Full Judgment Text
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CASE NO.:
Appeal (crl.) 734 of 2002
PETITIONER:
Ashok Kumar
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 17/12/2002
BENCH:
S. RAJENDRA BABU & P. VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
RAJENDRA BABU, J. :
On May 9, 1993 at about 3.30 p.m., when Rajbir [PW.6] was passing in
front of the Baithak of the residence of Ram Karan, father of the appellant, he
heard the cries of his sister, Sudesh, aged about 15 years and when he went
inside the Baithak by scaling over the wall he saw Anil Kumar (now deceased)
committing rape of his sister, Sudesh and she was weeping while lying on the
ground. Then came Ashok Kumar, the appellant, from the adjoining room with
a pistol in his hand asking the witness Rajbir [PW.6] to run away as otherwise
he would shoot him. Rajbir [PW.6] raised an alarm upon which several
persons in the neighbourhood and his brother Ranbir [PW.4] and his father,
Dhanpat, came to the spot. On seeing this, the appellant ran away from the
place. Sudesh, sister of Rajbir [PW.6], after putting on her salwar went away
as she was feeling ashamed. She was not found in the house when other
members of the family looked for her. When they came back to their houses at
about 12 midnight, she was vomiting and weeping. On asking her, they came
to know that she had consumed aluminium phosphide tablets which are used
for preservation of wheat in order to put an end to her life as the appellant
and deceased Anil Kumar [1st accused] had committed rape on her and she
was feeling ashamed. As no other conveyance was available, they took her to
the hospital on a bicycle at about 5 A.M. on May 10, 1993. The doctor
admitted her in the hospital at about 5.30 A.M. and thereafter both the brothers
returned to their village to make arrangement for money for payment to the
hospital. Dr. A.K.Suri [PW.2] sent intimation to the police station regarding the
admission of Sudesh in the hospital, upon which H.C.Mohinder Singh [PW.12]
went to the hospital and inquired about her fitness to make statement. The
doctor declared her unfit to make any statement and she expired at about 7.10
A.M. on May 10, 1993. Thereafter H.C.Mohinder Singh [PW.12] recorded a
statement of Rajbir [PW.6] at about 9 A.M. on the basis of which FIR for
offences under Sections 376, 306 and 506 IPC were recorded at the Police
Station, Safidon at 9.10 A.M. and after investigation the charge sheet for
offences under Sections 376 and 506 IPC was laid before the court against the
appellant and Anil Kumar. Ranbir and Rajbir [PW.4 and PW.6] were charged
under Section 306 IPC for abetting suicide of Sudesh, but they were acquitted
of the charge. This in brief is the prosecution case.
The Trial Court convicted each of the accused to undergo rigorous
imprisonment for 11 years and to pay a fine of Rs.2,000/- under Section
376(2)(g) IPC and in default of payment of fine to undergo further
imprisonment of one year. Both the accused filed appeals. During the
pendency of the appeals, Anil Kumar died in an accident. The High Court,
having dismissed the appeal filed by the appellant, this appeal by special leave
is preferred.
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The post-mortem report of the body of Sudesh disclosed as under:
"It was moderately built, moderately nourished body of a female.
Auxiliary hair were present. Breasts were well developed. Pubic
hair were present. There was no external mark of injury seen in
perineum, thighs, hips, breast or on any other part of body.
Hymen was ruptured, which was old healed and ruptured and
admitted two fingers. No fresh injury was present in the vagina.
Uterus was ante-verted and nulliparous."
In the court, evidence was tendered to the effect that two vaginal swabs
were taken from posterior and lateral fomices and pubic hair were sent to the
chemical analysis as well as the salwar, under-shirt and the underwear worn
by the deceased were also sent to the Forensic Science Laboratory, which,
however, did not indicate anything positive. Dr. V.P.Kakkar [PW.3] opined that
the possibility of recent intercourse is totally ruled out. From the condition of
vagina and hymen, he stated that the deceased was habituated to sexual
intercourse. He did not find any injury upon the deceased. He opined that she
has died as a result of poisoning. Similarly medico-legal examination of the
appellant did not find any mark of injury on any part of the body and his
underwear which was sent to the FSL did not produce anything positive. Apart
from stating that he was fit to perform sexual intercourse, no other statement
was made before the court.
The Trial Court acquitted the accused with reference to the offence
arising under Section 506 IPC. The finding in this regard is as follows:
" To my mind the prosecution has failed to prove this
charge because in his statement Ex. PW 6/A the complaintant
has stated that when he entered in the house of Ram Karnan,
Ashok accused came out from a room with a pistol and directed
him (PW-6) to get lost from that place failing which he would finish
him. This version is supported by PW-6 in his on oath statement.
