JUDGMENT
R.L. Anand, J.
1. By this judgment we dispose of four criminal
appeals No. 583-DB-2001 titled Vikram Singh v. State of
Haryana No. 373-SB-2001 titled Bhagmal and Ors. v. State
of Haryana, No. 539-SB-2001 titled Raj Singh @ Titu v.
State of Haryana and No. 658-SB-2001 Pankaj v. State of
Haryana as, in my opinion, all the four appeals can be
disposed of by a common judgment.
2. All these appeals have arised from one judgment
dated 23.2.2001 passed by Addl. Sessions Judge, Rewari, who
same to the conclusion that all the appellants are guilty
for the offences under Section 376(2)(g), 342, 323 and 506
read with Section 34 of the Indian Penal Code and vide
order dated 27.2.2001 Vikram Singh was sentenced for life
imprisonment with a fine of Rs. 5,000/- and in default of
payment of fine to undergo RI for 2-1/2 years, for the
offence and other six appellants, namely Bhagmal, Sukhbir
@ Sheru, Mehtab, Jai Parkash, Raj Singh @ Titu and Pankaj
were sentence to undergo RI for 10 years each and to pay
a fine of Rs. 4,000/- each and in default of payment o
fine to further undergo RI for two years each, under
Section 376(2)(g) of the Indian Penal Code. All the
appellants were further sentenced to undergo RI for one
year each under each section for the offence punishable
under Section 323 and 342 and RI for 2 years each under
Section 506 of the Indian Penal Code. All the sentences
were ordered to run concurrently.
3. The seven appellants, referred to above, were
charge sheeted with the allegations that on 21.12.1998 at
about 6.00 p.m. in the area of Rewari in furtherance of
their common intention they wrongfully confined Ramesh
Devi and thereby committed an offence punishable under
Section 342/34 of the Indian Penal Code. Secondly, on the
same date, time and place and in further of their common
intention they voluntarily caused simple hurt to said
Ramesh Devi and thereby committed an offence punishable
under Section 323/34 of the Indian Penal Code. The third
charge against the appellants was that on the same, date
and time and in furtherance of their common intention they
threatened the prosecutrix to kill her and thereby
allegedly committed an offence punishable under Section
506/34 of the Indian Penal Code. An the last charge
against them was that on the same date, time and place
they committed gang rape with Ramesh Devi and thereby
committed an offence punishable under Section 376(2)(g) of
the Indian Penal Code.
4. Present is a case which has shaken our
conscience on going through the evidence and allegations
of the prosecution. Vikram Singh appellant is none else
but the husband of Ramesh Devi. To what extent he can go
for defaming his wife not only through himself but also
with the assembly of his companions can be well judged on
going through the statements of the prosecutrix made
before the police and in the trial court and also before
the Magistrate under Section 164 Cr.P.c. Ramesh Devi made
a statement before SI/SHO Baldev Singh of Police Station,
Sadar Rewari in the company of her mother on 23.12.1998 at
about 8.15 a.m. stating therein that she is a resident of
Berli Khurd. Her father explied in her childhood and
thereafter she started residing with her mother. She was
married with Vikram son of Mam Raj, caste Ahir, Resident
of Dahina, Police Station, Khol on 5.6.1994 according to
Hindu rites and ceremonies and out of this wedlock she
gave birth to one male child, namely, Ankit, aged about 2
years at the time of this incident. The prosecutrix was a
young girl of 20 years at that time and she further stated
that she was living with her mother in the village for the
last about 8/10 months and she started serving as nurse in
Virendra Hospital, Rewari. On 21.12.1998 when she was
returning to bus stand Rewari from the hospital, on the
way her husband Vikram Singh called her by name. At that
time he was sitting in a while Maruti car bering
No. DL-4C.3051 which was being driven by Titu alias Raj
Singh resident of Ladhuwas. her husband was sitting on
the rear seat of the said car and one more person
belonging to village Ladhuwas was also sitting in the car.
Her husband called her saying that he would drop her at
bus stand or Naiwala Chowk. She reposed confidence in her
husband and sat in the car. She was made busy in
conversation and due to this reason her last bus missed.
Her husband told her that firstly they would take liquor
and then they would drop her. Her husband and his
companions became busy in taking liquor. It is alleged by
the complainant that she was forced to consume Pepsi which
was in a plastic bottle. Some intoxicant was mixed in the
Pepsi and that was the reason that after 10/15 minutes she
started feeling giddiness and her limbs were unable to
move. Upon this her husband Vikram told to his companion
Titu that now she was fully intoxicated and they will take
her to Ladhuwas. Thereafter they took her to a house in
village Ladhuwas and she was in a position to identify the
same. On reaching that house she observed that two
persons were already sleeping in the Chobara of the said
house. Her husband forcibly committed sexual intercourse
with her in the Chobara and then he went out. Thereafter
(SIC) two persons, who were already sleeping in the Chobara,
(SIC) sexually assault her but she resisted and raised
(SIC) her cries, her husband told titu that on
hearing such cries villagers would attract to the spot.
He suggested to take her to the well. Thereafter all the
five persons forcibly took her in the car to the hut made
of gunny bags. In the hut three persons were already
present, all those persons also committed rape with her
turn by turn and on her refusal they gave her beating and
many photographs were taken by them in a forcibly manner.
Throughout the night they had been committing rape upon
her forcibly one after the other. On the following day at
about 5.00 a.m. they dropped her near Mehendergarh Chowk,
Rewari. Due to tiredness and pain she straightway went to
village Berli Khurd to her mother. On the day of
reporting, after she recovered, she accompanied by her
mother Giano Devi came to the police station for lodging
the report, it was also stated by the prosecutrix that
those persons while leaving her threatened that in case
she tried to go to the police station for lodging the
report, she would be killed. Also it was stated by the
prosecutrix that all those persons were young in age and
she could identify them as and when they were produced
before her. It was further averred by the complainant
that she left her clothes at home which she was wearing on
21.12.1998. Necessary action be taken against the
culprits. On the basis of that statement FIR Ex.PA was
recorded, it was read over and explained to the
prosecutrix who signed the same in token of correctness
and was attested by SI Baldev Singh.
