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2005 Supreme(P&H) 898
PUNJAB AND HARYANA HIGH COURT
K.S. Garewal, J.
Kanwar Bhan and others - Appellants
Versus
State of Haryana - Respondent
Criminal Appeal No. 554-SB of 1999.
Decided On : 24 August, 2005
For the Appellants :Mr. S.N. Yadav, Advocate.
For the Respondent: Mr. P.S. Sullar, DAG, Haryana.
The judgment established that for an offence to be considered gang rape under Section 376(2)(g) Indian Penal Code, the act must involve multiple perpetrators committing the rape together.
Headnote:
Gang Rape - Criminal Appeal - Indian Penal Code - Section 376(2)(g), Section 376 - Section 363, Section 366, Section 366-A, Section 120-B - Section 164 Criminal Procedure Code
Fact of the Case:
The appellants were convicted for gang rape under Section 376(2)(g) Indian Penal Code. The prosecutrix was allegedly kidnapped and raped by the appellants at different locations. Medical examination and witness testimonies corroborated the prosecutrix's statement.
Finding of the Court:
The court found the prosecutrix's statement and corroborative evidence credible. However, it concluded that the offence of gang rape was not established as the appellants had individually raped the prosecutrix and not together, leading to a reduction in their conviction and sentence.
Issues: The main issue was whether the appellants were guilty of gang rape under Section 376(2)(g) Indian Penal Code or rape simpliciter under Section 376 Indian Penal Code.
Ratio Decidendi: The court held that the appellants' individual acts of rape did not constitute gang rape under Section 376(2)(g) Indian Penal Code, leading to a reduction in their conviction and sentence.
Final Decision: The appeal was partly allowed, and the appellants' conviction was converted from Section 376(2)(g) to Section 376 Indian Penal Code, with a reduction in their sentence and imposition of a fine.
K.S. Garewal, J. - Criminal Appeal 554-SB of 1999 was filed by Kanwar Bhan, Krishan and Randhir Singh. Kanwar Bhan died on March 27, 2002 therefore his appeal has abated. This surviving appellants in Criminal Appeal 554-SB of 1999 are Krishan and Randhir Singh.
Criminal Appeal 633-SB of 1999 has been filed by Som Dutt.
2. The appellants has faced trial before the learned Additional Sessions Judge, Karnal for gang rape upon Sushila (16-17) (PW-5) daughter of Ram Kumar (PW-6). They were found guilty under Section 376(2)(g) Indian Penal Code and sentenced to rigorous imprisonment for ten years. The appellants have filed these appeals to challenge their respective convictions and sentences.
3. Ram Kumar (PW-6) was a Government servant posted at Ulaha, District Fatehabad while his family, consisting of wife and three children lived at Bal Rangran, District Karnal. Ram Kumar used to visit his family once or twice in a month. Sushila aged 16-17 was his eldest daughter. On August 19, 1997 Ram Kumars wife had gone to Jundla to fetch medicines for her son Sant Lal and stayed there for night with her niece. She had left Sushila (PW-5) and her younger sister Reena (10) at home. On August 21, 1997, Ram Kumar was informed by this brother Om Parkash that his daughter Sushila was missing from the house. Ram Kumar returned to the village and looked for his daughter among his relations but could not find her. He came to know that Kanwar Bhan of the village was also missing and that Sarpanch Ranjit Singh had seen them both at the bus stand on August 20, 1997 to take the first bus. The matter was reported to the police on August 27 and case was registered. Sushila was recovered from the custody of Kanwar Bhan on October 4, 1997.
4-5. Sushilas version of the occurrence is that on the night of August 19/20, 1997 Kanwar Bhan came to her house and took her out on the pretext of going for a stroll. He gave her something which made her drowsy and she became semi-unconscious. Kanwar Bhan took her to Delhi to the room of his friend Som Dutt. When Sushila regained consciousness, Kanwar Bhan raped her. On the next date Som Dutt also raped her. She remained in Delhi for over four days. During this period, Som Dutt raped her only once while Kanwar Bhan did so every day. After three or four days she was made to smell something again, she became unconscious and was brought to Panipat. At Panipat she was kept in Krishans room and was again raped by Kanwar Bhan. On the next day, she was raped by Krishan. She was confined in the room for a month and was raped by Kanwar Bhan every day. On October 3, 1997 Dhira (Randhir Singh) came to the room at about 4 p.m. He sent Kanwar Bhan to watch a circus and himself raped Sushila. In nutshell, the prosecutrix had alleged continous rape by Kanwar Bhan at Delhi and Panipat but the other three raped her only once, Som Dutt at Delhi, Krishan on the first day at Panipat and Dhira on the last day at Panipat.
6. Kanwar Bhan was arrested on October 4, 1997 by A.S.I. Satya Pal Singh (PW- 11) and Sushila was recovered from his custody. Sushila was medico-legally examined by Dr. Shashi Prabha (PW-9) at 2.15 P.M. on October 4, 1997. The Medical Officer recorded that Sushila was 16 years of age. After recording physical characteristics, the Medical Officer examined Sushila for injuries but found no mark of injury on the body. The Medical Officer also did not find any injury on the buttocks, back, thighs, lower abdomen and perineum. Labia majora and minora was healthy. Vagina admitted two fingers easily. An old healed hymen tear was present. Two slides were prepared from the discharge found in the posterior fornix and sent for examination. On the basis of the report of the Forensic Science Laboratory, the Medical Officer came to the opinion that there was possibility of sexual activity. Randhir Singh and Krishan were arrested on October 8, 1997 while Som Dutt was arrested on October 23, 1997. All the four accused were medico-leg
