advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, January 16, 2014

Sec.366 and sec. 376 (2)(g) - gang rape of I.P.C - Sec.114 A and sec.157 of Indian Evidence Act - Minor was gang raped -one of the accused was caught while committing rape and others fled away - all are known persons - No external injuries - Doctor found the victim was not virgin - FSL report clearly found semen on the clothes of victim and also clothes of accused - delay in giving report by morning is not at all delay as they were frightened - when prosecutrix deposed that she was gang raped with out her consent - automatically sec.114 A of evidence Act came in to play and court has to believe that the act was done with out her consent -No individual committal of offence need not be proved specifically as all accused are bound to answer the same even though their clothes found no semen parts - High court order of acquittal was set aside and Apex court allowed the appeal of state = State of Rajasthan .… Appellant Versus Roshan Khan & Ors. ….. Respondents = 2014 ( January vol - 1 ) judis. Nic. In / S.C. / file name = 41148

Sec.366 and sec. 376 (2)(g) - gang rape of I.P.C - Sec.114 A and sec.157 of Indian Evidence Act - Minor was gang raped -one of the accused was caught while committing rape and others fled away - all are known persons - No external injuries - Doctor found the victim was not virgin - FSL report clearly found semen on the clothes of victim and also clothes of accused - delay in giving report by morning is not at all delay as they were frightened - when prosecutrix deposed that she was gang raped with out her consent - automatically sec.114 A of evidence Act came in to play and court has to believe that the act was done with out her consent -No individual committal of offence need not be proved specifically as all accused are bound to answer the same even though their clothes found no semen parts  - High court order of acquittal was set aside and Apex court allowed the appeal of state = 
Yet the High Court has come to  the  conclusion  that
          the report (Ext.P-1) must have been filed at about 11.15  am.  and
          was ante timed to 6.00 a.m.  For this conclusion, we do  not  find
          any evidence, but only a surmise that Ext.P-1 must have been typed
          at the court premises after 11.00 a.m.
Ext. P-39, which is the report under Section 293,    Cr.P.C.  of  the
FSL, Rajasthan, gives the following descriptions of the articles and  result
of examination:
                       “Description of Articles
|Packet Parcel No.    |Exhibit No. marked by|Details of exhibits  |
|                     |me                   |                     |
|A.                   |1                    |Vaginal Swab         |
|“                    |2                    |Vaginal smear        |
|B.                   |3                    |Salwar               |
|“                    |4                    |Kameej               |
|1.                   |5                    |Pants                |
|2.                   |6                    |Pants                |
|“                    |7                    |Underwear            |
|3.                   |8                    |Pants                |
|4.                   |9                    |Pants                |
|“                    |10                   |Underwear            |
|5.                   |11                   |Pants                |
|“                    |12                   |Underwear            |
|A.                   |13                   |Underwear            |

                            Result of Examination

Human semen was detected in exhibit No.1, 2 (from packet marked A), 3, 4
(from B), 5 (from 1), 7 (from 2), 8 (from 3) & 10 (from 4).

Semen was not detected in exhibit No.6 (from 2), 9 (from 4), 11, 12 (from
5) & 13 (from A).

Exhibit No.1, 2 (from A) have been consumed during the examination.

                                         (Dr. PRABHA SHARMA)”