5. PW18 SI Baldev Singh, after recording FIR Ex.PA
deputed Constable Maya Rani and HC Munshi Ram to get the
prosecutrix medically examined at Civil Hospital, Rewari,
he also recorded her supplementary statement on the same
day outside the police station. He also recorded the
statement of the mother of the prosecutrix and thereafter
the prosecutrix was sent to the hospital. After the
medical examination of the prosecutrix, HC Munshi Ram
produced the underwear and swabs taken by the doctor in a
sealed parcel to the Investigating Officer and those
articles were taken into possession vide recovery memo
Ex.PL.
6. On 24.12.1998, the prosecutrix, her mother and
other persons met the Investigating Officer at Naiwali
Chowk, Rewari when the prosecutrix produced her suit and
Salwar and those were taken into possession vide recovery
memo Ex.PM. thereafter the Investigating Officer visited
the place of occurrence. He prepared rough site plan
Ex.PZ. He also went to village Ladhuwas and prepared
rough site plan Ex.PAA of the Chobara of the house on the
pointing out of Ramesh Devi. During the course of
inspection he took into possession a Dari from the hut in
village Ladhuwas and a Dupatta from the Chobara at village
Saharanwas vide recovery memos Ex.PK and PJ, respectively.
On the same day he took into possession the car bearing
No. DL-4D-3051 vide recovery memo Ex.PN.
7. On 27.12.1998, the prosecutrix was produced
before the Magistrate for the purpose of recording her
statement under Section 164 Cr.P.C. Her statement was
recorded in Hindi and the same can be described in the
following manner:-
The prosecutrix stated that she has three
brothers and sisters and she was married with Vikram about
four years ago. It may be mentioned here that her
statement was recorded on 27.12.1998. She was serving
with Dr. Virender as Nurse. On 21.12.1998 at about 6
O’clock when she was returning to her house after doing
her job, a Maruti car on Garhi-Bolni road crossed her and
she heard a noise coming form the Maruti car: Ramesh,
Ramesh. She heard the noise but ignored the same. When
she walked just 8/10 feet the same voice came from the
Maruti car which was following her. Then she say that her
husband Vikram was sitting in the car. He asked her to
sit in the car but she did not agree. Again he asked her
to sit in the car and this time she was taken forcibly in
the car. Her husband Vikram asked her that he would drop
her at the bus stand. He further told that he was going
to his house and that she should accompany him. She asked
her husband to drop her at the bus stand and he may go in
the car. She was not dropped at the bus stand. Her
husband told her that she would be dropped at Naiwali.
Upon this the prosecutrix told her husband that Naiwali
has come and she may be dropped there. He husband again
told that first he would get some petrol in the car and
then she would be dropped. After taking the petrol her
husband did not drop her from the car. Two more persons
were also sitting in the car. After taking petrol her
husband asked Titu to return. They reached at Naiwali.
The complainant enquired from the bus stand as to whether
the last bus has gone or not. On coming to know that the
last bus had already left, she requested her husband to
drop her at her house. Her husband assured her that she
would be left at her house but first of all he has to take
liquor. The prosecutrix requested her husband not to take
liquor and if he wants to take liquor he may take the same
at house. Her husband did not agree. He purchased liquor
and started taking the same. The liquor was consumed by
her husband and one other occupant of the car. Then her
husband told her to take Pepsi. The complainant was
reluctant to take the Pepsi but her husband asked her
companion Sunda (Bhagmal) to offer Pepsi to the
complainant. When Sunda offered Pepsi, she refused.
Thereafter they entered inside the car and asked titu (Raj
Singh) to start the car. There was only road at that
place and there was no shop or house. Then her husband
again asked the complainant to take Pepsi. She refused
and upon this her husband gave her 4/5 slaps and compelled
her to take Pepsi, otherwise she will be beaten. Due to
the fear she took Pepsi. After about 10 minutes of taking
Pepsi she was in such a condition that she could not
stand, her husband asked Titu alias Raj Singh that she
should be taken to Ladhuwas. When she heard the name of
Ladhuwas, she asked her husband that she be taken to her
house and why she was being taken to Ladhuwas. Upon this
her husband said sorry and asked his companion Titu alias
Raj Singh to take the complainant to Berli. After
covering some distance she say that they were taking her
to some other place instead of her house. She made a
noise and enquired from them as to where she was being
taken. Her husband told her that they were taking her to
Berli. She was again beaten. At about 8.00 p.m. she
observed that the car has turned towards village
Saharanwas. Those persons took her to a Chobara and asked
Mehtab to open the door. It was opened and her husband
took her in the Chobara and she say inside the Chobara
Mehtab, who opened the door, and one more person were
present. Thereafter her husband asked Mehtab who is the
second person, upon which Mehtab told that he was his
friend Pankaj. thereafter her husband asked Mehtab to go
out of the Chobara and her husband started removing her
clothes. When the complainant objected to her husband
that as to what he was doing in the presence of other
persons, her husband told her that the other man was in
sound sleep. Her husband removed her clothes and
committed sexual intercourse with her and then he left the
room. Then other persons were called inside the room. It
was stated by the complainant in her statement under
Section 164 Cr.P.C. that her husband got committed rape
upon her by other persons. She further complained that as
and when she wanted to resist the sexual intercourse of
other persons, she used to be beaten. On one side her
husband was standing and on the other side Titu alias was
standing. As and when she tried to cry, Titu started
beating her with his belt and her husband used to give her
kicks. She stated that inside the Chobara five persons,
namely, Pankaj, Mehtab, Titu @ Raj Singh, Vikram Singh and
Sunda alias Bhagmal committed rape with her one after the
other. She further stated that when they tried to commit
rape upon her second time, she made a noise. On this her
husband asked his four companions to take her at the well.
