- (1.) Three accused, namely Dharambir @ Pappu, Prem Prakash @ Lillu and Herchand @ Poley, were charged for an offence punishable under Sections 366 and 376(2)(g) of the Indian Penal Code, 1860 (in short the 'IPC'). Upon trial, the learned Additional Sessions Judge, Rohtak, by judgment and order dated 31st July, 1992 held all the three accused guilty of the offences of kidnapping and gang rape of Kumari Sudesh and, thus, they were sentenced to undergo rigorous imprisonment of 10 years with a fine of Rs.500/- each. In case of default of payment of fine, they were ordered to undergo rigorous imprisonment for a further period of one month. The accused were also awarded two years' rigorous imprisonment each for the offence committed under Section 366 of the IPC. Both the substantial sentences were ordered to run concurrently. Dissatisfied with the judgment of the trial court, the accused preferred an appeal before the High Court. The High Court found no merit in the appeal and consequently, dismissed the same vide its judgment dated 27th July, 2005, giving rise to the present appeal by all the accused.
(2.) The learned counsel for the appellants pointed out that during the pendency of the appeal before this Court, one of the accused, i.e., Prem Prakash @ Lillu had expired and therefore, the present appeal survives only qua the third accused, i.e. Herchand @ Poley. In so far as the appeal by the accused Dharambir @ Pappu is concerned, the same was dismissed in limine. The brief facts in the present case are that the aforesaid three accused were asked to face trial on the aforestated charges based on the case of the prosecution.
(3.) According to the prosecution, Kumari Sudesh, daughter of Pratap Singh, resident of Village Chhuchhak accompanied by her brother Satish, aged about 5 years, had gone out of her house at about 8-9 p.m. on 25th July, 1990 to ease herself at a distance of about two or three killas away from their house and by the side of a nearby pucca road. After she answered the call of nature and washed herself a car approached her from behind and stopped beside her. The accused Dharambir got down and took her in his arms. The accused Poley followed him and gagged her mouth with his hand. She was lifted and dragged into the car. The car was being driven by the accused Lillu. The car was taken beyond the village abadi, across a petrol pump and into the fields by the side of the road. All the three accused raped Kumari Sudesh one by one in that field. Accused Dharambir was left there and the other two took the prosecutrix in the car to an unknown jungle and kept her there for that night and the following afternoon. She was again raped by these two accused in that jungle. At about 4.00 p.m. on 26th July, 1990, she was dropped on the bridge of a canal, at a distance of about one kilometer from her house and was threatened of being kidnapped, raped and killed if she narrated the occurrence to anybody. She reached home and recounted the incident to her father Pratap. A panchayat of the brotherhood was convened but no decision was arrived at. On the next day, the father of the prosecutrix went to the Police Station Beri with her, to lodge a complaint. However, their request for registration of a case was not entertained. On 27th July, 1990, they went to Jhajjar Sub Divisional Headquarter and approached the Deputy Superintendent of Police but to no avail. Thereafter, they approached the Sub Divisional Magistrate (in short the 'SDM') with a written application dated 28th July, 1990, Ex.PE/1, to get the prosecutrix medically examined and for taking action against the culprits. The SDM referred the matter to the incharge of the hospital at Jhajjar and a lady doctor, Dr. A.K. Bhutani, examined the prosecutrix and prepared her report, Ex.PE. The clothes of the prosecutrix were also taken by the doctor, who later on handed over the same to the police, who in turn transferred them for examination by the PSL. It is stated that while Pratap Singh was again going towards the police station, on the way at the bus stand of Village Jahagarh, he met a police party and Assistant Sub Inspector Hawa Singh recorded his statement, Ex.PO/1 and an F.I.R., Ex.PO/2 dated 28th July, 1990, was registered.;