Rajasthan High Court - Jaipur
Harish Tolani vs State Of Rajasthan on 20 July, 2001
JUDGMENT S.K. Sharma, J.
1. The appellants were indicted before the learned Sessions Judge Ajmer in Sessions Case No. 110/92. They were found guilty, convicted and sentenced vide judgment dated May 18, 1998-as under -
1. Parvej Ansari U/Sec. 120-B IPC 10 Years RI and fine of Rs.5000/- (in default to further undergo two years Rl) 376/120-B 1PC Imprisonment for life and fine of Rs.1000/-
292/120-B IPC Two Years Rl and fine of Rs.500/- (in default to further undergo Ihree months Rl)
2. Moijullah @ Puttan U/s 120-B IPC 10 Years Rl and fine of Rs. 5000/- (in default to further undergo two years Rl) 376/120-B IPC Imprisonment for life and fine of Rs.1000/-
292/120-B IPC Two Years Rl and fine of Rs.5000/- (in default to further undergo three months Rl) 376 IPC Imprisonment for life & fine of Rs. 1000/-
3. Israt Ali U/s 120-B IPC 10 Years Rl and fine of Rs. 5000/-(in default to further undergo two years RI) 376/120-B IPC Imprisonment for life and fine of Rs. 1000/-
292/120-B IPC Two Years RI and fine of Rs. 500/- (in default to further undergo three months RI)
4. Mahesh Ludhani 376 IPC.
Imprisonment for life and fine of Rs. 1000/-
U/s 120-B IPC 10 Years RI and fine of Rs. 5000/- (in default to further undergo two years Rl) 376/120-B IPC Imprisonment for life and fine of Rs.1000/-
292/120-B IPC Two Years RI and fine of Rs. 500/- (in default to further undergo three months Rl'
5. Kailash Soni U/s 120-B IPC 10 Years RI and fine of Rs. 5000/- (in default to further undergo two years RI) 376/120-B IPC Imprisonment for life and fine of Rs. 1000/-
292/120-B IPC Two Years Rl and fine of Rs. 500/- (in default to further undergo three months Rl)
6. Sayed Anwar Chisti U/s 120-B IPC 10 Years Ri and fine of Rs. 5000/- (in default to further undergo two years RI) 376/120-B IPC 292/120-B IPC Imprisonment for life and fine of Rs. 1000/-Two Years RI and fine of Rs. 500/- (in defaull to further undergo three months RI)
7. Harish Tolani U/s 120-B IPC 10 Years RI and fine of Rs. 5000/- (in default to further undergo two years RI) 376/120-B IPC Imprisonment for life and fine of Rs. 1000/-
292/120-B IPC Two Years RI and fine of Rs. 500/- (in default to further undergo three months RI)
8. Sharnsuddin @ Maradona U/s 120-B IPC 10 Years RI and fine of Rs. 5000/- (in defaull to further undergo two years RI) 376/120-B IPC Imprisonment for life and fine of Rs. 1 .OOO/-
292/120-B IPC Two Years RI and fine of Rs. 500/- (in default to further undergo three months RI) All the sentences were directed to run concurrently. The aforequoted judgment of conviction has been assailed by the appellants in the instant appeals.
2. The short facts leading to the conviction need narration. Hari Prasad Sharma (Dy. S.P. (North) Ajmer (PW.9.) conducted a secret enquiry in regard to sexual exploitation of girls by certain persons in Ajmer. At the conclusion of enquiry a report (Ex.P.6) was submitted to S.P. Ajmer on May 30, 1992. This report came lobe lodged as FIR No. 107/1992 at Police Station Ganj Ajmer wherein Nasim @ Tarjen, Parvej, Kailash Soni, Sohil, Moijullah @ Puttan, Ishrat, Harish and Puroshottlam @ Babli were named as accused. The investigation of the case was subsequently transferred to C.I.D. (C.B.). In the course of investigation various nude photographs were recovered and accused were arrested. After completion of the investigation as many as four charge sheets were filed in. the court of the Chief Judicial Magistrate Ajmer. All the cases were consolidated in Sessions Case No. 40/92 and tried by learned Sessions Judge Ajmer. Charges under sections 120-B, 376/120-B, 292, 292/120-B, 509/120-B and 376 IPC were framed against the appellants who denied charges and claimed trial. The case of the prosecution set out in the charge sheets was that the accused were guilty of rape and criminal conspiracy to get girls into their net on various false pretensions and promises. Their modus operand! was that the girls subsequent to being sexually abused would be photographed in compromising position to facilitate their continual exploitation both physically and mentally. The prosecution examined as many as 148 witnesses, articlised 20 items and exhibited 175 documents. Thereafter explanation of the appellants under Section 313 Cr.P.C. was recor-ded. The appellants denied the allegations and pleaded innocence. Four witnesses were examined by appellant Syed Anwar Chisti in defence. The learned trial Judge after hearing the final submissions convicted and sentenced the appellants as indicated hereinabove.