Her husband enquired from Mehtab, who will be present on
the well and upon this Mehtab replied that Sheru and
Chotia might be available there. Further, the prosecutrix
deposed that she was in naked condition and she was
brought to the well by covering herself with a Dari. When
she was raped, the same Dari was being used in the
Chobara. Her husband and his companions all put her in
the car and took her to the well. There was only one hut.
No well was there. Two more persons met there. Those two
persons also committed rape upon her one after the other.
The names of Sheru and Chotu became known to her as they
were calling their names. The complainant further alleged
that one person was taking her photographs and all the
aforesaid persons committed rape during the night with her
and also gave her beating. As and when she wanted to
obstruct she was given more beating. So much so her urine
fell on the Darri which was put on a cot. At about 4.00
a.m. they threatened her with dire consequences. She
requested her husband and his companions not to kill her
but all the persons continuously threatened her with dire
consequences. When she cried again, one of them told that
she may be killed lest she may not report the matter to
the police. Upon this the complainant told them that she
would not go anywhere nor she would narrate the incident
to anybody. On this condition they allowed her to sit in
the car after covering with the same Dari and then they
gave her clothes for wearing and she wore her clothes in
the car. Thereafter these persons left her at Narnaul
road at about 5.00 a.m. At that time there was darkness.
She sat near the road under a tree. After some time she
slept there. At about 7.00 a.m. she woke up. Thereafter
she stood near the road and saw same persons coming in the
car. Vikram, Sunda and Titu were the occupants of the
car. She again became afraid of them. Thereafter she
went to Berli by bus and after reaching there she narrated
the whole story to her mother. On that day she was
provided with heat by her mother. Finally the prosecutrix
stated before the Magistrate that her health became too
weak to walk. On 23.12.1998 she along with her mother
went to the police station in the evening and narrated the
entire story in the police station. The statement Ex.PB
was read over and explained to the prosecutrix by Shri
Nazar Singh, Judicial magistrate Ist Class, Rewari and was
signed by the prosecutrix.
8. The Investigating Officer SI Baldev Singh
arrested Raj Singh, Sukhbir @ Sheru, Jai Parkash, Mehtab
Singh, Bhagmal @ Sunda and they were medically examined
about their capability to perform sexual intercourse.
After their medical examination the doctor handed over to
the Investigating Officer 5 underwears which were being
worn by the five accused and those were taken into
possession vide memo Ex.PU. From the possession of Raj
Singh 38 negatives were recovered vide memo Ex.PT.
9. On 27.12.1998, PW3 Dr. P.D. Mehra medico legally
examined Bhagmal alias Sunda son of Banwari and issued
certificate Ex.PD on police request Ex.PD/1 to the effect
that this person was capable of performing sexual
intercourse. On the same day he also examined Jai Parkash
and vide report Ex.PE declared him fit to perform sexual
intercourse. The opinion was given on police request
Ex.PE/1. Further, this very doctor examined Raj Singh @
Titu and as per his opinion Ex.PF he was also fit to
perform sexual intercourse. He further examined Mehtab
son of Bachan Singh appellant and opined vide Ex.PG that
there was nothing to suggest that he was not capable to
perform sexual intercourse. Still further Dr. Mehra medico
legally examined Sukhbir alias Sheru and he was also
declared fit to perform sexual intercourse vide opinion
Ex.PH which was given on request Ex.PH/1. The doctor also
took into possession the samples of the public hair besides
underwears of these five persons.
10. On 19.1.1999 PW2 Dr. Karan Singh along with
Dr. O.P. Dawas and Dr. Kawar Singh examined Pankaj son of
Asha Nand and gave opinion Ex.PC that he was fit to
perform sexual intercourse.
11. Finally the sealed parcels of the clothes of
Ramesh Devi, slides, Swabs, pubic hair, Darri, Salwar,
lady shirt and underwears of the accused were sent to the
office of the director, Forensic Science Laboratory, who
vide report Ex.PX opined that human semen was there on the
Darri, underwears but the semen could not be detected on
the slixes, swabs, pubic hairs of the prosecutrix, Salwar
and the lady shirt.
12. During the course of investigation the
negatives which were recovered from the possession of Titu
alias Raj Singh were got developed and those are Exs.P1 to
P37.
13. On completion of the investigation of the case
the present appellants were challaned in the court of Area
Magistrate under Sections 376, 342, 506, 323 read with
Section 34 of the Indian Penal Code. The learned
Magistrate supplied the copies of the documents to the
accused as required under the law and vide commitment
order dated 4.5.1999 committed the appellants to the Court
of Session.
14. In order to prove the charges, the prosecution
examined PW1 Ramesh Devi, whose statement shall be dealt
by us in detail. Further, the prosecution examined PW2
Dr. Karan Singh, who on 19.1.1999 medico legally examined
Pankaj appellant and declared him fit to perform sexual
intercourse. Five appellants, namely, Bhagmal alias
Sunda, Jai Parkash, Raj Singh @ Titu, Mehtab and Sukhbir
alias Sheru were medically examined by PW3 Dr. P.D. Mehra
and they were declared fit to perform sexual intercourse.
