Delhi District Court
State vs Ravi @ Bhonda Etc. Sc No. 85/2010 1/32 on 5 March, 2012
ID No.02403R0366492009
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 85/2010
Unique ID No.02403R0366492009
FIR No. 280/09
PS : Badarpur
U/s. 376 (2) (g)
392/394/411/34 IPC
State
Versus
Ravi @ Bhonda ,
s/o Sh. Sh. Vijay Kumar ,
r/o A217, Tajpur Pahari, Budh
Vihar , New Delhi ..........accused no. 1
Sunil @ Nata
s/o Sh. Ram Prakash
r/o B29 Tajpur Pahari, Budh
Vihar, Badarpur, New Delhi ..........accused no. 2
Instituted on : 01.12.2009
Arguments concluded on : 28.02.2012
Announced on :29.02.2012
J U D G M E N T
Rape is the most hated crime. It is a crime not only against the victim but against the entire society. Accused persons in this case were prosecuted for the commission of offence punishable u/s 376 (2) (g)/392/394/411/34 Indian Penal Code. Briefly stated the case of the prosecution, as unfolded during trial is that at 05:15am, on 06.08.2009 an information was received regarding attempt of a rape upon a girl by three boys. This information was reduced into writing State Vs Ravi @ Bhonda etc. SC No. 85/2010 1/32 ID No.02403R0366492009 vide DD no. 9A at PS Badarpur. On receipt of information, SI Harbeer reached at 60 foot road, Tajpur village to inquire into the matter but no one was found there. On the same day, W/HC Suman received information from Jaiveer from telephone number 9212836819 that "Radhey Kabadi wali gali, Tajpur Pahari main road, Badarpur, Kal 9 pm ke karib meri sister ko char paanch ladko ne utha liya tha, jinka pata lag gaya hai " which was recorded as DD no. 16A whereupon, HC Ram Raj along with HC Harender went to the spot at Budh Bazar, Tajpur Pahari, Badarpur. They did not find any person at the spot and therefore, returned to the Police Station. At about 05:00pm, prosecutrix along with her brother Jaiveer came to the Police Station and got recorded her statement. In her complaint, prosecutrix stated that on 05.08.2009 on the day of rakshabandhan, she along with her son Raunak had come to the house of his brother Jaiveer at E514, Tajpur Pahari. At about 08:00pm, she had gone to the Badarpur market for buying medicine for her son, who was suffering from fever. She left her son behind with her sister in law (Bhabhi). At about 10:00pm, when she was coming back to her house, suddenly, three boys started teasing her . They touched her and snatched her mobile. She slapped one of the boys. All the three boys caught hold of her tightly. She tried to make noise. Her face was pressed and they started dragging her. They snatched her three gold rings from her fingers, gold chain and ear ring and kept in their pocket. By dragging her, they took her to 'Khan' and forcibly caught hold of her hands and legs and forcibly poured liquor in her mouth. Thereafter, they started removing her clothes. They torn the string of her green colour paijama and red colour panty. Prosecutrix stated that one boy was being called by other two persons in the name of Ravi @ Bhonda , by opening his pant and undergarment, lying above her. Other two boys who were being called as Sunil and Sonu. Sunil caught hold of her hands and Sonu caught hold of her legs and Ravi forcibly established physical relation with her. Thereafter, Sunil put off her pant and shirt and Ravi and Sonu caught hold of her legs and hands and Sunil made physical relation with her . In the end, Sonu made physical relation with her. Prosecutrix stated State Vs Ravi @ Bhonda etc. SC No. 85/2010 2/32 ID No.02403R0366492009 that she cried and screamed but they did not to listen her. They were pinching her like animal. Prosecutrix further narrated that sometimes, they kissed on her cheek, sometime pressed her chest and sometimes pressed her lips by their lips. After all the three had committed physical relations with her, they left the place . Prosecutrix stated that she was crying and feeling giddiness. Her clothes were torn and she was not able to understand where to go. Prosecutrix stated that after about one or one and half hour, all the three boys again came back there and threatened her that if she disclosed about the incident to anybody, then they would kill her and started hitting her. Thereafter, they forcibly picked her up from the 'khan' and left her at an unknown place. After some time she got up and reached at her house . All the members of her family were perplexed. After some time, she narrated incident to them. She took bath and washed her clothes. She and her family members were not able to understand what to do. In the morning at about 09:00am , prosecutrix along with her mother went out and saw one of accused Sunil in a shop in the gali . Prosecutrix caught hold of him and asked him that what he did last night with her, accused slapped her and ran away. Her brother informed the police. She along with her brother and mother came to the Police station. In the compliant, prosecutrix stated that she could identify those boys, if shown to her . On her statement, SI Kusum Dangi made endorsement and FIR No. 280/09 u/s 376 (2) (g)/394/506 IPC, PS Badarpur was registered on 05.08.2009 at 20.35 hrs. Prosecutrix was sent for medical examination at AIIMS Hospital. Accused were arrested. They were got medically examined. Exhibits i.e. clothes and samples were collected, sealed and seized by the IO from the hospital. IO recorded the disclosure statement of the accused and prepared site plan at the instance of prosecutrix. At the instance of accused Ravi @ Bhonda, mobile phone belonging to prosecutrix and Rs. 600/ snatched from the prosecutrix were got recovered, seized and sealed with the seal of RD. Statement of prosecutrix, u/s 164 Cr P. C was got recorded from Ld. Metropolitan Magistrate on 11.08.2009. Steps were taken for conducting TIP of accused. They refused to participate in the TIP. Exhibits were sent to FSL Rohini for seeking State Vs Ravi @ Bhonda etc. SC No. 85/2010 3/32 ID No.02403R0366492009 expert opinion on 22.09.2009. Statement of witnesses u/s 161 Cr. P. C recorded. On completion of investigation, charge sheet against three accused was filed in the Court. Case was committed to the court of Sessions for 01.12.2009 by Learned Metropolitan Magistrate . Charges u/s 376(2) (g)/392/394/411/34 IPC were served to the accused persons on 02.02.2010, to which accused persons pleaded not guilty and claimed trial. Initially, charge sheet was filed against these two accused as well as third accused Sonu. An application u/s 7 of Juvenile Justice Act was filed on behalf of accused Sonu . Vide order dated 23.07.2010, Ld. Predecessor of this Court found the accused Sonu was less than 18 years of age on the date of occurrence , therefore, accused Sonu was ordered to be produced before Juvenile Justice Board. Other two accused Ravi @ Bhonda and Sunil @ Nata faced trial in this Court.
2. Points which emerge for determination in this case are :
(i) Whether on 05.08.2009 at about 10:00pm, at Taj pur Pahari, accused persons committed gang rape upon the prosecutrix ?
