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Dhruvendra Singh and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 136 of 1999
Judge
Reported in2001(3)WLN380
ActsIndian Penal Code (IPC), 1860 - Sections 342, 363, 366, 376 and 376(2); Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 3(2) and 3(2)(5)
AppellantDhruvendra Singh and ors.
RespondentState of Rajasthan
Advocates: Ramesh Purohit, Public Prosecutor for the State,; H.S.S. Kharlia and;
Cases ReferredPappu Khan v. State of Rajasthan
Excerpt:
(a) penal code, 1860 - section 376--rape--age prpsecitrox--medical evidence vis a vis documentary evidence--school certificate or birth certificate is best evidence of age of prosectrix and should be preferred to medical evidence--further, as per the document produced in defence also, the age of prosecutrix was below 16 on the date of incident.;(b) penal code, 1860 - section 376(2)(g) explanation-i--gang rape--scope--for constituting gang repe, it is not necessary that each of the group of accused must have sex with the prosecutrix--prosecutrix minor at the time of first incident when two of the eight accused committed rape on heer and other flirted--thereafter, prosecutrix continued to visit the place of one of the accused once or twice in a week for moer than a year when some of the.....garg, j.1. the above appeals being no. 136/99, 133/99 & 169/99 and the state appeal no. 326/99 are being decided by this common judgment as they all have been preferred against the judgment dated 8.2.1999 and order of sentence dated 9.2.1999 passed by the learned special judge, sc/st cases, sri ganganagar in sessions case no. 8/98.2. by the said judgment dated 8.2.1999, the learned special judge acquitted accused respondents hanuman prasad and parmanand of the charges for the offence under sections 363, 366, 342 and 376(2)(g) ipc; accused respondents jethu singh of the charges for the offence under sections 363, 366, 342, 376(2)(g) ipc and section 3(2)(v) of the scheduled castes and scheduled tribes (prevention of atrocities act), 1989 (hereinafter referred to as the 'sc/st act'); accused.....
Judgment:

Garg, J.

1. The above appeals being No. 136/99, 133/99 & 169/99 and the State appeal No. 326/99 are being decided by this common judgment as they all have been preferred against the judgment dated 8.2.1999 and order of sentence dated 9.2.1999 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar in Sessions Case No. 8/98.

2. By the said judgment dated 8.2.1999, the learned Special Judge acquitted accused respondents Hanuman Prasad and Parmanand of the charges for the offence under Sections 363, 366, 342 and 376(2)(g) IPC; accused respondents Jethu Singh of the charges for the offence under Sections 363, 366, 342, 376(2)(g) IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter referred to as the 'SC/ST Act'); accused respondent Sanjay Kumar of the charges for the offence under Sections 363, 366, 342,376(2)(g), 376(2)(g) IPC and Section 3(2)(v) of SC/ST Act; and accused respondent Gaurav Kumar @ Ganga of the charges for the offence under Sections 363, 366, 342, 376(2)(g) IPC and Section 3(2)(v) of SC/ST Act.

By the said judgment dated 8.2.1999, the learned Special Judge also acquitted accused appellant Dhruvendra Singh in appeal No. 136/99 of the charges for the offence under Sections 376(2)(g), 376(2)(g), 376 IPC, for the incident which occurred on 24.6.1997, but convicted this accused appellant Dhruvendra Singh of the charges for the offence under Section 363, 366, 342, 376 IPC and Section 3(2)(v) of the SC/ST. Act and sentenced him for the said offences vide order of sentence dated 9.2.1999 in the following manner:-

Name of accused appellantConvicted under SectionSentence awarded

Dhruvendra Singh

363 IPC

Two years RI and lo pay fine of Rs. 1000/-, in default of paymenl of fine, to further undergo imprisonmentfor one month.

366 IPC

Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonmentfor one month.

342 IPC

One year Rl and to pay fine of Rs. 500/-, in defaultof payment of fine to further under goimprisonment for 15 days.

376 IPC

Ten years RI and lo pay fine of Rs. 10000/-in default ofpayment of fine, to further undergo imprisonment for six months.

3(2)(v) of SC/ST Act

Six months Rl and to pay fine of Rs. 500/-, in defaultof payment of fine, to further undergoimprisonment for 15 days-

All the above substantivesentence were ordered to run concurrently.

By the same judgment, the learned Special Judge also acquitted the accused appellant Sushil Kumar in appeal No. 133/99 of the charges for the offence under Sections 376(2)(g), 376(2)(g) IPC, but convicted this accused appellant Sushil Kumar of the charges for the offence under Sections 363, 366, 342, 376 IPC and Section 3(2)(v) of the SC/ST Act and sentenced him for the said offences vide order of sentence dated 9.2.1999 in the following manner:-

Name of accused appellant

Convicted under Section

Sentence awarded

Sushil Kumar

363 IPC

Two years Rl and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonmentfor one month.

366 iPC

Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonmentfor one month.

342 IPC

One year Rl and to pay fine of Rs. 500/-, in default of payment of fine to furtherunder go imprisonment for 15 days.

376 IPC

Seven years Rl and to pay fine of Rs. 10000/- in default of payment of fine, to further undergo imprisonment forsix months.

3(2)(v) of SC/ST Act

Six months Rl and to pay in of Rs. 500/-, in default of payment of fine,to further undergo imprisonment for 15 days.

All the above substantivesentence were ordered to run concurrently.

By the same judgment, the learned Special Judge also acquitted the accused appellant Shiv Muni in appeal No. 169/99 of the charges for the offence under Sections 376(2)(g), 376(2)(g) IPC, but convicted this accused appellant Shiv Muni of the charges for the offence under Sections 363, 366, 342, 376/109 IPC and Section 3(2)(v) of the SC/ST Act and sentenced him for the said offences vide order of sentence dated 9.2.1999 in the following manner:-

Name of accused appellant

Convicted under Section

Sentence awarded

Shiv Muni

363 IPC

Two years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonmentfor one month.