PW4 is Ram Kumar who deposed that on 24.12.1998 he had
gone to village Saharanwas with the police in connection
with the investigation of this case and from the Chobara
at village Saharanwas a Dupatta was taken into possession
by the police vide memo Ex.PJ. This dupatta was
identified by the prosecutrix who was also with the police
at that time. From there they went to village Ladhuwas
and from a hut a Dari was taken into possession by the
police vide memo Ex.PK and the Dari was identified by
Ramesh Devi. The police also showed Salwar and Jamphar to
the prosecutrix and the same were identified by her. PW5
in Nazar Singh, HCS, who deposed that on 27.12.1998 he was
posted as Judicial magistrate Ist Class, Rewari and on
that day he recorded the statement of the prosecutrix
which is Ex.PB and it was so recorded on police request
Ex.PD/1. He passed orders Ex.PB/2 and PB/3 regarding the
compliance of Section 164 Cr.P.C. PW6 is HC Munsi Ram who
deposed that on 23.12.1998 he accompanied the prosecutrix
to Civil Hospital, Rewari along with lady Constable Maya
Rani and the prosecutrix was medically examined there.
After her medical examination one parcel of underwear of
the prosecutrix and one parcel of swabs sealed with the
seal of the doctor were handed over to him with the copy
of the M.L.R. and one envelope and he handed over these
articles to SI/SHO Baldev Singh, who took these articles
into possession vide memo Ex.PL. PW7 is ASI Devi Lal, who
deposed that on 24.12.1998 he joined the investigation of
this case with SI Baldev Singh and in his presence the
prosecutrix Ramesh Devi handed over her Salwar and Jamphar
to the SHO at Naiwali Chowk, Rewari and those were taken
into possession vide memo Ex.PM. Thereafter he along with
the police party went to village Saharanwas and from a
Chobara one Dupatta was taken into possession in the
presence of Ramesh Devi and it was taken into possession
vide memo Ex.PJ. Thereafter they went to village Ladhuwas
and from a hut a Darri was taken into possession vide memo
Ex.PK. From Ladhuvas a Maruti car bearing registration
No. DL-4CD-3051 was taken into possession, which was lying
parked in front of the house of Raj Singh alias Titu, vide
memo Ex.PN. PW8 is Sanwat Singh, Advocate, District
Courts, Rewari, who deposed that under the orders of the
Addl. Chief Judicial Magistrate, Rewari from the negatives,
which were recovered in this case, positives were got
developed from Astha laboratory, Rewari in his presence
and that of ASI Anil and complainant Ramesh Devi. The
developed photographs were taken into possession vide memo
Ex.PO. The photographs are Exs.P1 to P37. PW9 HC Inder
Singh and PW10 Constable Abdul Karim tendered their
affidavits Exs.PP and PQ respectively. PW11 is HC Hazari
Lal, who deposed that on 23.12.1998 he delivered the
special report of this case to the Ilaqua Magistrate at his
residence. PW12 Constable Naresh Kumar deposed that he
prepared scaled site plan Ex.PR of the place of occurrence
on the pointing out of Ramesh Devi. PW13 Rajpal Singh,
revenue Patwari deposed that he prepared site plan Ex.PS
on the pointing out of Ramesh Devi. PW14 ASI Mahender
Singh deposed that he partly investigated this case. On
18.4.1999 he arrested Vikram Singh and got his medically
examined. PW15 is ASI Anil Kumar, who deposed that on
27.12.1998 five accused were arrested by SI Baldev Singh.
38 negatives were recovered from the possession of Raj
Singh and those were taken into possession vide memo
Ex.PT. He got the five accused medically examined. After
the medical examination he handed over the sealed parcel
of the underwears which were taken into possession vide
memo Ex.PU. On 18.1.1999, he arrested Pankaj in the area
of bus stand Rewari and he was also medically examined on
the same day. On 9.2.1999 the negative photographs were
got developed from Aggarwal Colour Lab, Rewari on the
orders of the learned Addl. Chief Judicial magistrate,
Rewari and the same were taken into possession vide memo
Ex.PO, attested by Sanwat Singh, Advocate and Ramesh Devi,
prosecutrix. The photographs are Exs.P1 to P37 and
negatives are Exs.P38 to P77. The witness further deposed
that two negatives could not be developed. PW16 is
Dr. Sunita Garg, who medico legally examined Ramesh Devi
prosecutrix and deposed as follows:-
” Examination
Breast well developed. Public & axillary
hair well developed. Few public hair near labia
majora and matted, cut and sent for semen
analysis. Stain present on underwear and sent
for semen analysis.
INJURIES
1.A. contusion of 13 x 4 cm present on
anterolateral aspect of left thigh 2 inch
above left knee joint and of bluish colour.
2. Semicircular abrasion of size 5 x .1 cm
present on right cheek 5 cm away from right
ala of nose, seems to be teeth mark.
3. Semicircular abrasion of 3 x 0.2 cm present
on right side of face 4 cm below injury No. 2,
seems to be teeth mark.
4. Abrasion of 0.5 x 0.2 cm present on right
side of face 4 cm away form lateral angle of
mouth.
5. Swelling of 3 cm x 3 cm present on ulnar side
of left forearm in middle. Tenderness was
present. Advised X-ray. Left forearm AP
view and lat. view.
6. Also complaining of pain in the middle of
left arm.
7. Complaining of pain on right side of back in
scapular area.
LOCAL EXAMINATION
No injury mark over labia majora, perineum,
breasts. Few bruises were present of size 2 cm
x 1 cm, 4 in number on labia minora near post
fourchette. Hymen is ruptured and replaced by
carunculae myrtiformes. Vagina admit two
fingers.
L.M.P. 1.12.1998
P.V. EXAMINATION
Two swabs taken from vagina for semen
analysis, slide made form vaginal secretion for
semen analysis. For age verification referred
to radiologist.
IMPRESSION
Final report will be given after receiving
report of analysis from FSL, Madhuban, Karnal.
After going through the report of FSL,
Karnal, in my opinion the patient was subjected
to sexual intercourse. Ex.PV is the photo copy
of MLR, I have brought the original MLR which
is in my hand and it bears my signature. I had
examined Ramesh Devi on police application
Ex.PV/1.