(ii) Whether accused persons robbed one mobile phone , three gold rings, chain, ear rings and money from prosecutrix and caused hurt to her?
3. To prove charges against the accused persons, prosecution examined 20 witnesses. In nut shell, evidence adduced by these witnesses is as under:
Medical Evidence 3.1 Dr. Sudipta Ranjan Singh (PW1) conducted medical examination of accused vide MLC (Ex. PW1/A) and (Ex. PW1/B) He opined that there was nothing to suggest that accused persons were incapable of performing sexual intercourse under normal circumstances. Blood in gauze, underwear and Penile swab and control swab were preserved , sealed and signed by him and handed over to the IO.
3.2 Dr. Sanjeev Lalwani (PW19) proved MLC (Ex. PW19/A) of prosecutrix prepared by Dr. Deepa . PW19 had seen Dr. Deep writing and signing . He deposed that as per MLC on record , on examination of prosecutrix there was external injury upon the person of victim at left cheek, behind left ear, State Vs Ravi @ Bhonda etc. SC No. 85/2010 4/32 ID No.02403R0366492009 right little finger and right knee and a scar was present on abdomen. Alleged history noted in the MLC is abduction by three unknown men and was taken to some unknown place (garbage dump) and sexually assaulted h/o physical assault on face, abdomen and knee. She was abducted at 10:00 pm and was taken to escape at 03:30 am in night.
Public witnesses 3.3 Yogesh (PW4) deposed that he sold mobile make 2901C HUAWEI, IMEI No. A10000053F9DA7C, 8017AA04 and SIM No. 9268055167 to Jaiveer in a sum of Rs. 1,700/ on 31.12.2008. He proved copy of bill (Ex. PW4/A). 3.4 Rinku (PW7) photographer took two photographs (Ex.PW7/1) and (Ex. PW7/2) of the place of incident at Tajpur Pahari . 3.5 Brij Mohan (PW8) was a witness to seizure memo (Ex. PW8/B). He was declared hostile by Ld. APP and cross examined by him. In cross examination, he admitted that he had signed seizure memo (Ex. PW8/B) at point A. He deposed that some police officers had obtained his signature on some paper forcibly and he had not read the contents of (Ex. PW8/B) . He admitted in cross examination by Ld. Addl. PP that he did not make any complaint against the said police officer.
3.6 Keshav (PW10) deposed that he was running a photo studio in the name and style of Keshav Studio at 10A/1, Badarpur. He deposed that Rinku (PW7) used to work as a photographer in his studio. 3.7 Rinku (PW20) deposed that he used to drive bus. On 06.08.2009 at about 04:00pm after parking his bus at Saath (60) Foota road near H. K. Pyle School, he was going to his school. He heard some noise and shrieks near H. K. Pyle School . He saw 2/3 boys and could not see their faces and they were tearing the clothes of a girl. PW20 deposed that after see them, he became perplex and went to his house. On reaching his house, he made call at 100 number to the police from from his mobile phone number 9717636209 . He did not see or know anything. He did not further supported the case of prosecution.
Apart from this, PW20 deposed that police had recorded his statement. He was State Vs Ravi @ Bhonda etc. SC No. 85/2010 5/32 ID No.02403R0366492009 cross examined by Ld. Addl. PP as he resiled from his earlier statement recorded u/s 161 Cr. P. C. 3.8 The evidence adduced by the material witnesses, namely, Sh. Jaiveer (PW3) brother of prosecutrix, Smt. Burfi (PW5) mother of prosecutrix and Prosecutrix (PW12) are discussed in the later part of Judgment. Police and other witnesses 3.9 Sh. Saurabh Kulshreshtha (PW2) Metropolitan Magistrate recorded statement (Ex. PW2/B) of prosecutrix under section 164 Cr. P. C on 11.08.2009. Statement of prosecutrix u/s 164 Cr. P. C. is broadly in accordance with her earlier statement and her testimony , when she appeared in the Court. 3.10 W/HC Suman (PW6) received an information from Jaiveer (PW3) from his telephone number '9212836819' that "Radhey kabadi wali gali, Tajpur pahari main road, Badarpur, kal 9 pm ke karib meri sister ko char panch ladko ne utha liya tha, Ladko ka pata lag gaya hai, police bheje". She transmitted this message to South East Net for necessary action. PW6 placed on record original message (Ex. PW6/A).
3.11 Constable Ramesh Chand (PW9) collected exhibits along with forwarding letter from malkhana and took them for depositing to FSL Rohini vide Road Certificate no. 71/21/09.
3.12 Constable Yogesh Tomar (PW11) on 06.08.2009 reached at A73 Budh Vihar, Tajpur Pahari, Badarpur where SI Kusum Dangi handed over accused Ravi @ Bhonda . PW11 took accused Ravi @ Bhonda for his medical examination at AIIMS Hospital where doctor handed over him four sealed pulandas along with sample seal. He handed over the same to SI Kusum Dangi who seized the same vide seizure memo (Ex. PW11/A).
3.13 W/HC Renu Sharma (PW13) took prosecutrix for medical examination . She collected sealed parcels given by doctor and handed over to SI Kusum Dangai along with MLC.
3.14 Constable Anil kumar (PW14) joined the investigation along with IO/SI Kusum Dangi . He is a witness to the recovery of Tata Indicom black colour State Vs Ravi @ Bhonda etc. SC No. 85/2010 6/32 ID No.02403R0366492009 mobile phone and Rs. 600/ from House no. A73, Tajpur Pahari of accused Ravi @ Bhonda vide seizure memo (Ex. PW8/B).
3.15 Head Constable Jagdish (PW14A) duty officer got recorded FIR (Ex.PW14/A) and made endorsement on the rukka (Ex. PW14/B). 3.16 Constable Akhilesh (PW15) joined the investigation along with IO/SI Kusum Dangi . He deposed that one secret informer namely Rinku met them, who had shown the house of accused Ravi @ Bhonda, thereafter, secret informer left. He is a witness to and placed on record arrest memo (Ex. PW15/A), personal search memo (Ex. PW15/B) and disclosure statement (Ex. PW15/C) of accused Ravi @ Bhonda and arrest memo (Ex. PW15/D), personal search memo (Ex. PW15/E) and disclosure statement (Ex. PW15/F) of accused Sunil @ Nata.