3. We have given our anxious consideration to the submissions advanced before us by the learned counsel for the appellants and the learned Government Advocate appearing for the Slate of Rajasthan and scanned the bulky record.
4. We now proceed to analyse the testimony of the girls who according to prosecution were sexually abused, photographed and black mailed to Facilitate their continual exploitation.
5. Sangeeta (PW.15) in her deposition slated that while she was studying in twelth in Savitri School she was introduced with Nafees and Farookh. They took her to Farm House where Anwar and Ishrat were present Nafees pushed her in a room and committed rape with her, Though Sangeela deposed that she visited Farm House two or three limes but she categorically stated that she was raped once by Nafees only. She did not say that she was ever photographed by any one. Request of the Public Prosecutor to declare her hostile was declined by the learned trial Court.
6. Renu Tak (PW.16) did not support the prosecution story and she was declared hostile.
7. Madhu Bala (PW.17) deposed that she was introduced with Nafees. Anwar, Saleem, Farookh and Ishrat by Sangeeta. She alongwith Sangeeta and Chhavi Dhaka had gone to Poultry Farm of Saleem in a Maruti Van which was driven by Maradona. Salim and Anwar were also sitting in the Van. Nafees, Israt and Farookh also came over there Nafees asked Israt to show her the Farm House. She accompanied Israt who sat under a tree and became emotional and started reciting poems. Thereafter they ate food and she came back. After about four days she again went there and Israt took her to a room and used forced with her. Thereafter Israt persuaded her to go with him but she declined. Israt then threatened her and she had to go with him to the house of Farookh where Nafees committed rape with her. After some time Farookh also raped her. They raped her many a times. Puttan and Sohel Gani also raped her and photographed her. They black mailed her and did not return her photographs. She told about this incident to Sangeeta also. She identified Farookh, Israt, Maradona and Puttan in the court and refused to identify other appellants. She was shown Photo Article 5 in the Court. She could identify her photograph but could not recognise as to who was with her in the photo.
8. Pushpa Sant (PW.18) did not support the prosecution story and was declared hostile.
9. Pushpa Sindhi (PW.23) categorically stated that she was never photographed with Parvej and Kailash Soni in naked position. Photographs Articles 1 to 4 were shown to her but she stated that they were not her photographs. She was declared hostile.
10. Reshama (PW.25) also pleaded ignorance about the incident. During investigation she refused to be medically examined. She was declared hostile. Maya (PW.33) did not support the prosecution case and was also declared hostile.
11. Archna Chaudhri (PW.34) deposed that Farookh took her to a room and pressed her breasts when he made attempt to undress her she started weeping and Farookh left her to her house.
12. Rakhi (PW.36) Ranu (PW.37) and Neena PW.40) did not support the prose-.cution case and were declared hostile.
13. Monika Jain (PW.43) in her deposition stated that she attended a party in a house at Fie Sagar Road along with Sangeeta, Archna and Poonam. Sangeeta told her that the house belonged to Farookh. After sometime Anwar,Farookh and Nafees came over there. Shamshu @ Maradona was also there. When Israt arrived, lunch was arranged by Maradona. On that day she was there from 10 A.M. till 4 P.M. Maradona dropped them in Maruti Van outside Savitri School. She alongwith other three girls again went to that house and ate lunch with Farookh, Israt, Anwar and Nafees. She agreed to have a friendship with Anwar. After about fifteen days she alongwith Sangeeta, Archna and Poonam visited Poultry Farm of Salim in a Maruti Van driven by Maradona. Leaving her and Anwar in the room Poonam went out with Israt. Farookh took Archna with him and Sangeeta sat with Nafees in a corridor out side the room. Anwar caught hold of her hand and made attempt to kiss her and touched her clothes. She became frightened and asked Anwar that she wanted to go to her home. Thereafter Maradona dropped all the girls out side the school in Maruli Van. This witness identified Israt, Shamshu, Farookh and Anwar in the trial Court.
