Prem Parkash @ Lillu & Anr vs State Of Haryana

offence punishable under Sections 366 and 376(2)(g) of the

Indian Penal Code, 1860 (in short the `IPC'). Upon trial, the

learned Additional Sessions Judge, Rohtak, by judgment and

order dated 31st July, 1992 held all the three accused guilty

of the offences of kidnapping and gang rape of Kumari

Sudesh and, thus, they were sentenced to undergo rigorous

imprisonment of 10 years with a fine of Rs.500/- each. In

case of default of payment of fine, they were ordered to

undergo rigorous imprisonment for a further period of one

month. The accused were also awarded two years' rigorous

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imprisonment each for the offence committed under Section

366 of the IPC. Both the substantial sentences were ordered

to run concurrently. Dissatisfied with the judgment of the

trial court, the accused preferred an appeal before the High

Court. The High Court found no merit in the appeal and

consequently, dismissed the same vide its judgment dated

27th July, 2005, giving rise to the present appeal by all the

accused.

The learned counsel for the appellants pointed out that

during the pendency of the appeal before this Court, one of

the accused, i.e., Prem Prakash @ Lillu had expired and

3

therefore, the present appeal survives only qua the third

accused, i.e. Herchand @ Poley. In so far as the appeal by the

accused Dharambir @ Pappu is concerned, the same was

dismissed in limine. The brief facts in the present case are

that the aforesaid three accused were asked to face trial on

the aforestated charges based on the case of the prosecution.

According to the prosecution, Kumari Sudesh, daughter of

Pratap Singh, resident of Village Chhuchhak accompanied by

her brother Satish, aged about 5 years, had gone out of her

house at about 8-9 p.m. on 25th July, 1990 to ease herself at

a distance of about two or three killas away from their house

and by the side of a nearby pucca road. After she answered

4

the call of nature and washed herself a car approached her

from behind and stopped beside her. The accused Dharambir

got down and took her in his arms. The accused Poley

followed him and gagged her mouth with his hand. She was

lifted and dragged into the car. The car was being driven by

the accused Lillu. The car was taken beyond the village

abadi, across a petrol pump and into the fields by the side of

the road. All the three accused raped Kumari Sudesh one by

one in that field. Accused Dharambir was left there and the

other two took the prosecutrix in the car to an unknown

jungle and kept her there for that night and the following

afternoon. She was again raped by these two accused in that

5

jungle. At about 4.00 p.m. on 26th July, 1990, she was

dropped on the bridge of a canal, at a distance of about one

kilometer from her house and was threatened of being

kidnapped, raped and killed if she narrated the occurrence to

anybody. She reached home and recounted the incident to

her father Pratap. A panchayat of the brotherhood was

convened but no decision was arrived at. On the next day,

the father of the prosecutrix went to the Police Station Beri

with her, to lodge a complaint. However, their request for

registration of a case was not entertained. On 27th July,

1990, they went to Jhajjar Sub Divisional Headquarter and

approached the Deputy Superintendent of Police but to no

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avail. Thereafter, they approached the Sub Divisional

Magistrate (in short the `SDM') with a written application

dated 28th July, 1990, Ex.PE/1, to get the prosecutrix

medically examined and for taking action against the culprits.

The SDM referred the matter to the incharge of the hospital at

Jhajjar and a lady doctor, Dr. A.K. Bhutani, examined the

prosecutrix and prepared her report, Ex.PE. The clothes of

the prosecutrix were also taken by the doctor, who later on

handed over the same to the police, who in turn transferred

them for examination by the PSL. It is stated that while

Pratap Singh was again going towards the police station, on

the way at the bus stand of Village Jahagarh, he met a police

7

party and Assistant Sub Inspector Hawa Singh recorded his

statement, Ex.PO/1 and an F.I.R., Ex.PO/2 dated 28th July,

1990, was registered.