HANDED OVER TO POLICE
1. A copy of MLR-S.G/3/98 dated 23.12.1998.
2. An envelope bearing 5 seal containing
forwarding letter, copy of MLR sample of
seal addressed to FSL, Madhuban.
3. A pulanda bearing 5 seals containing
underwear of patient.
4. A box bearing 7 seals containing two test
tubes with vaginal swabs, 1 test tube with
pubic cut hair and two slides addressed to
FSL, madhuban for semen analysis.
5. Two samples of seal.”
15. PW17 Vijender Singh, whose version before the
police was that he developed negatives, but at the trial
stage this witness did not support the case of the
prosecution. PW18 is Investigating Officer SI Baldev
Singh. Finally, the prosecution tendered into evidence
the report of the Chemical Examiner and closed the case.
16. The statements of the accused were recorded
under Section 313 Cr.P.C. and all the incriminating
circumstances appearing in the prosecution evidence were
put to them. Their defence before the trial court was
that they have been falsely implicated in this case.
17. When called upon to enter into defence, accused
examined DW1 Lal Singh and DW2 Daulat Ram and closed the
case.
18. The learned trial court believed the story of
the prosecution and convicted and sentenced the appellants
in the manner as stated above and aggrieved by their
conviction and sentence the present appeals.
19. We have heard Mr. Gorakh Nath, Mr. T.P.S. Mann
and Mr. P.R. Yadav, Advocates on behalf of the appellants,
Mr. Sanjay Vashist, Deputy Advocate General, Haryana on
behalf of the State and with their assistance have gone
through the records of the case.
20. The entire case of the prosecution hinges upon
the statement of PW1 Ramesh Devi, who is none else but the
wife of appellant Vikram Singh. After going through the
statement of this witness we are of the opinion that this
gang rape has been committed not only by Vikram Singh who
is none else but the husband of the prosecutrix but this
man was so cruel to his wife that he even abetted and
invited his companies to commit rape upon his wife with
whom this gentleman had some strained relations. In order
to put the lady into disrepute Vikram Singh not only
kidnapped her forcibly against her will but also made her
sedate. She was taken to a Chobara by three persons at
the first instance where two more persons joined and all
the five persons committed rape upon her one after the
other. So much so she was severely treated. She was made
naked. In order to put her into shame her naked
photographs and some of the photographs in comprising
position were taken. From there she was taken to a hut.
Two more persons joined and again the prosecutrix became
the victim of sexual lust at the instance of the
appellants.
21. Before we deal with the case law as well as the
contentions raised by the learned counsel for the parties,
it will be proper for us first to make a reference of the
substantive statement of Ramesh Devi who appeared in the
trial court as PW1. We have already reproduced above the
contents of the FIR and the statement under Section 164
Cr.P.C. Of course there is some improvements in the
statement of the prosecutrix but we are convinced that the
genesis of the occurrence have not been broken and she has
not concealed anything from her statement under Section
164 Cr.P.C. from which a benefit can be granted to any of
the appellants.
22. While appearing as PW1 Ramesh Devi deposed that
in the month of December, 1998 she was working as a nurse
in the hospital of Dr. Narender situated at Garhi-Bolni
road, Rewari. On 21.12.1998 at about 6.00 p.m., after
doing her duty in the said hospital, she was going
towards bus stand for going to her village. On
Garhi-Bolni road she passed by a Maruti car. She heard
the calls Ramesh, Ramesh from that car but she ignored the
same. After covering about 8/10 steps the same Maruti car
again reached by her side and again she heard the calls of
Ramesh. She looked into the car and found that
her husband was sitting in the said car, who asked her to
sit in the car. She refused to do so. He caught hold of
her hand and made her sit in the car and told her that he
was going to Berli Khurd and would drop her there. On the
request of her husband she boarded the car only for going
to the bus stand. But he did not drop her at the bus
stand and told her to drop at Naiwali Chowk. Also he did
not drop her at Naiwali. He took petrol in the car and
again came to Naiwali and by that time the last bus for
her village had left. While sitting in the car she
confirmed from one person whether the last bus for Berli
Khurd had left or not. Thereafter she told to her husband
to drop her at Berli Khurd, but her husband told to the
_contrary by saying that first of all he would take liquor
and thereafter she would be dropped at Berli Khurd, the
prosecutrix further stated on oath that she asked her
husband not to take liquor but despite that he took wine
in the car. Sunda and Titu were also with him. All these
three persons were correctly identified by the prosecutrix
in the court, the prosecutrix further deposed in the
court that liquor was also taken by Sunda. Pepsi was
offered to her by Raj Singh @ Titu and Bhagmal alias
Sunda, but she refused to take the same. She further
stated that Vikram also insisted her to take Pepsi and she
refused to take the same. Thereafter on the asking of
Vikram, Raj singh, who was driving the car at that time
took the car towards Narnual Chowk at a place where there
was no crowd. There Vikram gave her slaps and forced her
to take Pepsi. After taking Pepsi she started feeling
giddy and lost her senses, but was hearing everything.
Then Vikram asked Raj singh @ Titu to take her to village
Ladhuwas, she objected. Thereafter Vikram said that I
will be taken to Berli Khurd. She told Vikram that they
were not going to Berli. Again he gave her a few slaps
and she was thereafter taken to a Chobara at village
Saharanwas by them. While outside the Chobara Vikram said
“Mehtab open the Chobara.” The witness also correctly
identified Mehtab in the court. It has further come in
the statement of the prosecutrix that thereafter vikram
took her inside the Chobara. One more person was sleeping
in the Chobara. On being asked by vikram, Mehtab told him
that person sleeping in the Chobara was Pankaj and he
was also correctly identified by the prosecutrix in the
court. Vikram asked Mehtab to go out. Thereafter she was
raped by Vikram against her wishes after removing her
clothes. During that time Pankaj had remained in that
room. Thereafter she was raped by Mehtab and during that
period she was beaten by Vikram with kicks and Titu also
hit her with the belt whenever she raised alarm.
