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2006 Supreme(P&H) 4388
PUNJAB & HARYANA HIGH COURT
T.P.S.Mann, J.
Vijay Kumar
Versus
State (U.T.) Chandigarh
CRIMINAL APPEAL No. 422 of 1991,
of,
Decided On : NOVEMBER 22, 2006
The main legal point established in the judgment is the application of legal provisions defining gang rape and raising a presumption of absence of consent in cases of gang rape, along with considering special reasons for reducing the sentence based on the appellants' age and rehabilitation.
Headnote:
Gang Rape - Criminal Law - Sec.376, IPC - Summary of Acts and Sections: Sec.376/34, IPC - The court confirmed the conviction of the appellants under Sec.376/34, IPC, which defines gang rape and raises a presumption of absence of consent in case of gang rape. The court applied Sec.114a of the Indian Evidence Act, which presumes absence of consent in certain prosecutions for rape. The court emphasized that the prosecutrix's testimony of being forcibly subjected to rape allowed the raising of presumption that the sexual intercourse was without her consent.
Fact of the Case:
The appellants were convicted under Sec.376/34, IPC for raping the prosecutrix, a 16-year-old girl. The prosecution alleged that the appellants, along with another individual, forcibly raped the prosecutrix. The appellants denied the allegations, claiming false implication.
Finding of the Court:
The court confirmed the conviction of the appellants under Sec.376/34, IPC, based on the prosecutrix's testimony of being forcibly subjected to rape and the absence of consent. The court also considered the age and rehabilitation of the appellants, reducing their sentence from ten years to seven years of rigorous imprisonment.
Issues: The key issues included the credibility of the prosecutrix's testimony, the applicability of gang rape provisions, and the age and rehabilitation of the appellants.
Ratio Decidendi: The court relied on the prosecutrix's testimony and the legal provisions of Sec.376/34, IPC and Sec.114a of the Indian Evidence Act to establish the absence of consent in gang rape cases. The court also considered the appellants' age and rehabilitation as special reasons for reducing their sentence.
Final Decision: The court dismissed the appeals, confirming the conviction of the appellants under Sec.376/34, IPC, and reducing their sentence from ten years to seven years of rigorous imprisonment.
, J.
1. By this common judgment i intend to dispose of the present appeal i. e. Cri. Appeal No.422-SB of 1991 filed by Vijay Kumar alias Ajay appellant and connected appeal i. e. Cri. Appeal No.427-SB of 1991 filed by Ranjit Singh alias Babbal appellant.
2. The aforementioned two appellants, namely, Vijay Kumar alias Ajay and Ranjit singh alias Babbal were tried by Additional sessions Judge, Chandigarh under Sections 376/34, IPC on the allegations that on 26-10-1990 they along with one Muna, raped the prosecutrix. Vide judgment and order dated 7-11-1991, the trial Court convicted the appellants under Sec.376 read with section 34, IPC and sentenced them to undergo RI for ten years and to pay a fine of rs.250/- each. In default of payment of fine, the defaulter was directed to undergo further RI for three years.
3. The case of the prosecution was that the prosecutrix, who was an unmarried girl of about 16 years of age and living with her parents, was a student of 10th class. On 26-10-1990 at about 6.30 p. m. ; she was returning from the house of her friend in village Burail. When she was moving on the road by the side of mango trees behind a college in Sector 32, Chandigarh, Ranjit singh alias Babbal, Vijay Kumar alias Ajay and Muna caught hold of her and dragged her forcibly to the place under the mango trees. While Ranjit Singh alias Babbal caught hold of her from her hands and Muna from her legs, she was raped by Vijay Kumar alias Ajay. Thereafter when Vijay Kumar placed his hands on her mouth and Muna kept on holding her legs, Ranjit Singh alias babbal committed rape. Last of all, accused muna committed rape and at that time Vijay kumar alias Ajay was gagging her mouth and Ranjit Singh alias Babbal holding her legs. All this time she had been crying. Her cries attracted two policemen and her father to the spot. In fact her father had left the house for searching her. The two policemen and her father were able to apprehend ranjit Singh alias Babbal at the spot, whereas, Vijay Kumar alias Ajay and Muna managed to escape.
4. The prosecutrix was thereafter taken to the Police Station but on the way SI Sushil kumar met her, who recorded her statement ex. PJ on the basis of which formal FIR Ex. PJ/1 was registered in Police Station South, chandigarh.
5. After the completion of the investigation of the case, final report under Sec.173, Cr. P. C. was submitted against the two appellants whereas third accused Muna could not be apprehended and was thus declared a proclaimed offender.
6. At the trial of the case, the prosecutrix was examined as PW11 and she deposed regarding the allegations which she had earlier made against the accused while making statement Ex. PJ before the police. Her testimony was corroborated by her father, who appeared as PW12 as well as by C. Amrik singh PW 13,
7. Dr. (Mrs.) Meenal Kumar PW1 deposed about her having conducted medico-legal examination of the prosecutrix on 26-10-1990 at 10.45 p. m. in General Hospital, chandigarh She observed that the breasts of the prosecutrix were well developed and there was no mark of injury on her abdomen, vulva or vagina. She was 145 cm in height 35 Kgs. in weight and was having 14 teeth in each jaw. Her vagina admitted one finger easily, her hymen was torn having old healed tears. She was in her periods and was having bleeding from her vagina.
8. Dr. S. P. Bhardwaj PW2 proved the report Ex. PC about the ossification test conducted on the prosecutrix as per which the skeletal age of the prosecutrix was between 14 to 16 years with a difference of two years on oil her side.
9. Dr. J. R. Chauhan PWS medico-legally examined Vijay Kumar @ AJay Accused on 15-11-1990 while Dr. A. S. Gill PW4 medico-legally examined accused Ranjit singh alias Babbal on 26-10-1990. According to their opinions, there was nothing to suggest that they were incapable of doing sexual inter-course.
10. Smt. Harbans Kaur PW10 proved certificate Ex. PK and the School Leaving certificate Ex. PK/1 wh
