Harpreet Singh vs State Of Delhi
2012 Latest Caselaw 4933 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRIMINAL APPEAL NO. 755/2009

                                               Reserved on : 16th July, 2012
%                                              Date of Decision: 23rd August, 2012

HARPREET SINGH                            ..... Appellant
              Through Mr. Michael Peter, Mr. Dharmendra
                      Vashistha, Mr. Saurabh Jana &
                      Mr. Sumit Kalra, Advocates.

                                               Versus

STATE OF DELHI                                            ..... Respondent

                            Through        Ms. Richa Kapoor, APP for the State.

                             CRIMINAL APPEAL NO. 803/2009

KULDEEP SINGH                                           ..... Appellant
                            Through Mr. S.N. Gupta & Mr. Ayush Gupta,
                                   Advocates.

                                               Versus
STATE GOVT. OF NCT                     ..... Respondent
               Through Ms. Richa Kapoor, APP for the State.

                            CRIMINAL APPEAL NO. 908/2009

MUNISH KUMAR                                                 ..... Appellant
                            Through           Mr. Maninder Singh, Ms. Aekta Vats,
                                              Mr.Sanjay Chaubey, Mr. Sermon Rawat
                                              & Mr. Jagmeet Randhawa, Advocates.

                                               Versus
STATE                                               ..... Respondent
                            Through Ms. Richa Kapoor, APP for the State.

                            CRIMINAL APPEAL NO. 299/2010

SATYENDER SINGH                                                      ..... Appellant
              Through                          Mr. Bhupesh Narula, Advocate.

                                               Versus
THE STATE (NCT OF DELHI)              ..... Respondent
               Through   Ms. Richa Kapoor, APP for the State.

           CORAM:
          HON'BLE MR. JUSTICE SANJIV KHANNA
          HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J:

These four appeals by Harpreet Singh, Satyender Singh,

Kuldeep Singh and Munish Kumar impugn the judgment dated 17 th

August, 2009 in Case No. 10/2004 arising out of FIR No. 247/2003

and the order of sentence dated 22nd August, 2009. The appellants

Harpreet Singh and Satyender Singh have been convicted under

Section 376(2)(g) of the Indian Penal Code, 1860 (IPC, for short) and

all the appellants-accused have been convicted under Section

394/366/34 IPC. Kuldeep Singh and Munish Kumar were also tried

for charge under Section 376(2)(g) IPC, but have been acquitted. State

has not preferred any appeal against the said acquittal.

2. The appellants-Harpreet Singh and Satyender Singh have been

awarded life imprisonment for the offence under Section 376(2)(g) and

directed to pay fine of Rs.5,000/- each and in default of payment of

fine to undergo simple imprisonment for nine months. For the offence

under Section 394 IPC, the appellants have been awarded life

imprisonment and directed to pay fine of Rs.2,000/- each and in default

of payment of fine, to undergo simple imprisonment of four months.

For the offence under Section 366 IPC, the four appellants have been

sentenced to rigorous imprisonment for ten years each and in addition

have been directed to pay fine of Rs.2,000/- each. In default of

payment of fine, they have to undergo simple imprisonment of four

months.

3. The case of the prosecution, which has been accepted by the trial

court, is that the four accused, who were wearing military uniforms had

gone to Buddha Jayanti Park in a military truck. There they met

Ashish Kumar and the prosecutrix (the name of the prosecutrix is

withheld to protect her privacy). Two of them, Harpreet and Munish

caught hold of Ashish and took him aside. Harpreet, slapped him and

took out Rs.100/- from his purse. After walking some distance, Ashish

broke free and ran away. The other two, Satyender and Kuldeep

caught hold of the prosecutrix, gagged her mouth and dragged her to

the forest. They took her to the military vehicle, where Harpreet and

Munish also joined them. Four of them forced and made her sit in the

back side of the military truck. After driving for about 5-10 minutes,

the vehicle stopped and the prosecutrix was made to get out of the

vehicle and was taken towards the bushes. Thereafter, Harpreet and

then Satyender raped her. Harpreet Singh also slapped her twice/thrice

and took Rs.120/- from her purse. Later on all of them left in the

vehicle. The prosecutrix wept, cried and after wearing her clothes

started walking back. After walking some distance, she met Ashish,

who had come looking for her along with the police. SI Satbir Singh

along with Ct. Raghuraj, Ashish and the prosecutrix went into the

forest to search for the accused. They reached a hut located near the

Polo Club. When called out, whether anybody was there, the appellant

Harpreet came out and was recognized by the prosecutrix and Ashish.

He was detained and taken to the police station. The prosecutrix was

medically examined on the same day. On the next day, on the basis of

statement made by Harpreet, the three other appellants-accused were

arrested. The police completed the investigation and filed the charge

sheet for commission of offence of gang rape punishable under Section

376(2)(g), kidnapping under Section 366 and for robbery under Section

394 IPC.

4. Before we examine the factual matrix and the merits of the

appeals, it will be appropriate if we examine and decide the legal

contention raised by Harpreet relying upon Sections 69 and 70 of the

Army Act, 1950 (Army Act, for short) read with Criminal Courts and

Court Martial (Adjustment of Jurisdiction) Rules, 1978 (Rules, for

short). In order to appreciate the controversy, we deem it appropriate

to reproduce Sections 3(i), 69, 70, 125 and 126 of the Army Act and

Section 475 of the Code of Criminal Procedure, 1973 (Cr.P.C., for

short):

―Army Act, 1950

3. Definitions.--In this Act, unless the context otherwise requires,--

(i) ―active service‖, as applied to a person subject to this Act, means the time during which such person--

(a) is attached to, or forms part of, a force which is engaged in operations against an enemy, or

(b) is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or

(c) is attached to or forms part of a force which is in military occupation of a foreign country;

xxx

69. Civil offences.--Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,--

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

70. Civil offences not triable by court-martial.--A person subject to this Act who commits an offence of murder against a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape in relation to such a person, shall not be deemed to be guilty of an offence against this Act shall not be tried by a court-martial, unless he commits any of the said offences--

(a) while on active service, or

(b) at any place outside India, or

(c) at a frontier post specified by the Central Government by notification in this behalf.

xxx

125. Choice between criminal court and court- martial.--When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and, if that officer decides that they should be instituted before a court-martial, to direct that the accused person shall be detained in military custody.

126. Power of criminal court to require delivery of offender.--(1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in Section 125 at his option, either to deliver over the offender to the nearest magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition, or shall forthwith refer the question as to the court before which the proceedings are to be instituted for the determination of the Central Government, whose order upon such reference upon such reference shall be final.

Code of Criminal Procedure, 1973

475. Delivery to commanding officers of persons liable to be tried by Court-martial.

(1) The Central Government may make rules consistent with this Code and the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), and the Air Force Act, 1950 (45 of 1950), and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, navel or air force law, or such other law, shall be tried by a court to which this Code applies or by a Court-martial, and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a court to which this Code applies or by a Court-martial, such Magistrate

shall have regard to such rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be, for purpose of being tried by a Court-martial.

Explanation. In this section-

(a) "Unit" includes a regiment, corps, ship, detachment, group, battalion or company.

(b) "Court-martial" includes any tribunal with the powers similar to those of a Court-martial constituted under the relevant law applicable to the Armed Forces of the Union.

(2) Every Magistrate shall, on receiving a written application for that purposes by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.

(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situate within the State be brought before a Court-martial for trial or to be examined touching any matter pending before the Court-martial‖

5. Under the Army Act offences have been categorized into three

categories. Firstly, there are offences which are exclusively triable by

Court Martial. The second category consists of offences, which are

exclusively triable by ordinary criminal courts. These offences have

been classified and have been described as civil offences under Section

3(ii) of the Army Act. The third and the last category are the offences

which are triable both by the criminal courts and by Court Martial.