14. Sunita Sharma (PW.44) did not support the prosecution case and was declared hostile.
15. Chhavi Dhaka (PW.53) deposed that Sangeeta took her in a Maruti Van to a Farm near Hatundi. In the Van Anwar was also present. She identified Anwar in the trial Court. In the Farm House Anwar put a proposal of friendship before tier to which she gave consent and thereafter she came back.
16. Instead of discussing the statements of all the 148 witnesses produced by the prosecution we deem il appropriate to refer the allegations levelled against the individual appellant and the material on which reliance was placed by the learned trial judge in the impugned judgment of conviction.
17. Learned trial court acquitted appellants Parvej and Kailash Soni from the charge under Section 376 1PC. The allegation against appellants Parvej and Kailash Soni was that they committed rape with Pushpa Sindhi (PW.23). The prosecution examined Pushpa Sindhi and exhibited four photographs Articles 1 to 4. Site plan where Pushpa was allegedly raped was also exhibited as Ex. 38. Recovery memo of one quilt, empty packets of reel, one packet of condoms and a diary was also exhibited as Ex.P.66. Hari Prasad (PW.9) in his deposition stated that Article 1 was the nude photograph of Pushpa Sindhi. About Articles 2 to 4 he deposed that Article 2 was the photograph of Pushpa Sindhi, Parvej and Kailash Soni and Articles 3 and 4 were the photographs of Tarjen with Pardesi and Pushpa Sindhi with Kailash Soni. But Pushpa Sindhi (PW.23) stated that Articles 1,2 and 4 were not her photographs. Parvej and Kailash Soni never raped her and Police did not recover any thing at her instance. She was never photographed with Parvej and Kailash Soni. Parvej and Kailash Soni in their statements under Section 313 Cr.P.C. stated that Articles 2 and 4 were hot their photographs.
Placing reliance on the testimony of police officials Hari Prasad (PW.9) M.N. Dhavan (PW.126), N.K. Patni (PW.148) and press reporter of a daily News paper Santosh Gupta (PW.47) and ignoring the evidence of Pushpa Sindhi (PW.23), the learned trial judge observed that Articles 1, 2 and 4 were obscene photographs of Pushpa Sindhi, Kailash Soni and Parvej and they were guilty of committing offences under Sections 120-B, 376/120-B and 292/120-B of the Indian Penal Code. We are unable to agree with these findings arrived at by the learned trial Judge, it was Pushpa Sindhi (PW.23) alone who could have established the guilt against the appellants Parvej and Kailash Soni and when she categorically stated that she was neither raped nor photographed with Parvej and Kailash Soni and rejected photographs Articles 1,2 and 4 saying that they were not her photographs then how on the basis of the testimony of three police officers and one press reporter it could have been held that Articles 1,2, 'and 4 were the photographs of Pushpa Sindhi. She disowned even the recovery memo Ex.P.66 and Site Plan Ex. P.38. We are of the considered opinion that the prosecution has failed to prove the charges under Section 120-B, 376/120-B and 292/120-B 1PC against the appellants Parvej and Kailash Soni.
18. Appellants Mahesh Ludhani has also been acquitted by the learned trial judge from the charge under Section 376 1PC. He has been convicted under sections 120-B, 376/120-B and 292/120-B IPC. The allegation against Mahesh Ludhania was that he committed rape with Sangeeta (PW, 15). In her deposition Sangeeta stated that sher used to visit Bharosa Colour Lab to meet Mahesh who was her friend. She did not serve in the Lab but used to help in general work. Nothing unusual had happened with her in Bharosa Colour Lab. She never made any tour programme with Mahesh. She never had a talk with Mahesh regarding photographs. This witness did not'say that Mahesh ever raped her. She was not declared hostile. Her diary (Article 10) was seized vide Ex.P.26 by Janardan Sharma (PW.143) but the learned trial judge did not find it relevant for the purpose of charge under Section 376 IPC.
