Delhi District Court
Sc No. 154/10 State vs Bhavesh @ Sameer Etc. Page No. 1 Of 21 on 9 July, 2013
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID No. 02403R0226892010
SESSIONS CASE NO. 154/10
FIR NO. 120/10
POLICE STATION : GOVINDPURI
UNDER SECTION : 363/366/376(2)(g)/506/34 IPC
STATE
VERSUS
1. BHAVESH @ SAMEER
S/O SH. KADAR SHEIKH
R/OVILLAGE DHANNO KALA, DISTRICT MAIDANIPUR
P.S. NANDI GRAM, WEST BENGAL.
PRESENTLY RESIDINGKHORI JHUGGI
SURAJ KUND, THEKE KE PEECHE, FARIDABAD,
HARYANA.
2. MANAN @ MANNA
S/O RAHIM,
R/O JHUGGI OF SANJAY KUAN MOHALL,
TUGLAKABAD VILLAGE, NEW DELHI.
3. SAKIL @ SAKIR
S/O WAZIR KHAN,
SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 1 of 21
R/O KHODI JHUGGI, BEHIND SURAJ KUND WINE
SHOP, FARIDABAD, HARYANA.
( Vide order dated 05.03.2011 Accused No. 2 and 3 have been sent for
trial to Juvenile Justice Board. )
DATE OF INSTITUTION : 01.07.2010.
DATE OF RESERVING ORDER : 09.05.2013.
DATE OF DECISION : 09.07.2013.
J U D G M E N T
Case of Prosecution:
1. On 06.04.2010 Vide DD No. 4A at about 8.25 am an information was received in police station Govindpuri regarding incident of rape with a seven year old girl at Kabari Jhuggi, Kuan Mohalla, Tugalakabad Village. SI Hansraj along with Ct. Dharam Pal reached at the spot. On reaching there they came to know that police has already taken the prosecutrix and her maternal grandmother (nani) to AIIMS Hospital. SI Hansraj deputed Ct. Dharam Pal at the spot and himself went to the AIIMS Hospital and met there with Ct. Om Prakash and Ct.
Sanju. On the instructions of IO, Ct. Sanju took prosecutrix and got her medically examined. IO recorded the statement of prosecutrix and case was registered against the accused persons namely Bhavesh, Sakil and Manna. Investigation of the case was handed over to Inspector Mahender Singh. SI Hansraj handed over him MLC papers of prosecutrix and seizure memo along with pullandas. Accused persons were arrested. SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 2 of 21 Statement of prosecutrix under section 164 of Cr.P.C was got recorded. Accused persons were medically examined at AIIMS Hospital. Exhibits were sent to FSL. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 363/376(2)(g)/506/34 IPC was filed against the accused persons in the court.
2. Since the offence under Section 376 IPC is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions. Charge against the accused:
3. Prima facie case under section 363/366/376(2)(g)/506 r.w. Section 34 IPC was made out against the accused. Charge under Section 363/366/376(2)(g)/506 r.w. Section 34 IPC was framed upon the accused Bhavesh @ Sameer by my Ld. Predecessor to which he pleaded not guilty and claimed trial. Accused No. 2 Manan @ Manna and Accused No. 3 Sakil @ Sakir were declared juveniles by the Ld. Predecessor court and were sent for trial to Juvenile Justice Board vide order dated 05.03.2011. Witnesses Examined:
4. In support of its case, prosecution has examined fourteen (14) witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
5. PW4 is prosecutrix 'X' who deposed that she was staying SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 3 of 21 with her grandmother. More than a year back, one night she was sleeping in the jhuggi of her Nani. Her grandfather had gone for work. When she woke up she found that accused Bhavesh was taking her on his shoulders and he took her towards a jungle. Accused Manan@ Manna and Sakil@ Sakir were already present there in the jungle. Accused Bhavesh showed her knife and intimated her. He kept cloth (like chunni) on her mouth and laid her on the ground and removed her underwear and committed rape with her by inserting his penis into her vagina. Accused Sakil and Manan @ Manna were standing there at that time. Accused persons also intimidated her not to reveal the incident to anybody otherwise she would be killed. Accused persons left her on the way. She was bleeding from her private part. She came back home and revealed the entire incident to her maternal grandmother. Her maternal uncle called the police and the police recorded her statement. She was also medically examined. She accompanied the police to the place of incident and showed them the place where she was raped by accused Bhavesh in the presence of accused Sakil @ Sakir and Manan @ Manna. She further stated that accused Bhavesh @ Sameer, Sakil @ Sakir and Manan @ Manna are known to her as they used to roam in the area adjoining to her jhuggi and used to intimidate the inhabitants of the locality. She has correctly identified the accused Bhavesh @ Sameer in the court.
