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2010(2) LAW HERALD (P&H) (DB) 1238
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice Jaswant Singh
Crl.A. No.127-DB of 2007
Rajveer Singh & Anr.
v.
State of Punjab
{Decided on 22/02/2010}
(B) Indian Penal Code, 1860, S.376(2)(g) & 306--Rape--Gang rape--Conviction--Appellants and deceased are residents of same village--They are known to each other--Appellant ‘J’ misused that confidence when he took her and subjected her to his lust--He also joined two boys of same village in act of committing sexual intercourse--Fact that she has not made any grievance soon after alleged violation of her person is not sufficient to return a finding of consensual sex--She was medico legally examined after almost three months--Therefore, after three months of incident lack of finding any injury on person of deceased in medico legal or post mortem examination will not materially change the position--Conviction of appellants for offence u/s 376(2)(g) cannot be said to be unjustified and illegal.
(C) Indian Penal Code, 1860, S.376(2)(g)--Indian Penal Code, 1860, S.306 & 328--Rape--Gang rape--Abetment of suicide--Genesis of Commission of offence is act of gang rape on 9.10.2004--It is deprivation, after effects and mental trauma which prompted deceased to take her life with intervention of accused ‘J’ who supplied her celphos tablets--Contention that there is no nexus between incident of rape on 9.10.2004 with death on 6.1.2005 not tenable. (Para 21)
(D) Indian Penal Code, 1860, S.376(2)(g)--Rape--Gang Rape--Conviction--Identity of accused--Mother of victim deposed that ‘M’ is an accused who committed rape on her daughter as told by her--She further deposed that all accused jointly committed rape of her--Said aspect not disputed in cross-examination--Therefore, identity of accused ‘S’ as ‘M’ was not disputed before trial court--Moreover, in application for bail before trial court accused ‘S’ described himself as alias ‘M’--Such application also supported by affidavit of his father--Even in second bail application accused described as ‘M’ in title--Contention that identity of accused ‘S’ alias ‘M’ is not established not tenable. (Para 22)
(E) Indian Penal Code, 1860, S.376(2)(g) & 306 r/w S.328--Rape--Gang rape--Abetment to suicide--Conviction--Reduction of sentence--Appellants young in age--No previous history of their indulgence in any crime--They have continued with their studies while undergoing sentence as well--Imprisonment of life is harsh punishment--Appellant ‘J’ convicted for offence u/s 376(2)(g), 306 r/w 328 sentenced to undergo punishment for 10 years and fine of Rs. 1 lac--Appellants ‘R’ and ‘S’ convicted for offence u/s 376(2)(g) sentenced to undergo R.I. for 10 years and fine of Rs. 1 lac.
(F) Evidence Act, 1872, S.32--Indian Penal Code, 1860, S.376(2)(g) & 306--Rape--Gang rape--Abetment to suicide--Dying declaration--Admissibility of--As per dying declaration deceased knew accused ‘J’ very well as both are from same village--She accompanied him and was subjected to sexual intercourse by all three accused--Such statement corroborated by medical evidence--Dying declaration relied upon by prosecution disclosed circumstance which resulted in her death--Thus, such dying declaration is admissible and can be made basis of conviction of appellants. (Para 16)
Hemant Gupta, J.:- This order shall dispose of Criminal Appeal No.127-DB of 2007 filed by Rajveer Singh and Surinder Singh and Criminal Appeal No. 240-DB of 2007 filed by Jagtej Singh, against the judgment and order dated 22.1.2007 passed by the learned Sessions Judge, Jalandhar convicting appellant-Jagtej Singh, under Section 376(2)(g) IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.30,000/-and in default of payment of fine, to further undergo RI for one year; convicting the said appellant under Section 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.50,000/- and in default of payment thereof to undergo further RI for two years and both the sentences were ordered to run consecutively i.e., one after another.
2. Appellants Rajveer Singh and Surinder Singh @ Manga have been convicted under Section 376(2)(g) IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.30,000/- each.
3. The prosecution case was sent in motion on the basis of statement of the prosecutrix (Ex.PE) given to ASI Bharat Bhushan on 6.1.2005 at 5.50 p.m. She has stated that on 9.10.2004, Jagtej Singh of her village asked her to go to Devi Talab Mandir for roaming. At about 9.30 a.m., she accompanied Jagtej Singh by sitting on his motorcycle. Jagtej Singh by fraud had taken her to a vacant house in Baba Deep Singh Nagar, where Manga and Rajveer Singh of her village were already present. Jagtej Singh took her to another room and started forcibly committing rape on her without her consent. She raised an alarm, then Manga came in the room. Jagtej Singh and Rajveer Singh came out of the room. Manga forcibly committed rape on her. Then Manga came out of the room and then Rajveer committed rape. Then all the three threatened her that in case she disclosed about the said incident to anybody, she would be done to death. Thereafter, she used to remain under fear of them and also under stress and started remaining ill. They had been terrorising and threatening her . On 6.1.2005, when in the morning she was going to school, then on way at Doaba Chowk, Jagtej Singh met her and asked her that she remains ill and if she swallows the medicine, she will get all right. On coming back from the School, she swallowed two tablets with water, given to her by Jagtej Singh and her condition became serious. Her mother and her brother Ram Lubhaya got her admitted in the Civil Hospital for treatment.
4. On the basis of the said statement, ruqa was sent to Station House Officer at about 5.50 p.m. On the basis of the said statement, an FIR (Exhibit PA) for the offences under Sections 376, 328, 506 and 34 IPC IPC was lodged at about 6.10-6.50 p.m. Later on vide Exhibit PC, the Duty Magistrate was requested to record the statement of Gurpreet Kaur. Vide endorsement Exhibit PC/1, the learned Magistrate recorded an order to obtain fitness certificate from the Emergency Medical Officer at about 9.40 p.m. Thereafter, on being declared fit to give statement, the Magistrate has recorded statement of Gurpreet Kaur. The said statement is Exhibit PC/2. The learned Magistrate recorded an endorsement Exhibit PC/3 believing that the statement was voluntarily made by Gurpreet Kaur and it was taken in his presence and after reading the contents of the same to her and admitted by her to be correct.
5. The medico legal examination was conducted by PW7- Dr. Damanjit, Medical Officer, Civil Hospital, Jalandhar at 11.20 p.m. The report is Exhibit PH. It has been found that hymen was partially torn at left lateral region (5 O’ clock position) and right lateral region (at 7 O’ clock position). Vagina admitted one finger and no bleeding or discharge was seen at the time of examination. Two vaginal smeared slides and two vaginal swabs were taken and sent for chemical examination.
6. The post mortem was conducted by PW6-Dr. Namita Ghai, Medical Officer, Civil Hospital, Jalandhar, on 7.1.2005. The opinion about the cause of deat
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