3.17 Head Constable Ram Raj (PW16) joined the investigation along with Ct. Akhilesh and IO/SI Kusum Dangi and went to Tajpur Pahari . On the way, one Rinku met in the gali and IO asked him to join in the investigation . PW16 deposed that they reached at house no. A73, Tajpur Pahari . IO knocked the door. One lady came out and IO asked her about Ravi @ Bhonda. IO arrested accused Ravi @ Bhonda vide arrest memo (Ex. PW15/A). PW16 deposed that IO instructed accused Ravi @ Bhonda to cover his face. He along with IO and Constable Akhilesh went to Tajpur Pahari and reached at house no. 29 and arrested accused Sunil @ Natto vide arrest memo (Ex. PW15/B). PW16 deposed that thereafter, they reached at house no. 289 in the area of V. P. Singh Camp, railway colony and accused Sonu came out from his house and accused Sunil @ Natto identified him. PW16 placed on record one pullanda along with sample seal which was sealed and seized by IO/SI Kusum Dangi vide seizure memo (Ex. PW16/A). In cross examination, PW16 deposed that IO/SI Kusum Dangi knew Rinku but he could not tell how she knew Rinku. Rinku met them in one gali prior to the gali, where accused Ravi @ Bhonda was residing. PW16 deposed that Rinku remained with them only for five minutes and thereafter, he left the spot. PW16 deposed that house of accused Ravi @ Bhonda was pointed out by State Vs Ravi @ Bhonda etc. SC No. 85/2010 7/32 ID No.02403R0366492009 Rinku. PW16 admitted that they had not taken accused Ravi @ Bhonda for the search of accused Sunil @ Nata . They reached at the house of accused Sunil @ Nata at about 11:45/12 at night and arrested him at 12:15am (night). PW16 deposed that they had arrested accused Ravi at about 09:00/10:00pm, after the door was opened by her mother. PW16 deposed that the information about the arrest of accused Ravi @ Bhonda was given to his brother Ajay and they remained at his house up to 11:00/11:30 pm. 3.18 SI Kusum Dangi (PW18) Investigation officer investigated the case. She placed on record documents prepared by her during the course of investigation. PW18 deposed that on receipt of DD no. 16A (Ex. PW18/A), HC Ram Raj reached at Tajpur Pahari, Badarpur but he did not find any person and therefore, returned to the PS. IO made endorsement (Ex. PW18/B) on the statement of prosecutrix . IO seized of one pulanda containing undergarment, three pulandas containing control swab, penile swab, containing blood in gauze of accused Ravi @ Bhonda vide seizure memo (Ex. PW18/C) and seized one pulanda containing undergarment, three pulandas containing control swab, penile swab, containing blood in gauze of accused Sunil @ Nata vide seizure memo (Ex. PW18/D). IO seized clothes of victim/prosecutrix vide seizure memo (Ex. PW18/E). She got conducted TIP of accused Ravi @ Bhonda and Sonu vide application (Ex. PW18/F) and obtained copy of statement (Ex. PW18/G) . IO placed on record FSL results (Ex. PA and PB). In cross examination PW18 deposed that on 06.08.2009, a phone call was received at 05:15am and recorded as DD no. 9A by the name of Rinku. PW18 stated that she recorded the statement of Rinku but he has not been called as a witness. She deposed that on receipt of call from Rinku , the inquiry was assigned to SI Harbir Singh. PW18 deposed that she made inquiries regarding phone no. '9717626709'. It was revealed that this phone pertained to Rinku. She denied the suggestion that prosecutrix was in love affair with Rinku or that she was away from her house at the relevant time, she was with Rinku. PW18 deposed that during investigation, it had come to her knowledge that Rinku were friends earlier or some quarrel State Vs Ravi @ Bhonda etc. SC No. 85/2010 8/32 ID No.02403R0366492009 took place between accused persons and Rinku and that they were on inimical terms.
Statement of accused persons
4. On conclusion of evidence, statements of accused u/s 313 Cr. P. C. recorded. Accused Ravi @ Bhonda stated that he had been lifted from his house by the police officials on the pretext of some inquiry and in the police station, he was kept confined for the entire day and night. He was implicated in the false case and was sent for medical examination. He stated that he had committed no offence. One Hemant who was his neighbour was the friend of Rinku and three months prior to the incident, a quarrel had taken place between him and Hemant and a case FIR no. 387/2009 was registered at PS Badarpur u/s 323/341/34 IPC. Because of this, he was implicated in this case by Hemant in connivance with Rinku who was on friendly terms with Rinku (PW20). He stated that this was reflected from the call (DD no. 9A) recorded at 05:15am dated 06.08.2009 at the instance of Rinku that three boys were attempting rape committed upon a girl. Accused Sunil stated that he had committed no offence. He came to know in the Police Station that the prosecutrix was friendly with one Rinku (PW20) and had spent night with her and in order to save him as well as herself, prosecutrix falsely implicated him in this case.
5. I have heard submissions advanced by Sh. WasiUrRehman, Learned Additional Public Prosecutor for the State and Sh.Ranjeet Singh Ld. Counsel for accused Ravi @ Bhonda as well as Sh. A.K. Mishra Ld. Counsel for accused Sunil. Submissions advanced
6. Ld. Addl. PP submits that on 05.08.2009 at about 10:00 pm in the area of Tajpur Pahari mines Badarpur, all accused persons committed rape upon the prosecutrix (PW12) forcibly and robbed her mobile phone, three gold rings, chain, ear rings and some money and mobile phone of prosecutrix was recovered from accused Ravi @ Bhonda. He submits that prosecutrix (PW12) has narrated the entire incident and proved her version. She correctly identified accused persons in the Court and has described individual role each of accused persons State Vs Ravi @ Bhonda etc. SC No. 85/2010 9/32 ID No.02403R0366492009 and the manner in which she was raped and robbed by the accused persons. Ld. APP, argued that the testimony of Rinku (PW20) is also material for the purpose of corroboration with the first part of statement of prosecutrix. On the relevant day, after parking his bus at 60 foot road, near H. K. Pyle School, he heard noise and shrieks near the school and saw two three boys, who were tearing the clothes of a girl. He turned hostile as regards portion of her statement. He submits that there is no material contradiction in the testimony of prosecutrix. Despite being subjected to lengthy cross examination, defence could not shatter the prosecution case. He submits that in view of testimony of prosecutrix and the other witnesses. Prosecution case is proved beyond any shadow of doubt against both accused persons and therefore, they are liable to be convicted.
