, and she wanted to contract marriage with him, but her parents did not like this. It was further stated by him, that she of her own went away with Vir Singh. He further stated that he being the friend of Vir Singh, was falsely implicated, in the instant case, by the parents of the prosecutor.

Parveen Kumar, accused, in his statement, u/s 313 of the Code of Criminal Procedure, also took up the same plea, as was taken by Rohtas, accused.

The accused examined Ram Niwas, LRC, English Office, Sessions Court, Hisar (DW1), in defence. Thereafter, the accused closed the defence evidence.

After hearing Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

Feeling aggrieved, the instant appeal, was filed by the appellants.

I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

The first question that falls for determination is, as to whether, the prosecutor was kidnapped by the accused with intent to compel or seduce her to illicit intercourse and, thus, they committed the offence punishable u/s 366 of the Indian Penal Code. No doubt, as per exhibit PN, the certificate of Matriculation Examination, the date of birth of the prosecutor is recorded as 15.08.77, and the alleged occurrence took place on 31.03.94. At that time, the prosecutor was aged about 16 years and 8 months. She was, thus, below 18 years of age, at the time of the alleged occurrence. Des Raj, PW6, father of the prosecutor, in his examination-in-chief, stated that at about 11.00 PM, when he was sleeping alongwith his wife and children in the courtyard of his house, he heard cries, which disturbed his sleep. He further stated that accused Vir Singh, Parveen, and Rohtas, were seen by him in his house. He further stated that they were dragging his daughter i.e. the prosecutor. He further stated that Parveen and Rohtas, had caught hold his daughter of her arms, whereas, Vir Singh, was holding a pistol in his hands, and was pushing her back. He further stated, in his examination-in-chief, that a jeep outside his house was standing and the engine thereof, was running. He further stated that Salwinder, his neighbourer, and his brother Bhajan Lal, reached there. It was further stated by him, that when he tried to rescue his daughter from being forcibly taken away by the accused, they threatened them, at the pistol point. However, during the course of cross-examination, he deposed that in his statement PQ, he stated that Parveen and Rohtas, had caught hold the prosecutor of her arms and Vir Singh, was holding a pistol in his hands, as also pushing her from her back (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to by him, in his cross-examination that he stated, in his statement PQ, before the Police, that the engine of the jeep was running when he got up (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to, by him, in his cross- examination, that he had stated in his statement PQ, before the Police, that when he tried to rescue his daughter i.e. the prosecutor, Vir Singh, accused, threatened them with a pistol and also declared that, in case, they dared come forward, they will be shot dead (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to by him, during the course of his cross-examination that he stated in his statement PQ, before the Police, that on the same night, he arranged a jeep and chased the accused (when his attention was drawn to statement PQ, this fact was not found recorded therein). He further deposed, during the course of his cross- examination, that he had not stated in his statement PQ, before the Police, that the accused took away his daughter by enticing her (when he was confronted with portion A to A1 of his statement PQ, before the Police, this fact was found recorded therein). This witness, thus, made improvements and contradictions in his statement in the Court, over his previous statement exhibit PQ. The prosecutor, when appeared as PW5, during the course of her cross-examination, deposed that in her statements before the Police and the Magistrate, she stated that the three accused threatened her with pistol (when her attention was drawn to exhibit DA and DB this fact was not found recorded therein). She further deposed, during her cross-examination, that she stated in her statements that Vir Singh, was armed with a pistol (when her attention was drawn to DA and DB this fact was not found recorded therein). It is, thus, evident from the perusal of the evidence of both these witnesses, in entirety, that the accused did not allegedly take the prosecutor forcibly. It is further evident, from their statements that Vir Singh, was not having any pistol, nor did he threaten Des Raj and other persons, that if they came forward, they would face the dire consequences. These witnesses had scant regard for truth. The improvements and contradictions, were made by these witnesses, on material points. These improvements and contradictions, clearly prove that the statements made by Des Raj and the prosecutor in examination-in-chief are nothing but a tissue of lies. In Yudhistir v. State of M.P., 1971 S.C.C. (Crl.) 684, the principle of law, laid down, was to the effect, that when a particular fact deposed to by the witness, does not find mention in the FIR and the statement u/s 161 Cr.P.C., it is an improvement and it cannot be considered. If the improvements and contradictions made by these witnesses, in their statements, are excluded, then nothing is left, on the record, to prove that the accused allegedly took the prosecutor out of the keeping of her lawful guardianship, with intent to compel her to illicit intercourse. Des Raj,PW6, also stated that he was having a dang with him, at the relevant time, but he did not inflict any injury, on the person of the accused, when they were taking his daughter i.e. the prosecutor forcibly.