366 IPC

Three years RI and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo imprisonmentfor one month.

342 IPC

One year RI and to pay fine of Rs. 500/-, in default of payment of fine to furtherunder go imprisonment for 15 days.

376/109 IPC

Seven years RI and to pay fine of Rs. 10000/- in default of payment of fine, to further undergo imprisonment forsix months.

3(2)(v) of SC/ST Act

Six months RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonmentfor 15 days.

All the above substantivesentence were ordered to run concurrently.

Aggrieved from the said judgment dated 8.2.1999 and order of sentence dale 9.2.1999 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar, the accused appellants Dhruvendra Singh, Sushil Kumar and Shiv Muni have preferred appeals separately and similarly State has also filed appeal against the said judgment and order acquitting accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga of the charges framed against them and against Dhruvendra Singh, Sushil Kumar and Shivmuni for enhancement of sentence and it was also prayed that all accused persons namely, Dhruvendra Singh, Sushil Kumar, Shiv Muni, Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga should be convicted for the offence of gang rape.

3. The facts giving rise to these appeals, in short, are as follows:-

On 6.10.1997 at about 4.10 PM, PW6 Puja (hereinafter referred to as the prosecutrix) daughter of Nemchand, PW4 lodged a report Ex.P/9 before PW5 Kan Singh, Dy SP, Raisingh Nagar District Sri Ganganagar against eight accused respondents mentioned in the State appeal and one more person Vinod Sachdeva stating inter-alia that her father Nemchand, PW4 was under the employment of Indian Agriculture Farm as Win Keeper and she has two brothers and one elder sister. It was further stated in the report Ex.P/9 that in the month of April, 1996, when she was going to her house, accused appellants Dhruvendra Singh, Sushil and Shiv Muni and accused respondents Sanjay, Parmanand, Jethu and Hanuman encircled her and took her forcibly to the house of accused appellant Shivmuni, who was Chowkidar and when she tried to make hue and cry, she was beaten by them and she was offered water and after drinking water, she felt giddiness and, thereafter, she was raped by the accused appellant Dhruvendra Singh and rest accused persons were flirting with her and when she came to senses, they told her that what had happened, that had happened and in case she would tell this incident to anybody, her brothers would be killed. Thereafter, she came to her house. It was further stated in the report that whenever she went to school, all accused persons used to take her to the house of accused appellant Shivmuni and all accused persons No. 1 to 8 mentioned in the report Ex.P/9 used to commit rape on her and this process remained continued for many times.

It was further stated in the report that when she was perturbed, she was asked by her mother PW3 Panadevi, then she unfolded the whole story to her mother PW3 Panadevi and then, her mother PW3 Panadevi narrated the whole story to her husband PW4 Nemchand. It was further stated in the report that thereafter, they met Vinod Sachdeva, who told them that accused persons hailed from high family and if they were enjoying with her, let them do so and he further told them that he would arrange the marriage of the prosecutrix with accused appellant Dhruvendra Singh. It was further stated in the report that she might have not developed conception, therefore, she was given tables for preventing pregnancy and she was given Mala-D tablets also.

This report was sent by PW 5 Kan Singh to Police Station Sri Vijaynagar, District Sri Ganganagar, where the case was registered and regular FIR Ex.P/10 was chalked out and investigation was got conducted by PW7 Tajaram.

During investigation, on 6.10.1997, medical examination of the prosecutrix PW6 Puja in respect of her age as well as for rape was not conducted by the Medical Board, of which, PW1 Dr. Devilal was one of the members, who gave report Ex.P/1 and radiological report is Ex.P/4, where age of the prosecutrix PW6 Puja was determined as 17 to 18 years. The prosecution has also produced TC Form of Kirti Public Secondary School, Jetsar (Sri-Ganganagar) Ex.P/8, which shows that date of birth of the prosecutrix was 16.5.1982. The accused appellants and other accused respondents in State appeal were not arrested through Ex.P/13 to Ex.P/20.

After usual investigation, police submitted challan against the accused appellants and accused respondents in State appeal in the Court of Magistrate, from where the case was committed to the Court of Section.

On 26.3.1998, the learned Special Judge, SC/ST Cases, Sri Ganganagar framed charges against the accused appellants and other accused respondents in State appeal in the following manner:-

Name of accusedpersons

Charges

1.

Hanuman Prasad

363, 366, 342, 376(2)(g) IPC.

2.

Parmanand

3.

Dhruvendra Singh

363, 366, 342, 376(2)(g), 376(2)(g), 376, 376 IPC and 3(2)(v) of SC/ST Act.

4.

Shivmuni

363, 366, 342, 376(2)(g),

5.

Sanjay Kumar

376(2)(g),

6.

Sushil Kumar

IPC and 3(2)(v) of Ihe SC/ST Act.

7.

Jethu Singh

363, 366, 342, 376(2)(g)

8.

Gaurav Kumar @ Ganga

IPC and 3(2)(v) of the SC/ST Act

The charges were read over the explained to the accused persons, who pleaded not quality and claimed trial.

During the course of trial, the prosecution, in support of the case, examined asmany as seven witnesses and got exhibited some documents. Thereafter, statementsof the accused persons under Section 313 Cr.P.C. were recorded. No evidence indefence was produced by the accused persons, but some documents were gotexhibited by them.