The Court Martial and the criminal courts have concurrent jurisdiction

over these offences. The Army Act demarcates the three categories of

offences and incorporates provisions to avoid a conflict or dispute

about jurisdiction or choice of forum. Sections 125 and 126 of the

Army Act have been enacted to ensure that questions regarding

conflict of jurisdiction regarding the third category should be and can

be resolved at the earliest and by the prescribed procedure. Section 475

of the Cr.P.C. ensures that there is no conflict of jurisdiction and the

dispute, if any arising as to the forum having jurisdiction is resolved

amicably. In terms of the said provisions, the 1978 Rules have been

framed and provide for procedure to be followed when offences fall

under the third category.

6. Offence of murder, culpable homicide not amounting to murder

and rape have been classified as civil offences under Section 70 of

Army Act, unless the offence is committed by a person, who is subject

to the Army Act; (a) on active service, (b) at any place outside India

and (c) at a frontier post specified by the Central Government by

notification in this behalf. The term ―active service‖ has been defined

in Section 3(i) to mean the time during which a person, who is subject

to the Act, is attached to or forms part of the force, which is engaged in

operations against the enemy, engaged in military operations in or is in

the line of march to a country or place wholly or partly occupied by an

enemy or is attached or forms part of the post, which is in occupation

of a foreign country. By definition the term ―active service‖ is

restrictive.

7. During the course of hearing before us, learned counsel

appearing for Harpreet had submitted that Section 70 of the Army Act

is not applicable in view of the notification issued by the Government

of India, Ministry of Defence, No. S.R.O. 6-E dated 28th November,

1962 and in view of the said notification in terms of clause (c) of

Section 70, the appellants were deemed to be on ―active service‖.

Learned counsel for the appellant was asked to file an application

enclosing therewith copy of the said notification with a statement or

averment that the notification continues to be in operation. No such

application has been filed and the learned counsel had stated before us

that he cannot make any statement, whether or not the said notification

S.R.O. 6-E dated 28th November, 1962 was still in operation.

8. Counsel for the appellant-Harpreet in support of his contention

that the criminal court did not have jurisdiction has relied on

Superintendent and Remembrancer of Legal Affairs, West Bengal

versus Usha Ranjan Roy Choudhury, 1986 (Supp.) SCC 190, Union

of India versus Major S.K. Sharma, (1987) 3 SCC 490, Delhi Special

Police Establishment versus Lt. Col. S.K. Loraiya, AIR 1972 SC 2548

and decision of the Bombay High Court in Kanwardeepsingh

Harbansingh Bedi versus State of Maharashtra, 2010 Cr LJ 315.

9. On verification, we find that Ministry of Defence has issued

notification No. S.R.O. 17-E dated 5th September, 1977, which reads as

under:-

―NO. IX. ACTIVE SERVICE

(MINISTRY OF DEFENCE NOTIFICATION No. S.R.0.17-E DATED 5 SEP. 1977)

S.R.O 17-(E).--In exercise of the powers conferred by section 9 of the Army Act, 1950 (46 of 1950) and in supersession of the notification of the Government of India in the Ministry of Defence, No. SRO 6-E, dated the 28th November 1962, the Central Government hereby declares that all persons subject to that Act who are not on active service under clause (i) of section 3 thereof shall, while serving in the areas specified below, be deemed to be on active service within the meaning of that Act for the purpose of the said Act or any other law for the time being in force --

(1) The State of--

(a) Jammu and Kashmir

(b) Manipur

(c) Nagaland

(d) Tripura

(e) Sikkim;

(2) The Union Territories of---

(a) The Amdaman and Nicobar Islands.

(b) Arunachal Pradesh

(c) Mizoram;

(3) The District of-

(a) Uttarkashi, Chamoli and Pithoragarh in the State of Uttar Pradesh;

(b) Lahaul and Spiti, Kinnaur and Kulu in the State of Himachal Pradesh.‖

10. Thus, it is clear that the earlier notification No. S.R.O. 6-E dated

28th November, 1962 has been superseded and all persons subject to

the Army Act while serving in the ―areas specified‖ are deemed on

―active service‖ within the meaning of the Act or for any other law for

the time being in force. The areas mentioned/specified in the

Notification No. SRO.17-E dated 5th September, 1977 does not include

the National Capital Territory of Delhi. Admittedly, the appellants,

including Harpreet were serving in Delhi and, therefore, would not be

covered under any specific notification under Clause (c) to Section 70

of the Army Act. The appellants herein were charged for an offence

under Section 376, i.e., rape. The said offence is exclusively triable by

the criminal courts and not by Court Martial under Section 70 of the

Army Act. Therefore, the said offence falls in category two and thus

the Court Martial and the criminal court did not have concurrent

jurisdiction. The ordinary criminal courts had/have exclusive

jurisdiction for the offence of rape. Accordingly, the provisions

relating to concurrent jurisdiction will not apply.

11. Kuldeep and Munish were also charged for an offence under

Section 376, but have been acquitted. Subject matter jurisdiction in

such cases should be determined on the criteria/principle of ―the

offence of which cognizance is taken by the Magistrate or Court

Martial‖ and not whether the accused is ultimately acquitted or

punished for the said offence. Acquittal of Kuldeep and Munish is not

determinative on the question of exclusive jurisdiction of the ordinary

criminal courts. The offences under Sections 366 and 394 IPC were

interlinked and connected intrinsically with the offence under Section

376 IPC. In such cases, Section 70 of the Army Act should be and has

to be applied. The reason and logic behind it is that there cannot be

and should not be bifurcation or two trials of the accused; one before

the Court Martial and the other before the criminal court. If an army

person is accused of any of the three offences mentioned in Section 70

as well as other offences and clauses (a) to (c) do not apply, then all

offence would be triable before the criminal court. In such cases, the

question of the concurrent jurisdiction does not arise. Ordinary

criminal courts alone have the exclusive jurisdiction.

12. In these circumstances, we need not, therefore, examine whether

or not there was violation of the Rules and the effect thereof. We may,

however, note that the Supreme Court in Balbir Singh vs. State of

Punjab (1995) 1 SCC 90 after referring to the earlier decisions in the

case of Usha Ranjan Roy Choudhury (supra) and Major S.K. Sharma

(supra) had held as under:-

―17. A conjoint reading of the above provisions shows that when a criminal court and court-martial each have jurisdiction in respect of the trial of the offence, it shall be in the discretion of the officer commanding the group, wing or station in which the accused is serving or such other officer as may be prescribed, in the first instance, to decide before which court the proceedings shall be instituted and if that officer decides that they should be instituted before a ―court- martial‖, to direct that the accused persons shall be detained in air force custody. Thus, the option to try a person subject

to the Air Force Act who commits an offence while on ―active service‖ is in the first instance with the Air Force Authorities. The criminal court, when such an accused is brought before it shall not proceed to try such a person or to inquire with a view to his commitment for trial and shall give a notice to the Commanding Officer of the accused, to decide whether they would like to try the accused by a court-martial or allow the criminal court to proceed with the trial. In case, the Air Force Authorities decide either not to try such a person by a court-martial or fail to exercise the option when intimated by the criminal court within the period prescribed by Rule 4 of the 1952 Rules (supra), the accused can be tried by the ordinary criminal court in accordance with the Code of Criminal Procedure. On the other hand if the Authorities under the Act opt to try the accused by the ‗court-martial', the criminal court shall direct delivery of the custody of the accused to the Authorities under the Act and to forward to the Authorities a statement of the offence of which he is accused. It is explicit that the option to try the accused subject to the Act by a court-martial is with the Air Force Authorities and the accused person has no option or right to claim trial by a particular forum. The option appears to have been left with the Air Force Authorities for good and proper reasons. There may be a variety of circumstances which may influence the decision of the Air Force Authorities as to whether the accused be tried by a court-martial or by a criminal court. This Court in Ram Sarup v. Union of India [ AIR 1965 SC 247 : (1964) 5 SCR 931 : (1965) 1 Cri LJ 236] opined:

―In short, it is clear that there could be a variety of circumstances which may influence the decision as to whether the offender be tried by a court-martial or by an ordinary criminal court, and therefore it becomes inevitable that the discretion to make the choice as to which Court should try the accused be left to responsible military officers under whom the accused be serving. Those officers are to be guided by considerations of the exigencies of the service, maintenance of discipline in the army, speedier trial, the nature of the offence and the person against whom the offence is committed.‖

There appears to be sound logic to give the first option to the Authorities under the Act to decide whether the accused should be tried by the court-martial or the criminal court. The defence of the country being of paramount importance, the Air Force Authorities would know best as to whether the accused should be tried by the court-martial or by the ordinary criminal court because the trial by the ordinary criminal court would necessarily involve a member of the

force being taken away for trial by the ordinary criminal court and not being available to the Authorities and the like considerations. However, in the event the criminal court is of the opinion, for reasons to be recorded, that instead of giving option to the Authorities under the Act, the said court should proceed with the trial of the accused, without being moved by the competent authority under the Act and the Authorities under the Act decide to the contrary, the conflict of jurisdiction shall be resolved by the Central Government under Section 125(2) of the Act and the decision as to the forum of trial by the Central Government in that eventuality shall be final.

18. In our opinion, on a construction of the various provisions referred to above the criminal courts are not deprived of their inherent jurisdiction to take cognizance of civil offences under the Code. Before the Full Bench of the Punjab & Haryana High Court inAjit Singh v. State of Punjab [ AIR 1970 P&H 351 : 1970 Cri LJ 1119 : 72 Punj LR 396 (FB)] it was argued on behalf of the appellant therein, who was in ―active service‖ of the Air Force, that on account of the non-compliance with the provisions of Section 125 of the Act and Section 549 CrPC (corresponding to Section 475 of the Code), the committal of the appellant and his trial held in pursuance thereof must be held to be without jurisdiction. The Full Bench repelled the argument and opined:

―No room is left for doubt about the legal position being that the inherent jurisdiction which a Magistrate has to take cognizance of civil offences under the Code of Criminal Procedure is not taken away by any provisions of the Army Act (and, therefore, of the Air Force Act), and of Section 549 of the Code of Criminal Procedure and the rules made thereunder. What those provisions, envisage is concurrent jurisdiction in the criminal courts and the court-martial and an arrangement for the proper exercise of such jurisdiction including, when necessary a way of resolving a conflict of jurisdiction.‖

and went on to hold:

―[T]hat the contention raised on behalf of the appellant that the trial was vitiated by lack of jurisdiction in the Magistrate and the learned Additional Sessions Judge must be rejected as untenable.‖

19. In our opinion, the view of the Full Bench is correct and we agree with it and hold that the inherent jurisdiction under

which the criminal courts have to take cognizance of civil offences is not taken away by any of the provisions of the Act or Section 475 CrPC and the rules framed thereunder.‖

13. The aforesaid ratio is equally and squarely applicable to the facts

of the present case. The appellants did not contest and question the

jurisdiction for the trial before the criminal court or submit or state that

he or they can be proceeded for Court Martial under the Army Act.

The army authorities were fully aware and in knowledge of the

criminal prosecution under the ordinary law. Exhibit PW-21/B is the

letter dated 14th November, 2003 written by Major Rajiv Bansal for the

Commandant admitting that the four accused, who were then under

judicial custody, were on bona fide military duty on 6th October, 2003

in the President Bodyguard Area. Before that Major B.P. Singh had

written a letter on behalf of the Commandant, Exhibit PW-21/C dated

7th October, 2003 referring to case FIR No. 247/2003 under Section

392/376/34 IPC and stating that Satyender, Munish and Kuldeep were

being made available to the police authorities, i.e., SHO, Chanakyapuri

for conduct of investigation. The said letter also invited attention of

the SHO to the Government of India instructions from time to time

regarding handling of cases relating to military personnel. Learned

counsel appearing for Harpreet submitted that this letter Exhibit PW-

21/C refers only to conduct of investigation and not the trial before the

criminal court. There is a fallacy in the said argument. The question

and issue is whether the army authorities were aware and had

knowledge of the criminal proceeding/trial before the ordinary court

and had accepted the same or had protested/questioned the jurisdiction

of the ordinary courts. The army authorities in the present case have

never objected/questioned the criminal prosecution of the appellants

under the ordinary law.

14. Learned counsel submitted that the decision of the Supreme

Court in Balbir Singh (supra) is per incuriam and is contrary to the

decision of the Supreme Court in S.K. Loraiya's case (supra), which is

a decision of three Judges. The submission before us has no merit. In

S.K. Loraiya's case (supra), the challenge to the jurisdiction of the

ordinary courts was raised at the stage of framing of charge. It was

observed that prima facie both ordinary criminal courts and Court

Martial had concurrent jurisdiction. The Supreme Court observed with

reference to Section 549(1) of the Code of Criminal Procedure, 1898

that the expression ―is liable to be tried either by a court to which this

Code applies or by a Court Martial‖ refers to the initial jurisdiction of

the court and the Court Martial to take cognizance and not their

jurisdiction to decide it on merits. The object is to avoid collision

between the ordinary criminal court and the Court Martial, i.e., army

authorities. In the case of Balbir Singh (supra) and in the present case,

there is no conflict between the two authorities and the two authorities

are ad idem.

15. Decision of the Supreme Court in Lt. Col. S.K. Loraiya (supra)

was referred to in the case of Usha Ranjan Roy Choudhury (supra).

Therefore, it is incorrect and wrong to state that in case of Balbir

Singh (supra), the court did not examine and consider the effect of

ratio and decision in the case of S.K. Loraiya (supra). We have also

examined the decision in the case of S.K. Loraiya (supra). The

contentions raised by the learned counsel that reference to the

expression ‗initial jurisdiction' is to the ―subject matter jurisdiction‖ or

the ―inherent jurisdiction‖ of the criminal court are incorrect. In the

said case, the respondent, an officer of the Indian Army was being

prosecuted under Section 467 and 471 IPC and Section 5(1)(c) and (d)

and 5(2) of the Prevention of Corruption Act. The alleged offences

were committed by him as a Commander, Air Field Engineers, Tejpur.

The stage before the criminal court was framing of charges and the

charges framed were made subject matter of challenge before the High

Court where S.K. Loraiya (supra) succeeded and this order was then

made subject matter of challenge before the Supreme Court by the

prosecution. One of the contentions raised by the prosecution was that

it was not a case of concurrent jurisdiction as no trial by ―Court

Martial‖ was permissible after expiry of three years from the date of

offence. Reliance was placed on Section 122(1) of the Army Act.

Accordingly, the prosecution, the appellant before the Supreme Court

had submitted that the ordinary criminal court alone had exclusive

jurisdiction as trial by Court Martial was not permissible and barred by

limitation under Section 122 of the Army Act.

16. The argument of the Prosecution that respondent therein could

not be tried by way of ―court martial‖ because of bar of limitation

under Section 122(1) was rejected with reference to Section 549(1) of

the Code of Criminal Procedure, 1898, wherein expression used was

‗liable to be tried by a court to which this code applies, or a court

martial'. This, it was interpreted, refers to offence for which

cognizance can be taken by the ordinary court as well as court martial.