6. PW5 is Smt. Sharmil, mother of the prosecutrix. She stated that she works as maid servant. Her daughter/prosecutrix was staying SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 4 of 21 with her mother. Her daughter / prosecutrix had told her that accused Bhavesh @ Sameer had taken her to the jungle by lifting her from the place of her mother house while she was sleeping and took her to jungle where he committed rape with the prosecutrix in the presence of accused Sakil @ Sakir and Manan @ Manna. She further deposed that her daughter told her that accused persons intimidated her to kill. On 08.04.2010 she along with her daughter accompanied the police to the jungle where her daughter was raped by the accused Bhavesh @ Sameer. She has correctly identified the accused present in the court.
7. PW7 is Smt. Faryan Bibi, maternal grandmother of the prosecutrix, deposed that about 2 ½ years back she and her grand daughter/prosecutrix were sleeping in her jhuggi. At about 2 am in the night when she woke up she does not found her granddaughter/prosecutrix there. She made efforts to locate her but she could not be found. At about 4 am in the same night her granddaughter/ prosecutrix returned back home. Her granddaughter/prosecutrix was bleeding from her private parts. Her granddaughter told her that when she was sleeping accused Bhavesh had taken her to the jungle where he forcibly committed rape with her in the presence of accused Sakil@Sakir and Manan@ Manna. She called the police and police took her daughter for medical examination. She handed over the blood stained clothes to the police. Accused Bhavesh @ Sameer and case property was correctly identified by the witness in the court.
SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 5 of 21
8. PW13 is Inspector Mahinder Singh who deposed that on 06.04.2010 he was entrusted with the investigation of this case. He along with Ct. Om Prakash reached at AIIMS Hopital where SI H.R. Bainsla handed over him exhibits and seizure memos. He along with Ct. Om Prakash and Ct. Pradeep apprehended accused Manan @ Manna, Bhavesh @ Sameer and Sakil@ Sakir, arrested the accused, prepared personal search memo and arrest memo, got the accused persons medically examined, prepared the site plan, sent the case property to FSL, recorded the statement of witnesses, prepared the charge sheet and submitted the same to the concerned court. He further stated that during the trial, ossification test of accused Sakil @ Sakir and Manna was got conducted and as they turned out to be minor their charge sheet was filed before the Juvenile Justice Board. Accused Bhavesh @ Sameer was correctly identified by the witness in the court.
Formal Witnesses:
9. PW3 is HC Bhudev Singh who deposed that on 06.04.2010 while he was posted as Duty officer from 8 am to 4 pm, he received a rukka through Ct. Om Prakash and recorded the FIR and proved on record FIR Ex.PW3/A and endorsement on rukka Ex.PW3/B. He stated that after registration of the case he handed over the copy of the FIR and rukka to Ct. Om Prakash who handed over the same to the Investigating officer of the present case.
10. PW6 is Ms. Surya Malik Grover who recorded the statement SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 6 of 21 of prosecutrix and proved on record Ex.PW6/A to Ex.PW/D.
11. PW8 is Ct. Pradeep Kumar who deposed that he along with IO and Ct. Jitender had gone to the scrap/garbage collection center at CCI, Tuglakabad in search of the accused persons where at the instance of the IO he apprehended accused Bhavesh and Ct. Jitender apprehended accused Sakil @ Sakir. Accused persons were interrogated by the IO. Accused Bhavesh @ Sameer was taken to hospital and was medically examined. IO then collected the sealed pullandas and produced the accused Bhavesh @ Sameer before the concerned court from where accused was sent to judicial custody. Accused was correctly identified by the witness in the court.