7. On the other hand, Sh. A. K. Mishra Ld. Counsel for accused Sunil @ Nata submits that he was taken away by the police at 10:00am on 06.08.2009. In order to save Rinku, accused Sunil was falsely implicated with whom Rinku had a scuffle in the Police Station on 06.08.2009. He submits that posecutrix had deviated from her statement made in her complaint and had not stated there that the accused had come again or had attempted to commit rape second time, whereas in her statement u/s 164 Cr.P.C, she deposed that they had come again and one of them again attempted to commit rape. He submits that in the Court. Prosecutrix deposed that they had again come to the spot and attempted to commit rape upon her person and gave fists and legs blow and again two persons namely Sunil and Ravi committed rape upon her one by one and that third person could not commit the act as she was in a bad shape and accused Sunil had put a knife on her neck and threatened to kill. It is submitted that she made improvement on her statement and Jaiveer (PW3) and Barfi (PW5) are interested and hearsay witnesses. It is submitted Brij Mohan (PW8), alleged witness of recovery had not supported the case of prosecution.
8. Sh. Ranjit Singh Ld. Counsel for Ravi @ Bhonda submits that State Vs Ravi @ Bhonda etc. SC No. 85/2010 10/32 ID No.02403R0366492009 prosecutrix in connivance with the police, PW Rinku and Hemant falsely implicated the accused Ravi @ Bhonda. He submits that there is no eye witness and no medical evidence in this case to support the story of prosecutrix and there is nothing in the FSL Report to connect the accused with the offence in question . He submits that there are contradictions in the testimony of prosecution witnesses on several aspects viz, situation at the house of Jaiveer (her brother), visit of prosecutrix to Badarpur Market, the place from where prosecutrix was allegedly abducted, the place of the incident of rape, incident at shop on the next day of incident, arrest of the accused, recovery of mobile and Rs. 600/ from the accused, identification /TIP of accused and there was motive for false implication . Ld. Counsel further submits that the testimony of prosecutrix and her relatives cannot be relied upon because of contradictions of their testimony with the statement given to the police u/s 161 Cr. P. C. and prosecutrix had deviated from her earlier statement at every stage. He submits that to attract the presumption raised by Section 114A of Indian Evidence Act, prosecution has to prove that the 'Sex Act' between accused and prosecutrix took place. He submits that in her complaint dated 06.08.2009 prosecutrix stated that the accused had again came and thereafter they threatened her. They were beating her and forcibly took her above the 'khan' whereas in her statement u/s 164 Cr.P.C., dated 11.08.2009 (Ex.PW18/G) prosecutrix stated that after once they had committed incident, they again came back and dragged her to the 'Khan', beaten her and threaten to kill her in case she disclosed about the incident to anyone and one of them again committed rape upon her whereas in the Court in her examination in chief she deposed that after commission of rape, again once those boy again came there and again two persons namely Sunil and Ravi committed rape upon her and other person could not commit the act as she was in a very bad shape. In the cross examination, on asking her to clarify that which of her statement was correct. Prosecutrix deposed that she had stated that after commission of rape once by each of them, thereafter, they had again come and attempted to commit rape but could not do so as she was in a very bad state State Vs Ravi @ Bhonda etc. SC No. 85/2010 11/32 ID No.02403R0366492009 of health. He urged that in her statement u/s 164 Cr.P.C. prosecutrix deposed that in the morning she narrated the incident to her brother that she had gone to take medicine from him and for her child and she saw one Sunil @ Natta at a shop, who ran away after beating her with fist blows. Her brother informed the police. When prosecutrix appeared in the witness box after more than a year on 18.10.2010, she deposed that when in the morning he was going with her mother to some Doctor at Tajpur Pahari. She saw accused Sunil near a shop and his brother was following them. On seeing accused, she tried to catch hold of him and asked him what he had done with her last night. He gave fist blow to prosecutrix and ran away. She deposed that her brother had also seen Sunil and thereafter she alongwith her brother Jaiveer, she reached at Police Station and lodged complaint (Ex.PW12/A). It is pointed out that in statement u/s 161 Cr.P.C. of Jaiveer, it is recorded that his mother and sister had gone at a shop and after returned back prosecutrix had told him that she had seen one boy, who was involved in the incident, which took place on the last night. It is further urged that Jaiveer in his cross examination stated that they remained in the Police Station from about 08:00 am till 02:00/02:30 pm on the next date of incident i.e 06.08.2009. It is submitted that this indicates if Jaiveer (PW3) was at the Police Station at 08:00 am then no incident can be said to have occurred at about 09 :00am in which prosecutrix saw Sunil stating outside the shop. Ld. Counsel argued that in the FIR, prosecutrix only deposed that she was beaten. In the statement u/s 164 Cr.P.C. prosecutrix deposed that she was beaten with legs and fist blows. In her statement, prosecutrix deposed that she receives injuries on her face, stomach and legs and she explained that the skin of her chick was torn and the blood was come out. Ld. Counsel further submits that brother of prosecutrix had not uttered anything about the injuries sustained by the prosecutrix.
9. Ld. Counsel submits that MLC (Ex.PW19/A) reveals that on examination, there were external injury upon the person of victim on left cheek, behind left ear, right little finger and right knee and there was scar present on State Vs Ravi @ Bhonda etc. SC No. 85/2010 12/32 ID No.02403R0366492009 abdomen and there was no tenderness. As per the MLC, alleged h/o abduction by three unknown men and was taken to some unknown place (garbage dump) and sexually assaulted h/o physical assault on face, abdomen and knee. She was abducted at 10:00 pm and was taken to escape at 03:30 am in night. Ld. Counsel submits that MLC does not indicate whether the injuries were fresh or old and there is no tenderness and it is not acceptable that the prosecutrix, who was beaten mercilessly sustained only these minor injuries noted in the MLC. He further submitted that there is history of pouring liquor in the mouth of prosecutrix which is not noted in the MLC. Ld. Counsel submits that accused persons have been falsely implicated by the prosecutrix at the instance of Rinku with whom she had physical relation and IO had tried to save Rinku and she noted his incorrect address. He further submits that due to the absence of medical evidence, accused are not liable to be convicted and they are entitled of benefit of doubt. Ld. Counsel submits that IO/SI Kusum Dangi (PW18) deposed that on receipt of DD No. 9A (Ex.P1), which was the call made by Rinku, the inquiry was assigned to Ct. Harbir Singh. IO stated that in DD No. 9A telephone number 9717626709 was mentioned but the name of the informant was not mentioned and after inquiry, it was revealed that Rinku was the person who made a call at the Police Station and the inquiries were made from him. Suggestions put to the IO that prosecutrix was in love affair with Rinku and during the entire period, she was with Rinku and away from her house, were denied by him. It was argued that the DD No. 9A was recorded that " some persons are attempting to commit rape" whereas according to the prosecutrix that she reached at her house at about 03:00/03:30 am, which implied that the prosecutrix left the place of occurrence at about 02:30 am. It is submitted that prosecutrix had a motive to falsely implicate the accused, as a quarrel had taken place between Ravi @ Bhonda and one Hemant, friend of Rinku, known to prosecutrix. In order to teach a lesson to the accused Ravi @ Bhonda , prosecutrix falsely implicated the accused. In support of his submissions, Ld. Counsel relied upon these cases , Dilip vs State of MP 2001 (4) Crimes;
State Vs Ravi @ Bhonda etc. SC No. 85/2010 13/32
ID No.02403R0366492009
Shatrughan and another vs State of MP 1993 Cri. L. J. 120; Aman Kumar and another vs State of Haryana 2004 (4) SCC 379; Radhu vs State of MP (2007) 12 Supreme Court Cases 57. I will advert to these cases in the discussion portion.