The question whether the period of limitation for trial by court martial

had come to an end, it was held can only be decided in the proceeding

under the Army Act. The term ‗initial jurisdiction' was used in this

context. Thus it was stated that ―initial jurisdiction‖ to conduct court

martial by the army authorities is not taken away as period of three

years had lapsed or the bar of Section 122(1) may be applicable. It was

observed that the question whether or not the bar of limitation under

Section 122(1) has become applicable, cannot be decided by the

ordinary criminal court but by the authorities under the Army Act. The

term ―initial jurisdiction‖ refers to the right of the authorities under the

Army Act to decide whether or not period specified under Section

122(1) has expired. The ―initial jurisdiction‖ as used in the said

judgment is not with reference to the ―subject matter jurisdiction‖.

17. As a first appellate court, we are required to reappraise and

assess the entire facts and the law and determine whether or not the

appellants are guilty or innocent. Therefore, we have to examine and

consider the evidence and law on all aspects and give and record an

independent conclusion. In doing so we can be assisted by the opinion

expressed by the Additional Sessions Judge (see Jumman & Ors. vs.

State of Punjab, AIR 1957 SC 469). Keeping the said ratio in mind

we have examined the evidence and material on record. For the sake

of convenience we first deal with the charge under Sections 366 and

376 and then with Section 394 IPC. The charge under Section 366 and

376 are substantially interconnected and are being taken up for

consideration together.

Charge under Sections 366 and 376

18. The State to prove and establish charges under Sections 366 and

376, has relied on the testimony of prosecutrix (PW-2); Ashish Kumar

(PW-8); the MLC of the prosecutrix (Ex. PW1/A); statement of PW-1,

Dr. Monika Hooda who was the Senior Resident in Gynecology

Department, Lady Harding Hospital and the forensic reports (Ex. PW-

4/A & PW-4/B); statement of PW-4 Dr. A.K. Srivastava, Sr. Scientific

Officer, Biology Department, FSL Delhi. They also rely on the

statements of PW-12 - Constable Raghuraj Singh, PW-23 S.I. Satbir

Singh and PW-25 Inspector Lakshmi - Investigating Officer. We have

to analyze these statements, documents, keeping in mind the

contentions raised by the appellants and the State.

19. The prosecutrix has stated that on 6th October, 2003, at about

10/11 AM, she along with her friend Ashish had gone to Buddha

Jayanti Garden. While they were roaming in the garden, four military

personnel came, two of them caught hold of Ashish and two of them

caught hold of her. She identified the four accused, present in the

court. She identified two persons who had taken away Ashish as

Kuldeep and Satyender and the two who had taken her away as

Harpreet and Manish. She was dragged to jungle by Harpreet and

Manish and taken to a place where a military vehicle was standing.

The two accused Kuldeep and Satyender also joined them. She was

forced to sit in the back side of the vehicle. Two persons sat with her

and two other persons sat in the front of the military vehicle. The

vehicle stopped after five minutes on the instructions of Satyender, the

fat person. She was made to disembark from the vehicle and taken into

the bushes by Harpreet and Satyender. She was then beaten and the

accused Harpreet and thereafter Satyender proceeded to rape her. After

being raped, she was slapped two-three times by the Harpreet. He also

took out Rs. 120/- from her purse. Before leaving, Satyender had

threatened her that she would be killed in case she spoke to anyone.

Two others namely Kuldeep and Manish did not rape her. She cried.

After putting on her clothes, she walked some distance, where she met

Ashish with the police officers and narrated the incidence to them.

They went into Jungle to search for the accused. They reached deep

inside the jungle where there was a hut, which was closed. The police

called out whether any person was inside. Harpreet came out and was

immediately recognized by her. Police caught hold of Harpreet. Her

statement was recorded. She was taken to the hospital for medical

examination. On 17th October, 2003, she was called for Test

Identification Parade in the jail, where she identified the three accused

namely Satyender, Kuldeep and Manish. At the time of rape, Harpreet

had used a hankie to clean his private part. Her hankie, kadahi wala

button and blue colour toy of cricketer were left behind at the scene of

the crime. These articles were identified by her in the court. She

identified the Salwar, Shirt, Chunni and underwear worn by her at the

time of occurrence as Ex. P-1, P-2, P-3 and P-4. The same were

produced in a sealed parcel with FSL seal. These articles had been

taken into custody by the Doctor, when she had gone for medical

examination. They were seized and later on sent for FSL examination.

20. PW-8 Ashish Kumar in his testimony has stated that they i.e. he

and the prosecutrix on 6th October, 2003, had gone to Buddha Jayanti

Park on a scooter to see the Dalai Lama's function. As there was a

crowd, they did not attend the function and were walking on the side

alley. When they reached near the jungle, four persons in military

dress approached them. Two persons caught him and two persons

caught the prosecutrix. He identified the persons who had caught him,

as Harpreet and Manish in the court. The two other persons took the

prosecutrix away by dragging her. He caught the feet of Harpreet and

beseeched where he was being taken. He was asked to remain quiet

and walk straight. Harpreet slapped him and took out Rs.100/- from

his purse. He (PW- 8 Ashish) freed himself and ran towards the park.

He told the entire story to the police personnel who were stationed

there for the security arrangements for the Dalai Lama's function. He

and the police officers went to the jungle to search the prosecutrix.

After about one and a half hour, they saw the prosecutrix coming out

from the jungle. She was crying. She narrated the occurrence. They

went into the jungle to search for the accused. Inside the Jungle, there

was a horse ground and an office, which was locked. The policemen

asked if anybody was there. Harpreet came from behind the building

and was identified by the prosecutrix as one of the persons who had

committed rape. The prosecutrix had stated that there were three other

accomplices. The police then interrogated Harpreet who admitted that

he along with three other accomplices had raped the prosecutrix. He

gave the names of three accomplices. He also showed the place where

the prosecutrix was kidnapped after separating her from him. He

(Ashish) was asked to identify the three accused namely Kuldeep,

Satyender and Manish in the Test Identification Parade on 17th

October, 2003. Ashish in the examination in chief had stated that

while standing outside Tihar Jail gate, 5-6 people came and softly

asked his name. After he gave out his name, he was threatened not to

identify anyone during the TIP, otherwise he would be killed. He

became nervous and did not identify the accused during TIP and

returned to home after making excuse of headache. He was scared.

21. PW-12, Constable Raghuraj Singh has stated that on 6th October,

2002, (the year is wrong, it should be 2003), he along with Satbir and

others were posted on law and order duty at Buddha Garden. At about

11.45 AM, a boy came to him and informed that his girlfriend was

dragged by four persons in military uniform. He informed SI Satbir

and proceeded towards jungle. No clue was found. When they came

out of the jungle, they saw one girl, coming from the jungle. She was

weeping. The girl was the prosecutrix, who gave details of the

occurrence. They proceeded inside the jungle, with the girl. They

reached Ghoda Maidan, where a room was constructed. The room was

locked from outside. SI Satbir shouted and asked if there was anyone

inside. One Sardarji came out and was identified by Ashish as one of

the four persons who had dragged his girlfriend. His name was

ascertained and was disclosed as Harpreet. He confessed commission

of rape with the prosecutrix and named his three associates. The place

was inspected and the statement of prosecutrix was recorded.

Inspector Lakshmi, Investigating Officer had reached there. Rukka

was taken to the police station and the case was registered. Harpreet

was medically examined on 6th October, 2003 and was arrested. On 7th

October, 2003, Harpreet was interrogated. He disclosed names of

Satyender, Kuldeep and Manish as his associates. They were also

arrested. Satyender, Manish and Kuldeep were also medically

examined.