Thereafter she was raped by Sunda and at that time titu
and Vikram gave her beating when she tried to raise alarm.
When Pankaj raped her, Titu and vikram played the same
role which was played by them earlier. While in the room
titu was taking her photographs. Thereafter Vikram
suggested that she should e taken to the well, and at
that time Mehtab said that Sukhi and Chhote shall be
there. Thereafter she was taken to the well. The witness
correctly identified Sukhi (Sukhbir and Chhoti (Jai
Parkash). She further deposed that last of all she was
raped by Titu (Raj Singh) and photograph were taken by
Titu while she was being raped by Chhotia, Sukhi and
Sunda, the witness also deposed that she was raped in a
hut situated in the field. In fact, there was no well
though during the conversation it was said that she was
going to be taken to the well. She further stated that
the names of the remaining accused except vikram were not
known to her and she came to know their names during their
conversation. She further deposed that accused had also
threatened to kill her, but on the asking of one of them
they did not kill her and obtained an oral assurance from
her to the effect that she will not narrate the matter of
the police or anybody else. The witness further stated
that she was left by the accused on the next morning at
5.00 a.m. at Naiwali Chowk, then she went to a place
under a tree near Narnaul Chowk and slept for some time.
She got up around 7.00 a.m. and again came to the road
and saw that Sunda, Titu and vikram were roaming in the
car. She was frightened from them and again went to the
field. Thereafter she took a bus for her village from the
place near Narnaul Chowk and visited her village and
narrated the whole story to her mother. On that day she
was unwell because of the gang rape. The matter was
reported to the police on the next day. She visited the
Police Station, Rewari at 9.00 a.m. and at that time her
mother was with her. She further deposed that she was the
author of FIR Ex. PA. She further stated that she have
seen the photographs which were taken by titu. In
photographs Exs. P1, P2, P7, P9, P10, P13, P21, P22, P28,
P33 and P37 Sunda alias Bhagmal is appearing. Photographs
Exs. P5, P6, P14, P15, P17, P25 and P18 pertain to Mehtab.
In photographs Exs. P24, P27, P35 Chhotia alias Jai Parkash
has been shown. She further stated that in photograph
Ex. P30 accused Titu (Raj sing) and Sunda (Bhagmal) have
been shown. She further deposed that she was
medicolegally examined and Chobara and Jhopri were shown
to the police by her. Finally, she deposed that she was
raped in the Chobara and Jhopri and she made her statement
under Section 164 Cr.P.C. It has also come in the
statement of the prosecutrix that on 24.12.1998 she handed
over the clothes which she was wearing on the day of
occurrence to the police.
23. The statement of the prosecutrix is
corroborated by the medical evidence of lady Dr. Sunita
Garg (PW16). On going through the statement of Dr. Sunita
Garg, we are left in no doubt that the victim was
subjected to cruelty and force. There was a contusion of
13 cm x 4 cm on the left high 2 inch above the left knee
joint. The doctor also noticed some semicircular abrasion
of 5 cm x 1 cm on the right side of the face, besides
swelling on the left forearm. Also the injured was
complaining of pain in the middle of the left arm and
right side of the back. The doctor further deposed that
there were few bruises of the size of 2 cm x 1 cm, four in
number on labia minora near post and hymen was ruptured.
Finally, the doctor gave the impression after the receipt
of the report of the F.S.L. that the prosecutrix was
subjected to sexual intercourse and she proved this fact
vide report Ex. PV, which is M.L.R. of the prosecutrix.
24. So far as position of law while dealing such
like cases is concerned, it has been amply explained by
the Hon’ble Supreme Court in the famous case State of
Punjab v. Gurmit Singh and Ors AIR 1996 SC 1393.
Several aspects of such like cases have been discussed by
the Hon’ble Supreme Court and in para No.7 of this
judgment it has been observed that in sexual offences
delay in the lodging of the FIR can be due to variety of
reasons particularly the reluctance of the prosecutrix of
her family members to go to the police and complain about
the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual
offence is generally lodge. Even if there is some delay
in lodging FIR in respect of offence of rape, if it is
properly explained and the explanation is natural in the
facts and circumstances of the case, such delay would not
matter. Reverting to the facts in hand, the present
occurrence took place on 21.12.1998. It started from 6.00
p.m. and continued during the night. On 22.12.1998 the
victim was desert. She was to return to the house of
her mother. It is a case where seven persons including
the husband of the prosecutrix committed rape one after
the other and in these circumstances we can well imagine
the condition of the victim when seven persons had tried
to fulfil their sexual lust. Moreover, the husband of the
prosecutrix was directly and mainly involved in this case.
The relations, of course, between the husband and wife were
strained. In these circumstances, the prosecutrix might
have taken some time firstly to recover herself from the
shock and then physically and then she must have taken
into confidence her mother about the lodging of the FIR.
Therefore, we are inclined to hold that there is no delay
in the lodging of FIR in the present case.