10. In rebuttal, Ld. APP submits that the defence version is not probable at all, as a married lady would not put at stake her modesty in order to just teach a lesson to a person who was the friend of his known . ld. Addl. PP submits that suggestion put to the prosecutrix on behalf of accused Ravi @ Bhonda that prosecutrix used to talk to him prior to the incident and had agreed to have a meeting with him at Tajpur Pahari and that the prosecutrix had consented to have physical relation with accused Ravi @ Bhonda were denied. Ld. Addl. PP submits that no major contradiction is pointed out by the Ld. Defence Counsel and contradictions are bound to occur when the statement are recorded after a considerable gap or time and the statement of prosecutrix is natural . Ld. Addl. PP submits that as far as accuses Sunil is concerned, she denied the suggestion put to her that she had gone to meet Rinku, with whom she was having friendship and on the pretext of bringing medicine for her child and spent time with Rinku and his friends had taken liquor which had delayed her in reaching at Tajpur Pahari or she had falsely implicated Sunil at the instance of Rinku and that accused had failed to rebut the presumption raised u/s 114A of Indian Evidence Act.
Legal position
11. Before discussion of the evidence, I would refer to the 'observations' made by the Hon'ble supreme court in few landmark Judgments. 11.1 In Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat referred as (1983) 3 SCC 217, Hon'ble Supreme Court observed that :
"Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come State Vs Ravi @ Bhonda etc. SC No. 85/2010 14/32 ID No.02403R0366492009 across an exception or two and that too possibly from amongst the urban elites. Because:
(1) A girl or a woman in the tradition bound nonpermissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.(2) She would be conscious of the danger of being ostracized by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance. with a suitable match from a respectable or an acceptable family(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her.(8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence.
The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." 11.2 In State of Maharashtra Vs Chandraprakash Kewalchand Jain; (1990) 1 SCC 550, Hon'ble Supreme Court observed;
"A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no C more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the State Vs Ravi @ Bhonda etc. SC No. 85/2010 15/32 ID No.02403R0366492009 evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness."
11.3 In State of Himachal Pradesh vs Raghubir Singh 1993(2) SCC 622 it was observed, "There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity."
11.4 In State of Punjab Vs Gurmit Singh and others; (1996) 2 SCC 384 the Hon'ble Supreme Court has observed that:
"The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable."
"The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the State Vs Ravi @ Bhonda etc. SC No. 85/2010 16/32 ID No.02403R0366492009 reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."
"We must remember 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."
11.5 In State of H.P. versus Shri Kant Shekari 2004 (8) SCC 153; it was observed :
"the courts are therefore expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge in our opinion is a better statutory armour in cases of crimes against women than long clauses of penal provisions containing complex exceptions and provisos."
11.6 In State of Himachal Vs. Asha Ram (2005)13 SCC 766 Hon'ble Supreme Court held, "It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness."
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11.7 In Om Prakash Versus State of UP (2006) 9 SCC 787, Supreme
Court held as under:
"In normal course, a victim of sexual assault, does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such an offence because it involves her prestige and prestige of her family. Only in few cases the victim girl or the family members have courage to go before the police station and lodge a case..."
11.8 In Zindar Ali SK vs. State of West Bengal (2009) 3 SCC 761 Hon'ble Supreme Court observed:
"The shabby quality of investigation was severely criticized by the learned Counsel. There can be no dispute that the investigation in this case is not at all satisfactory. There are discrepancies galore. However, in this case, the truthful version of the prosecutrix cannot be ignored. It is trite law that the defence cannot take advantage of bad investigation where there is clinching evidence available to the prosecution."
11.9 In Shivaji Sahebro Bobade v.State of Maharashtra, AIR 1973 SC 2622 Hon'ble Supreme Court observed, "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If State Vs Ravi @ Bhonda etc. SC No. 85/2010 18/32 ID No.02403R0366492009 unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that '' a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent...''In short our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.'' 11.10 Their Lordships of Supreme Court in the matter of Appabhai vs State of Gujarat,1988(Supp) SCC 241 observed that ''The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments of their version perhaps for the fear of their testimony being rejected by the court. The courts , however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.'' 12 In nutshell, the legal position is well settled that Prosecution complaining of having been a victim of the offence of rape is not an accomplice in the crime. Her testimony can be accepted without corroboration. If the Court on facts, finds it difficult to accept the version of prosecutrix on its face value, it may search for evidence, direct or circumstantial which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of State Vs Ravi @ Bhonda etc. SC No. 85/2010 19/32 ID No.02403R0366492009 accomplice would suffice. Delay in lodging of the FIR is not a mitigating circumstance for the accused when accusation of rape are involved. Minor discrepancies cannot be given under importance. Court has to consider the broad probabilities of the case. Consent or absence of it, has to be gathered from attendant circumstances. The burden lies on the prosecution to prove that there was absence of consent but the position is different, if the case is covered by section 114A of Indian Evidence Act. Presumption raised by section 114A of Indian Evidence Act is applicable to a case covered by clause (g) of Section 376 (2) IPC .
Discussion of Evidence
13. On the touchstone of aforesaid legal position, I would now, discuss the testimony of material prosecution witnesses. Main pillar of the case of prosecution, of course, is the prosecutrix. Her words, if believed, would lead to conviction and if not, would lead to acquittal of accused. What is to be seen is, whether the accused persons acted in concert. Before , I advert to the testimony of prosecutrix, I would discuss the testimony of her brother (PW3) and her mother (PW5), the witnesses to whom , prosecutrix had disclosed about the incident soon after the incident.