Except this evidence, no other evidence has come on the record.
Therefore from this evidence it is clear that the threat uttered by
accused Ashok to PW-6 was a conditional threat and nothing was
done by the accused Ashok, even the witness did not follow his
directions. Thus the conditional threat was no threat in the eyes of
law and if any law on this point is required, then reference may be
made to Sita Ram Vs. State 1974 P.L.R. 421. Thus viewed from
every angle, I have come to the conclusion that the prosecution
has not been able to prove the second charge i.e. charge under
Section 506 Indian Penal Code, against the accused persons."
Both the Trial Court and the High Court placed strong reliance upon the
statements made by Ranbir [PW.4] and Rajbir [PW.6] that Sudesh had told
them, when she came back to the house at midnight after consuming poison,
that both the accused had raped her.
When we have the direct evidence of PW.6 the brother of the
deceased, the bald statement attributed to the deceased in an apparent bid to
rope in the appellant in addition to the other accused cannot be given much
weight. The evidence of PW.6 [Rajbir] is to the effect that his sister was at a
distance of about 300 yards having started from the house one or two minutes
earlier to his departure, that she was picked up from the street and that he
noticed her being taken inside the Baithak of Ram Karan and as he came near
the Baithak, he found that the doors were closed. PW.6 then says that he
jumped the wall and went inside the Baithak. Then he noticed the accused
Anil Kumar and the deceased in compromising position. The appellant herein
came there soon after his arrival at the spot and left from there immediately.
From this sequence of events, it is not possible to draw a reasonable
conclusion that the appellant had raped the deceased person. The time gap
between PW.6 noticing the victim being taken inside the Baithak and his entry
into the Baithak was so short that it is not possible to infer that the appellant
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would have committed rape in the first instance. Soon after PW.6 entered the
Baithak and witnessed what was happening, the appellant withdrew from
there. In the face of this version in cross examination, it is difficult to believe
that both have committed rape. However, we have to examine whether the
appellant could be convicted with reference to Section 376(2)(g) IPC even if he
had not actually raped the victim.
Charge against the appellant is under Section 376(2)(g) IPC. In order to
establish an offence under Section 376(2)(g) IPC, read with Explanation I
thereto, the prosecution must adduce evidence to indicate that more than one
accused had acted in concert and in such an event, if rape had been
committed by even one, all the accused will be guilty irrespective of the fact
that she had been raped by one or more of them and it is not necessary for the
prosecution to adduce evidence of a completed act of rape by each one of the
accused. In other words, this provision embodies a principle of joint liability
and the essence of that liability is the existence of common intention; that
common intention presupposes prior concert which may be determined from
the conduct of offenders revealed during the course of action and it could arise
and be formed suddenly; but, there must be meeting of minds. It is not enough
to have the same intention independently of each of the offender. In such
cases, there must be criminal sharing marking out a certain measure of
jointness in the commission of offence.
Now what is to be seen is whether there are any circumstances to
indicate concert between the appellant and Anil Kumar in committing rape on
Sudesh. Learned Advocate appearing for the respondent, contended that
the appellant had facilitated Anil Kumar to commit rape on the deceased,
Sudesh and, therefore, it must be inferred that he was in concert with him.
Facilitation of rape by Anil Kumar by the appellant, if at all, has to be inferred
from the circumstances. Apart from the fact that he was present in his house
at about 3.30 p.m. in hot summer month at the crucial time, nothing more is
established. By that factum alone, the inference that the appellant being in
concert with Anil Kumar cannot be established. We cannot presume that by
his mere presence in his house, he was aware of the illicit affair going on
between Anil Kumar and the victim, or that he was acting in concert with Anil
Kumar. The evidence of Ranbir (PW 4) and Rajbir (PW 6) before the Court
that they found Anil Kumar to be in compromising position with Sudesh when
the appellant walked in with a pistol and threatened to shoot them is not
believed by the Trial Court. In fact, no pistol was recovered from him. He has
been acquitted of that charge under Section 506 IPC and that part of the order
has now become final since no appeal has been preferred against such
acquittal.
No case is put forth or established that the appellant committed an
offence under Section 376 IPC as such, but he is charged with an offence
arising under Section 376(2)(g) IPC by which he is deemed to have committed
such an offence. In the absence of any evidence of concert between Anil
Kumar and the appellant, the conviction recorded by the Trial Court as affirmed
by the High Court cannot be sustained.
In the result, we set aside the order made by the Trial Court as affirmed
by the High Court and acquit the accused of the offence with which he was
charged. He shall be set at liberty forthwith. Fine amount, if already paid by
the appellant, shall be refunded to him.
The appeal is allowed accordingly.