After conclusion of the trial, the learned Special Judge, SC/ST Cases, Sri Ganganagar through his judgment dated 8.2.1999 acquitted accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga of the charges framed against them, but convicled and sentenced the accused appellants Dhruvendra Singh, Sushil Kumar and Shivmuni Vide judgment dated 8.2.1999 and order of sentence dated 9.2.1999 in the manner as indicated above holding inter-alia:-

1. That in the month of April, 1996, prosecutrix PW6 Puja was below the age of 16 years and in coming to this conclusion, he placed reliance on Ex.P/8 TC Form of Kirti Public Secondary School, Jetsar (Sri Ganganagar), which was produced by the prosecution and on Ex.D/2, another school certificate produced in defence, which shows that date of birth of the prosecutrix was 7.2.1981 and thus, even Ex.D/2 be taken as correct one, the age of the prosecutrix from all point of view in the month of April, 1996 was below 16 years as from the date of birth 7.2.1981, her age would be 15 years and two months.

2. That in the present case, prosecution has not been able to prove beyond all reasonable doubt the offence of gang rape.

3. That it is proved by the prosecution that accused appellants Dhruvendra Singh enticed prosecutrix PW6 Puja and took her to the house of accused appellant Shivmuni, where he committed rape on her.

4. Thai what was done by accused appellant Dhruvendra Singh in the house of accused appellant Shivmuni, it was done with the help of accused appellant Shivmuni and hence, he abelted the commission of rape.

5. That prosecution has not been able to prove beyond all reasonable doubts any of the charges framed against accused Hanuman Prasad, Parmanand, Jethu Singh, Sanjay Kumar and Gaurav @ Ganga and hence, they are entitled to acquittal.

6. That offence of rape was also committed by accused appellant Sushil Kumar.

7. That incident, which is alleged to have taken place on 24.6.1997 at the back of house of the prosecutrix, was not found proved and thus, on that day, accused appellant Dhruvendra Singh did not commit rape on the prosecutrix PW6 Puja.

8. That if for the sake of argument, it be taken for granted that prosecutrix used to love with accused appellant Dhruvendra Singh, but this aspect would not be helpful to this accused appellant, as from every point of view, prosecutrix was below 16 years of age and her consent was immaterial.

Aggrieved from the said judgment dated 8.2.1999 and order of sentence dated 9.2.1999 passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar, the accused appellants Dhruvendra Singh, Sushil Kumar and Shivmuni have preferred appeals separately and State of Rajasthan has also filed appeal.

4. In the appeals filed by the accused appellants, the following submissions have been made:-

1. That on the date of alleged incident, the prosecutrix PW6 Puja was above 16 years of age and the learned Special Judge erred in holding that she was below 16 years of age.

2. That evidence of the proseculrix PW6 Puja is not reliable and her evidence is not supported, the learned Special Judge erred in convicting the accused appellants on the basis of her sole testimony.

3. That in the present case, there is a delay in lodging the report Ex.P/9 and as the same has not been satisfactorily explained, therefore, it is fatal to the prosecution case.

4. That looking to the evidence on record, the prosecutrix PW6 Puja was a consenting party to all the alleged activities right from very beginning.

5. That from the evidence on record, no case for the offence under Section 3(2)(v) of SC/ST Act is made out against the accused appellants.

5. The learned Public Prosecutor appearing on behalf of the State of Rajasthan has argued that it is a case of gang rape and for that he drew my attention towards Explanation-1 to Clause (g) of sub-section (2) of Section 376 1PC. He has further . submitted that the learned Special Judge has misinterpreted the provisions of law in general and Section 376(2)(g) IPC in particular. Hence, he has prayed that all accused persons be convicted of the charge for the offence Under Section 376(2)(g) IPC and the . findings of the learned Special Judge acquitting them of the said charge be set aside.

6. The learned counsel appearing for the accused persons, who have been acquitted by the learned Special Judge, submitted that learned Special Judge has not committed any error in acquitting them of the charges framed against them and the findings of the learned Special Judge are based on correct appreciation of evidence and after giving cogent reasons, the learned Special Judge acquitting them. The learned Special Judge was also right in holding that it is not a case of gang rape. Hence, no interference is called for with the impugned judgment and order by which five accused persons were acquitted of the charges framed against them.

7. 1 have heard the learned counsel for the accused appellants, learned Public Prosecutor, learned counsel for the complainant and the learned counsel for the accused respondents, who have been acquitted by the learned Special Judge, I have also gone through the record of the case.

8. Before proceeding further, medical evidence of this case has to be seen.

9. The prosecution has produced Dr. Devilal, PW1, who has stated that on 6.10.1977, he was Senior Medical Officer and he examined prosecutrix PW6 Puja and found :-

1. That she was not having any injury on any part of body and even her private part was not having any injury.

2. That her hymen was totally ruptured.

3. That she was habitual to sexual intercourse. He has proved the report Ex.P/1.

He has further stated that he took x-rays of elbow, wrist and pelvis bones of the prosecutrix PW6 Puja and as per radiological findings, he came to the conclusion that on the date of examination i.e. on 6.10.1997, her age was between 17 to 18 years.

Thus, this is the age of the prosecutrix PW6 Puja as per the medical evidence.

10. In the present case, the prosecution has also produced TC form of Kirti Public Secondary School, Jetsar, Sri Ganganagar Ex.P/8, in which, date of birth of the prosecutrix PW6 Puja was mentioned as 1(5.5.1982. From the side of accused persons, a school certificate Ex.D/2 has been produced, in which date of birth of the prosecutrix has been mentioned as 7.2.1981.

Legal aspect for determination of age of the prosecutrix in rape cases.

11. The Hon'ble Supreme Court in Sidheswar Ganguly v. State of West Bengal (1), has held that conclusive evidence of the girl's age may be the birth certificate, if it is not available then in conjunction with such oral testimony as may be available.