14.     Thus, the evidence of the prosecutrix (PW-2) is clear that  all  the
six  respondents,  Akbar,  Jangsher,  Roshan,  Yakoob,  Kadar   and   Shafi,
committed rape on her without her consent and forcibly.   This  evidence  of
the  prosecutrix  (PW-2)  is  also  corroborated  by  the  evidence  of  the
informant (PW-1), who had himself witnessed Akbar  committing  rape  on  the
prosecutrix.  PW-2 had also  informed  PW-1  soon  after  the  rape  by  the
accused persons that not only Akbar but the other five respondents also  had
forcibly committed rape on her.  The evidence of PW-1 and PW-2 that all  the
six respondents had committed rape on the prosecutrix is  also  corroborated
by the complaint (Ext.P-1) made by PW-1 to the police within a few hours  of
the incident as provided in Section 157 of the  Indian  Evidence  Act.  
As  we  have  already
          noticed, the prosecutrix (PW-2) has deposed categorically that all
          the six persons had raped her without her  consent  and  forcibly.
          Section 114A of the Indian Evidence  Act,  1872  clearly  provides
          that in a prosecution for rape under clause (g) of sub-section (2)
          of Section 376, IPC, 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.  Since the prosecutrix (PW-
          2) has categorically said that sexual intercourse was committed by
          the accused without her consent and forcibly,  the  Court  has  to
          draw the presumption that she did not give consent to  the  sexual
          intercourse committed on her by the accused persons.  The  defence
          has not led any  evidence  to  rebut  this  presumption.   In  our
          considered opinion, the High Court could not have, therefore, held
          that there were circumstances to show that PW-2 had  gone  on  her
          own and on this ground acquitted the respondents.
From Ext.P-31 read with Ext.P-39, it is also  clear  that  human
          semen was detected from the pants of Akbar and  Jangsher  and  the
          underwears of Safi and Yakub.  As per the medical  evidence,  four
          persons had committed rape on the prosecutrix.  Explanation  1  to
          Section 376(2)(g), IPC, states that where a woman is raped by  one
          or more in a group of  persons  acting  in  furtherance  of  their
          common intention, each of the persons  shall  be  deemed  to  have
          committed gang rape within the meaning of the  sub-section.   This
          Court has, therefore, consistently held that where there are  more
          than one person acting in furtherance of their common intention of
          committing rape  on  a  victim,  it  is  not  necessary  that  the
          prosecution should adduce clinching proof of a  completed  act  of
          rape by each one of the accused on the victim. 
The judgment of the High Court is thus contrary to the  evidence
          on record and is liable to be set aside.  We accordingly set aside
          the judgment of the High  Court  acquitting  the  respondents  and
          restore the judgment of the trial court convicting the respondents
          for the offences  under  Sections  366  and  376(2)(g),  IPC,  and
          maintain the  sentences  imposed  for  the  two  offences  on  the
          respondents by the trial court.

      19.   The appeals are accordingly allowed.  The  respondents  will  be
          taken into custody forthwith to undergo  the  remaining  sentence.

2014 ( January vol - 1 ) judis. Nic. In / S.C. / file name = 41148
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOs. 79-80 of 2005

State of Rajasthan                                            .… Appellant

                                   Versus

Roshan Khan & Ors.                                   ….. Respondents




                               J U D G M E N T

A. K. PATNAIK, J.


      These are appeals by way of Special Leave under  Article  136  of  the
Constitution against the judgment dated 21.11.2003  of  the  Rajasthan  High
Court, Jodhpur  Bench,  setting  aside  the  judgment  of  the  trial  court
convicting the respondents of the offences  punishable  under  Sections  366
and 376(2)(g) of the Indian Penal Code, 1860 (for short ‘IPC’).
Facts
     2. The facts very briefly are that  on  28.04.1999  Ruliram  lodged  a
        complaint at the Bhadra Police  Station  in  District  Hanumangarh,
        stating as follows: There was a marriage of  the  daughter  of  his
        brother Gyan Singh for  which  a  feast  was  arranged  by  him  on
        27.04.1999.  His 15-16 years old daughter, who was  slightly  weak-
        minded, disappeared.  When she did not return for quite some  time,
        he and others started searching her.  At about 9.00 p.m., a milkman
        informed him that he had seen six boys taking away a  girl  towards
        Kalyan Bhoomi.  About 1.00 a.m. on 28.04.1999, when Ruliram was  on
        a scooter with Gyan  Singh  still  looking  for  his  daughter,  he
        noticed five boys  in  the  light  of  the  scooter  near  the  old
        dilapidated office building of the Sheep and  Wool  Department  and
        all the five, seeing the light of the scooter fled.  When they went
        into the old building, they found Akbar having  sexual  intercourse
        with his daughter and she was shouting.  They caught hold of  Akbar
        who later informed them  that  all  the  remaining  five  had  also
        performed sexual intercourse with his daughter and  they  knew  the
        remaining  five  persons.   The  police  registered  a  case  under
        Sections 147 and 376, IPC, and carried out investigation and  filed
        a charge-sheet against the six respondents under  Sections  376/34,
        IPC, and the case was committed for trial.