12. PW9 is HC Om Prakash deposed that on 06.04.2010 he joined the investigation of this case with IO. He reached at the spot. He along with prosecutrix and her grandmother went to AIIMS Hopital in a PCR Van where he met SI Hansraj who called L/Ct. Sanju in the Hospital. IO got the prosecutrix medically examined and recorded the statement of prosecutrix and her grandmother. IO prepared the rukka and handed over the same to him for the registration of the case. He got the case registered and the further investigation was assigned to Inspector Mahender Singh. He handed over the rukka and copy of FIR to Inspector Mahender Singh. PW9 further stated that he along with IO had gone to jhuggi of accused Manna where he was interrogated and arrested by the IO.
SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 7 of 21
13. PW10 is IO / SI Hansraj Bainsla who deposed that on 06.04.2010 on receipt of DD No. 4A he along with Ct. Dharampal reached at the spot and came to know that rape has been committed with a minor girl. They also came to know that prosecutrix along with her maternal grandmother has been taken to the hospital. No eye witness was present at the spot. Ct. Dharampal was deputed at the spot and he came to AIIMS Hospital where Ct. Om Prakash met him. He called L/Ct. Sanju to the hospital who on the instructions of him, got the prosecutrix medically examined. He has duly proved on record rukka Ex.PW10/A which was given to Ct. Om Prakash for registration of the case. He took into possession two pullandas vide seizure memo Ex.PW10/B and after registration of the case, further investigation was assigned to Inspector Mahender singh. PW10 handed over the MLC of prosecutrix, seizure memos along with case property to IO Inspector Mahender Singh.
14. PW11 Head Constable Rajesh Kumar who deposed that on 07.04.2010 as per the instructions of the IO, he took accused Manan @ Manna to AIIMS Hospital and got him medically examined. He then collected the three sealed pullandas and handed over the same to the IO which were seized by the IO vide memo Ex.PW11/A.
15. PW12 is Constable Sanjeev Kumar who deposed that on 01.06.2010 as per the instructions of the IO he collected the exhibits of the present case from MHC(M) PS Govindpuri vide RC No. 24/21/10 and took the same to FSL Rohini and deposited the same there. He gave the SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 8 of 21 receipt of the same to MHC(M) PS Govindpuri. He stated that so long the case property remained in his possession, the same was not tampered with. The IO recorded his statement to this effect.
16. PW14 is Sh. A.K. Srivastava who deposed that he examined all the parcels containing exhibits and submitted his DNA finger print analysis report Ex.PW14/A. Medical Witnesses:
17. PW1 is Dr. Apurva Gupta who conducted medical examination of the prosecutrix and prepared the detailed MLC Ex.PW1/A.
18. PW2 is Dr. Akhilesh Raj who proved on record MLC Ex.PW2/A of accused Bhavesh duly prepared by Dr. Apporv Goel. Statement and Defence of accused:
19. Statement of accused under section 313 Cr.P.C was recorded wherein accused stated that he has been lifted from his house by the police and was falsely implicated in the present case. He had some dispute with the maternal grandfather of the prosecutrix on account of apportionment of the proceeds of selling of scraps as he was demanding bigger share for himself and when he refused grandfather of the prosecutrix abused him and his sons also quarreled with him and on the next day when he was sleeping in his house police arrested him. Accused Bhavesh further chose not to lead any evidence in his defence.
20. I have heard Ld. Defence counsel for accused as well as Ld. SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 9 of 21 APP for state and have carefully perused the record. Arguments of Ld. APP for state:
21. Ld. APP for state argued that the prosecutrix has supported the case of the prosecution. Her testimony could not be shattered in the cross examination and is duly supported by the medical record, FSL report. It is further argued that statement under section 164 Cr.P.C given by the prosecutrix is by name of the accused. It is argued that once the prosecution witness is examined on oath statement recorded under section 161 Cr.P.C and 164 Cr.P.C goes. Hence, it is argued that the offence against the accused is proved beyond doubt and he is liable to be convicted.