In regard to charge under Section 120-B IPC the testimony of Shail Bala Tayal (PW.41) and Manoj Tayal (PW.42) was considered by the learned trial court. Shail Bala Tayal is the wife of Manoj Tayal. In their depositions they slated that they handed over the negatives of nude and Compress photographs of Shall Bala for making the prints to Mahesh Ludhani at Bharosa Colour Lab and it was Mahesh Ludhani who handed them back the negatives and prints.
Satya Narain Soni (PW.129) exhibited memo ExP.89 drawn at the time of search of Bharosa Colour Lab. Mahesh put his signatures on Ihe memo. Sunita (PW.44) who was declared hostile, identified Mahesh and deposed that she knew him because he used to visit J.P. Tourist Village Resort, Mohan Singh Madhur (PW.147) is the investigating officer, who arrested Mahesh. He stated that vide Ex. P.173 Mahesh had given information about the place where he had burnt photographs and on the basis of said information site plan Ex. P.62 was drawn. Mahesh put his signatures on the memos Ex. P.173 and Ex.P.62. In his statement recorded under Section 313 Cr.P.C. Mahesh stated that he was not the owner of Bharosa Colour Lab.
Co-accused Purushottam @ Babli was also arrested in the instant case but he committed suicide during trial; His father Jon Vaishly was examined by the prosecution as PW.31 but was declared hostile. Learned trial court placed reliance upon the aforequoted evidence and held that Mahesh Ludhani was guilty of criminal conspiracy, in sexually abusing the girls after photographing them in compromising position to facilitate their continual exploitation.
19. Appellant Harish Tolani was also charged under Section 120-B IPC. Against him the allegation was that he being an active partner of Ajmer Colour Lab got developed prints of obscene photographs in order to sexually abusing the girls to facilitate their continual exploitation. Ghanshyam Bhorani (PW.5) in his deposition slated that he, Kiran Kumar, Shanker, Tara Chand, Dev Kumar and Harish Tolani were the partners of Ajmer Colour Lab. Harish used to look after the cash and accounts and visit the Lab one or two hours in a day. Other work of the Lab was looked after by the technicians. Ashok Kumar (PW.6) who used to handle printing and developing work of the Lab, deposed that all the partners used to look after the Lab. Raju (PW.7) Uttam Kumar (PW.11), Shyam Kumar (PW.26), Pradeep Punjabi (PW.27) and Kiran Kumar (PW.29) did not support the prosecution story and deposed that all the partners used to sit at Ajmer Colour Lab. Janardan Sharma (PW. 143) who Investigated the case staled that Harish informed him that he burnt the photographs prepared at Ajmer Colour Lab. This information was drawn on a memo Ex, P.160 and Harish put his signatures. On the basis of the information site plan Ex. P.3 was drawn. Devendra Jain (PW.3) and John Vaishly (PW.31) were declared hostile. On the basis of the testimony of the hostile witnesses an inference was drawn by the learned trial judge that there was a dispute about photographs, it was held by the learned trial judge that Harish Tolani was a partner of Ajmer Colour Lab and he had knowledge that obscene photographs were printed and developed in his Lab.
20. Learned trial judge found appellants Mahesh Ludhani and Harish Tolani guilty of offences under Sections 120-B, 376/120-B and 292/120-B of the Indian Penal Code. We have therefore to adjudge as to whether the prosecution is able to prove the charge of criminal conspiracy on the basis of the^evidence discussed hereinabove. To prove the charge of criminal conspiracy the onus lies on the prosecution to establish affirmatively that two or more persons had agreed to do or caused to be done, an illegal act. Section 10 of the Indian Evidence Act provides thus-
"Things said or done by conspirator in reference to common design, when there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of showing that any such person was a party to it."
Their Lordships of the Supreme Court in Sardar Sardul Singh Caveeshar v. State of Maharashtra, AIR 1965 SC 682 analysed the provisions contained in Section 10 of the Indian Evidence Act and made the following observations-
"...In short the Section can be analysed as follows -
(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy.
(2) If the said condition is fulfilled anything said, done or written by any one of them in reference to their common intention will be evidence against the other, (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them, (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it, (5) it can only be used against a co-conspirator and not in his favour."