     3. In the course of trial before the Additional Sessions Judge,  Nohar
        Camp, Bhadra, the prosecution examined as many as  nine  witnesses.
        Ruliram was  examined  as  PW-1,  his  daughter  (prosecutrix)  was
        examined as PW-2, and Dr. Ramlal, who had  medically  examined  the
        prosecutrix, was examined as PW-7 and the report  of  the  Forensic
        Science Laboratory was marked as Ext.P-39.
The Additional Sessions
        Judge relied on the evidence of PW-1, PW-2 and PW-7 and the  Ext.P-
        39 and convicted the six respondents under  Section  376(2)(g)  and
        Section 366, IPC, by judgment dated 18.11.2000, and  after  hearing
        them on the question  of  sentence,  sentenced  them  for  rigorous
        imprisonment for ten years each and a fine of Rs.5,000/-  each,  in
        default a further sentence of two months rigorous imprisonment each
        for  the  offence  under  Section  376(2)(g),  IPC,  and   rigorous
        imprisonment for four years each and a fine of Rs.3,000/- each,  in
        default a further sentence of one month rigorous imprisonment  each
        for the offence under Section 366, IPC.   
The  Additional  Sessions
        Judge, however, directed that the sentences for  the  two  offences
        are to run concurrently and upon deposit of  fine  by  the  accused
        persons, a compensation of Rs.25,000/- be paid to the prosecutrix.


     4.  The respondents filed criminal appeals before the High  Court  and
        the High Court held in the impugned judgment that the deposition of
        the prosecutrix (PW-2) was not believable and the evidence  of  Dr.
        Ramlal (PW-7) did not corroborate the  prosecution  story  in  some
        respects.  
The High Court further held that the evidence  given  by
        Ruliram (PW-1) that the prosecutrix was only aged 14  years  cannot
        be believed and that she could be aged up to  19  years  and  there
        were circumstances to suggest that she went with the respondents on
        her own.  
The High Court was also of the view that the delay on the
        part of Ruliram (PW-1) to lodge the FIR on 28.04.1999 at 11.00 a.m.
        when the incident came to his knowledge at 1.00 a.m.  cast  serious
        doubts on the prosecution case.  The  High  Court  accordingly  set
        aside the judgment of the Additional Sessions  Judge,  allowed  the
        appeals and acquitted all the six respondents of the charges.




Contentions of learned counsel for the parties:

5.    Dr. Manish Singhvi, learned counsel for the State submitted  that  the
High Court should not have disbelieved the evidence  of  PW-1  and  PW-2  as
there was no enmity between these witnesses and  the  accused  persons.   He
referred to the evidence of PW-1, PW-2  and  PW-7  as  well  as  FSL  report
(Ext.P-39) to show that a case of gang rape by the six accused  persons  had
been established beyond reasonable doubt.  He  further  submitted  that  the
High Court could not have held that  there  were  circumstances  to  suggest
that the prosecutrix could have gone on her own with  the  accused  persons.
He relied on Section 114A of the Indian Evidence Act,  1872  which  provides
that 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.   He  submitted  that  the
High Court has lost sight of this presumption  under  Section  114A  of  the
Indian Evidence Act.

6.    Dr. Singhvi next  submitted  that  the  High  Court  should  not  have
entertained doubts about the prosecution story on the  ground  of  delay  in
lodging the FIR.  He  submitted  that  no  father  would  like  to  lodge  a
complaint making a false allegation of rape of his daughter.  He  relied  on
the decision of this Court in
Balwant Singh and Others v.  State  of  Punjab [(1987) 2 SCC 27]
in which a similar  contention  that  the  father  of  the
prosecutrix had lodged the FIR  on  account  of  previous  enmity  with  the
accused was rejected on the ground that a father  of  the  proscutrix  would
not falsely involve his daughter in a case of rape by the accused.