22. PW-23, SI Satbir Singh affirmed that on 6th October, 2003, he

was posted along with others at Buddha Jayanti Park for maintaining

law and order as there was assembly of the Dalai Lama. At about

11.00 AM, a boy Ashish came to Ct. Raghu Raj and told him that four

persons had dragged his girlfriend inside the jungle and they were in

military uniform and one of them was a Sardar. They went inside

jungle along with Ashish. They searched and after some time they saw

a girl coming from inside the jungle. She was weeping. Ashish

identified the girl i.e. the prosecutrix. She narrated that she was

dragged by four persons inside the jungle and a military vehicle was

with them and thereafter she was raped by two of the said army men.

One of them was a Sardar and other one was a fat person. Thereafter,

they accompanied by the prosecutrix, searched for the accused persons

and went inside the jungle. They reached Ghoda Maidan, where there

was an office, which was closed. He shouted if there was anyone and

he should come out. One Sardarji came out, and was identified as one

of the four military persons. On enquiry Sardarji disclosed his name

as Harpreet. He confessed. Thereafter, Inspector Lakshmi came to

the spot and recorded the statement of prosecutrix. Rukka was handed

over to Ct. Raghuraj for registration of FIR. The accused Harpreet

took the police inside the jungle but could not point out the spot where

the rape was committed on the prosecutrix. Harpreet was arrested. He

came back to the police station and handed over pulandas, seizure

memos and statements to the Investigating Officer. Salwar suit, chunni

were kept in the pulanda. Next day i.e. on 7th October, 2003, the

accused Harpreet was interrogated. He disclosed that he could recover

the uniform and underwear which he had concealed in the jungle.

Thereafter, Satyender, Manish and Kuldeep were arrested after the

Commander handed over the said persons. These persons had been

identified by Harpreet as the other co-accused. Their uniforms were

taken into custody and they were taken to the hospital for medical

examination. On 8th October, 2003, again the accused were

interrogated and taken to Buddha Jayanti Garden. Harpreet got his

uniform, which he had worn at the time of incident, recovered. The

same was sealed in a pulanda. Satyender took the police to the spot

where they committed rape on the prosecutrix. The crime team took

photographs of spot. One blood stained handkerchief, one toy, one

button and some hair were seized and sealed and handed over to the

IO. On 16th October, 2003, the military vehicle involved in the

incident was handed over to them by Major Bansal. TIP was

conducted by the learned M.M. on 17th October, 2003. PW-23

identified the salwar, suit and chunni worn by the prosecutrix and the

same were marked as Ex. P1 to P3. He also identified the military

uniform namely pant and shirt and cloth piece as PW23/P4, P5 and P6.

23. PW-25, Inspector Lakshmi has stated that on 6th October, 2003,

she was posted at CAW Cell, New Delhi. She received message from

control room to report at the Buddha Jayanti Garden. She reached the

spot where the prosecutrix was present along with S.I. Satbir. Police

officers were making enquiries from the prosecutrix. S.I. Satbir

recorded the statement of the prosecutrix in her presence i.e. PW2/A.

Rukka was handed over to Ct. Raghuraj for registration of the FIR.

Harpreet was interrogated and personal search was conducted vide

memo Ex. PW-12/A. Disclosure statement marked Ex. PW12/B

was recorded. A site plan was prepared on the pointing out of Ashish.

Parents of prosecutrix were informed. Harpreet was sent for medical

examination. Prosecutrix was also sent for medical examination with

her mother. After medical examination, Doctor handed over four

pulandas along with sample seal which was seized as Ex. PW11/A.

The clothes of the prosecutrix were seized as Ex. PW23/B. Next day,

the three associates of Harpreet were arrested. Thereafter, Harpreet led

the police party to the jungle for recovery of uniform and underwear

but the same could not be recovered. However, Satyender and

Harpreet subsequently pointed out the place of incident and

Ex.PW23/F was prepared. One handkerchief, one plastic toy, one

button of green/moongia colour having flower on it, were found at the

spot by the police. These articles were seized vide memo Ex.PW12/K.

TIP of the accused was conducted by the Metropolitan Magistrate. She

also identified clothes of the prosecutrix which were marked Ex. P1 to

P3. She averred that the case property was sent to FSL for their report

and their report was marked as PW4/A and B.

24. PW6 Barkha Gupta, Metropolitan Magistrate has affirmed the

TIP proceedings which were conducted in Tihar Jail. She has given

full details of the manner in which the TIP was conducted and stated

that the prosecutrix had recognized and identified Satyender, Kuldeep

and Manish. Ashish had not identified Kuldeep and Manish and did

not participate in the TIP of Satyender, as Ashish had left the place.

25. Statements of PW-2 prosecutrix, PW-8 Ashish and PW-12

Raghuraj, PW-23 Satbir on material and relevant aspects are identical.

There is no contradiction between what has been stated and averred by

them with regard to commission of offence under Section 366 and

376(2)(g).

26. Counsel for Harpreet did not touch upon the testimony of PW-2

prosecutrix and PW-8 Ashish. He, however, referred to the statements

of PW-12 Raghuraj, PW-23 Satbir and PW-25 Lakshmi. He

submitted that the prosecutrix had not made any allegation of

kidnapping or robbery before the doctor who had medically examined

her. This was also accepted by PW-1, Dr. Monika Hooda in her cross-

examination. Learned counsel for Harpreet submitted that TIP of

handkerchief, button, and toy was not undertaken. It was submitted

that the said articles marked Exhibits P5, P6 and P7 were shown to the

prosecutrix in the court for the first time. These articles do not

specifically find mention in the statement of the prosecutrix Ex PW2/A

which was recorded on 26th July, 2004. Neither do they find mention

in the MLC Ex PW1/A. It was submitted that these are major

discrepancies in the statement made by the prosecutrix. Thirdly, the

trial court had drawn adverse inference because Harpreet and

Satyender had refused to give their blood sample on 13 th November,

2003 on an application made by the State before PW-7 Sunil K.

Aggarwal, Metropolitan Magistrate. It was submitted that Harpreet

and Satyender had earlier given their blood samples immediately after

their arrest. The report given by FSL that these blood samples had

putrefied, (Ex. PW-4/A and 4/B) was dated 17th November, 2003. On

the date of refusal, i.e. 13th November, 2003, FSL reports Ex. PW-4/A

and 4/B dated 17th November, 2003 were not made available. He

further submitted that the application was filed for blood samples for

DNA tests and not for the reason that the blood samples given earlier

had putrefied. FSL report Ex. 4/A itself states that one micro slide was

preserved for DNA analysis, if required, in future. He had submitted

that the police despite having the slide did not conduct the DNA test.

27. There is no merit in the said contentions. FSL report Ex. PW4/A

states as under:-

―Note-1 - One micro slide i.e. P1 has been preserved for DNA analysis if required in future.‖

28. Parcel 1 which includes Ex. P-1 contained two micro slides 1a

and 1b, and were described as two micro slides having whitish smear.

Human semen was detected on Ex. 1a and Ex. 1b was preserved for

future analysis as per report dated 17th November, 2003. Logically, it

is not possible to have DNA analysis on the basis of only one micro

slide. Comparison is required. DNA analysis in 2003, it is a common

knowledge, was not undertaken in every forensic lab. It required

special equipment. The statement of PW-7, Sunil Kumar Aggarwal,

M.M., is clear that he had warned the accused Harpreet and Satyender

that adverse inference might be drawn in case they did not agree for

giving blood samples but they refused as is clear from PW7/B and

PW7/C. Thus, the appellant, Harpreet and Satyender had failed to give

their blood sample for DNA tests, inspite of warning that adverse

inference could be drawn.