From the above analyses of Section 10 of the Indian Evidence Act, it is evident that Section 10 will come into play only when the court is satisfied that there is reasonable ground to believe that two or more person have conspired together to commit an offence. In the instant case the prosecution has not produced any evidence of co-conspirator against the appellants Mahesh Ludhani and Harish Tolani. The evidence that relied upon in convicting them, according to learned trial judge is circumstantial evidence. In the foregoing paragraphs of this judgment we have already referred Ihe evidence that has been relied upon by the learned trial judge against the appellants Mahesh Ludhani and Harish Tolani. Having closely considered the entire material on record we are of the opinion that there do not exist reasonable grounds to believe that the appellants Mahesh Ludhani and Harish Tolani conspired with the other accused persons to sexually abused the girls after photographing them in compromising position to facilitate their continual exploitation.
There is absolutely no evidence on record that could suggest that appellants Mahesh Ludhani and Harish Tolani ever participated in the parties at Farm House, Poultry Farm and the House at Fie Sagar Road where Sangeeta (PW.15) and Madhu Bala (PW. 17) were allegedly raped by Nafees, Farookh, Puttan and Israt. The prosecution did not produce any evidence to establish that photographs Articles 1 to 5 were printed and developed in Ajmer Colour Lab and Bharosa Colour Lab. No obscene photograph was recovered by the investigating officer at the instance of the appellants Mahesh and Harish. We do not find the evidence of Tayal couple sufficient to convict appellant Mahesh. They did not say that appellant Mahesh ever made any attempt to blackmail them. Similarly testimony of investigating officers Hari Prasad and Janardan Sharma is not sufficient to prove the guilt of the appellants Mahesh and Harish. They did draw site plans of the places where the photographs were allegedly burnt by the ,AppelIants Mahesh and Harish. But even if we place reliance on this evidence it does not establish that Mahesh and Harish had conspired with the co- accused persons to sexually abuse the girls after photographing them in compromising position to facilitate their continual exploitation.
We are of the considered view that the prosecution has failed to establish the guilt against the appellants Mahesh Ludhani and Harish Tolani under Sections 120-B, 37G/120-B and 292/120-B of the Indian Penal Code beyond reasonable doubt and the conclusion of guilt arrived at by the learned trial judge in regard to appellants Mahesh Ludhani and Harish Tolani is erroneous and we are unable to uphold it.
21. That takes us to the appeals preferred by the appellants Moijullah @ Puttan, Israt Ali, Shamsuddin @ Maradona and Sayed Anwar Chisti. Learned trial judge convicled Maradona under sections J20-B, 376/120-B, 292 and 292/120-B of the Indian Penal Code. Anwar was found guilty under sections 120-B, 376/120-B and 292/120-B IPC whereas Puttan and Israt All were convicled under Sections 376, 120-B, 3767 120-B and 292/120-B IPC. We have already referred the testimony of Sangeeta (PW.15) and Madhu Bala (PW.I7). Sangeeta stated that when she was taken to the Farm House by Nafees and Farookh, she found Anwar and Israt there. Nafees then committed rape with her. In her deposition Madhu Bala stated that she, Sangeeta and Chhavi Dhaka had gone to Poultry Farm of Salecm in a Maruli Van driven by Maradona. Salim and Anwar were also sitting in the Van. She also found Israt, Farookh and Naffis at the Poultry Farm. There Israt became emotional and started reciting poems. After about four days she was again taken to Poultry Farm. Israt took her to a room and used force with her. Thereafter she was raped many a times by Nafees, Farookh, Puttan and Sohel Gani. She was photographed by Putlan and Sohel Gani. They black-mailed her and did not return her photographs. She. identified Maradona, Israt and Puttan in the Court. She identified herself in the photograph Article 5 but could not identify as to who was with her in the photograph. Monika Jain (PW.43) stated that she attended a party in a house of Farookh situated at Fie Sagar Road. Anwar, Farookh, Nafees, Maradona and Israt were also there. After sometime she again went there and had lunch with Farookh, Israt, Anwar and Nafees. Anwar put a proposal of friendship before her to which she agreed. She also went to Poultry Farm of Salim alongwith Sangeeta, Archna and Poonam in a Maruti Van driven by Meradona. Leaving her and Anwar alone in a room Isral took Poonam out, Farookh and Archna went together and Sangeeta went out with Nafees. Anwar caught hold of her and made attempt to kiss her and touched her clothes. Thereafter Maradona dropped her outside the school in Maruti Van. She identified Israt, Shamshu, Farookh and Anwar in the Court.