7.    Dr. Singhvi finally submitted that the prosecutrix in this case was  a
mentally deficient girl and was vulnerable to sexual abuse  and,  therefore,
the High Court should have been  sensitive  while  deciding  the  case.   He
cited the decisions of this Court in State of H.P. v. Gian Chand  [(2001)  6
SCC 71] as well as in Tulshidas Kanolkar v. State of Goa [(2003) 8 SCC  590]
in support of this submission.  He submitted that in the  present  case  the
trial court had rightly convicted the respondents  under  Sections  366  and
376(2)(g),  IPC  but  the  High  Court  reversed  the  conviction   of   the
respondents and acquitted them of the charges.  He submitted that on  almost
similar facts this Court in State of Rajsthan v. N.K. [(2000) 5 SCC 30]  has
set aside the judgment of the High Court and restored the conviction of  the
accused persons by the trial court.

8.    In reply, Mr. Mukesh Sharma, learned counsel for  respondent  Nos.  1,
2, 3, 4 and 6, 
submitted that
Dr. Ramlal (PW-7) has not found any injury  on
the private parts of the prosecutrix and that he has found only  some  marks
of eczema.
He further submitted that
PW-1 has only  stated  that  with  the
help of the scooter light, he saw five persons running away but he  has  not
been able to properly identify these five persons, namely, respondents  Nos.
1, 2, 3, 4 and 6.
He submitted that
as he had only found Akbar  (respondent
No.5) having sexual intercourse with the prosecutrix, no case of  gang  rape
under Section 376(2)(g), IPC, is made out.

9.    Mr. Sidharth Dave, amicus curiae for respondent No.5,  
submitted  that
the prosecution story that the prosecutrix was  a  mentally  deficient  girl
has not been proved.
He argued that, on the  contrary,
the  doctor  (PW-7)
has opined that the mental condition  and  equilibrium  of  the  prosecutrix
were normal.
He next submitted that the
High Court has rightly come to  the
conclusion that the FIR was actually lodged at 11.00 a.m. on 28.04.1999  and
had been ante timed to  6.00  a.m.  on  28.04.1999.  
He  argued  that  this
manipulation casts serious doubts on the prosecution  story  that  rape  has
been committed on the prosecutrix.
He submitted that
Dr. Ramlal (PW-7)  has
found on examination  of  the  prosecutrix  that  there  was  one  posterior
perineal tear of the size 1/4” x 1/8” x 1/8” caused within 24 hours and  had
also given his opinion that this injury may result from  the  fall  on  some
hard surface  and,  therefore,  a  case  of  rape  by  Akbar  had  not  been
established beyond reasonable doubt.
He submitted that the  view  taken  by
the High Court was a plausible one on the facts of this case and should  not
be interfered with an appeal under Article  136  of  the  Constitution.  
He
relied on the judgment of this Court
in State of  Rajasthan  vs.  Shera  Ram[(2012) 1 SCC 602]
in support of this submission.



Findings of the Court

10.    We have perused the evidence of  informant  (PW-1).   He  has  stated
that 28.04.1999 was the date of marriage  of  Manju,  the  daughter  of  his
brother Gyan,  and  during  dusk  time  on  27.04.1999,  his  daughter  (the
prosecutrix), who was 14 years old and not mentally balanced,  had  gone  to
call the ladies of the locality but did not return.
He searched the  entire
village and thereafter he went on the scooter driven  by  his  brother  Gyan
Singh towards village Rajpura and on the way a milkman told  them  that  six
boys catching the hand of a girl  were  taking  her  towards  the  cremation
ground.
They went searching for the prosecutrix  in  the  cremation  ground
but did not find her there.
Thereafter,  they  turned  the  scooter  towards
village Motipura and they found that  five  persons  were  standing  in  the
cluster  of  keekar  trees  near  the  Bhedia  Daftar  (an  old  dilapidated
building) and on seeing them,  five  persons  fled  away.   When  they  went
inside the dilapidated building they found that the prosecutrix  was  crying
and Akbar was lying over her and having sexual intercourse with  her.
 PW-1
has also stated that the five persons who fled away  are  Roshan,  Jangsher,
Yakoob, Shafi and Kadar.  
He has  also  said  that  all  the  aforesaid  six
persons are residents of his Mohalla (locality) and were present  in  Court.
PW-1 has further stated that by the time they reached the Bhedia Daftar,  it
was about 1.00 a.m. of 28.04.1999 and he took the prosecutrix and  Akbar  to
the Police Station and submitted the complaint (Ext.P-1)  at  6.00  a.m.  of
28.04.1999.