25. The Hon’ble Supreme Court in Gurmit Singh’s
Case (supra) has again laid down very vital guidelines in
para No.7 of the judgment as to how the testimony of a
prosecutrix is to be appreciated, it was observed that
girl, in a tradition bound non-permissive society in
India, would be extremely reluctant even to admit that any
incident which is likely to reflect upon her chastity had
occurrence, being conscious of the danger of being
ostracized by the society or being looked down by the
society. Further it was observed that the Courts must,
while evaluating evidence, remain alive to the fact that
in a case of rape, no self-respecting woman would come
forward in a Court just to make a humiliating statement
against her honour such as is involved in the commission
of rape on her. In cases involving sexual molestation,
supposed considerations which have no material effect on
the veracity of the prosecution case or even discrepancies
in the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the Courts should not overlook. Further,
the Hon’ble Supreme Court observed that the testimony of
victim in cases of sexual offences is vital and unless
there are compelling reasons which necessitate looking for
corroboration of her statement, the Courts should find no
difficultly to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The Court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in
the outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost at par with
the evidence of an injured witness and to an extent is
even more reliable. Just as a witness who has sustained
some injury in the occurrence, which is not found to be
self inflicted, is considered to be a good witness in the
sense that he is least likely to shield the real culprit,
the evidence of a victim of a sexual offence is entitled
to great weight, absence of corroboration notwithstanding.
corroborative evidence is not an imperative component of
judicial credence in every case of rape. Corroboration as
a condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be
overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime but is a victim
of another person’s lust and it is improper and
undesirable to test her evidence with a certain amount of
suspicion, treating her as it she were an accomplice.
Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to
a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable.
26. Finally, the Hon’ble Supreme Court in para
No. 20 of the judgment was pleased to observe as follows:-
Of late, crime against women in general and
rape in particular is one the increase. It is
an irony that while we are celebrating women’s
rights in all spheres, we show little or no
concern for her honour. It is a sad reflection
on the attitude of indifference of the society
towards the violation of human dignity of the
victims of sex crimes. We must remember that a
rapist not only violates the victim’s privacy
and personal integrity, but inevitably causes
serious phycological as well as physical harm
in the process. Rape is not merely a physical
assault it is often destructive of the whole
personality of the victim. A murderer destroys
the physical body of his victim, a rapist
degrades the very should of the helpless
female. The Courts, therefore, shoulder a
great responsibility while trying an accused on
charges of rape, they must deal with such
cases with utmost sensitivity, the Courts
should examine the broader probabilities of a
case and not get swayed by minor contradictions
or insignificant discrepancies in the statement
of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable
prosecution case. If evidence of the
prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of
her statement in material particulars, if for
some reason the Court finds it difficult to
place implicit reliance on her testimony, it
may look for evidence which may lend assurance
to her testimony, short of corroboration
required in the case of an accomplice, the
testimony of the prosecutrix must be
appreciated in the background of the entire
case and the trial Court must be alive to its
responsibility and be sensitive while dealing
with cases involving sexual molestations.”
27. To protect the honour of a woman the
legislature in its wisdom has also introduced the
provisions of Section 114A of the Indian evidence Act,
which runs as follows:-
“In a prosecution for rape under Clause (a) or
Clause (b) or Clause (c) or Clause (d) or
Clause (e) or Clause (g) of Sub-section (2) of
Section 376 of the Indian Penal Code, 1860 (45
of 1860) where sexual intercourse by the
accused is proved and the question is whether
it was without the consent of the woman alleged
to have been raped and she states in her
evidence before the court that she did not
consent, the court shall presume that she did
not consent.”
28. Thus the reading of the above provisions would
show that the moment it is established that the victim was
subjected to sexual intercourse and she alleges positively
that she was raped, the law courts shall drawn an inference
and shall presume for the benefit of the prosecution that
she was subjected to rape and she was not a consenting
party.
29. Reverting to the statement of the prosecutrix,
it is established that the right from the very act
resisted in the company of others when her husband asked
her to come inside the car. She resisted even the taking
of soft drink. In fact, the intention of the husband was
bad. He wanted to take a revenge of the separation. He
took liquor and took her own wife to a chobara where two
persons were already present and one after the other they
raped her. Not only this, some photographs were taken by
Raj Singh, From there she was taken to a hut. She was
made naked and was brutally treated. She was given slaps.
Violence was used. All this was so said by the
prosecutrix and her statement finds corroboration from the
medical evidence and other circumstantial evidence which
has been collected by the prosecution. The Dari which was
collected during the course of investigation also
establishes that there was sexual intercourse. Semen fell
on the Darri and human semen was found by the Forensic
Science Laboratory.
30. With regard to the presumption under Section
114A of the Evidence Act, this point has been dealt by the
Hon’ble Supreme Court in Prem alias Ballu v. The State of
Haryana 2003(1) RCR (Criminal) 237 and it was observed by
the Bench after relying upon State of Punjab v. Gurmit
Singh 1996 (1) Recent CR 533 that the Court shall presume
that the victim did not consent when the victim makes a
statement before the Court that she did not consent. Also
it was observed that mere absence of marks of external
injury do not negate the prosecution case. To supplement
the view of the Hon’ble Supreme court reliance can also be
placed on State of Karnataka v. Krsihnappa 2000(2) RCR
(Criminal) 459 and State of Rajasthan v. N.K. – the
accused 2000(2) RCR (Criminal) 471. In Sat Pal v. State
of Punjab 1997(1) Recent CR 93 this Court took the view
that even if it is assumed that the prosecutrix was a lady
of loose moral character, but it does not give a licence
to the accused to have forcible sexual intercourse with
her against her consent. Again it was observed in this
very judgment that once the statement of the prosecutrix
is found to be reliable which contained true account of
occurrence of rape, it is not necessary for the
prosecution to lead corroborative evidence of medical
officer regarding commission of rape.
31. In Gurmit Singh’s case (supra), the Hon’ble
Supreme court made observations that when the accused
pushed the prosecutrix inside the car and gave threats and
in such a situation if the prosecutrix does not raise any
noise, the statement of the prosecutrix should not be
discredited because in such a situation the poor helpless
girl will not be able to cut the ice when the accused were
out and out to outrage the modesty of the woman.
32. The learned counsel for the appellants
submitted that the entire case of the prosecution is
doubtful and highly improbable. It was submitted that the
conduct of the prosecutrix was such that it does not
inspire confidence. She did not raise any noise when she
was being kidnapped and was being taken to the Chobara.
