REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 91 OF 2007
PREM PRAKASH @ LILLU & ANR. ... Appellants
Versus
STATE OF HARYANA ... Respondent
J U D G M E N T
Swatanter Kumar, J.
1
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
2
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
3
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
4
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
5
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
6
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
7
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
8
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
9
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
10
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: -
"23. 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
11
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
12
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.
XXX XXX XXX
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
13
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.
XXX XXX XXX
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.
14
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
15
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
16
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,
17
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
18
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,
19
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
20
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
21
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.
22
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.
23
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
24
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
25
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
26
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
27
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.
28
Consequently, the appeal is dismissed.
....................................J.
[Dr. B.S. Chauhan]
....................................J.
[Swatanter Kumar]
New Delhi;
July 7, 2011
29
30
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Thursday, July 7, 2011
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 11