11.     We have also perused the evidence of prosecutrix   (PW-2).  She  has
stated that 
when the marriage of the daughter of his uncle Gyan was to  take
place, she had gone out at dusk time from her house to call ladies  to  sing
songs and on the way she met Akbar who told her that her uncle  was  looking
for her.   
Then  she  accompanied  with  Akbar  proceeded  further  and  met
Jangsher near the railway crossing who also told  her  that  her  uncle  was
looking for her.  
She then started walking and Akbar and  Jangsher  followed
her and after some time she found Shafi and Yakoob and all the four  persons
started following her and after some time she saw Kadar and Roshan  and  all
the six persons took her to a  bridge  on  the  road  and  from  there  they
brought her to the tree of Tali in  the  field.   
Thereafter,  all  the  six
persons made her fall  beneath  the  Tali  tree  forcibly  and  removed  her
salwar, caught hold of her and took her to a distance  of  two-three  fields
and then to a hut.  
Then they took her to  Bhedia  Daftar  where  also  they
committed sexual intercourse with her and when Akbar was committing rape  on
her, PW-1 and her uncle came and the remaining five persons fled away.   
She
has stated that  all  these  six  accused  persons  belong  to  her  Mohalla
(locality) and they were present in Court.   She  has  also  identified  six
accused persons in Court.  
She has categorically stated  that  all  the  six
persons committed rape on her without her consent and forcibly.

12.   We have also read the evidence of Dr.  Ramlal  (PW-7)
He  has  stated
that he has examined the prosecutrix and prepared  the  medical  examination
report (Ext.P-15) and he had not found any mark  of  injury  on  her  hidden
parts, breast, thighs and forearm.  
He has further  stated  that  her  hymen
was already ruptured and there was one posterior perineal tear of  the  size
1/4” x 1/8” x 1/8” caused within 24 hours.
His opinion is that  prosecutrix
was habitual to sexual intercourse and there was  nothing  to  suggest  that
she had not been raped but the  vaginal  swab  and  smear  slides  could  be
tested to find out the presence of sperms.  
PW-7 has also examined  all  the
six accused persons and also stated that their  pants  and  underwears  were
taken into possession and sealed and delivered to  the  SHO,  Bhadara.  
The
SHO, Bhadara, has been examined as PW-9 and he has  stated  that  he  handed
over the pieces of medical evidence received from  the  Medical  Officer  of
Govt. Hospital, Bhadara to the in-charge of the Malkhana  and  later  on  he
got all such evidence in eight packets sent to the FSL, Rajasthan  for  test
and the FSL, Rajasthan, submitted the test report (Ext.P-39).

13.    Ext. P-39, which is the report under Section 293,    Cr.P.C.  of  the
FSL, Rajasthan, gives the following descriptions of the articles and  result
of examination:
                       “Description of Articles
|Packet Parcel No.    |Exhibit No. marked by|Details of exhibits  |
|                     |me                   |                     |
|A.                   |1                    |Vaginal Swab         |
|“                    |2                    |Vaginal smear        |
|B.                   |3                    |Salwar               |
|“                    |4                    |Kameej               |
|1.                   |5                    |Pants                |
|2.                   |6                    |Pants                |
|“                    |7                    |Underwear            |
|3.                   |8                    |Pants                |
|4.                   |9                    |Pants                |
|“                    |10                   |Underwear            |
|5.                   |11                   |Pants                |
|“                    |12                   |Underwear            |
|A.                   |13                   |Underwear            |

                            Result of Examination

Human semen was detected in exhibit No.1, 2 (from packet marked A), 3, 4
(from B), 5 (from 1), 7 (from 2), 8 (from 3) & 10 (from 4).

