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.
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.
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.