22. Learned counsel for the appellant Syed Anwar Chisti contended that there was no allegation against Anwar for committing offence under Section 376 IPC or abating the said offence by taking snaps. Hence his conviction with the aid of Section 120-B IPC is bad in law. It was also urged that the learned trial judge has committed illegality in not considering the defence evidence produced by Anwar in its true perspective. The defence has proved beyond all reasonable doubt that there were so many persons in Ajmer having the name of Anwar and even the father's name was identical. Therefore without conducting identification parade the appellant could not have been convicled and his identification before the learned trial judge could not have been relied upon. There is absolutely no evidence on the record which could establish that appellant Anwar had ever circulated obscene photographs. The appellant Anwar could not have been convicted for the offence of criminal conspiracy. The statements of witnesses Chhavi Dhaka, Monika.Jain, Sangeeta and Madhubala ought not to have been relied upon as they were not the truthful witnesses.
23. On behalf of the appellant Shamsuddin @ Maradona, it was argued by learned counsel that the prosecution has failed to prove the ingredients of Section 120-B, 292/120-B and 376/120-B IPC. The only allegation against Maradona was that he was a driver of Maruti Van and carried girls. There is absolutely no evidence to establish that Maradona ever abated the offence of circulation of obscene photographs or enter into criminal conspiracy with the other co-accused persons.
24. Learned counsel appearing for the appellant Moijullah Puttan canvassed that he was falsely implicated in the case on account of polilical animosity. There is no legal evidence which could establish that the appellant Puttan committed the offence of rape or abated the said offence or was ever involved in circulating the obscene photographs. In convicting the appellant Puttan the learned trial judge swayed by personal thoughts and senliments. there is no evidence on record which could suggest that appellant Puttan was ever involved in blackmailing the girls after using their obscene photographs. Girls evidence do not say that sexual intercourse was committed against their will or by using force. The prosecutrix Madhubala (PW.7) was not a truthful witness. It is evident that Madhubala had accompanied the accused persons on her own without being used any force or pressure she was a consenting party and no offence under Section 376 or 376/120-B,292/120-B IPC is made out against the appellant Puttan. No proseculrix ever lodged the report against him and the case was initiated on the basis of FIR lodged by Hari Prasad, who was a police officer. The charges were not properly framed against accused appellant Puttan. No identification parade was ever held and oh the basis of identification in the court the appellant Puttan was convicted.
25. It was urged on behalf of appellant Israt All that from the statements of Madhubala and Sangeeta, ingredients of offence of rape were not established. It was incumbent upon the prosecution to prove that sexual intercourse was committed with the girls by force. Simply by saying that force was used with the girls or rape was committed with them, the offence of Section 376 IPC is not established. It was further urged that the report lodged by Hari Prasad Sharma, Dy. S.P. (North) Ajmer was a delayed report and it could not have been considered as first information. The report was also sent to the llaka Magistrate after inordinatre delay and Police Station Ganj had no jurisdiction to register the case and investigate the matter as the offence has never taken place within the jurisdiction of the said police station, It was further contended that the testimony of Madhu Bala PW.17 was not trust worthy and her testimony was not corroborated by any independent or legal evidence. The prosecution failed to establish that the girls were black mailed or put under undue influence. Offence of criminal conspiracy was not proved by the legal evidence. The findings of the learned trial judge was based on surmises and conjectures. The evidence of police official is not admissible and is hit by Section 6 of the Evidence Act. No objectionable photographs were ever recovered at the instance of appellant Israt AH.
26. In respect of identification of'the accused in court the learned counsel placed reliance on Jaspal Singh @ Pali etc. v. State of Punjab, 1996 (4) Crimes 74 (SC), wherein their Lordships of the Supreme Court indicated that identification in court cannot be accepted as reliable identification.
27. In Vijayan Rajan v. State of Kerala, AIR 1999 SC 1086 photograph of the accused was published in all local News Papers. It was also shown to witnesses before test identification parade. Under those circumstances it was held that the evidence of test identification parade was not reliable and subsequent identification of the accused in court by the witnesses after many years could not have been relied upon.