14. Sh. Jaiveer Kumar (PW3) brother of prosecutrix, deposed that husband of prosecutrix expired two/three years ago and his sister was residing at her matrimonial house and had two sons. On 05.08.2009, his sister had come to his house on occasion of Rakhabandhan. In the evening, she went to a doctor to bring medicine, as his nephew Raunak was ill and also to the market to purchase other articles. PW3 deposed that prosecutrix did not come back . He made a telephonic call to his sister, who replied that she was coming within few minutes but she did not return. After some time, he again made telephonic call to his sister but she did not reply but sounds of 'quarrel and abuse' was heard by him on the telephone and thereafter, phone was disconnected . PW3 deposed that he became nervous and started searching for her in the nearby area. It was 12pm/01:0am (night). Only, at about 04:00am , his sister came back . At that State Vs Ravi @ Bhonda etc. SC No. 85/2010 20/32 ID No.02403R0366492009 time, she was weeping and badly crying. His mother talked to her and she narrated about the incident to her mother and stated that her life was spoiled. In the morning, he, his mother and his sister went out to trace out the culprits. PW3 deposed that his sister was in a disturbed state of mind. His mother and sister were going ahead of him. At Taj Pur Pahari area, his sister raised alarm . One boy whose name was revealed as Sunil kicked his sister and was caught hold by her. Other two boys, Ravi @ Bhonda and Sonu managed to run away. PW3 informed the police at 100 number. His sister was taken to the doctor as she was not feeling well. In cross examination, PW3 testified that his mother had come at his house on the day of incident and his sister had come to his house at about 05:00/05:30pm on the day of Rakshabandhan on 05.08.2009. He took his mother to Faridabad and they came back from Faridabad at about 09:00pm . PW3 deposed that his wife told him that his sister had gone to buy medicine and on asking, prosecutrix telephonically informed him that she was near the house. PW3 reiterated that he heard noise of barking of dogs and abuses in the back ground. On asking, he explained that he did not inform the police as their reputation was at stake and due to nervousness. He stated that they could not sleep because of tension. PW3 deposed that he followed his sister and the mother on the next morning and police had come after making a telephonic call and reached near Radhey Kabari shop where accused were residing at Taj Pur Pahari which place was at a walking distance of 510 minutes. He testified that his sister was not feeling well and was hopeless. They were advised by the police to firstly refer her to a doctor and they told to come to PS before SI Kusum Dangi. PW3 stated that they reached police station at about 08:00 am and remained there up to 02:00/02:30pm and thereafter, his sister was taken to the hospital for medical examination at about 09:00/10:00pm . PW3 deposed that accused Sunil was shown to him and his sister at the PS second time. PW3 reiterated that his sister identified accused Sunil , Ravi @ Bhonda and Sonu at Tajpur Pahari. PW3 stated that there was one medical store at the main chowk at Tajpur Pahari. PW3 deposed that at the time of preparation of site plan , he State Vs Ravi @ Bhonda etc. SC No. 85/2010 21/32 ID No.02403R0366492009 along with prosecutrix were present. PW3 stated that the distance between his house and Payal school was about one and half or two kilometers.
15. Smt. Burfi (PW5) mother of prosecutrix, deposed that on the occasion of Rakshabandhan, her daughter had come to her house. In the evening, PW5 went to Faridabad to her brother's home for 'rakhi'. Her daughter (i.e. prosecutrix) and her daughter in law were at home. The son of her daughter was ill, therefore, prosecutrix had gone to the doctor. When she (PW5) came back to her house at about 09:30pm, she made a telephonic call to her daughter, who told her that she was about to reach back and was near her house. After some time , when she did not come back , she again made a call on her mobile phone. Her mobile was switched of. PW5 deposed that her daughter was having one gold chain 1.25 tola, Rs. 1500, one pair of gold ear rings and one mobile. PW5 deposed that she made a call to her daughter and heard the noise of barking of dog but her daughter was not responding. At about 03:00/04:00am, her daughter came back home. She was not in her senses and her clothes were torn, her hair were scattered. There was stab injury on her forehead. PW5 deposed that she scolded her daughter as to where she was till that time. Her daughter told her that four boys had robbed her mobile, gold chain, money and earring and they took her to the pahari and raped her. PW5 deposed that in the morning, she went with her daughter in search of those boys. When they reached near a hotel at some distance from their house, one boy was standing there. Her daughter identified one of those boys who had robbed her and raped her . PW5 deposed that that boy slapped her daughter and fled away and her son Jaiveer was also with them who called the police. In the evening, police arrested accused persons. In cross examination, PW5 stated that she left for his brother's house at about 05:30/06:00pm for rakhi. When prosecutrix left for market for medical store to purchase medicines for hers son , she was not available at the house. PW5 called prosecutrix on her mobile at about 09:00/09:30am. She asked her as to where she was at that time. Prosecutrix told PW5 that she was about to come and had reached near to the house. When she did not comeback, State Vs Ravi @ Bhonda etc. SC No. 85/2010 22/32 ID No.02403R0366492009 she tried to contact her at 10:00pm and thereafter, continuously, but found no response. PW5 deposed that she searched her daughter. Localities of Badarpur, Jaitpur and Molar Band were stated to be crowded places and her daughter knew all the gali, roads etc. of the road of Badarpur. PW5 deposed that they went to the spot along with the police on the next day of incident. PW5 denied the suggestion that they did not see accused Sunil standing in the hotel. PW5 denied the suggestion put to her that her daughter was in friendship with Rinku. PW5 denied that when prosecutrix left home for market , she was with Rinku and consumed liquor with Rinku and his friends, therefore, she got late in reaching home. PW5 denied the suggestion that at the instance of Rinku, prosecutrix falsely implicated accused persons.
16. Prosecutrix (PW12) deposed that on 05.08.2009 at about 08:00pm, her son was down with fever and she had gone to the Badarpur market to take medicine. At about 10:00pm, in order to reach home fast, she was going from the lanes in the Meethapur area. Three boys stopped her forcibly and started teasing her. When she tried to rescue herself from them, they snatched her mobile phone, ear rings, chain and three finger rings (all of gold) and pulled her 'chunni'. Prosecutrix deposed that those boys started beating her mercilessly. They dragged her and started pulling her and took her to a place which was near a 'khan' (mine) at Tajpur Pahari. PW12 deposed that three boys namely, Ravi, Sonu and Sunil torn her shirt and broke the string of her 'paijama' . Prosecutrix categorically stated that accused Sonu caught hold of her legs. Accused Sunil caught hold of her hands. Firstly, Ravi forcibly committed rape upon her. Thereafter, sunil and then Sonu turn by turn committed rape upon her. When she was trying to rescue herself, aforesaid boys gave her mercilessly beatings due to which she started feeling giddy. Prosecutrix testified that she received injuries on her person i.e. on her face, stomach and legs. PW12 deposed that they gave fist and leg blows on her stomach. Skin of her cheek was torn and the blood had come out and thereafter, those three boys left the spot leaving her there . Prosecutrix further deposed that she was not in a position to get up almost for State Vs Ravi @ Bhonda etc. SC No. 85/2010 23/32 ID No.02403R0366492009 about one hour and she remained there only. After about one hour, aforesaid persons again came to the spot and started beating her. They threatened her to kill in case, she disclosed about the incident to anybody. They again tried to drag her. They started pulling her and took her towards the upper side to other place. She deposed that this place was stinking as garbage was lying there. They again attempted to commit rape and when she resisted they again gave her beatings with the leg and fist blow. Prosecutrix deposed that accused Sunil and Ravi committed rape upon her one by one. Prosecutrix correctly identified accused persons in the Court. She deposed that accused persons ran away from there and with great difficulty, she reached home after mid night. Prosecutrix testified that she was finding difficulty even in walking when she came back. Her family members were disturbed and her children were crying. On seeing her condition i.e. her torn clothes, bad shape, her family members were shocked. Since, she was not in a fully conscious state of mind therefore, she narrated the incident in detail to her family members after about half an hour.