29. Reliance placed on the decision of the Supreme Court in

Krishan Kumar Malik vs. State of Haryana (2011) 7 SCC 130, is

misconceived. In the said case, the appellant was acquitted because of

several inconsistencies noticed in the evidence of the prosecutrix apart

from the false statements made by her. She had alleged that 11 persons

including the prosecutrix had travelled in a Maruti Van. The medical

evidence was contrary to the allegations made. The story itself was

highly improbable. Thus the appeal was allowed. The Supreme Court

further observed that Section 53(A) was introduced in the Cr.P.C.

w.e.f. 23rd June, 2006, and thereafter it is necessary for the prosecution

to go for DNA tests as it helps and assists in reaching appropriate

judicial decision. In the said case, the prosecution did not try to get the

DNA test and analysis done. In the present case, prosecution did try

but because of the refusal by the accused Harpreet and Satyender,

DNA testing could not be done.

30. MLC was conducted by the doctor, PW1. The statement was

made by the prosecutrix Ex. PW1/A and the facts recorded in the MLC

match and are identical. The statement of the prosecutrix in the court is

to the same effect. The factum of kidnapping and rape at Buddha

Jayanti Park is specifically mentioned and stated. MLC was done to

examine the prosecutrix medically and to ascertain and confirm her

medical condition. MLC need not record specifically the entire or the

minute details including what was left behind and thrown out of the

purse of the prosecutrix. The clothes worn by the prosecutrix

including lower under garments were seized and sealed by the doctor.

The handkerchief was identified by the prosecutrix as one belonging to

her and used by Harpreet to clean his private part. The FSL report Ex.

PW4/A confirms that the same had human semen of Group B. Ex. 6

of the FSL report was the underwear worn by accused Harpreet.

Human semen was also detected on the said exhibit. The semen on

the underwear was of group B. The underwear of Harpreet was seized

and sealed at the time of his medical examination on 6 th October, 2003

at 8.30 P.M. vide MLC Ex. PW5/A (See statement of PW5 Dr. Pradeep

Saxena).

31. Learned counsel for Harpreet had submitted that the underwear

was of a blue colour. The said underwear given serial no. 6 FSL report

Ex. PW4/A was indicated to be of blue colour but the said colour is not

mentioned in the seizure memo Ex. PW12/D. He also relied upon

statement of PW5-Dr. Pradeep Saxena in which colour has not been

indicated. It was submitted that the samples were not properly kept

and there was discrepancy, how and which sample was kept and

retained in the malkhana.

32. Harpreet was examined on 6th October, 2003 by PW5- Dr.

Pradeep Saxena and his MLC has been marked Ex. PW5/A. The MLC

records that he was capable of having intercourse and 4 articles, blue

coloured underwear, pubic hair, blood sample and semen sample were

taken and sealed. These samples were subsequently sent to FSL and

reports PW4/A and 5/B were furnished. The prosecution has examined

Dr. A.K. Srivatava, Sr. Scientific Officer, Biology Department, FSL

Delhi as PW4. He has confirmed the seal which was put on the said

sample and the result of his analysis. On the question of seals etc. no

questions were asked. It was not alleged or stated that the seals were

tempered with. What is material and relevant is that the semen was

found on the vaginal swab Ex 2a and 2b. Similarly, semen was found

on Ex. 3 brownish hair, Ex. 4 underwear of the prosecutrix, Ex. 5a

salwar and Ex. 5b Shirt. The semen was of group ‗B'. The semen

found on the underwear Ex. 6 of Harpreet was of group ‗B'.

33. Learned counsel for Harpeet relying upon Encyclopedia of

Forensic Sciences edited by Jay Siegel & Ors. at pages 1327 and 1328

under the Chapter SeroChronology/overview submitted that FSL report

is inconclusive as group ‗B' mentioned, could also mean group ‗O'.

We are not inclined to accept the said contention as PW4 was not

questioned about reports Ex.PW4/A & 4/B with regard to the testing

manner and how and why he had arrived at the conclusion that the

strain were of group ‗B'. The reports specifically mentioned that

persons involved in this case including victim could be of group ‗B'

(as the reaction was observed with antigen ‗B') or group ‗O' (as

reaction observed with antigen ‗H'). The principle applied was of

matching. Moreover, in the present case, we have statement of PW-1

Dr. Monika Hooda who had examined the prosecutrix and had

prepared MLC-Ex.PW1/A. She in her statement was categorical. On

the basis of physical examination of the prosecutrix and the FSL

report, she confirmed the rape charge. She had seen one bruise near

the right temple which is mentioned in the MLC. In her cross-

examination she had stated that in the MLC she had mentioned

perineal tear which was fresh due to intercourse. She had also opined

that there was a tear at interiotis which was suggestive of intercourse

on the same day. Further the FSL showed that semen was present on

the vaginal swab. Keeping these aspects in mind she had confirmed the

possibility of rape. Thus, the medical evidence completely supports

the statement made by the prosecutrix that she was raped.

34. Learned counsel appearing for Munish and Kuldeep submitted

that Munish and Kuldeep have been convicted under Sections 366 and

394 IPC and not under Section 376 (2)(g) IPC. It was stated that two

of them along with Satyender were arrested on 7th October, 2003 and

not on 6th October, 2003. Learned counsel for Munish highlighted the

following aspects, which according to him constitute and should be

treated as major discrepancies;-

(i) There is discrepancy in recording the rukka, dispatch and

registration of the FIR. The rukka mentions names of Satyender,

Kuldeep and Munish and is dated 6th October, 2003, whereas the

disclosure statement of Harpreet is dated 7th October, 2003.

(ii) The site plans prepared marked Exhibit PW-25/A and B and

Exhibit PW-15/A do not specifically show the place of kidnapping.

(iii) Vehicle in and out Register marked Exhibit PW-10/A and the

timings mentioned therein do not corroborate and support the

prosecution case. As per the said Register, the military vehicle in

question had recorded 4 kilometers of travel by the speedometer and

had come back within one and fifteen minutes. It was not possible for

the said vehicle to go to Buddha Jayanti Park and come back and

record only 4 kilometers. Travel time, rape etc. as alleged would have

taken at-least 90 minutes.

(iv) Semen and blood samples of PW-8, Ashish were not taken. It

was suggested that the prosecution did not examine and verify whether

Ashish and the prosecutrix had any fornication.

(v) Ashish's inability to identify Munish, Kuldeep and Satyender in

TIP proceedings was highlighted. There was delay in conducting the

TIP and the same was not conducted as per the High Court rules and,

therefore, was vitiated.

(vi) As per the statement of PW-12, Ct. Raghuraj Singh, appellant-

Harpreet had made a disclosure statement on 6th October, 2003, but the

same was not placed on record. Disclosure statement marked Exhibit

PW-12/B dated 7th October, 2003 is inconsequential in view of the

earlier disclosure statement dated 6th October, 2003, which has not

been placed on record.

(vii) The allegation of the prosecution is unbelievable and immaterial

as there were gardeners and public in the park. They would have

certainly seen the prosecutrix and Ashish being taken away by the four

military men as alleged or the prosecutrix being subjected to rape.

35. We have examined the aforesaid contentions and are not

inclined to accept the same. As far as the TIP is concerned, Inspector

Lakshmi had moved an application marked Exhibit PW-6/A on 8th

October, 2003 in respect of Satyender, Kuldeep and Munish. Inspector

Lakshmi, therefore, had acted promptly. The delay, if any, in

conducting TIP was on behalf of judicial authority as the Magistrate

had to go to the Central Jail. TIP was accordingly conducted on 17th

October, 2003. We have examined the TIP proceedings and find that

that the Metropolitan Magistrate, Ms. Barkha Gupta, who had appeared

as PW-6, had taken pain to note down the names of the under trials,

who were selected to join TIP along with the accused-appellants. In

fact, the accused-appellants were asked to pick and select 8-10 under

trials of their age group and with similar physic. The details and

names of said persons have been mentioned in the TIP proceedings.