28. In State of H.P. v. Lekhraj and another, (2000) 1 SCC 247, it was propounded by their Lordships of the Supreme Court that where identity of the accused was not established during the identification and the accused was not subjected to test identification, the identification of the accused for the first time at the trial is a weak evidence.
29. Coming to the facts of instant cases, it may be noticed that the appellants Israt, Puttan, Anwar and Maradona were not the strangers. They were very well known to the girls. Not only one but too many girls, namely, Sangeeta (PW.15), Madhubala (PW. 17), Monika Jain (PW.43) and Chhavi Dhaka (PW.53), had identified them. Their identity was established even during the investigation and it was not necessary to subject them to test identification. Their identification for the first time at the trial by the girl witnesses, under these circumstances cannot be treated as weak evidence. The ratio of facts of the cases cited by the learned counsel distinguishable and in our view no benefit can be granted to the accused appellants Israt, Puttan, Maradona and Anwar on this ground.
30. The learned counsel for the accused also contended that the statement made by a woman immediately after she had been ravished does not form part of res gestae and is inadmissible in evidence under Section 6 of Indian Evidence Act. A mere narrative of past cannot explain an act. Reliance was placed on Kappinaih and Another v. Emperor, AIR 1931 Madras 233 and Mohammed Afzal v. The Crown, AIR (37) 1950 Lahore 151. We have carefully gone through the facts of these cases and we are of the opinion that the ratio indicated in these cases is not applicable to the facts and circumstances of the cases on hand. In the instant cases the first information report was lodged by Hari Prasad Sharma Dy.S.P. (North) Ajmer (PW.9) after conducting a secret enquiry in regard to sexual exploitation of girls and at the conclusion of the enquiry the appellants were indicted. The prosecution examined school going girls Sangeeta (PW.15), Rcnu Tak (PW.16), Madhu Bala (PW. 17), Archna Chaudhary (PW. 34), Rakhi (PW.36), Monika Jain (PW.43) and Chhavi Dhaka (PW.53). Their testimony can not be held as inadmissible in evidence under Section 6 of the Indian Evidence Act. It is established from the material on record that Nafees, Farookh, Israt, Sohel Gani, Puttan, Anwar and Maradona were the members of a gang that got the school going girls into its net on various false pretensions and promises. The modus operandi of the gang was that the girls subsequent to being sexually abused would be photographed in compromising position to facilitate their continual exploitation both physically and mentally. Madhu Bala categorically stated the she was raped and Photographed by Puttan and Sohel Gani. She was raped many a limes by Nafees and Farookh. It appears from the statements of Sangeeta, Madhu Sala, Monika Jain, Chhavi Dhaka, Archna Chaudhary and Renu Tak, that they could not dare to lodge complaint because of fear of accused persons. We cannot hold the girls as consenting parties to the offence looking to the modus operandi of the accused persons in getting the school going girls in their net. We find the statements of Sangeeta, Madhu Bala, Monika Jain, Chhavi Dhaka, Archna Chaudhary and Renu Tak trustworthy. We do not see any compelling reason that necessitates to look for corroboration for their statements. We find no difficulty to act on the aforequoled testimony of the victims of sexual assault. In our considered view their testimony inspires confidence and is found to be reliable.
Their Lordships of the Supreme Court in Stale of Punjab v. Gurmit Singh, 1996 Cr.L.R. (SC) 86 propounded thus-
"...The trial court overlooked that a girl, in a tradition bound non-permissive society in India,.would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity has occurred being conscious of the danger of being ostracized by the society or being looked down by the society .... In the normal course of human conduct, unmarried girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame, and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy..... The Courts must while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour'such as is involved in the commission of rape on her..... The inherent bashful-ness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook, the testimony of the victim in such cases in vital and unless there are compelling reasons which necessitate looking for corroboralion of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and found to be reliable."
31. Another submission canvassed on behalf of appellants Anwar and Maradona was that charge under Section 376 1PC was not found proved against them by the learned trial judge and from the evidence adduced against them by the prosecution they can not be held guilty for abating the offence of rape and circulating the obscene photographs. We are not impressed by this argument. The Legislature in order to vigorously handle the offence of gang rape, incorporated Explanation 1 to Clause (9) of Sub-section (2) of Section 376 IPC. The Explanation reads as under-
"Whdre a woman is raped by one or more in a group of person acting in furtherance of their common intention each of the persons shall be deemed to have committed gang rape wilhin the meaning of this sub-section."
