IMPORTANT POINT
A person sending a girl to her house on false pretext where she is raped by her husband is guilty and his friend is guilty of offence under clause 3 of section 107, IPC.
When the sentence is just and proper, there is no question of nits reduction to period already undergone.

JUDGMENT

PRAFULLA C. PANT, J.

These appeals are directed against the judgment and order dated 30.7.2008 passed by the High Court of Punjab and Haryana whereby conviction and sentence recorded against accused/appellants Om Prakash and Kartar Singh under Section 376(2)(g) IPC, and one against accused/appellant Chhoti, under Section 109 IPC, are affirmed.

2. The prosecution case in brief is that on the day of incident, prosecutrix aged about 15 years, was alone in her house, in Village Jagan. Her mother had gone to Village Hasanga on account of death of her grand mother, and other family members were also not present in the house. Accused/appellant Chhoti came there and asked the prosecutrix to bring ‘lassi’ from her house. On this, prosecutrix went to the house of accused Chhoti but as soon as she entered the house, accused Kartar Singh (husband of Chhoti) and another accused Om Prakash, who were already sitting there, bolted the door from inside and the prosecutrix was raped by them. She was freed by them after about an hour. She was threatened to be eliminated if she disclosed about the incident to any one. Prosecutrix came back to her house and did not disclose about the above incident for 20 days till her mother came back to the village on 12.6.1995 from her maternal house. The prosecutirx narrated the incident to her mother whereafter she was taken by her father to get the report lodged at the Police Station Agroha. On 13.6.1995, first information report was registered, and investigation was taken up by SI Jaipal Singh (PW8) who inspected the spot and after interrogating the victim, took her to Ilaqa Magistrate where her statement was got recorded under Section 164 Cr.P.C. Thereafter the prosecutirx was taken to hospital where she was medically examined by Dr. Sunita Bishnoi (PW9) who observed in her report Exb. PC that secondary sexual characters of prosecutrix were found well developed. It is further reported that the victim disclosed to the Medical Officer the history of rape allegedly committed about 20 days back. No marks of external injury were found on her body. There was no mark of injury over perineum and thighs. Hymen was of healed ruptured type and admitted one finger easily. The victim was undergoing her periods. She was referred to Radiologist for determination of her age. Dr. Pawan Jain (PW2), after radiological examination, opined in his report Exb. PE that the girl was aged between 14 to 16 years. Her upper end of radius was found fused but lower end of radius was not yet fused. Upper end of fibula was also not found fused.

3. After investigation, charge-sheet was submitted by the police before the Magistrate for trial of accused Om Prakash, Kartar Singh and Chhoti in respect of offences punishable under Section 376, 342, 506 r/w Section 34 IPC.

4. On committal of the case, after hearing the parties on 26.9.1995, the trial court framed charge for the offence punishable under Section 376 IPC against accused Om Prakash and Kartar Singh. As against accused Chhoti (wife of accused Kartar Singh), charge was framed for the offence punishable under Section 109 IPC for aiding the commission of rape. All the three accused pleaded not guilty and claimed to be tried. On this, the prosecution got examined eleven witnesses namely; PW1 Dr. Dale Singh, PW2 Dr. Pawan Jain, PW3 Inderjit, PW4 H.C. Ramphal, PW5 prosecutrix, PW6 Chando (mother of prosecutrix), PW7 ASI Krishan Lal, PW8 SI Jaipal Singh, PW9 Dr. Sunita Bishnoi, PW10 Baldev Singh and PW11 Gopal Krishan. Oral and documentary evidence was put to the accused, in reply to which, the accused alleged that the evidence is incorrect and false and they were implicated due to enmity. Accused Kartar Singh took a specific defence plea that he was falsely implicated, after prosecutrix had undergone abortion in a private nursing home and she suspected that it was he (Kartar Singh) who spread the news in the village about the abortion, and due to that reason, he was falsely implica