BRIJESH AND ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) This judgment shall dispose of two Criminal Appeals filed by Brijesh and Nanak bearing Crl. Appeal No. 958.SB of 2002 and Mahavir bearing Crl. Appeal No. 1144-SB of 2002 as both arise out of common judgment and order dated 9.5.2002 passed by Additional Sessions Judge, Fast Track Court-II Faridkot, whereby the appellants were found guilty and convicted under Sections 366/34, 342/34, 323/34, 376(2)(g) and 506/34 Indian Penal Code and sentenced to undergo RI for 5 years and a fine of Rs. 500.00 each under Sec. 366/34 Indian Penal Code, in default of payment of fine, the defaulter was further sentenced to undergo simple imprisonment for 2 months, to undergo RI for 1 year under Sec. 342/34 Indian Penal Code, to undergo RI for 6 months under Sec. 323/34 Indian Penal Code and to undergo 1 year RI under Sec. 506/34 Indian Penal Code. They were also sentenced to undergo RI for 10 years each and a fine of Rs. 1,000.00 under Sec. 376(2)(g) Indian Penal Code, in default of payment of fine, defaulter was further sentenced to undergo RI for 4 months. However, all the substantive sentences were ordered to run concurrently.

(2.) Briefly stated, the facts are that PW.5-Nisha prosecutrix was present in her house in Hanuman Nagar, Gali No. 9, Kheri Road, Faridabad. On 17.3.2000, it was "Id" (festival). At about 12 noon, she was to go to meet her friend. Brijesh-appellant was on visiting terms with the family of Nisha. He visited the house of the prosecutrix in a car and when Nisha started to go out to meet her friend, then the appellant gave her lift and told that he was to go that very side. The prosecutrix-Nisha sat in the car. Instead of taking her to the house of her friend, Brijesh-appellant took her to the fields situated opposite to the house of her friend. Nisha objected and questioned him but Brijesh-appellant told her that he had got some work for about 2 minutes. He then took her to a nearby room (kotha) situated in the fields and locked the same. After some time, Brijesh appellant entered in the room and slapped her and also abused her. She got frightened. He made her naked and committed rape on her. Nanak and Mahavir-appellants, who were also sitting outside the room, committed rape upon her one by one. All of them held out a threat that if she disclosed about the occurrence to any one, then her parents would be killed. After some time, Mahavir-appellant went away on his motor cycle followed by Nanak-appellant on his tractor. Thereafter, Brijesh-appellant brought her in the car on the road and dropped her there. He, while dropping her, threatened that if she disclosed any thing about the occurrence to any one, then she would have to face dire consequences. From there, Nisha went to her house. After some time, she told the whole occurrence to her mother. Her father PW.6-Machhinder Rao was not at the house and had gone out of station. He returned to the house on the next day i.e. 18.3.2000. On his return, his wife told that yesterday, their daughter Nisha was taken away by Brijesh-appellant, in the fields where 2 other persons, namely, Nanak and Mahavir were present and all of them committed gang rape upon their daughter. Immediately, Nisha and her father went to the Police Station. Nisha made a written complaint, Ex.PH with the police upon which case bearing FIR Ex.PH/1 was registered. Statements of her parents under Sec. 161 Code Criminal Procedure were recorded.

(3.) Nisha was medico-legally examined by PW.3-Dr. Meenu Kapoor at about 11.15 PM on 18.3.2000 and opined that she was approximately aged about 16 years and there was a 1.5 cm x 5 cm reddish brown abrasion present just below the umbilicus. She further stated that hymen was torn with old healed irregular margins and no fresh tear or bleeding was present and the vagina admitted two fingers easily. She next stated that possibility of sexual intercourse with her could not be ruled out. She proved carbon copy of the M.L.R. Ex.PF. She denied that the age of the prosecutrix was more than 20 years. PW.7-Ram Dutt, Sub Inspector, on 19.3.2000 visited the spot and prepared rough site plan Ex.P1 with correct marginal notes. He apprehended the appellants and got them medico-legally examined. He got recorded the statement of the prosecutrix-Nisha under Sec. 164 Code Criminal Procedure from the Ilaqa Magistrate. He took into possession the car which was used in carrying Nisha to the place of occurrence, vide recovery memo. Ex.PJ from its owner Bhagwat. He sent the sealed parcels to Madhuban. After the completion of the investigation, challan was put up in the Court of Judicial Magistrate Ist Class, Faridabad, who, in turn, vide his order dated 25.5.2000, committed the case to the Court of Sessions. Having made out a prima facie case, the appellants were charged under Sections 363/34, 342/34, 366/34, 376(2)(g), 323/34 and 506/34 Indian Penal Code to which they pleaded not guilty and claimed trial. In order to prove allegations, the prosecution examined 8 witnesses. After close of the prosecution evidence, statements of the appellants were recorded under Sec. 313 Criminal Procedure Code, wherein they denied the allegations of the prosecution and pleaded false implication. Brijesh-appellant further stated that Nisha-prosecutrix was very well known to him before the alleged occurrence and some-how she had got fancy for him and wanted to marry him but he firmly declined the offer due to various reasons including that they belonged to different caste and on his refusal, she falsely implicated him in the case. In defence, the appellants examined DW.1-Umesh Pal Singh Chauhan and DW.2-D. P. Bhanot, Principal of Rama Krishana Public School, Sector 9, Faridabad. PW.5-Nisha prosecutrix and her father PW.6-Machhinder Rao were also further cross-examined.