Prem Prakash @ Lillu
& Anr. Vs. State of Haryana
J U D G M E N T
Swatanter Kumar, J.
Three accused, namely
Dharambir @ Pappu, Prem Prakash @ Lillu and Herchand @ Poley, were charged for
an offence punishable under Sections 366 and 376(2)(g) of the Indian Penal
Code, 1860 (in short the `IPC'). Upon trial, the learned Additional Sessions
Judge, Rohtak, by judgment and order dated 31st July, 1992 held all the three
accused guilty of the offences of kidnapping and gang rape of Kumari Sudesh and,
thus, they were sentenced to undergo rigorous imprisonment of 10 years with a fine
of Rs.500/- each. In case of default of payment of fine, they were ordered to undergo
rigorous imprisonment for a further period of one month.
The accused were also
awarded two years' rigorous imprisonment each for the offence committed under Section
366 of the IPC. Both the substantial sentences were ordered to run concurrently.
Dissatisfied with the judgment of the trial court, the accused preferred an appeal
before the High Court. The High Court found no merit in the appeal and consequently,
dismissed the same vide its judgment dated 27th July, 2005, giving rise to the present
appeal by all the accused.
The learned counsel
for the appellants pointed out that during the pendency of the appeal before this
Court, one of the accused, i.e., Prem Prakash @ Lillu had expired and therefore,
the present appeal survives only qua the third accused, i.e. Herchand @ Poley. In
so far as the appeal by the accused Dharambir @ Pappu is concerned, the same was
dismissed in limine.
The brief facts in the
present case are that the aforesaid three accused were asked to face trial on the
aforestated charges based on the case of the prosecution. According to the prosecution,
Kumari Sudesh, daughter of Pratap Singh, resident of Village Chhuchhak
accompanied by her brother Satish, aged about 5 years, had gone out of her house
at about 8-9 p.m. on 25th July, 1990 to ease herself at a distance of about two
or three killas away from their house and by the side of a nearby pucca road. After
she answered the call of nature and washed herself a car approached her from
behind and stopped beside her. The accused Dharambir got down and took her in his
arms. The accused Poley followed him and gagged her mouth with his hand. She
was lifted and dragged into the car.
The car was being
driven by the accused Lillu. The car was taken beyond the village abadi, across
a petrol pump and into the fields by the side of the road. All the three
accused raped Kumari Sudesh one by one in that field. Accused Dharambir was left
there and the other two took the prosecutrix in the car to an unknown jungle and
kept her there for that night and the following afternoon. She was again raped
by these two accused in that jungle. At about 4.00 p.m. on 26th July, 1990, she
was dropped on the bridge of a canal, at a distance of about one kilometer from
her house and was threatened of being kidnapped, raped and killed if she
narrated the occurrence to anybody.
She reached home and recounted
the incident to her father Pratap. A panchayat of the brotherhood was convened but
no decision was arrived at. On the next day, the father of the prosecutrix went
to the Police Station Beri with her, to lodge a complaint. However, their request
for registration of a case was not entertained. On 27th July, 1990, they went to
Jhajjar Sub Divisional Headquarter and approached the Deputy Superintendent of Police
but to no avail.
Thereafter, they approached
the Sub Divisional Magistrate (in short the `SDM') with a written application dated
28th July, 1990, Ex.PE/1, to get the prosecutrix medically examined and for
taking action against the culprits. The SDM referred the matter to the incharge
of the hospital at Jhajjar and a lady doctor, Dr. A.K. Bhutani, examined the prosecutrix
and prepared her report, Ex.PE. The clothes of the prosecutrix were also taken by
the doctor, who later on handed over the same to the police, who in turn transferred
them for examination by the PSL.