12. In Mohd. Ikram Hussain v. The State of Utter Pradesh (2), the Hon'ble Supreme Court has held that certificate copies from school registers while deciding the question of age of girl, amount to evidence under the Indian Evidence Act.

13. The above view was reiterated by the Hon'ble Supreme Court in Harpal Singh and Anr. v. State of Himachal Pradesh (3), where it has been held that entries in birth register made by concerned official in discharge of his official duties, are admissible evidence under Section 35 of the Indian Evidence Act.

14. In Bhoop Ram v. State of UP (4), the Hon'ble Supreme Court has held that on the point of proof of age, school certificate is the best evidence and so far as the medical certificate is concerned, the same is based on estimate and possibility of error cannot be ruled out.

15. Thus, it can easily be said that best evidence for determination of age is the birth certificate or the school certificate and in case it is available, that would be considered the best evidence and so far as the medical evidence is concerned, since it has margin of error, it would be taken into consideration only when primary evidence which is found in the birth certificate or school certificate is not available.

16. So far as the medical evidence in respect of age is concerned, the decision of the Hon'ble Supreme Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir (5), may be referred to where it has been held that margin of error in age ascertained by the radiological examination is of two years on either side.

17. Thus, the only conclusive piece of evidence of a girl's age may be the birth certificate or school certificate, but where such a document is not available the Court has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such testimony as may be available.

18. It has been argued on behalf of the accused appellants that since Ex.P/8 TC Form of school discloses the date of birth of the prosecutrix as 16.5.1982 and Ex.D/2 discloses her date of birth as 7.2.1981, therefore, in these circumstances, medical evidence must be given preference.

19. In my humble opinion, this argument does not carry any weight, in view of the TC form of School Ex.P/8 as well as school certificate Ex.D/2, which was produced by accused persons themselves and, therefore, its veracity cannot be doubted by them and this aspect has been very well discussed by the learned Special Judge in his impugned judgment, If Ex.D/2 school certificate be taken as correct one, the date of birth of the prosecutrix is. 7.2.1981 and alleged incident took place in the month of April, 1996, therefore, from this point of view also, prosecutrix was below 16 years of age even in the month of April, 1996.

20. Hence, it is held that in the month of April, 1996, prosecutrix PW6 Puja was below 16 years of age and thus, the findings of the learned Special Judge that on the date of alleged incident, the prosecutrix PW6 Puja was below 16 years of age are liable to be confirmed and the argument that she should be treated above 16 years of age is rejected, as the conclusive piece of evidence of a girl's age would be birth certificate and medical evidence, which is based on estimate, will have no preference over the age determined by the school certificate.

21. In the present case, the report Ex.P/9 was lodged by the prosecutrix PW6 Puja and her father PW4 Nemchand on 6.10.1997. The gist of that report is as follows:-

1. That in the month of April, 1996, prosecutrix was forcibly taken by all accused persons (No. 1 to 8 mentioned in the report Ex.P/9) to the house of accused appellant Shivmuni, where she was raped by accused appellant Dhruvendra Singh and rest accused persons flirted with her.

2. That all accused persons No. 1 to 8 mentioned in the report Ex.P/9 used to flirt with her in the state of semi- consciousness and they also used to say that in case she would tell this type of incident to anybody, her brothers would be killed.

3. That whenever she used to go to school, she was taken to the house of accused appellant Shivmuni, where all accused persons No. 1 to 8 mentioned in the report Ex.P/9 used to commit rape and flirt with her and this process remained continued for more than one year.

4. That this incident was first disclosed by the prosecutrix PW6 Puja to her mother PW3 Panadevi and PW3 Panadevi narrated the whole story to PW4 Nemchand and therefore, this report came in picture.

22. Now the evidence about the manner in which the alleged incident took place and what part was played by each accused person has to be seen and for that best evidence would be of prosecutrix PW6 Puja herself.

23. Before examining the statement of the prosecutrix PW6 Puja, something should be said about burden of proof in rape cases.

Burden of proof

24. In a case of rape, the onus is always on the prosecution to prove affirmatively 'each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.

Legal aspect of evidence of the prosecutrix

25. The main evidence in all such cases is that of the victim herself. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned, the other evidence being merely corroborative. It is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act . upon it.

26. Keeping the above legal aspect in mind, the statement of the prosecutrix PW6 Puja is being examined.

27. The prosecutrix PW6 Puja in her statement first narrates the incident which look place in April, 1996, in which she has involved all accused respondents and has stated that they all took her forcibly to the house of accused appellant Shivmuni, where she was raped by accused appellant Dhruvendra Singh. Another incident which she narrates is that after two days, when she was going to school, she was again encircled by accused Dhruvendra Singh, Sushil, Sanjay, Ganga, Parmanand and Jethu and asked her to come to the house of accused appellanl Shivmuni al about 2.30 PM, but she further slales that she did not go there on that day. She further states that on the next day, as per the invitation of accused appellant Dhruvendra Singh, she went to the house of accused appellant Shivmuni, where she found accused persons and she was raped there by accused appellants Dhruvendra Singh and Sushil Kumar and rest accused persons, namely, Sanjay, Parmanand, Ganga, Jethu, Hanuman and Shivmuni flirted with her. Another part of her statement is that this process of coming of prosecutrix PW6 Puja to the house of accused appellant Shivmuni, where out of eight accused persons,sometimes one or more used to commit rape on her, continued for more than one year. Therefore, she narrated the whole story to her mother PW3 Panadevi, who then told the whole story to PW4 Nemchand and, thereafter, the report Ex.P/9 was lodged.