In brief, the prosecution had examined a number of

witnesses including PW1, Dr. R.B.S. Jakhar, who had

medically examined the accused Dharambir and had opined

that he was fit to commit sexual intercourse. PW2 was the

police officer incharge of the Police Station and he presented

the original challan before the Court. The prosecutrix was

examined as PW4 and her father Pratap Singh was examined

as PW7. Besides this, the lady doctor who had examined the

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prosecutrix, was PW5, Dr. A.P. Sharma, who had medically

examined the other two appellants was PW6, SI Hawa Singh,

who was the Investigating Officer was examined as PW8. The

prosecution, on the basis of these witnesses attempted to

bring home the guilt of the accused.

In the statements made under Section 313 of the Code

of Criminal Procedure, (for short `Cr.P.C.'), the accused Prem

Prakash and Herchand stated that all witnesses were false.

They denied the incident in its entirety and took a specific

stand that Pratap Singh, father of Kumari Sudesh was

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carrying on cultivation on the land belonging to the family of

the accused and since he had stopped them from carrying on

the agricultural activity, Pratap Singh had developed

animosity towards them.

However, in his statement under Section 313 of the

Cr.P.C., the accused Dharambir offered no explanation and

also chose not to lead any defence. The trial court vide its

detailed judgment found that the accused were guilty of the

offence with which they were charged. The accused had

further raised a defence on behalf of Prem Prakash, that he

was not named in the FIR and has been falsely implicated. It

10

was also contended that the prosecutrix was more than 19

years of age and in fact there was no reliable evidence to

convict the accused and there were contradictions in the

case of the prosecution. The trial court dealt with these two

issues as follows: -

"23. Then I have been pointed out some

points of contradictions in the statements

of the witnesses. The first point of

contradiction is as to who was driving the

car. In the F.I.R. which was recorded on

the basis of statement of Partap, it is

stated that Poley was driving the car.

Otherwise both the father and the

daughter are consistent in stating that it

was the third accused (Lilu) who was

driving the said car. The police had not

11

been co-operating with the prosecutrix. It

has been discussed above. Hence may be

that the police deliberately recorded

wrongly that Poley, in place of Lilu, was

driving the car. Otherwise too, the version

given by Partap, was given to him by the

prosecutrix, and may be that on this point

Partap made wrong statement. This

contradiction cannot affect the merits of

the case. The second point of

contradiction is with regard to the timing

of the kidnapping. P.W.4 Smt. Sudesh in

the court stated that she had been

kidnapped at about 8.00/9.00 A.M. and

otherwise the case of the prosecution

throughout is that she was kidnapped at

8.00 or 9.00 P.M. If the prosecution story

is read as a whole and if the statement of

this witness is also read keeping in view to

the sequence of the happenings, it shall be

clear that she was kidnapped at 8.00 or

9.00 P.M. and not at 8.00/9.00 A.M. It is

12

only a clerical or typical (sic) mistake that

the time has been written as A.M., in place

of P.M. So, it is not a contradiction.

XXX XXX XXX

31. On the basis of this medical evidence

it has been argued that this lady was

habitual to sexual intercourse and since

there was no injury found on her private

part, so it may be held that it is a case of

consent and she being of more than 18

years of age was an equal party to the

sexual intercourse and, therefore, even if

it assumed that the accused have

committed sexual intercourse with this

lady, they cannot be said to have

committed any offence. The learned

counsel for the accused has placed

reliance on Sukhjit Singh vs. The State of

Haryana, 1987 (i) R.C.R. 352. That was a

case where two real brothers were alleged

13

to have committed rape on a lady. No

injury was found on the person of that

lady. It was reported that she was used to

sexual intercourse. It was held that

probably it was a case of consent.

XXX XXX XXX

39. Lastly argument has been advanced

on behalf of accused Lilu. He was not

named in the F.I.R. How and when he

came into picture 7 (sic). The F.I.R. was

recorded on 28.7.90. The police resorted

to the supplementary statement of the

prosecutrix of her father just the next day,

i.e. 29.7.1990 and these statements were

to the effect that two accused, other than

Dharmabir, were innocent. This way Lilu

was not arrested by the police. Two

months after, as stated by the prosecutrix,

she had identified him in the street when

she was coming along with her father.