Arguments of Ld. Defence Counsel for accused persons:
22. On the other hand, Ld. Defence counsel for accused has argued that prosecution witnesses have not supported the case of prosecution. It is argued that prosecutrix has not told the date, month and year in her examination. Prosecutrix in her examination in chief did not told about the knife by which she was threatened by the accused. It is further argued by the counsel for accused that due to enmity with grandfather of the prosecutrix he was falsely implicated in the case. It is also argued that prosecutrix was conversant with Bengali language and her statement under section 164 Cr.P.C was recorded in Hindi. Hence, the accused is falsely implicated and is liable to be acquitted. Conclusion: SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 10 of 21
23. "Rape" is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. "Statutory rape" is a sexual intercourse with a girl under the age of consent, which age varies in different States from ten to eighteen years.
The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will? 'Rape' or 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. lett. 123b); or as expressed more fully, 'rape' is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will. Section 375 IPC defines rape. This Section requires the essentials:
1. Sexual intercourse by a man with woman.
2. The sexual intercourse must be under circumstances falling under any of the six clauses in Section 375 IPC.
24. In MANU/SC/7825/2008 Moti Lal vs. State of M.P., the Apex Court had observed that : "a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 11 of 21 trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. "
25. As per the case of the prosecution the prosecutrix is aged about 7 years when the offence was committed, to which effect the statement is made by prosecutrix and her grandmother. Prosecutrix in her statement which was recorded on 12.08.2011 has stated that she study in Ist class in Hope Center School near their jhuggi. The accused has not challenged the age of the prosecutrix during trial. To prove its case, prosecution has examined the prosecutrix as PW4 who is the star witness of the case. The testimony of the witness remains consistent throughout as she, in her statement specifically deposed that at the time of occurrence she was staying with her maternal grand mother. One day she was sleeping in the Jhuggi of her Nani. When she woke up she found that accused Bhavesh was taking her on his shoulder and took her towards jungle. In the jungle one accused Sakil@ Sakir and Manan @ Manna were present. In the judge, accused Bhavesh @ Sameer showed her a knife and intimidated her, tied her mouth with a chunni and then committed rape with her and when she cried all of them have fled away. She has specifically deposed that the accused laid her on the ground, removed her underwear and committed rape with her by inserting his penis into her vagina. Nothing SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 12 of 21 adverse came out from the testimony of this witness. PW5, mother of the prosecutrix has also corroborated the statement of prosecutrix that she was told by her daughter that accused Bhavesh @ Sameer had taken her to the jungle and had committed rape with her in the presence of accused Sakil @ Sakir and Manan @ Manna. On the similar lines the grand mother of prosecutrix had stated that on one night at about 2 am she did not find her granddaughter/prosecutrix sleeping in the jhuggi. She made efforts to locate her. At about 4 am on the same night the prosecutrix returned back and at that time she was bleeding from her private part. On inquiry it was told by her that accused Bhavesh @ Sameer had committed rape upon her and accused Sakil @ Sakir and Manan @ Manna were also standing there at that time. Nothing adverse came out from the cross examination of this witness. The testimony of the witnesses remain consistent.
26. Ld. counsel for accused has argued that the testimony of prosecutrix is not reliable since in her statement she could not tell the specific date, month and year of the incident. Further, in her statement she has exaggerated to the effect that earlier she did not talk about the fact that accused Bhavesh @ Sameer had intimidated her by showing a knife and as such her testimony may not be relied upon. I have heard the submissions. It is settled law that conviction of the accused can be based on the sole testimony of the prosecutrix if the same inspires confidence as the same cannot be equated on the same footing as the statement of the SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 13 of 21 accomplice.
27. In the case titled as Radhu Vs State of Madhya Pradesh 2007, Crl. Law Journal 4704 wherein Hon'ble Supreme court has held that: " It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary.