28. This witness has been cross examined and she has been contradicted with her statement Ex.D/4 recorded by the Magistrate under Section 164 Cr.P.C. on some points, but the basic aspect of her statement in respect of first incident of April, 1996, thereafter, another incident, which took place after two days and furthermore, that process remained continued for more than one year, has not been shattered and her statement on this count appears to be convincing one.

29. It may be stated here that it is well settled by a catena of decisions of the Hon'ble Supreme Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for a conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reasons to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.

30. In the present case, evidence of the prosecutrix PW6 Puja does not suffer from any basic infirmity and she has clearly admitted what has happened with her even saying that this process continued even for more than one year. Therefore, in the present case, to seek further corroboration would be to insult womanhood. Apart from this, medical evidence supports the case of the prosecutrix, where it was found that her hymen was totally ruptured meaning thereby she was sexually assaulted many times during this period. Therefore, her statement is trustworthy and reliable.

31. The evidence of the prosecutrix PW6 Puja as given by her in the statement appears to be satisfactory even in its minutes details, and nothing has been shown that she had falsely implicated the accused persons at the cost of her own dignity. She is a young girl and in the beginning when process of molestation was started against her, she was a minor girl, and she had no axe to grind against the accused persons. The alleged act definitely casts stigma on her. The society does not close its eyes to the helplessness of a victim, more so, if it is a girl. In that background, the evidence of the prosecutrix PW6 Puja is accepted, being without any noticeable discrepancy and on her evidence, conviction can be made. There is no rule which mandates any corroboration because corroboration would be impossible in such cases.

32. No doubt in the beginning, the prosecutrix was of adolescent age when she came in contact with the accused persons and accused persons misused her by molesting her at their highest level and thereafter, she addicted to all evils to which she became acquainted and this process went on and went on for more than one year and in that process, the accused persons acted in a barbaric and cruel manner in molesting her so many times not by one, but being members of gang, as a result of which, her hymen was totally ruptured.

33. Thus, the argument of the learned counsel for the accused persons that evidence of the prosecutrix PW6 Puja is not reliable stands rejected.

34. PW 4 Nemchand, who is father of the prosecutrix, has admitted the following facts in his cross-examination:-

1. That it is correct to say that prosecutrix PW6 Puja used to administer tablet of compose in vegetables, milk etc. and thereafter, after sleeping by them, where she used to go, he could not say, but this process remained continued for 1-1/2 years.

2. That it is also correct to say that when he came to know that she used to go somewhere, he beat the prosecutrix PW6 Puja and on that, she narrated the story of administering of compose in vegetables, milk etc.

35. In this case, there is one more aspect, which is to be considered and the same is whether in the whole incident starting from April, 1996 upto the period when the report Ex.P/9 was made by the prosecutrix PW6 Puja, she was a consenting party or not.

36. The statement of the prosecutrix PW6 Puja is that for the first time in the month of April, 1996 she was taken forcibly by the accused persons to the house of accused appellant Shivmuni publicly. In my opinion, this part of her statement cannot be accepted and furthermore, keeping in mind that this process continued for 1-1/2 years, therefore, from all point of view, she was a consenting party from the very beginning in coming to the house of accused appellant Shivmuni with accused persons. Therefore, element that she was taken forcibly is missing in this case. But, since prosecutrix PW6 was minor in the month of April, 1996, her consent whether implied or express has no bearing. Sixth clause of Section 375 IPC provides that if girl is under sixteen years of age, her consent is immaterial. The Hon'ble Supreme Court in Harpal Singh v. State of HP (6) has held that once it is proved that girl was below 16 years of age, the question of consent is wholly irrelevant.

37. Thus, the argument that prosecutrix PW6 Puja was a consenting party would not be helpful to the accused persons as she was minor on the dale of alleged incident and thus, theory of consent is immaterial.

38. So far as argument of delay in lodging the report is concerned, it is very well explained in the report Ex.P/9 by the prosecutrix PW6 Puja and thus, it is not a fit case where benefit of delay in lodging the report should be given to the accused persons, as, from the statement of the prosecutrix PW6 Puja, the process remained continued for more than one year. In these circumstances, the argument that there was delay in lodging the report Ex.P/9 carries no weight and the same stands rejected.

39. So far as the commission of rape by accused persons other than accused appellants Dhruvendra Singh and Sushil is concerned, no doubt prosecutrix PW6 Puja has not specifically mentioned the name of each accused persons, but she has clearly stated in the report Ex.P/9 as well as in her statement recorded in the Court as PW6 that all accused persons No. 1 to 8 mentioned in the report Ex.P/9 used to commit rape with her whenever she used to go to the house of accused appellant Shivmuni once or twice in a week and this process remained continued for more than one year. From this statement of the prosecutrix PW6 Puja, it appears that it does not mean that whenever she used to go to the house of accused appellant Shivmuni once or twice in a week, all accused persons No. 1 to 8 mentioned in the report Ex.P/9 were found there, but sometimes A is found, sometimes B is found and sometimes C is found, that is to say out of these eight accused persons, some of them used to remain there and they used to commit rape and flirt with her and they did that job for more then one year. In other words, they shared the common intention in coming to the house of accused appellant Shivmuni and, thereafter, they also shared common intention in having sex with the prosecutrix PW6 Puja whenever they had occasion to do so. But, to say that none of them apart from accused appellants Dhruvendra Singh and Sushil Kumar had sex with the prosecutrix PW6 Puja, is not acceptable. Thus, it is amply proved by the evidence of the prosecutrix PW6 Puja that all eight accused persons including these two accused appellants Dhruvendra Singh and Sushil for whom there is specific mention, used to visit the house of accused appellant Shivmuni, where she also used to go there once or twice in a week and out of these eight accused persons, sometimes some had sex with her and sometimes others had sex with her, but during the period of 1-1/2 years, they all had sex with her. Hence, the findings of the learned Special Judge in this respect that only two accused persons, namely, Dhruvendra Singh and Sushil Kumar had sex with her are liable to be set aside.