14 Then her father had told that the name of

this accused was Lilu. This way Lilu came

into picture in the case of the prosecution.

Since the police has submitted the challan

only against one person, so: Lilu could be

named only be(sic) the prosecutrix in the

court itself. It cannot be said that Lilu

had not been identified so his name being

named in the court for the first time by the

prosecutrix would create any doubt in the

truthfulness of the case of the

complainant that Lilu was also one of the

persons who kidnapped and raped her."

The main argument on behalf of the appellant, while

challenging the above findings, is that there is hardly any

evidence directly involving the accused Prem Prakash @ Lillu

15

in the commission of the crime. This argument does not

impress us. Firstly, the prosecutrix when examined as PW4

stated in Court that the appellant was driving the car in

which she was kidnapped and subsequently taken to the

jungle. Her version is also supported by her father Pratap

Singh, PW7, though, of course, Pratap Singh was not an eye-

witness to the occurrence. There is no reason for this Court

to disbelieve the version given by the prosecutrix. Some

contradictions have been pointed out between the statements

of the prosecution witnesses. The trial court has rightly

observed that these are some discrepancies which, viewed

from any angle, are not significant. It is also on record that

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PW4 did deny some portion of her statement Ex.DA,

particularly, that she was raped in the car one after the other

by all the three accused. This statement does not find

support from any of the prosecution witnesses or from the

investigation of the Investigating Officer. Thus, this

contradiction does not render the statement of the

prosecutrix unreliable or untrustworthy.

Another important aspect of the case is that the accused

Dharambir, in his statement under Section 313 of the Cr.P.C.

has not chosen to say that none of the other two accused,

namely, the appellant herein and the deceased Prem Prakash,

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were present at the time of the occurrence or that they have

been falsely implicated on account of some land dispute, as

referred to by the other two accused in their statements

under Section 313 of the Cr.P.C.

As per the medical evidence of PW5, Dr. A.K. Bhutani,

"abrasions which were brownish in colour with clothes, blood

on right shin anteriorly, clotted dry blood sticking from the

abrasions described above (sic) 3 cm. below right knee joint"

were found on the person of the prosecutrix. There was also

abrasion on right side of cheek, 5 cm brownish in colour and

the prosecutrix complained of pain on the right side of her

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neck. In her cross-examination, the duration of injury no.1

was stated to be more than 24 hours and it was also stated

that the injury no.1 could be result of a fall while the injury

no. 2 cannot be self inflicted. This medical evidence clearly

shows that she had suffered injuries during the alleged

incident and she was taken for medical examination by the

Investigating Officer after expiry of 24 hours. Dr.A.P. Sharma

had examined the appellant-accused Herchand and found

him fit to perform sexual intercourse.

The doctor also stated that she had conducted X-ray

examination of Kumari Sudesh and according to report,

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Ex.P8, Sudesh was aged more than 18 years. After examining

the forensic reports, Exs.PH and PJ, from the Forensic

Science Laboratory, the doctor also stated that there was a

possibility of intercourse having taken place with Sudesh on

25th July, 1990.

There are certain significant averments which show the

manner in which the offence was committed. Firstly, she has

stated that the car was being driven by Prem Prakash @

Lillu. Secondly, that she was wearing same clothes at the

time of her medical examination which she was wearing at

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the time of rape. Her salwar was blood-stained. These

clothes were taken into custody by the doctor herself, who

subsequently handed over the same to the investigating

agency. Similarly, the father of the prosecutrix, PW7, has

specifically stated that his daughter had told him that

Dharambir had caught hold of her and dragged her to the

car, her mouth was gagged by Poley and still there was

another person with small pox marks on his face who was

driving the car. About the identity of Lillu @ Prem Prakash,

it is clear that PW7 had known him for the last 10 years as

he had settled in the Village. In other words, there could

hardly be any dispute with regard to the identity of the

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person accused. But for the contribution made by the

present accused, who was driving the car and had taken

away the prosecutrix to the jungle/fields, probably the

incident could have been avoided. Thus, it is clear that

involvement of the present accused in the entire chain of

events was material and as per the prosecutrix he had also

raped her. According to the doctor, he was capable of

performing sexual intercourse. This entire evidence and the

attendant circumstances point towards the guilt of the

accused.