28 In 2010 III AD (DELHI) 448 titled as Shanker Sahai Vs. State it has been held that:
"Indian Penal Code, 1860Sec.376RapeTestimony of prosecutrixSole basis for convictionTestimony of prosecutrix, if believed, can be sole basis of conviction in rape caseNo rule of law or of practice requires corroboration before her testimony can be expected and acted upon."
29 Similar view has been taken in 2009 VI AD (DELHI) 37 Arshad Vs. State wherein it has been held that:
"Conviction of the offender in rape case is based on sole testimony of rape victim may be a child provided if it SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 14 of 21 inspires confidence of the court."
30. So far as the competency of a child to testify as a witness is concerned, the court in India have relied on the proposition formulated by Justice Brewer in Wheeler Vs. United States 159 US 523 (1895) who had opined that the evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon..........
31. The reservation expressed with regard to evaluating the testimony of a witness is based on apprehensions that children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. (Ref: Panchi Vs. State of U.P. MANU/SC/0530/1998: 1998 Cri. L. J 4044).
32. It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from other dependable evidence. (Ref: Dattu Ramrao Sakhare & Ors. Vs. State of Maharashtra MANU/SC/1185/1997: (1997) 5 SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 15 of 21 SCC 341 : Suryanarayana Vs. State of Karnataka MANU/SC/0001/2001 :
2001 Cri. L.J.705).
33. The prosecutrix is a minor girl of 7 years. A minor child cannot be expected to memorize the exact minute details like date, month and year of the incident. In her statement she had deposed that the incident had occurred one year back. Human Memory is fallible and fades away by the passage of time. The non mentioning of the exact date does not go to the root of her statement to make her statement unbelievable. Similarly, the minor exaggeration in her statement that the accused has intimidated her on the point of knife also does not shake the veracity of her statement which remain consistent throughout so far as the identity of the accused persons and committing of rape upon her is concerned. Seeing the tender age of the prosecutrix the court is not inclined to be swayed away by the minute exaggerations or omissions.
Hence, the minor omissions in the statement of the prosecutrix when she failed to talk about the knife in the earlier statement, does not make her statement untrustworthy on the material points of identity of accused and rape committed by him forcefully.
34. Identification of the accused : The prosecutrix, her mother as well as her grandmother have collectively deposed that all the three accused persons were known to the prosecutrix as well as to them as they used to roam in the same locality and were in the same profession as that of the maternal grandfather of the prosecutrix. The FIR was lodged SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 16 of 21 by the prosecutrix by name and as such there was no need for TIP. Arguments by the counsel for accused that no TIP was conducted, is of no substance when accused are already known to the victim. The prosecutrix has named the accused in her statement before the magistrate, before the police, before the court and has also identified the accused Bhavesh in the court hence, the identity of the accused is established beyond doubt.
35. Medical Evidence : The testimony of the prosecutrix is also corroborated and supported by the medical evidence on record. The MLC of the prosecutrix is proved by the concerned doctor. In the MLC hymen of the prosecutrix was found torn and blood stains were seen over labia which goes to corroborate statement of the prosecutrix on the point of rape being committed upon her and also corroborate her statement that after rape was committed she was bleeding from her private part. On the similar lines, grandmother of the prosecutrix PW7 has deposed that when prosecutrix returned home, she was bleeding from her private part. The prosecutrix has named the accused to be person who committed rape with her. Moreover, the DNA report has been proved by PW14 and as per the report it is reported that "The DNA fingerprint test performed on the exhibits is sufficient to conclude that source of exhibit '5' ( Blood in gauze of Bhavesh @ Sameer), exhibit '4' (Blood in gauze of Shakeel @ Sakir) and source of exhibit '6' (Blood in gauze of Manan @ Manna) cannot be excluded for being responsible for biological stains i.e. seminal SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 17 of 21 stains present on the source of exhibit '1' (underwear of prosecutrix), exhibit '2a' (vaginal smear of prosecutrix), exhibit '2b' (vaginal smear of prosecutrix), exhibit '2c' (vaginal smear of prosecutrix), exhibit '3a' (underwear) & '3b' (banain)."