40. From the above discussion, the following facts emerged:-

1. That in the month of April, 1996, proseculrix PW6 Puja was below 16 years of age and her consent, if any, was immaterial.

2. That proseculrix was taken or went herself to the house of accused appellant Shivmuni, who was Chowkidar, where she was first raped by accused appellant Dhruvendra Singh and rest accused persons flirted with her.

3. That after 2-3 days, she was raped by accused appellants Dhruvendra Singh and Sushil. Thus, commission of rape by them is well proved.

4. That all accused persons No. 1 to 8 mentioned in the report Ex.P/9 including accused appellants Dhruvendra Singh and Sushil Kumar used to visit the house of accused appellant Shivmuni, where prosecutrix PW6 Puja also used to go there once or twice in a week and out of these eight accused persons, sometimes some had sex with her and sometimes others had sex with her and this process remained continued for more than one year and during that period, they all had sex with her. Thus, they shared common intention in coming to the house of accused appellant Shivmuni and, therefore, they shared common intention in having sex with her whenever they had occasion to do so.

That in coming to the house of accused appellant Shivmuni by eight accused persons, where prosecutrix PW 6 Puja also used to go there once or twice in a week, they all had one common intention that is flirting and having sex with her for more than one year.

6. That prosecutrix should be treated as consenting party from the beginning upto the lodging of the report Ex.P/9 and the fact that she used the administer compose to her father PW 4 Nemchand in vegetables, milk etc. goes to show that she was very much interested in going to the house of accused appellant shivmuni.

7. That the fact that she was habitual to sexual intercourse is also proved by the medical evidence in which PW1 Dr. Devilal staled that her hymen was totally ruptured and she was habitual to sexual intercourse.

8. That delay in lodging the report ex. P/9 has been satisfactorily explained.

41. Now, the findings of the learned Special Judge that it was not a case of gang rape has to be critically examined.

42. The learned Special Judge has come to the conclusion that since rape was committed with the prosecutrix PW 6 Puja by accused appellants Dhruvendra Singh and Sushil only, therefore, no case of gang rape is made out and that is why, he acquitted the accused persons for the offence of gang rape.

43.Before critically examining the above findings of the learned Special Judge, first identity and presence of accused persons in the house of accused appellant Shivmuni, where accused appellants Dhruvendra Singh and Sushil committed rape on the prosecutrix PW 6 Puja, has to be seen.

44. In the report Ex.P/9 lodged by the prosecutrix PW 6 Puja, names of the following accused persons were mentioned:-

1. Dhruvendra Singh

2. Sushil

3. Shivmuni

4. Sanjay

5. Parmanand

6. Jethu

7. Hanuman

45. Thus, in the report ex. P/9, the name of accused respondent Gaurav Kumar @ Ganga in State appeal, was missing, though his name was mentioned in the title of that report.

46. In the statement of the prosecutrix PW 6, Puja, in the beginning of at the time of first incident which took place in the month of April, 1996, the names of the following accused persons were mentioned:-

1. Dhruvendra

2. Sushil

3. Sanjay

4. Parmanand

5. Ganga

6. Jethu

7. Hanuman

8. Shivmuni

47. For the incident which occurred after 2-3 days, the names of the following accused were mentioned by the prosecutrix PW 6 Puja:-

1. Dhruvendra

2. Sushil

3. Sanjay

4. Ganga

5. Parmanand

6. Jethu

48. Thus, from the statement to the prosecutrix PW6 Puja, it appear that all accused persons No. 1 to 8 mentioned in the report Ex.P/9 were party to all acts which took place in the house of accused appellant Shivmuni, where as per her statement, she used to go there once or twice in a week and where all eight accused persons used to meet her and they used to have sex or flirt with her, after sharing common intention with one and other. Hence, identity and presence of all accused persons no. 1 to 8 mentioned in the report Ex.P/9 in the house of accused appellant Shivmuni stand well proved from the statement of the prosecutrix PW 6 Puja and there is no occasion to say that any one of them was not found present in the house of the accused appellant Shivmuni, as the names of accused persons no. 1 to 8 are mentioned in the report as well and she has also uttered names of some of the accused persons and for some of them, she has only stated that accused persons no. 1 to 8. Since the process remained continued for more than one year, therefore, it cannot be said that she had forgotten the name of any one of them. Thus, if she has referred accused persons no. 1 to 8, it does not mean that identity of any one of them is in dispute.

49. The next question is whether in the present case, offence of gang rape has been made out by the prosecution or not.

50. For convenience, Section 376(2)(g) IPC is quoted here:-

'376. Punishment for rape.-

(1) .....

(2) Whoever.-

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) .....

(g) commits gang rape

'.....

Explanation-1. - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section.

51. Thus, Clause (g) of Sub-section 92) of Section 376 IPC deals with cases of gang rape. Explanation-1 applies to gang rape. Explanation -1 applies to gang rape. By a deeming provision it enacts 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' and alt of them shall be liable to be punished under sub-section (2) of Section 376 IPC.

52. The object in enacting this Explanation has been explained by the Hon'ble Supreme Court in Promod Mahto v. State of Bihar (7) thus:

'This Explanation has been introduced by the legislature with a view to effectively deal with the growing menance of gang rape. In such circumstances, 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 or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them Under Section 376 IPC.'