22 The learned counsel appearing for the appellant had

placed emphasis on the fact that the doctor had opined that

the prosecutrix was accustomed to sexual intercourse and

that there was no sign of fresh intercourse. This argument

has rightly been rejected by the High Court by noticing that

there was no fresh intercourse but she had been subjected to

intercourse more than 24 hours ago. The doctor had

examined her on 27th July, 1990 while the incident took

place on 25th July, 1990. Thus, the statement of the doctor

has to be read and understood in that background and the

doctor also specifically stated, that there was a possibility

that she was subjected to intercourse on 25th July, 1990.

23 The evidence, essentially, must be viewed collectively.

The statement of a witness must be read as a whole.

Reliance on a mere line in the statement of the witness, out

of context, would not serve the ends of justice and the

conclusion of the Court based on such appreciation of

evidence could be faulted. Another aspect of this case which

has specifically not been noticed by the High Court, is that

the prosecutrix and her father were made to run from pillar

to post by the police authorities, before their case could be

registered. The prosecutrix, PW4, has specifically stated that

report made by her father was not recorded by the police and

the next day they went to Jhajjar along with her mother and

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appeared before the police officers but again, no action was

taken. According to her, the application which she had given

in the Tehsil office was thumb marked by her. Pratap Singh,

father of the prosecutrix, stated that he had even convened a

panchayat of the brotherhood but the panchayat having

failed to arrive at a decision, he had proceeded to the police

station along with his daughter and his report was not

recorded at the police station by the police. He returned to

the village and again went to the Jhajjar Sub Divisions

Headquarter and met the DSP and narrated the entire

occurrence to him. But still no action was taken and then

they claim to have gone to the SDM, Jhajjar and made a

25

complaint in writing. Thereafter, his daughter was medically

examined and subsequently, the case was registered. This

event certainly describes and points towards the apathy in

the functioning of investigating agencies in heinous crimes,

to which the complainant was subjected. In terms of the

provisions of Section 154, Cr.P.C., it is obligatory for the

police to register a case when the facts constituting a

cognizable offence are brought to its notice. The father of the

girl, surely must have felt trauma and frustration when he

was subjected to the above treatment, besides the knowledge

of his daughter's raped by the accused. We do express a

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pious hope, that such occurrences will not be repeated in

any police station in the country.

The counsel for the appellant had also tried to rely upon

some contradictions and embellishments in the statements of

the prosecutrix and her father. Reference was made to

exhibits D1 and PO in this regard. The Court cannot ignore

the fact that the prosecutrix cannot be expected to make a

perfect statement after a lapse of time without even a normal

variance. Furthermore, she had specifically stated that, the

statements recorded by the appellants were not read over to

her nor were any thumb impressions taken for the same. In

27

fact, she had given an application to the tehsil office which

was thumb marked and even that complaint had not been

produced in evidence before the Court by the prosecution.

These are the lacunae and impropriety committed by the

investigating agency itself. Thus, no burden or fault could be

shifted to the prosecutrix. Her statement before the Court is

fully supported by other prosecution witnesses and even the

-medical evidence produced on record. There is a concurrent

finding of conviction against the accused, which is based

upon proper appreciation of evidence. We see no reason to

interfere.

28 Consequently, the appeal is dismissed.

....................................J.

[Dr. B.S. Chauhan]

....................................J.

[Swatanter Kumar]

New Delhi;

July 7, 2011

29 30