Even two other persons namely Salwinder, and Bhajan Lal brother of Des Raj, according to him, had come to the spot. It could not be imagined, that three persons, were not able to restrain the accused, from allegedly forcibly taking away the prosecutor, with them. No father and uncle, could be expected to keep silent, on seeing their daughter and niece, being forcibly taken away, without inflicting injuries on the person of the accused, especially when they were armed with a dang so as to save the prosecutor and restrict the movements of the accused. The conduct of Des Raj, Salwinder, and Bhajan Lal, was also most unnatural and improbable. Even Bhajan Lal brother of Des Raj, and Salwinder, who according to him (Des Raj), reached the spot before the prosecutor was allegedly taken away forcibly, by the accused, were not examined by the prosecution. They were given up as unnecessary. They were the material witnesses, who could throw light, as to what happened on that night, when the prosecutor was allegedly forcibly taken away, by the accused. It means that the prosecution withheld the best evidence, in its possession. On the other hand, as would be discussed hereinafter, the prosecutor was a consenting party. She was mature enough, to decide between her good and bad, at the time of the alleged occurrence. Not only this, exhibit DC, is the letter, handwritten by the prosecutor, which she admitted, though her father denied the same. No doubt, the prosecutor stated that she was forcibly, made to write this letter to the accused. However, this letter is of two hand written pages. When this letter is read in conjunction with the photographs D1 to D5, which would be discussed, in the subsequent paragraphs, then only one and one conclusion, that can be drawn, is that, it was written by her of her own accord. In this letter, she wrote that if accused Vir Singh, wanted to take her, she was ready to accompany him. She also stated, in this letter, that on 30.03.94, she would remain at Bhuna. She further stated, in this letter, that on 31.03.94, she would be ready to accompany the accused, where he wanted her to accompany him. From the aforesaid discussed evidence, it is proved beyond doubt, that the prosecutor accompanied the accused of her own accord, by leaving the house of her guardian. Since she accompanied the accused of her own accord, by leaving the house of her guardian, it could not be said that she was kidnapped with intent to compel or seduce her to illicit intercourse. The ingredients, required for constituting the offence, u/s 366 of the Indian Penal Code, were, thus, not fulfilled, in the instant case. The trial Court, was, thus, wrong in coming to the conclusion, that the accused committed the offence, punishable u/s 366 of the Indian Penal Code. It is held that the accused did not commit an offence, punishable under Sections 366 of the Indian Penal Code. The findings of the trial Court, to the contrary, being incorrect are reversed.

The next question that arises for consideration is, as to whether, the prosecutor was a consenting party, or not. It may be stated here, that Vir Singh, one of the accused, in his statement, u/s 313 of the Code of Criminal Procedure, stated that, in fact, the prosecutor had love with him, and she wanted to contract marriage with him. He further stated that the parents of the prosecutor wanted to marry her to some other boy. He further stated that, on account of this reason, he was falsely implicated, in the instant case. This plea of Vir Singh, that the prosecutor, was having love with him, and, as such, was a consenting party, is proved from the evidence, on the record, as would be discussed hereinafter. The evidence of the prosecutor, in this regard, is very material. The story that Vir Singh, was having pistol and he threatened the father of the prosecutor, has been found to be incorrect. During the course of her cross-examination, it was deposed to by the prosecutor, that she stated before the Police, as also before the Magistrate that she was given some intoxicants while traveling from Delhi to Nagpur on 01.04.94 (when her attention was drawn to DA and DB, her previous statements, this fact was not found recorded therein). It means that she made an improvement, on this point. Her statement, on this point, therefore, cannot be believed, being an improved version. It was stated by her, that, in the first instance, she found herself in the house of someone at Delhi, which belonged to the relatives of accused Parveen. It was further stated by her, that then they moved by train to Nagpur, as the relatives of Parveen, did not permit their stay at Delhi. It was further stated by her, that then they reached Nagpur, the next morning. It was further stated by her that thereafter, they proceeded to the house of the sister of accused Parveen, at Nagpur, where, they stayed upto 08.04.94. She further stated that throughout this period, she was raped by all the three accused off and on. It was further stated by her, that she was taken to a temple, where accused Vir Singh forcibly put a garland, around her neck. She further stated that her photographs were forcibly taken by the accused, while garlanding. She further stated that during this period she was forced to write some letters, addressed to Vir Singh, accused. She also stated that they brought cosmetics, bag, chappals and three suits besides bangles for her. It was further stated by her that on 08.04.94, they started back from Nagpur and reached Bhuna and, thereafter, were found sitting in the canteen of the cinema, when the Police apprehended them. The statement of the prosecutor that garlands were forcibly put around her neck and she was forced to write letters, in the name of the accused namely Vir Singh, is not at all correct. The prosecutor remained with the accused from 31.03.94 upto 09.04.94. They travelled to various places, in trains and buses. They went together to the temples and other places. The prosecutor had many occasions to raise hue and cry, that she had been kidnapped, by the accused with intent to compel her to illicit intercourse or marriage. She could also tell the sister and brother in- law of Parveen, accused, where they resided for a number of days, that she had been kidnapped by the accused and they had committed rape with her as also wanted to contract marriage with her forcibly. She neither raised hue and cry, at any point of time, from 31.03.94 to 09.04.94, nor reported the matter to the Police. She admitted, in her statement, that she did not disclose the factum of her kidnaping and commission of rape with her, by the accused to the sister of Parveen, accused, or her husband. She also did not tell the neighbourers, that she was kidnapped by the accused with a view to compel her to illicit intercourse and contract marriage with her forcibly. It is evident from photograph exhibit D1, that the prosecutor, is putting something, in the mouth of Vir Singh, accused, and is in a very happy mood. It is further evident from photograph D2, that Vir Singh, accused, was putting garlands around the neck of the prosecutor. At that time, she appears to be in a very happy mood. In D3, Vir Singh, accused, is keeping his hand on the head of the prosecutor. In this photograph also, she appears to be in a very happy mood. D4, another photograph shows that Vir Singh, accused, and the prosecutor are sitting side by side, in a very happy mood. D5, photograph, also shows that Vir Singh, accused, is putting something in the mouth of the prosecutor, when she appears to be in a very happy mood. In all these photographs, her dress also appears to be like that of a newly wedded girl. In case, the garlands were put around the neck of the prosecutor, forcibly, she could resist the same. In that event, her photographs would not have been in a happy mood. On the other hand, the photographs, in that event, would have been showing her in a very furious mood. The postures of the prosecutor, in the aforesaid photographs, clearly show that she was a consenting party. The letter DC, written by the prosecutor to Vir Singh, has already been discussed above. Since the prosecutor was a consenting party, to the act of sexual intercourse with the accused, they, therefore, could not be held guilty, for the offence, punishable u/s 376 of the Indian Penal Code. The trial Court, was wrong, in coming to the conclusion that the accused committed rape with the prosecutor.