It is stated that while
Pratap Singh was again going towards the police station, on the way at the bus
stand of Village Jahagarh, he met a police party and Assistant Sub Inspector Hawa
Singh recorded his statement, Ex.PO/1 and an F.I.R., Ex.PO/2 dated 28th July, 1990,
was registered. In brief, the prosecution had examined a number of witnesses including
PW1, Dr. R.B.S. Jakhar, who had medically examined the accused Dharambir and had
opined that he was fit to commit sexual intercourse. PW2 was the police officer
incharge of the Police Station and he presented the original challan before the
Court.
The prosecutrix was examined
as PW4 and her father Pratap Singh was examined as PW7. Besides this, the lady
doctor who had examined the prosecutrix, was PW5, Dr. A.P. Sharma, who had medically
examined the other two appellants was PW6, SI Hawa Singh, who was the
Investigating Officer was examined as PW8. The prosecution, on the basis of these
witnesses attempted to bring home the guilt of the accused. In the statements
made under Section 313 of the Code of Criminal Procedure, (for short
`Cr.P.C.'), the accused Prem Prakash and Herchand stated that all witnesses were
false.
They denied the incident
in its entirety and took a specific stand that Pratap Singh, father of Kumari Sudesh
was carrying on cultivation on the land belonging to the family of the accused
and since he had stopped them from carrying on the agricultural activity, Pratap
Singh had developed animosity towards them. However, in his statement under Section
313 of the Cr.P.C., the accused Dharambir offered no explanation and also chose
not to lead any defence. The trial court vide its detailed judgment found that
the accused were guilty of the offence with which they were charged. The accused
had further raised a defence on behalf of Prem Prakash, that he was not named
in the FIR and has been falsely implicated.
It was also contended
that the prosecutrix was more than 19 years of age and in fact there was no reliable
evidence to convict the accused and there were contradictions in the case of
the prosecution. The trial court dealt with these two issues as follows: -
Then I have been pointed
out some points of contradictions in the statements of the witnesses. The first
point of contradiction is as to who was driving the car. In the F.I.R. which was
recorded on the basis of statement of Partap, it is stated that Poley was driving
the car. Otherwise both the father and the daughter are consistent in stating that
it was the third accused (Lilu) who was driving the said car. The police had not
been co-operating with the prosecutrix. It has been discussed above. Hence may
be that the police deliberately recorded wrongly that Poley, in place of Lilu, was
driving the car. Otherwise too, the version given by Partap, was given to him by
the prosecutrix, and may be that on this point Partap made wrong statement. This
contradiction cannot affect the merits of the case.
The second point of contradiction
is with regard to the timing of the kidnapping. P.W.4 Smt. Sudesh in the court stated
that she had been kidnapped at about 8.00/9.00 A.M. and otherwise the case of the
prosecution throughout is that she was kidnapped at 8.00 or 9.00 P.M. If the
prosecution story is read as a whole and if the statement of this witness is
also read keeping in view to the sequence of the happenings, it shall be clear that
she was kidnapped at 8.00 or 9.00 P.M. and not at 8.00/9.00 A.M. It is only a
clerical or typical (sic) mistake that the time has been written as A.M., in
place of P.M. So, it is not a contradiction.
31. On the basis of
this medical evidence it has been argued that this lady was habitual to sexual intercourse
and since there was no injury found on her private part, so it may be held that
it is a case of consent and she being of more than 18 years of age was an equal
party to the sexual intercourse and, therefore, even if it assumed that the accused
have committed sexual intercourse with this lady, they cannot be said to have committed
any offence.
The learned counsel for
the accused has placed reliance on Sukhjit Singh vs. The State of Haryana, 1987
(i) R.C.R. 352. That was a case where two real brothers were alleged to have committed
rape on a lady. No injury was found on the person of that lady. It was reported
that she was used to sexual intercourse. It was held that probably it was a
case of consent.