The prosecutrix identified all three i.e. Satyender, Kuldeep and Munish

in the TIP proceedings. She identified them again, when she appeared

as a witness in the Court. We do not think that the challenge to the TIP

proceedings is sustainable and merits acceptance.

36. Vehicle in and out entry Register Exhibit PW-10/A has the

relevant entry at Sr.No.19 and the said entry is signed by Satyender,

who was the driver of the truck. The register had only 18 columns.

The said entry, it is apparent, is the last entry on the page. The said

entry records that the military truck had left the President's Estate for

kachra duty at 10.55 a.m. and returned at 12.10 p.m. The place of visit

is not mentioned clearly and is not decipherable. It is stated that at the

time of going out, the speedometer as recorded was 18832 Km and on

the return it was 18836 Km and, therefore, the vehicle had done only 4

kilometers.

37. PW-10 Vidya Dhar Singh working in the Indian Army was

posted at PBG Lines, Rastrapati Bhavan at Gate No.23 on vehicle

guard duty. He has admitted that the vehicle in question was being

driven by Satyender. As he had not supported the prosecution case, he

was cross-examined by the Public Prosecutor. We do not think that

number of kilometers recorded in the Register, destroys or is contrary

to the prosecution version. The entry made in the Register itself is

somewhat debatable and is in question, as it is the last entry on the said

page and the column/line has been created. The column relating the

Kilometers was filled up by the driver i.e. Satyender. It may or may not

be correctly recorded. What is important and relevant is the time when

the vehicle left and came back. The vehicle had left at 10.55 a.m. and

returned after more than 01 hour and 15 minutes at 12.10 p.m. The

vehicle was, therefore, out of Rashtrapati Bhavan Complex for the said

period during which the prosecutrix was kidnapped and raped. The

contention that it would have taken a minimum of 90 minutes to leave

and return back in the truck and commit the offence of rape etc. is

based upon assumptions and presumptions. The driving time etc.

depends upon number of factors including the traffic on the street, the

route taken, quantity of garbage, manner of disposal etc. and the time

spent by the four appellants at Budha Jayanti Park. This cannot be

calculated with exact mathematical precision. As noticed above, the

time mentioned in the register PW10/A was recorded by Satyender.

Authenticity and precise exactness thereof can be subject matter of

some debate. The time period of 75 minutes as recorded is not less or

insignificant period. What is relevant and material is the testimony of

prosecutrix, PW2 and the police officers who had immediately reached

the place of occurrence and thereafter the arrest of Harpreet. The said

statements when read with medical evidence as well as the register Ex.

PW10/A which proves that the truck involved had left the Presidential

estate and returned after one hour and 15 minutes, supports,

harmonises and uniformally establishes and affirms the involvement

and commission of the offence by the appellants.

38. Similarly, the contention that the prosecutrix had not visited and

seen the place of occurrence when the site plans were prepared and

recoveries were made on 8th October, 2003, is inconsequential. The

prosecutrix and Ashish on 6th October, 2003 had identified the site of

occurrence and had taken the police officials there. After what the

prosecutrix had been through and suffered, it was not possible for her

to again visit the site immediately after two days on 8th October, 2003.

39. The contention that the site plans do not reflect or show the

place of kidnapping does not impress us. The site plans placed on

record marked Exhibit PW-25/A, PW-25/B and PW-15/A indicate the

place where the garbage was dumped and the truck was parked and the

place from where the prosecutrix and Ashish were taken away by the

appellants, and the place where the prosecutrix was made to board the

truck. The site plans also indicate the place where the truck was

stopped and the prosecutrix was made to get down. The details given

in the said site plans are sufficient and are fairly detailed.

40. As noticed, one of the contentions raised was that the there is

discrepancy in statement of PW-12, Constable Raghuraj Singh, PW-23

SI Satbir Singh and PW-25 Inspector Lakshmi regarding recording of

the disclosure statement of Harpreet and the rukka. PW-12, Constable

Raghuraj Singh had stated that he had taken rukka to the police station

and thereafter the FIR was registered. Harpreet was examined

medically on the same date. On 7th October, 2003, after disclosure

statement made by Harpreet, other appellants, viz., Satyender, Kuldeep

and Munish were arrested and they made their disclosure statements.

On the disclosure made by Satyender, one handkerchief, a toy and a

button were recovered and were seized vide memo Exhibit PW-12/K.

The rukka Exhibit PW2/A does mention name of appellants-Satyender,

Kuldeep and Munish, but this can be easily explained as Harpreet was

arrested on 6th October, 2003 itself. He was interrogated orally at that

time. The disclosure statement of Harpreet is dated 7th October, 2003.

The same was recorded in writing and is marked Exhibit PW-12/B.

Statement of PW-12, Ct. Raghuraj Singh was recorded after nearly 3

years in February and April, 2006. We do not think that his testimony

that 6th October, 2003 and 7th October, 2003 were the dates on which

the disclosure statements of Harpreet were recorded, in any manner

materially affects his statement or casts doubt on the case set up by the

prosecution. The said lapse and reference to 6th October, 2003 as the

date of the disclosure statement or two disclosure statements of

Harpreet is not unnatural. Perhaps it would have been abnormal in

case the statements of all the three police witnesses, namely, PW-12,

Constable Raghuraj Singh, PW-23 SI Satbir Singh and PW-25

Inspector Lakshmi were identical and did not have any minor

difference or discrepancy.

41. There is no merit in the contention that medical examination of

Ashish was required or taking of his semen sample or blood sample for

verification or testing by the FSL Laboratory was necessary and

required. Ashish immediately after he was taken away by two

appellant and slapped, had approached the police. He along with the

police officers went in search of the prosecutrix. This is evident from

the testimony of Ashish, PW-12, Constable Raghuraj Singh and PW-23

SI Satbir Singh. In the said circumstances, there was no need to

examine and take blood or semen sample of Ashish. The trial in

question relates to the conduct of the appellants and we are examining

the charges of kidnapping and rape against the appellants. Ashish and

his relationship with the prosecutrix is not the subject matter with

which we are concerned and which requires examination. Ashish and

the prosecutrix are entitled to their privacy, which must be protected

and respected.

42. The three articles, namely, button, toy and the handkerchief were

seized on 8th October, 2003 on inspection of the area. This was done

after two days of the incident/occurrence. Even if, we ignore the said

recoveries, there is ample evidence and material against the four

appellants to convict them and hold them liable for the offence under

Section 366 IPC and rape against Harpreet and Satyender under

Section 376(2)(g) for gang rape.

43. The term ―gang rape‖ has been defined in Explanation 1 to

Section 376 as under:-

―Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

44. It is not necessary that the person should actually commit rape to

be convicted for gang rape. Gang rape is committed when one or more

person commit rape. Others involved with the commission of the said

offence are equally liable and can be convicted for the offence under

Section 376 (2)(g). In the present case, there is enough material and

evidence to show that Munish as well as Kuldeep were present at the

time when the rape was being committed by Harpreet and Satyender.

The four appellants were in truck when the prosecutrix was forcibly

made to board and then climb down from the truck. Taking and forcing

the prosecutrix to get into truck, driving the truck, and then

commission of rape after she was forced to disembark are aspects

which cannot and should not be ignored. They are indicative of the

common intention. Interpreted in this manner, both Kuldeep and

Munish can be indicted and punished for the offence of rape.