In fact, she was connived with some of the accused. She
wanted to get rid of from her husband Vikram Singh who has
been falsely implicated in this case. He submitted that
the prosecutrix might be colluding with Raj Singh from
whose possession allegedly the negatives were recovered by
the police. After the arrest of Raj Singh the police
developed a case against the remaining appellants. The
learned counsel submitted that even in the statements
under Section 313 Cr.P.C., which have been recorded by the
learned trial Court, all the incriminating circumstances
appearing in the prosecution evidence were not put to the
accused and more pertinently with regard to the capability
of the accused to perform sexual intercourse.
33. The submissions made by the learned counsel for
the appellants, in our opinion, are totally devoid of any
merit. In spite of the fact that the prosecutrix had
strained relations with her husband, she would not tear
her abdomen at the cost of her own honour and chastity.
She was a young girl of 20 years and irrespective of the
fact that some strained relations were there with her
husband, she would not go to the extent not only naming
her husband but also the other friends of her husband.
34. The present occurrence can be divided into
three parts. Firstly, that the victim was picked up from
the way of the hospital and she was thrown inside the car.
Then she was taken to a Chobara where she was raped by
five persons and thereafter she was taken to the hut where
again she was raped by two more persons. During the
course of rape some photographs were taken. People may
lie but the circumstances may not. It is established on
the record that the negatives were got developed into
photographs Exs.P1 to P37. Prosecutrix Ramesh Devi has
deposed in the examination-in-chief that in photographs
Exs. P1, P2, P7, P9, P10, P13, P21, P22, P28, P33 and P37
Bhagmal figures. These photographs depict that Bhagmal was
in compromising position with the prosecutrix.
Photographs Ex. P22 is of such a posture which would show
the helplessness on the part of the victim when she is
being compelled to lick the private part of Bhagmal
These photographs do not reflect the consent. It is not
believable that the prosecutrix would give consent for
such an act of sexual intercourse in the presence of
others. The learned counsel for the appellants have no
answer to the photograph Ex. P3 when the victim is being
compelled to smoke a biri. This shows the height of
depravity. Similarly, photograph Ex. P16 she is being
compelled to suck Hukka. From her expression it appears
that she was weeping as she was beseeching to the accused
not to be so cruel. Things do not rest here. In
photographs Exs. P4, P19 and P20 she is being compelled to
stand with her stands at the back so that she not be
able to conceal her private organs. In photographs Ex. P26
photographs she is beseeching with her folded hands to the
accused not to expose her in that fashion. Even in
photograph Ex. P8 the poor lady is trying to cover has
chastity by wrapping her body with the help of quilt.
In photographs Exs. P14, P15, P23, P25 and P27 she is
virtually weeping though she had subjected herself to
sexual intercourse but definitely her consent and
willingness was absent. To what extent she was helpless
when seven persons were out and out to exploit the modesty
and honour of the lady. We must confess that it has even
become difficult for us to explain in proper words about
the maltreatment and sexual explitation given to the
lady. We will not be wrong if we say that the appellants
were wolves. They had no conscious to give respect to the
modesty of a woman. She was treated like a chattel.
After losing her honour before seven persons how she is
surviving can only be answered by the lady herself.
35. Even if we hold that some questions under
Section 313 Cr.P.C. have not been properly but to the
accused, still it is not a case of setting aside the
acquitted or remand as no prejudice has been caused to any
of the appellants and the entire prosecution evidence has
been recorded in their presence. Each one of the
appellants knew that he was medically examined by the
doctor regarding his potency. The appellants were given
full opportunity to cross-examine the doctors. We have no
reason to disbelieve the statement of the prosecutrix
irrespective of the fact that her mother has not been
examined by the prosecution in the trial Court. Here is a
case where the prosecutrix can forget to mention few facts
either in her police statement or in the statement under
Section 164 Cr.P.C. She might have made some improvements
here or there even in her substantive statement made
before the trial Court, but by and large the statement of
the prosecutrix inspires confidence. We are convinced
that she was picked up at the first instance by three
persons including her husband. Then she was taken to a
Chobara where two more persons joined them. Again she was
taken to a hut. She was raped, maltreated and beaten in
the chobara. Photographs were taken. In the hut
photographs were again taken by Raj Singh alias Titu and
when developed, the developed prints told a sad story of
the matter.
36. It was a case of gang rape in which husband of
the prosecutrix was also involved. A rapist not only
violates the victim’s privacy but also her personal
integrity and such person does not deserve any sympathy of
law or society. The honour of a woman has to be
protected. This is the general senses of the society.
37. Be that as it may, we are concerned with the
legal aspects of the case which are that Ramesh Devi is
the victim of sexual assault, her statement inspires
confidence, though her statement does not require
corroboration as a matter of law but by way of abundant
caution it is corroborated by the medical evidenced as
well as by the circumstantial evidence, the identity in
this case is also not doubtful. In the FIR three persons
were named. The supplementary statement of the lady was
also recorded. The accused have not made any application
to claim the identification from the lady. She has no axe
to grind against an of the appellants. Of course, she had
some strained relations with her husband but still it is
not established on the record that she will go to that
extent in implicating her husband and his friends.
38. In the finality, we do not see any merit in
these appeals and dismiss the same.
39. Let intimation about the dismissal of these
appeal by sent to the jail authorities and the concerned
Chief Judicial Magistrate.
40. Before we part with this judgment, we are
observing that the photographs Exs. P1 to P37 and the
negatives Exs. P38 to P77 have been sealed by us in an
envelope under the seal of the Court and the envelope have
also been signed by us so that these photographs and
negatives of the harassed woman may not fall in wrong
hands. The Registry will ensure that the records of these
cases will be kept in a double seal and will be produced
in case of necessity before the Hon’ble Supreme Court as
and when requisitioned.