Semen was not detected in exhibit No.6 (from 2), 9 (from 4), 11, 12 (from
5) & 13 (from A).

Exhibit No.1, 2 (from A) have been consumed during the examination.

                                         (Dr. PRABHA SHARMA)”



14.     Thus, the evidence of the prosecutrix (PW-2) is clear that  all  the
six  respondents,  Akbar,  Jangsher,  Roshan,  Yakoob,  Kadar   and   Shafi,
committed rape on her without her consent and forcibly.   This  evidence  of
the  prosecutrix  (PW-2)  is  also  corroborated  by  the  evidence  of  the
informant (PW-1), who had himself witnessed Akbar  committing  rape  on  the
prosecutrix.  PW-2 had also  informed  PW-1  soon  after  the  rape  by  the
accused persons that not only Akbar but the other five respondents also  had
forcibly committed rape on her.  The evidence of PW-1 and PW-2 that all  the
six respondents had committed rape on the prosecutrix is  also  corroborated
by the complaint (Ext.P-1) made by PW-1 to the police within a few hours  of
the incident as provided in Section 157 of the  Indian  Evidence  Act.  
Dr.
Ramlal (PW-7) has opined after  medically  examining  the  prosecutrix  that
there was nothing to suggest that  she  had  not  been  raped.  
To  confirm
whether rape was committed on the prosecutrix by the  six  accused  persons,
the vaginal swab and vaginal smear as well  as  salwar  and  kameej  of  the
prosecutrix and the pants and underwears of the accused  persons  were  sent
by the letter (Ext.P-31) to the FSL, Rajasthan, and as  per  the  report  of
the FSL, Rajasthan (Ext.P-39), human semen was detected in the vaginal  swab
and vaginal smear (Exts.1 & 2 from packet ‘A’), salwar  and  kameej  of  the
prosecutrix (Exts.3 & 4 from packet ‘B’), two pants (Ext.5  from  packet  1,
and Ext. 8 from packet 3) and two  underwears  (Ext.7  from  packet  2,  and
Ext.10 from packet 4).  The medical evidence, therefore,  also  corroborates
the evidence of PW-1 and PW-2 that there was sexual intercourse between  the
prosecutrix and the accused persons.
      15.   We cannot accept the submission of Mr. Siddharth  Dave,  learned
          amicus curiae for respondent No.5 that the finding  given  by  the
          High Court that the prosecutrix may have  gone  with  the  accused
          persons on her own is a plausible one and should not be interfered
          with under Article 136 of the Constitution.  As  we  have  already
          noticed, the prosecutrix (PW-2) has deposed categorically that all
          the six persons had raped her without her  consent  and  forcibly.
          Section 114A of the Indian Evidence  Act,  1872  clearly  provides
          that in a prosecution for rape under clause (g) of sub-section (2)
          of Section 376, IPC, 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.  Since the prosecutrix (PW-
          2) has categorically said that sexual intercourse was committed by
          the accused without her consent and forcibly,  the  Court  has  to
          draw the presumption that she did not give consent to  the  sexual
          intercourse committed on her by the accused persons.  The  defence
          has not led any  evidence  to  rebut  this  presumption.   In  our
          considered opinion, the High Court could not have, therefore, held
          that there were circumstances to show that PW-2 had  gone  on  her
          own and on this ground acquitted the respondents.