53. Thus, the above observations of the Hon'ble Supreme Court and Explanation-I to Clause (g) of Sub-section (2) of Section 376 IPC clearly reveal that once it is established that accused persons had acted in concert and raped the prosecutrix, then all of them would be guilty Under Section 376 in terms of Explanation-1 to Clause (g) of Sub-section (2) of Section 376 IPC, irrespective of whether she had been raped by one or more of them.

54. Looking to the above legal position, it is to be seen whether in the present case prosecution has been able to prove its case beyond all reasonable doubts against all accused persons for the offence of gang rape under Section 376(2)(g) IPC or not.

55. In the present case, there is clear cut evidence of the prosecutrix PW 6 Puja that all accused persons no. 1 to 8 mentioned in the report Ex.P/9 used to assemble in the house of accused appellant Shivmuni during the relevant period, which consists of more than 12 months, where she also used to go once or twice in a week and where they used to have sex and flirt with her, whenever any one of them got opportunity. In other words, it is made clear that when she used to go to the house of accused appellant Shivmuni once or twice in a week, it was not necessary that all eight accused persons must have been there. Since that process continued for more than one year, therefore, when she used to be to the house of accused appellant Shivmuni once of twice In a week, some accused persons might be there and some might not be there, but In the whole year, they all shared common intention in having sex with minor girl and flirting with her.

56. Thus, looking to the evidence on record and placing reliance on the observation of the Hon'ble Supreme Court in the case of Promod Mahto (supra) and Explanation-1 to Clause (g) of Sub-section (2) of Section 376 IPC, it an easily be said that prosecution has been able to prove its case beyond all reasonable doubts against all accused person for the offence under Section 376(2)(g) IPC and thus, the findings of the learned special Judge acquitting all accused persons for the said offence are liable to be set aside and all accused persons are liable to be convicted for the offence under Section 376(2)(g) IPC.

57. It may be stated here that it is not necessary that the prosecution should adduce ctincing proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where [here are more than one in order to find the accused guilty of gang rape. Keeping this aspect in mind, the findings of gang rape recorded by the learned Special Judge are set aside and on the contrary it is held that it is a case of gang rape.

58. It may further be slated have that though as per the observations of the Hon'ble Supreme Court in the case of Promod Mahto (supra) and Explanation-1 to Clause (g) of Sub-section (2) of Section 376 1PC, it is not necessary that each accused should indulge in sex while member of a gang and sharing common intention, but in the present case, from the statement of the prosecutrix PW 6 Puja, it is well proved that all accused persons apart from Dhruvendra Singh and Sushil Kumar also indulged in sex with her.

59. Since the findings of the learned Special Judge on the point of gang rape have been reversed by this Court, it may be stated here that the Hon'ble Supreme Court in Hari Ram v. State of Rajasthan (8), has held that power 'of the High Court while hearing appeal against acquittal is as wide as an appeal against conviction.

60. Therefore, the evidence in the present case has been re- assessed keeping the legal position in mind and since the learned Special Judge has committed manifest error of law and fact in giving findings that it was not a case of gang rape, therefore, interference was made by this Court with such findings in State appeal. For that decision of the Hon'ble Supreme Court in Raghbir Slngh v. State of Haryana (9), may be referred to.

61. So far as conviction of the accused appellants Dhruvendra Singh, Sushil and Shivmuni for the offence under Section 3(2)(5) of the SC/ST Act is concerned, they cannot be convicted unless she was raped knowingly that she was a schedule caste girl. In the present case, there is no such evidence that they raped the prosecutrix PW 6 Puja knowing that she was a scheduled caste girl. In the present case, there is no such evidence that they raped the prosecutrix PW 6 Puja knowing that she was a scheduled caste girl. Hence, their conviction and sentence passed by the learned Special Judge for the offence under Section 3(2)(v) of the SC/ST Act are liable to be set aside and they are entitled to be acquitted of the charge for the said offence. In this respect, the decision of this Court in Pappu Khan v. State of Rajasthan (10), may be referred to where, it was held thus:-

'Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, Section 3/2(v) Scope. For offence under Section 3(2)(v), besides proving ingredients of respective offence, it must further be proved that target of crime was selected on ground that he/she belonged to scheduled caste or scheduled tribe.'

62. For the reasons stated above, the appeal filed by the State of Rajasthan is liable to be allowed an the judgment dated 8.2.1999 and order of acquittal dated 8.2.1999 passed by the learned Special Judge acquitting accused respondents (1) Dhruvendra Singh, (2) Hanuman Prasad, (3) Parmanand, (4) Shivmuni @ Babua, (5) Jethu Singh, (6) Sanjay Kumar, (7) Gorav Kumar @ Ganga and (8) Sushil Kumar of the charge of gang rape under Section 376(2)(g) IPC are liable to be set aside and they all are liable to be convicted for the offence under Section 376(2)(g) IPC.

On point of sentence

63. For gang rape under Section 376(2)(g) IPC, the minimum sentence prescribed by law is rigorous imprisonment for then years.

64. Looking to the entire facts and circumstances of the case, for the offence under Section 376(2)(g) IPC, if each of the accused respondent is sentenced to under go ten years rigorous imprisonment and to pay fine of Rs. 2000, in default of payment of fine, to further undergo R! for six months, it would meet the ends of justice.