17. PW12 deposed that in the morning, when she was going with her mother to some doctor towards Tajpur pahari, she saw accused Sunil standing outside a mobile shop at Tajpur Pahari and was talking to some other boy. On seeing accused Sunil, she tried to catch hold of him but he gave her fist blows and ran away. At that time, her brother had seen accused Sunil at that time. On asking, in cross examination, PW12 clarified that her son was having fever and she had gone to procure medicine for him from the chemist at the main market, Badarpur. Prosecutrix stated that she wanted to do other work also therefore, she had gone to the main market, Badarpur. She deposed that her statement was recorded before her medical examination. She was taken to the hospital for medical examination in the after noon and she returned in the evening. She admitted that she narrated about the incident to the doctor. Prosecutrix stated that attending doctor did not inquire from her about the names of the culprits. Prosecutrix stated that Meetha Pur area was different from Pahari which was called Taj Pur Pahari and her brother Jai Veer resided at Taj Pur Pahari. Her State Vs Ravi @ Bhonda etc. SC No. 85/2010 24/32 ID No.02403R0366492009 mother was residing at Meetha Pur area which area was near Taj Pur Pahari. There was Molar Band between Meetha Pur at Taj Pur Pahari area. Prosecutrix mentioned that accused persons had met her near Taj Pur Pahari. On asking her to clarify, that in her statement was recorded on 18.10.2010 she stated that two persons namely Sunil and Ravi again committed rape upon her one by one and third person could not commit rape as she was a very shape whereas in her statement u/s 164 Cr. P. C she stated that only one of them again attempted to commit wrong act with her, she explained that after commission of rape once by each of them and they had again attempted to commit rape but could not do so as she was in a very bad state of health. Although, prosecutrix admitted that she had not stated in her statement u/s 164 Cr. PC before the Magistrate that accused Sunil had put a knife on her neck but she explained that she was not able to give detail of entire incident as she was still in a disturbed state of mind. On asking her to clarify, that in the statement u/s 164 Cr. P C, she had not specified the role of the accused by taking their names. Prosecutrix stated that she replied to the questions put to her by the Magistrate. Prosecutrix emphatically stated that each of the accused committed rape upon her and at the time of commission of rape they were calling each other as Ravi, Sonu and Sunil.
18. Prosecutrix stated that she was not in a fully conscious state of mind and therefore, only after half an hour she narrated the incident to her family members. She was in a very disturbed state of mind at that time. In her statement u/s 164 Cr. PC, prosecutrix stated that she had seen one of those boys standing at a shop and the fact that her brother had accompanied her on the other day was not mentioned. Prosecutrix clarified that whatever was asked from her by the Magistrate was narrated by her in brief, whereas in court she had given detail including the type of shop. Prosecutrix stated that she saw Sunil standing outside a mobile shop and the fact that her mother (PW5) had accompanied her. Her brother Jai Veer (PW3) was following them . Prosecutrix stated that police took her to the place of incident for preparation of site plan.
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Police took photographs and the photographs showed that her torn cloths are lying at the spot. Police seized her bra and panty from the spot. She deposed that her ear rings , chain and money and medicines were not found when she reached at home. Prosecutrix repeated that she was dragged by them to a considerable distance and accused kept on beating her. Prosecutrix deposed that fourth boy was seen by her in the PS, who had informed the police about the incident. She did not remember, if she disclosed this fact to the Magistrate. Prosecutrix stated that she had proceeded from her house in the after noon about 12 PM for going to her brother's house. She met her mother, her brother and her Bhabi at the house of her brother at Taj Pur Pahari. She explained that her son was having cold and had fever only on that day and was not having fever since long before and she had gone to Medical store for procuring medicine for fever. Prosecutrix stated that medical store was situated at outer road of Taj Pur Pahari area. Prosecutrix deposed that she proceeded from her brother's house at about 8.00PM. Her mother and brother had gone to the house of her Mama. At about 8.30 PM she had made a telephonic call at the residence of her brother and inquired from her Bhabi if they (i. e. my mother and brother) had come. Her Bhabi told her that they had not yet returned. At about 9.00 PM her brother had called her telephonically informing her that they had come. Thereafter again after 9.30 PM she received a call from her mother asking where she was. She told her mother that she was about to reach and was coming through the lanes of Taj Pur Pahari to reach early. Prosecutrix deposed that it took her about 1520 minutes after she proceeded from market towards the house of her brother before this incident took place. She had come back near the house of her brother, which would be hardly five minutes walking distance. She did not see any public person in those lanes. Prosecutrix deposed that no one came out despite raising of alarm by her and she had told to the police about the place of occurrence. The place where accused started following her fell in Taj Pur Pahari area.
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19. In response to suggestions, prosecutrix denied that she was having any friendship with one boy Rinku residing at Taj Pur Pahari. She denied that on the pretext of bringing medicine for her child, she had gone to meet Rinku. Prosecutrix specifically denied that she had spent time with Rinku and his friends and had taken liquor which had delayed her reaching at Tajpur Pahari. She did not know, if there was any dispute between Rinku and Sunil. She denied that at the instance of Rinku, she had falsely implicated accused Sunil. Prosecutrix denied that Sunil had not done anything wrong with her and had not committed rape upon her . Prosecutrix emphatically denied that the accused Sunil was not seen by her at the mobile shop on 6.8.2009 or that he had not run away after slapping her or that Sunil was innocent. Prosecutrix denied that in conspiracy with Rinku she falsely implicated him.