Not only this, even the medical evidence of Dr. Ramesh Chakrawarti, Medical Officer, PW4, did not support the case of the prosecution that the prosecutor was subjected to rape by the accused. The doctor stated that there was no injury to the vagina of the prosecutor. She further stated that there was no fresh injury on her hymen and its tags were completely healed. She further stated that it indicated that hymen was old ruptured. It was further stated by her, that there was, therefore, the possibility that the prosecutor was habitual to intercourse because one finger was easily going inside her vagina. She also stated that she did not find any injury on her person. Had the prosecutor been forcibly subjected to sexual intercourse, by the accused, she being a grown up girl, well built, would have certainly put up stiffest resistance. In that event, marks of violence would have certainly been found on her body. Even no marks of injuries were found on the person of the accused by Dr. Suraj Kamboj, when he medically examined them. Due to this reason also, the story of subjecting her to sexual intercourse forcibly, could not be said to be correct. Taylor in "Principles and Practice of Medical Jurisprudence Volume II" while dealing with the cases of rape, on a grown up or an experienced lady, observed as follows:-

Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent.

Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of bruises, is, as was indicated in Volume I, a matter of some uncertainly in the absence of microscopy.

Strong corroborative evidence of a struggle might be obtained from an examination of the accused, for similar marks of bruises or scratches about the arms or face, and possibly evidence about his penis, though this is less likely.

In similar circumstances in Pratap Misra and Others Vs. State of Orissa, , the accused were acquitted of the charge of commission of offence of rape, when the marks of scratches or injuries, were not found, on their person and on the person of the prosecutor. In the instant case, as stated above, there were no marks of scratches or external injuries, on the person of the prosecutor. There was no fresh rupture of hymn of the prosecutor. As stated above, there were also no marks of injuries on the person of the accused. Medical evidence of the doctors, therefore, completely ruled out the theory of commission of rape, by the accused. On the other hand, the medical evidence corroborated by other circumstances, referred to above, clearly proved that it was a case of consent, on the part of the prosecutor. It appears that, when the prosecutor was apprehended by the Police, in the company of the accused, under the pressure of her parents, she deposed against the accused, that she was forcibly subjected to sexual intercourse. Since the prosecutor was a consenting party, the findings of the trial Court, that the accused committed rape with the prosecutor, being incorrect, are reversed.

Normally, it is presumed, that no girl or a married lady would level a false allegation of rape, or other sexual offence, against the accused, by putting her honour, and character, at stake, but it cannot be applied universally. Each case, has to be determined, on the factual matrix thereof. Similar principle of law, was laid down, in Pandurang Sitaram Bhagwat v. State of Maharashtra, 2005 (1) RCR 859 (S.C.). : [2005 (1) AICLR (S.C) 966] So in the present scenario, prevailing in our society, it could not be completely ruled out, that a young girl, or a woman, would, in no case, raise false allegations of rape, against the accused. In view of the principle of law, laid down, in the aforesaid authority, the facts, circumstances and the evidence, discussed above, it can be safely concluded that the prosecutor raised false allegations, against the accused, that she was subjected to rape.

No other point, was urged, by the Counsel for the parties.

In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based, on the correct appreciation of evidence, and law on the point. The same warrant interference, and are liable to be set-aside.

For the reasons recorded above, the appeal is accepted. The judgment of conviction and the order of sentence, rendered by the trial Court, are set-aside. The appellants shall stand acquitted of the charge framed against them. If the appellants are on bail, they shall be discharged of their bail bonds. If they are in custody, they shall be set at liberty, if not required, in any other case.

The Chief Judicial Magistrate, is directed to comply with the judgment promptly, in accordance with the provisions of law, on receipt of a copy thereof.