65. In view of the fact that in State Appeal No. 326/99, the accused appellants Dhruvendra Singh, Sushil Kumar and Shiv Muni have been convicted and sentenced for the offence Under Section 376(2)(g) IPC, therefore, their conviction and sentence for the offence under Sec 376, 376and 376 and 376/109 IPC passed by the learned Special Judge vide judgment dated 8.2.1999 and order of sentence dated 9.2.1999 stand altered and in place in 376, 376and 376/109 IPC respectively they stand convicted and sentenced for the offence under Section 376(2)(g) IPC. So far as their convictions and sentences passed by the learned Special Judge for the offence under Sections 363, 366, 342 IPC are concerned, no separate order has to be passed in view of their conviction and sentence for the offence under Section 376(2)(g) IPC. However, their conviction and sentence 376(2)(g) IPC. However, their conviction and sentence for the offence under Section 3(2)(v) of the SC/ST Act passed by the learned Special Judge vide impugned judgment and order are liable to be set aside and they are entitled to be acquitted of the said charge for the offence under Section 3(2)(v) of the SC/ST Act.

The net result of the above discussion is that:-

1. The appeal No. 326/99 filed by the State of Rajas than is allowed and the judgment dated 8.2.1999 and order of acquittal dated 9.2.1999 passed by the learned Special Judge, SC/ST Cases. Sri Ganganagar acquitting accused respondents (1) Dhruvendra Singh, (2) Hanuman Prasad, (3) Parmanand, (4) Shivmuni @ Babua, (5) Jethu Singh, (6) Sanjay Kumar, (7) Gaurav Kumar @ Ganga and (8) Sushil Kumar of the charge for the offence under Section 376(2)(g) IPC are set aside and all these accused respondents are convicted for the offence under Section 376(2)(g) IPC and for the said offence under Section 376(2)(g) IPC, each of them is sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 2.000/-, in default of payment of fine, to further undergo six months Rl. As per the provisions of Section 428 Cr. P.C., the period of detention, if any, undergone by them during the investigation or trial shall be set off from ten years RI.Since accused respondents Hanuman Prasad, Parmanand, Jelhu Singh, Sanjay Kumar and Gaurav Kumar @ Ganga are on bail, therefore, they shall surrender before the trial court immediately and in case they do not surrender before the trial court, the trial court shall take necessary steps for arresting them and sending them to jail to serve out the remaining period of sentence.

2. The appeal No. 136/99 filed by the accused appellant Dhruvendra Singh is disposed in the following terms:-

1. That in view of the fact that in State Appeal No. 326/99, this accused appellant Dhruvendra Singh has been convicted and sentenced for the offence under Section 376(2)(g) IPC, therefore, his conviction and sentence for the offence under Section 376 IPC passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar vide his judgment dated 8.2.1999 order of sentence dated 9.2.1999 stand altered from 376 [PC to 376(2)(g) IPC and in place of 376 IPC, he stand convicted and sentenced for the offence under Section 376(2)(g) IPC.

2. That so far as his convictions and sentences for the offence under Sections 363, 366 and 342 IPC are concerned, no separate order has to be passed in view of his conviction and sentence for the offence under Section 376(2)(g) IPC.

3. That his conviction and sentence for the offence under Section 3(2)(v) of the SC/ST Act passed by the learned Special Judge, SC/ST Cases through his judgment dated 8.2.1999 and order of sentence dated 9.2.1999 are set aside and he is acquitted of the said charge for the offence under Section 3(2)(v) of the SC/ST Act.

4. That it is made clear that accused appellant Dhruvendra Singh shall now serve out the sentence awarded to him for the offence under Section 376(2)(g) IPC only.

3. The appeal No. 133/99 filed by the accused appellant Sushil Kumar is disposed in the following terms:-

1. That in view of the fact that in State Appeal No. 326/99, this accused appellant Sushil Kumar has been convicted and sentenced for the offence under Section 376(2)(g) 1PC, therefore, his conviction and sentence for the offence under Section 376 IPC passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar vide his judgment dated 8.2.1999 and order of sentenced dated 9.2.1999 stand altered from 376 IPC to 376(2)(g) 1PC and in placed of 376 IPC, he stand convicted and sentenced for the offence under Section 376(2)(g) IPC.

2. That so far as his convictions and sentences for the offence under Sections 363, 366 and 342 IPC are concerned, no separate order has to be passed in view of his conviction and sentence for the offence under Section 376(2)(g) IPC.

3. That his conviction and sentence for the offence under Section 3(2)(v) of the SC/ST Act passed by the learned Special Judge, SC/ST Cases through his judgment dated 8.2.1999 and order of sentence dated 9.2.1999 are set aside and be is acquitted of the said charge for the offence under Section 3(2)(v) of the SC/ST Act.

4. That it is made clear that accused appellant Sushil Kumar shall now serve out the sentence awarded to him for the offence under Section 376(2)(g) IPC only.

3. The appeal No. 169/99 filed by the accused appellant Shivmuni is disposed in the following terms:-

1. That in view of the fact that in State Appeal No. 326/99, this accused appellant Shivmuni has been convicted and sentenced for the offence under Section 376(2)(g) IPC, therefore, his conviction and sentence for the offence under Section 376/109 IPC passed by the learned Special Judge, SC/ST Cases, Sri Ganganagar vide his judgment dated 8.2.1999 and order of sentenced dated 9.2.1999 stand altered from 376/109 IPC to 376(2)(g) IPC and in place of 376/109 IPC, he stands convicted and sentenced for the offence under Section 376(2)(g) IPC.

2. That so far as his convictions and sentences for the offence under Sections 363, 366 and 342 IPC are concerned, no separate order has to be passed in view of his conviction and sentence for the offence, under Section 376(2)(g) IPC.

3. That his conviction and sentence for the offence under Section 3(2)(v) of the SC/ST Act passed by the learned Special Judge, SC/ST Cases through his judgment dated 8.2.1999 are set aside and he is acquitted of the said charge for the offence under Section 3(2)(v) of the SC/ST Act.

4. That it is made clear that accused appellant Shivmuni @ Babua shall now serve out the sentence awarded to him for the offence under Section 376(2)(g) IPC only.


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