39. Lastly argument has
been advanced on behalf of accused Lilu. He was not named in the F.I.R. How and
when he came into picture 7 (sic). The F.I.R. was recorded on 28.7.90. The police
resorted to the supplementary statement of the prosecutrix of her father just
the next day, i.e. 29.7.1990 and these statements were to the effect that two
accused, other than Dharmabir, were innocent. This way Lilu was not arrested by
the police. Two months after, as stated by the prosecutrix, she had identified
him in the street when she was coming along with her father.
Then her father had
told that the name of this accused was Lilu. This way Lilu came into picture in
the case of the prosecution. Since the police has submitted the challan only
against one person, so: Lilu could be named only be(sic) the prosecutrix in the
court itself. It cannot be said that Lilu had not been identified so his name
being named in the court for the first time by the prosecutrix would create any
doubt in the truthfulness of the case of the complainant that Lilu was also one
of the persons who kidnapped and raped her." The main argument on behalf of
the appellant, while challenging the above findings, is that there is hardly any
evidence directly involving the accused Prem Prakash @ Lillu in the commission of
the crime.
This argument does not
impress us. Firstly, the prosecutrix when examined as PW4 stated in Court that the
appellant was driving the car in which she was kidnapped and subsequently taken
to the jungle. Her version is also supported by her father Pratap Singh, PW7,
though, of course, Pratap Singh was not an eye-witness to the occurrence. There
is no reason for this Court to disbelieve the version given by the prosecutrix.
Some contradictions have been pointed out between the statements of the prosecution
witnesses. The trial court has rightly observed that these are some discrepancies
which, viewed from any angle, are not significant.
It is also on record
that PW4 did deny some portion of her statement Ex.DA, particularly, that she
was raped in the car one after the other by all the three accused. This statement
does not find support from any of the prosecution witnesses or from the investigation
of the Investigating Officer. Thus, this contradiction does not render the statement
of the prosecutrix unreliable or untrustworthy. Another important aspect of the
case is that the accused Dharambir, in his statement under Section 313 of the
Cr.P.C. has not chosen to say that none of the other two accused, namely, the
appellant herein and the deceased Prem Prakash, were present at the time of the
occurrence or that they have been falsely implicated on account of some land dispute,
as referred to by the other two accused in their statements under Section 313
of the Cr.P.C.
As per the medical evidence
of PW5, Dr. A.K. Bhutani, "abrasions which were brownish in colour with
clothes, blood on right shin anteriorly, clotted dry blood sticking from the abrasions
described above (sic) 3 cm. below right knee joint" were found on the
person of the prosecutrix. There was also abrasion on right side of cheek, 5 cm
brownish in colour and the prosecutrix complained of pain on the right side of her
neck. In her cross-examination, the duration of injury no.1 was stated to be
more than 24 hours and it was also stated that the injury no.1 could be result
of a fall while the injury no. 2 cannot be self inflicted.
This medical evidence
clearly shows that she had suffered injuries during the alleged incident and she
was taken for medical examination by the Investigating Officer after expiry of
24 hours. Dr.A.P. Sharma had examined the appellant-accused Herchand and found him
fit to perform sexual intercourse.The doctor also stated that she had conducted
X-ray examination of Kumari Sudesh and according to report, Ex.P8, Sudesh was
aged more than 18 years.
After examining the forensic
reports, Exs.PH and PJ, from the Forensic Science Laboratory, the doctor also stated
that there was a possibility of intercourse having taken place with Sudesh on 25th
July, 1990. There are certain significant averments which show the manner in
which the offence was committed. Firstly, she has stated that the car was being
driven by Prem Prakash @ Lillu. Secondly, that she was wearing same clothes at the
time of her medical examination which she was wearing at the time of rape. Her salwar
was blood-stained.
These clothes were taken
into custody by the doctor herself, who subsequently handed over the same to the
investigating agency. Similarly, the father of the prosecutrix, PW7, has specifically
stated that his daughter had told him that Dharambir had caught hold of her and
dragged her to the car, her mouth was gagged by Poley and still there was another
person with small pox marks on his face who was driving the car. About the
identity of Lillu @ Prem Prakash, it is clear that PW7 had known him for the
last 10 years as he had settled in the Village. In other words, there could hardly
be any dispute with regard to the identity of the person accused. But for the contribution
made by the present accused, who was driving the car and had taken away the prosecutrix
to the jungle/fields, probably the incident could have been avoided.