However, they have been acquitted and the State has not preferred any

appeal and, therefore, we are not commenting and giving any firm

opinion. However, as far as, offence under Section 366 is concerned, it

is certainly made out against all the four appellants including Kuldeep

and Munish.

45. In the present case, the statements made by PW-2, the

prosecutrix and PW-8, Ashish are trustworthy, truthful and credible

and should be accepted. The prosecutrix was a young girl, a teenager,

who was studying in the first year in a college. She had no enmity or

ill will or any reason to falsely implicate the appellants by alleging that

she was subjected to rape by them. The agony and pain suffered by her

and the heinous and grievous crime committed by the appellants get

reflected in her testimony in the Court. The arrest of Harpreet

immediately after the incident when police along with the prosecutrix

and Ashish went searching in the Jungle, corroborates her statement of

rape after kidnapping. The medical evidence and the FSL report also

corroborate her statement that she was subjected to rape. Statement of

the prosecutrix as repeatedly observed by the Supreme Court should be

accepted, unless there are good and valid reasons to discard and hold

that her statement is not truthful. (See State of Rajasthan vs. Narayan,

(1992) 3 SCC 615; State of M.P. vs. Babulal; (2008) 1 SCC 234);

Mohd. Imran Khan vs. State of Government (NCT of Delhi), (2011)

10 SCC 192.

Charge under Section 394 IPC

46. In the impugned judgment, it has been held that the charge under

Section 394 consists of two parts. The first part is when PW-8, Ashish

was slapped and Rs.100/- was taken out from his purse by the appellant

Harpreet, while Munish had caught him and was present. It has been

held and observed by the learned Additional Session Judge that the

four appellants had common intention to commit the said robbery and,

therefore, they were liable for the offence under Section 394 IPC.

Learned Additional Session Judge has held that the second robbery

was committed by Harpreet and Satyender. After slapping the

prosecutrix, they had taken out Rs.120/- from her purse. Common

intention was not attributed to Kuldeep and Munish as they were not

present at the place of rape. As noticed above, the State has not filed

any appeal against the decision of the learned Additional Session

Judge. We have noticed that Rs.220/- were recovered from Satyender

on 7th October, 2003. The appellants are right that there is no material

or evidence to show that the said recovery of Rs.220/- represents the

same notes or currency of Rs.100/- and Rs.120/- of which Ashish, PW-

8 and the prosecutrix PW-2 were robbed. But this does not destroy or

mean that the charge of robbery is not established. Both PW-8, Ashish

and PW-2, the prosecutrix have made the statements that they were

robbed of Rs.100/- and Rs.120/- respectively from their purses. Ashish

had stated that he was slapped and robbed. Similarly, the prosecutrix

was slapped as well as raped. The four appellants had come together

in the truck and their common intention can be inferred from the facts

stated above. Munish and Harpreet were present when the prosecutrix

was taken away. Satyender was also present when the prosecutrix PW-

2 was slapped and Rs.120/- were taken out from her purse. The

common intention of all the four appellants, therefore, is

established. We notice that there is a disconnect in the findings

recorded by the learned Additional Session Judge on the robbery

committed on PW-8, Ashish and the robbery committed on PW-2, the

prosecutrix, which has been noticed above. As the State has not come

up in appeal, we are not disturbing the final finding. It is observed that

it is apparent that all the four appellants had common intention to rob

Ashish PW-8. Conviction of Harpreet and Satyender that they had

robbed the prosecutrix is also confirmed.

47. This brings us to the last issue which relates to the quantum of

punishment or proportionality of punishment, which the appellants

deserve. Harpreet and Satyender have been given life imprisonment

for the offence under Section 376(2)(g). They have also been punished

along with Kuldeep and Munish for rigorous imprisonment of 10 years

each for the offences under Sections 366 and 394 IPC. In addition fine

has also been imposed. Learned counsel for the appellants relied upon

the judgments in the cases of State of Madhya Pradesh Vs. Babbu

Barkare @ Dalap Singh, (2005) 5 SCC 413 Dhananjoy Chatterjee

alias Dhana Vs. State of West Bengal (1994) 2 SCC 220, Mahesh Vs.

State of M.P. 1987 (2) SCR 710, Ravji alias Ram Chandra Vs. State

of Rajasthan AIR 1996 SC 787 and State of Madhya Pradesh Vs.

Santosh kumar (2006) 6 SCC 1.

48. The question of quantum of punishment has been considered in

several cases. This Court in its judgment in the case of Raj Kumar

Khandelwal (supra) has pointed out mitigating and aggravating factors

which should be taken into consideration. This Court in another

decision in Khem Chand and Others (supra) had examined the said

question. The Supreme Court has in Babbu Barkare (supra), Deo

Narain Mandal (supra) and Prem Sagar & Others (supra) made

observations and comments on the question of quantum of punishment.

Our attention was also drawn to English decisions in William

Christopher Millberry & Ors. Vs. R., (2002) EWCA Crim 2891; R. vs.

Billam, (1986) 1 AllER 985.

49. In the present case, as far as offence under Section 376 (2)(g)

IPC is concerned, the two appellants Harpreet and Satyender deserve

the maximum punishment i.e. life imprisonment. They were military

men and in uniform in broad day-light, committed rape of a young girl,

who was completely helpless before them. They have exhibited moral

turpitude of extreme depravity by subjecting the teenage prosecutrix to

rape and making her a victim of their physical lust. Both of them are

more than six feet tall and well built. Instead of defending and

protecting the public, they have committed an offence which does not

deserve any soft or lenient approach. Their sentences under section

376 (2)(g) are confirmed. Similarly, we are inclined to confirm the

sentences under Section 366 IPC awarded to the four appellants. The

crime of kidnapping in the present case is connected and interlinked

with the offence of rape. The conduct of the four appellants in

abducting both the prosecutrix and Ashish cannot be isolated from the

act of rape, which was committed by Harpreet and Satyender. We,

therefore, confirm the sentence of 10 years' rigorous imprisonment

awarded to the four appellants for the offence under Section 366 IPC.

Fine awarded is also confirmed. As far as the offence under Section

394 IPC is concerned, the statement of PW-2, the prosecutrix and PW-

8, Ashish is that they were given slaps and Rs.100/- and Rs.120/- were

taken out of their purse. We feel that end of justice would be met if the

four appellants are sentenced to rigorous imprisonment of five years

and fine of Rs.2,000/- each. In default of payment of fine, they shall

undergo simple imprisonment of four months. Section 428 Cr.P.C.

will be applicable.

50. The appeals are accordingly disposed of. The conviction of the

appellant Harpreet and Satyender under Sections 376(2)(g), 366 and

394 are confirmed. Conviction of Munish and Kuldeep under Sections

366 and 394 are also confirmed. The sentence of life imprisonment

and 10 years' rigorous imprisonment with fine as awarded to

Harpreet and Satyender under Sections 376 (2)(g) and 366 are

confirmed. Similarly, the sentence of 10 years' rigorous imprisonment

and fine of Rs.2,000/- awarded to Munish and Kuldeep under Section

366 are confirmed. The sentence under Section 394 IPC awarded to

the four appellants is modified to 5 years' rigorous imprisonment and

fine of Rs.2,000/- and in default of payment of fine, the appellants will

have to undergo further simple imprisonment of 4 months. Section

428 Cr.P.C. will apply.

51. Munish and Kuldeep will surrender within two days and serve

their remainder sentence. In case they do not surrender, the trial court

will take appropriate steps for their arrest for the said purpose. Trial

court record be sent back immediately.

(SANJIV KHANNA) JUDGE

(S.P. GARG) JUDGE AUGUST 23rd, 2012 VKR/kkb