      16.   From Ext.P-31 read with Ext.P-39, it is also  clear  that  human
          semen was detected from the pants of Akbar and  Jangsher  and  the
          underwears of Safi and Yakub.  As per the medical  evidence,  four
          persons had committed rape on the prosecutrix.  Explanation  1  to
          Section 376(2)(g), IPC, states that where a woman is raped by  one
          or more in a group of  persons  acting  in  furtherance  of  their
          common intention, each of the persons  shall  be  deemed  to  have
          committed gang rape within the meaning of the  sub-section.   This
          Court has, therefore, consistently held that where there are  more
          than one person acting in furtherance of their common intention of
          committing rape  on  a  victim,  it  is  not  necessary  that  the
          prosecution should adduce clinching proof of a  completed  act  of
          rape by each one of the accused on the victim.  (see Om Prakash v.
          State of Haryana [(2011) 14 SCC 309],  Ashok  Kumar  v.  State  of
          Haryana [(2003) 2 SCC 143], Bhupinder  Sharma  v.  State  of  H.P.
          [(2003) 8 SCC 551], Pardeep Kumar v. Union Admn.  [(2006)  10  SCC
          608] and Priya Patel v. State of M.P. [(2006) 6 SCC 263]).   Thus,
          we cannot accept the submissions of  Mr.  Mukesh  Sharma,  learned
          counsel for respondent nos.1, 2, 3, 4 and  6,  and  Mr.  Siddharth
          Dave, learned amicus curiae for respondent No.5, that the  medical
          evidence do not establish  a  case  of  gang  rape  under  Section
          376(2)(g), IPC.

      17.   The High Court, however, has considered the delay on the part of
          informant (PW-1) to lodge the FIR as a relevant  factor  to  doubt
          the prosecution story.  We find that PW-1 has explained the  delay
          in his evidence.  He has stated that after he found  his  daughter
          at about 1.00 a.m. on 28.04.1999 at the Bhedia Daftar  with  Akbar
          and after the five other accused persons had fled,  they  returned
          to their house at 2.00 a.m.  and  remained  at  their  house  till
          before sunrise  and  thereafter  lodged  the  FIR  at  the  Police
          Station.  He has further stated that the delay from 2.00  a.m.  to
          6.00 a.m. in lodging the report was on account of  the  fact  that
          his wife was sick and he was also  frightened  and  there  was  no
          other person to go to the police station.  He has also stated that
          he returned home from the police station at about 9.00  a.m.   The
          SHO of Bhadara Police Station has in his evidence stated  that  on
          28.04.1999 the  informant  appeared  in  the  police  station  and
          produced  a  written  report  (Ext.P-1)  before  him.   In  cross-
          examination on behalf of the accused-Roshan, Shafi and Yakoob, PW-
          9 has stated that Ext.P-1 was produced before him at 6.00 a.m.  on
          28.04.1999.  Yet the High Court has come to  the  conclusion  that
          the report (Ext.P-1) must have been filed at about 11.15  am.  and
          was ante timed to 6.00 a.m.  For this conclusion, we do  not  find
          any evidence, but only a surmise that Ext.P-1 must have been typed
          at the court premises after 11.00 a.m.  Thus, the report (Ext.P-1)
          was filed by   PW-1 at 6.00  a.m.  in  the  morning  reporting  an
          incident that he had witnessed between 1.00 a.m. and 2.00 a.m.  on
          28.04.1999 and the period from 2.00 a.m.  to  6.00  a.m.,  in  our
          considered opinion, has been sufficiently explained by PW-1 in his
          evidence that he could not leave his wife alone until sunrise.  As
          has been rightly submitted by Dr. Singhvi, no father would lodge a
          false complaint that his daughter has been gang-raped.   The  High
          Court should not have doubted the prosecution story on the  ground
          of delay in lodging the FIR.

      18.   The judgment of the High Court is thus contrary to the  evidence
          on record and is liable to be set aside.  We accordingly set aside
          the judgment of the High  Court  acquitting  the  respondents  and
          restore the judgment of the trial court convicting the respondents
          for the offences  under  Sections  366  and  376(2)(g),  IPC,  and
          maintain the  sentences  imposed  for  the  two  offences  on  the
          respondents by the trial court.

      19.   The appeals are accordingly allowed.  The  respondents  will  be
          taken into custody forthwith to undergo  the  remaining  sentence.




                                                               .……………………….J.
                                                           (A. K. Patnaik)



                                                               ………………………..J.
                                                           (Gyan Sudha
Misra)
New Delhi,
January 15, 2014.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.