Thus, it is clear that
involvement of the present accused in the entire chain of events was material and
as per the prosecutrix he had also raped her. According to the doctor, he was capable
of performing sexual intercourse. This entire evidence and the attendant circumstances
point towards the guilt of the accused. The learned counsel appearing for the appellant
had placed emphasis on the fact that the doctor had opined that the prosecutrix
was accustomed to sexual intercourse and that there was no sign of fresh
intercourse. This argument has rightly been rejected by the High Court by
noticing that there was no fresh intercourse but she had been subjected to intercourse
more than 24 hours ago.
The doctor had examined
her on 27th July, 1990 while the incident took place on 25th July, 1990. Thus,
the statement of the doctor has to be read and understood in that background and
the doctor also specifically stated, that there was a possibility that she was
subjected to intercourse on 25th July, 1990. The evidence, essentially, must be
viewed collectively.
The statement of a witness
must be read as a whole. Reliance on a mere line in the statement of the
witness, out of context, would not serve the ends of justice and the conclusion
of the Court based on such appreciation of evidence could be faulted. Another
aspect of this case which has specifically not been noticed by the High Court, is
that the prosecutrix and her father were made to run from pillar to post by the
police authorities, before their case could be registered. The prosecutrix,
PW4, has specifically stated that report made by her father was not recorded by
the police and the next day they went to Jhajjar along with her mother and appeared
before the police officers but again, no action was taken. According to her,
the application which she had given in the Tehsil office was thumb marked by
her. Pratap Singh, father of the prosecutrix, stated that he had even convened
a panchayat of the brotherhood but the panchayat having failed to arrive at a
decision, he had proceeded to the police station along with his daughter and his
report was not recorded at the police station by the police.
He returned to the village
and again went to the Jhajjar Sub Divisions Headquarter and met the DSP and narrated
the entire occurrence to him. But still no action was taken and then they claim
to have gone to the SDM, Jhajjar and made a complaint in writing. Thereafter,
his daughter was medically examined and subsequently, the case was registered. This
event certainly describes and points towards the apathy in the functioning of investigating
agencies in heinous crimes, to which the complainant was subjected. In terms of
the provisions of Section 154, Cr.P.C., it is obligatory for the police to register
a case when the facts constituting a cognizable offence are brought to its
notice.
The father of the girl,
surely must have felt trauma and frustration when he was subjected to the above
treatment, besides the knowledge of his daughter's raped by the accused. We do express
a pious hope, that such occurrences will not be repeated in any police station
in the country. The counsel for the appellant had also tried to rely upon some
contradictions and embellishments in the statements of the prosecutrix and her father.
Reference was made to
exhibits D1 and PO in this regard. The Court cannot ignore the fact that the prosecutrix
cannot be expected to make a perfect statement after a lapse of time without
even a normal variance. Furthermore, she had specifically stated that, the statements
recorded by the appellants were not read over to her nor were any thumb
impressions taken for the same. In fact, she had given an application to the tehsil
office which was thumb marked and even that complaint had not been produced in evidence
before the Court by the prosecution.
These are the lacunae
and impropriety committed by the investigating agency itself. Thus, no burden
or fault could be shifted to the prosecutrix. Her statement before the Court is
fully supported by other prosecution witnesses and even the -medical evidence
produced on record. There is a concurrent finding of conviction against the accused,
which is based upon proper appreciation of evidence. We see no reason to interfere.
Consequently, the appeal is dismissed.
....................................J.
[Dr. B.S. Chauhan]
....................................J.
[Swatanter Kumar]
New
Delhi;
July
7, 2011
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