Hence, it is clear from DNA report that seminal stains found on the undergarments and vaginal smear of the prosecutrix matched with accused Bhavesh also. The DNA report along with consistent testimony of prosecutrix finally and conclusively prove the factum of rape by the accused Bhavesh upon the prosecutrix. The DNA report matched with the other two accused who are juveniles and sent to Children Court. Though, the prosecutrix has not stated that the other two accused, who were present at the time when accused Bhavesh was committing rape with the prosecutrix, have also committed rape with her but DNA result clearly shows that they have also committed rape upon her. One cannot loose sight of the fact that the prosecutrix is minor girl of 7 years and she was taken on the shoulders from her jhuggi at about 2 am in the night when she was in sleep. She was taken to a jungle. May be due to sleep or trauma she could not notice that the other two accused persons had also committed rape with her, otherwise there was no reason for them to run away from the spot hearing the cries of prosecutrix after Bhavesh had committed rape upon the prosecutrix after tying her mouth without satisfying their lust, and that to at the spot where there was no one else except the prosecutrix aged 7 years and the place is a jungle and lonely SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 18 of 21 place and the time was of around 2 am in the night. Further, the DNA report conclusively proves the presence and involvement of all the three accused in committing rape upon the prosecutrix. The presence of all the three accused on the spot, their staying back at the spot when the prosecutrix was raped, their running away collectively after committing rape giving threat to her collectively and DNA report clearly prove that accused Bhavesh along with two other accused Manan @ Manna and Sakir @ Sakil ( sent to JJB) in furtherance of their common intention has committed gang rape upon the prosecutrix.
36. Offence of Kidnapping, Abduction and Criminal intimidation under section 363/366/506 IPC: Section 363 of IPC defines that : whoever kidnaps any person from or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The essential ingredients of section 366 of IPC are :
(a) A person kidnaps or abducts any woman.
(b) The act is done
(i) with intent that she may be compelled to marry any person against her will, or
(ii) knowing it to be likely that she will be so compelled, or
(iii) in order that she may be forced or seduced to illicit intercourse, or SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 19 of 21
(iv) knowing it to be likely that she will be so forced or seduced.
Section 506 IPC defines that: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
If threat be to cause death or grievous hurt, etc. And if the threat be to cause death of grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
From the statement of the prosecutrix that when she was sleeping in the night in her Jhuggi, accused Bhavesh @ Sameer had taken her to Jungle after lifting her on his shoulder and in the jungle she was raped by accused Bhavesh @ Sameer in the presence of coaccused persons. From this statement it is proved that the accused had kidnapped prosecutrix from lawful guardianship of her parents so that she may be forced or seduced to illicit intercourse. From the statement of the prosecutrix that accused Bhavesh @ Sameer and other accused had also intimidated her to kill in case she disclosed about the incident to anyone also proves the ingredients of offence of criminal intimidation against the SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 20 of 21 accused.
37. Defence of accused: Accused has stated that he and maternal grandfather of prosecutrix are doing the work of collection of garbage and some dispute arose between them on account of apportionment of the proceeds as he was demanding a higher share for himself which was refused by him whereupon he and his sons started started quarreling with him. The said incident has happened on 03.04.2010 and on the next day the police came and apprehended him in this case from his house. To prove this defence the accused has not produced any witness. Hence, the defence is not proved. Moreover, the defence of the accused is not believable in view of the convincing testimony of the prosecutrix which is duly supported by the medical evidence as well as by the DNA report.
38. In view of the above said discussion, prosecution has been fully able to prove its case against the accused Bhavesh @ Sameer and therefore, accused Bhavesh @ Sameer is held guilty and convicted for the offence under Section 363/366/376(2)(g)/506 r.w. Section 34 IPC. ANNOUNCED IN THE OPEN COURT ON 09.07.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 154/10 State Vs Bhavesh @ Sameer etc. Page No. 21 of 21