32. Their Lordships of the Supreme Court in Promod Mehto v. State of Bihar, AIR 1989 SC 1475 had occasion to consider the aforequoted Explanation. It was held in para 10 that-
"This Explanation has been introduced by the Legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should ad-duce clinching proof of a completed proof of rape by each one of the accused on the victim or on each one of the victims where there are more man one in order to find the accused guilty of gang rape and convict Ihem under Section 376 IPC."
As already stated Sangeeta and Madhu Bala were raped by Nafees, Farookh, Israt, Pultan and Sohail Gani. Both these girls at the time of committing the offence were studying in the school and they knew the meaning of word 'rape'. In our considered opinion it was not required for them to establish in actual words as to how they were ravished by the accused. As and when Sangeeta and Madhu Bala were raped by the above named accused persons, Anwar and Maradona were present and they were the members of the gang which conspired to get the school going girls in its net on various false pretensions and promises. From the statements of Sangeeta and Madhu Bala the prosecution has established the modus operandi of the gang which was formed to photograph the girls in compromising position after sexually abused Ihem in order to facilitate their continual exploitation. Madhu Bala identified herself in the photograph Article 5, though she could not recognise as to who was me person with her in the photograph yet in her deposition she stated that she was raped and photographed by Puttan and Sohail Gani. Thus the prosecution, has established the charge against appellants Israt, Puttan, Maradona and Anwar under Section 376/120-B of the Indian Penal Code beyond reasonable doubt. Charge simplicilor under Section 376 IPC has also been proved against the appellants Israt and Puttan. In view of Explanation I to Clause (g) of Sub-section (2) of Section 376 IPC appellants Anwar and Maradona were also guilty of offence under Section 376 IPC but as the learned trial judge acquitted them from this charge and the Slate has not assailed this finding, we can not hold them liable under this charge. As appellants Israt, Puttan, Maradona and Anwar were found guilty under Sections 3767 120-B IPC for having abated the offence of rape it was not necessary to convict them under Section 120-B IPC independenlly. In so far as charge under Section 292 and 292/120-B IPC is concerned, we are of the view mat it was necessary for the prosecution to establish that the cassette allegedly recovered at the instance of appellant Maradona was held for the purpose of sailing or letting on hire or for distributing or publically exhibiting or for putting the same in the circulation. Having closely scanned the material on record we are of the view that the ingredients of the offence of Section 292 IPC could not have been established by the prosecution. Even the cassette was not produced before the learned trial court.
33. It was lastly urged on behalf of appellants Israt, Pultan, Anwar and Maradona that there was no compelling reason for the .learned trial judge to have awarded the maximum sentence of imprisonment for life instead of awarding them the minimum sentence which is by itself adequately rigorous viz. RI for ten years. Having given the matter our due consideration we are not inclined to modify the sentence imposed on them under seclions 376 and 376/120-B IPC because of the leading role played by them in the commission of the offences with too many school going innocent girls.
34. In view of what we have discussed hereinabove, we allow the appeals of appellants Parvej Ansari, Kailash Soni, Mahesh Ludhiyani and Harish Tolani. Their conviction under Sections 120-B, 376/120-B and 292/120-B IPC shall stand set aside and they are acquitted of the said charges. They shall be set at liberty forthwith if not required in any other case.
We confirm the impugned judgment of the learned Sessions Judge Ajmer in so far it relates to the conviction and sentence of appellants Moijullah @ Putlan and fsrat Ali under Section 376 and 376/120-B IPC. The conviction and sentences awarded to appellants Sayed Anwar Chisti and Shamsuddin @ Maradona under Section 376/120-B IPC shall also stand confirmed.
However, conviction and sentences awarded to appellants Moijullah @ Pultan, Israt Ali, Saiyed Anwar Chisti and Shamsuddin @ Maradona under Sections 120-B IPC simplicitor and 292/120-B IPC and 292 IPC (simplicitor to Shamsuddin @ Maradona) stand set aside and they are acquitted from the said charges.
All the seven appeals stand disposed of as indicated above.