20. The conduct of the accused in this case shows a criminal sharing showing a certain measure of jointness in the commission of offence. This Court finds no merits in the contentions of Ld. Defence counsels. While appreciating the evidence of a rapevictim, Court has not to wear the spectacles of suspicion, but has to consider broad probabilities. Witnesses are not expected to have photographic memory. Minor discrepancies, when evidence is adduced after a gape of time are natural. The testimony of the prosecutrix has to be appreciated in the background of the entire case and the Court has to be alive to its responsibility and the sensitivity while dealing with cases involving sexual assault . Prosecutrix has categorically deposed that she had proceeded from her brother's house at about 08:00pm. She had gone to the market near Tajpur Pahari to obtain medicine and do to other work int he market where accused persons along with their associate Sonu (JCL) committed rape upon her one by one. They caught hold of prosecutrix, dragged her, beaten her. Prosecutrix has repeatedly deposed that she was disturbed state of mine and state of shock. She sustained injuries on her face, stomach and leg. Her clothes were torn and she was in a bad state. Even after reaching at home at about 03:00/03:30am (night) she was not fully conscious and narrated the incident to her family members. She State Vs Ravi @ Bhonda etc. SC No. 85/2010 27/32 ID No.02403R0366492009 clarified that accused persons had again come and threatened her and two persons again attempted to commit rape upon her. Prosecutrix as well as her family members were in a state of shock as their reputation was at stake and they were at a loss to understand what to do. Prosecutrix had narrated the entire incident in detail in her statement recorded u/s 164 Cr. P. C. which corroborates her testimony. It stands established that prosecutrix reached home at 03:30/04:00 am No major contradictions are noticed in her testimony and she has stood the test of cross examination. The evidence adduced by prosecturix has remained unshattered and unimpeached in requisite material particulars to bring home guilt of the accused persons. Jaiveer (PW3) and Smt. Burfi (PW5) have corroborated her testimony in material particulars. They have deposed that at about 04:00am , when prosecutrix came, she was crying, her clothes were torn and she was not in her senses. These are the witnesses, to whom, prosecutrix had met and narrated the 'incident' soon after the incident and therefore, they are best 'resgestae' witnesses.
21. As regards recovery of mobile phone which was robbed from prosecutrix and Rs. 600/from accused Ravi @ Bhonda is concerned, IO/SI Kusum Dangai (PW18) proved seizure memo (Ex. PW8/B) . Constable Anil (PW14) is a witness to recovery of same and Brijmohan (PW8). Although, PW8 was declared hostile but he has admitted his signature on seizure memo (Ex. PW8/B) . He admitted that he had not filed any complaint against police officer who obtained his signatures on blank paper. Testimony of police witnesses in this regard cannot be discarded, when it is seen in the light of prosecutrix's unrebutted testimony. Moreover, for proving robbery, recovery of articles is not mandatory , if the testimony of witnesses inspires confidence.
22. In the present case, accused have failed to rebut the presumption raised u/s 114 A Indian Evidence Act 1872 that the prosecutrix did not consent . While considering the precedents, Court has to look into the binding 'legal principles' emerging after a course of decision and the 'factual matrix' of the case relied upon and the material facts of the case in hand. Authorities relied upon by State Vs Ravi @ Bhonda etc. SC No. 85/2010 28/32 ID No.02403R0366492009 Learned defence counsel are not applicable to the instant case. The context in which certain observations are made is relevant. In Dilip vs State of MP 2001 (4) Crimes, prosecutrix was 16 years of age on the date of incident. No marks of injury were found. It was Holi festival and there was no resistance as there was public road outside the house. Doctor could not give any definite opinion about recent sexual assault having taken place with prosecutrix. Defence had given suggestions in the cross examination for false implications of the accused. The Court was not satisfied generally about the correctness of the story as told by the prosecutrix. In these circumstances, it was held that it was difficult to place reliance on her testimony. IInd authority reported as 'Shatrughan and another vs State of MP' relied upon by defence , a gang rape was committed, unexplained delay of nine days in lodging complaint and victim was desirous to marry one of the accused and victim had admitted that she unwillingly made report on being pressurized by her parents and report of the Chemical examiner, contra indicating story of sexual intercourse. Various infirmities in the testimony of prosecution witnesses. It was held that factum of intercourse was doubtful and the presumption under Section 114 A, Indian Evidence Act was not attracted. In 'Aman Kumar and another vs State of Haryana' , it was observed that discrepancies were irreconcilable . In this case, evidence of the father of the prosecutrix showed that his wife had told him that prosecutrix was teased by accused persons and evidence of prosecutrix and Doctor did not specifically refer to penetration. Neither rape nor attempt to rape was established. Lastly, 'Radhu vs State of MP' referred by Ld. Defence counsel, it was held that finding of guilt in case of rape could be based on uncorrborated evidence of the prosecutrix and her testimony should not be rejected, on the basis of minor discrepancies and contradictions. It was further held that absence of injuries on the private part of victim would not by itself falsify the case of rape nor could be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of sexual intercourse or rape was sufficient to disbelieve the victim. Court should, at the same time, bear in mind that false charges of rape are uncommon and there State Vs Ravi @ Bhonda etc. SC No. 85/2010 29/32 ID No.02403R0366492009 are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liabilities. The question whether there was rape or not would depend ultimately on the facts and circumstances of each case. In that case, it was observed that evidence of prosecutrix was full of discrepancies and does not inspire confidence. Her mother and father, who were allegedly informed about the incident were not examined and medical evidence did not corroborate case of sexual intercourse or rape.
23. On appreciation of the evidence on record as a whole, this Court finds that the prosecution has established the guilt of accused persons . The testimony of PW12, the prosecutrix that the accused persons committed rape upon her remains unimpeached . The testimony of prosecutrix (Pw12) has remained unimpeached in material particulars despite subjected to lengthy cross examination by Ld. Defence counsels. Her version in the complaint, in her statement recorded by Metropolitan Magistrate u/s 164 Cr. P. C. and in her testimony when she appeared in the witness box has remained by and large consistent. Prosecutrix has narrated the entire incident in detail as noticed above . Prosecutrix described the role of each of the accused. There is no major contradiction as regards time and place of incident. Accused had refused to participate in the TIP proceedings and witnesses had correctly identified the accused in the Court. Her brother Jaiveer (PW3) and her mother Smt. Burfi (PW2) to whom she had narrated the facts soon after the incident have corroborated her testimony to a large extent. If, some further assurance is required , it can be obtained from the testimony of Rinku (PW20) , who although was cross examined by Ld. Addl. PP, yet has categorically deposed that at about 04:00am, he heard noise and shrieks near H. K. Pyle School and had seen two three boys . It was he , who had informed the police on his mobile number 9717636209 . His testimony in this regard has remained unimpeached . Further more, MLC (Ex. PW19/A ) notes the history i.e. "abducted by three unknown men and was taken to some place (garbage dump) and sexually assaulted State Vs Ravi @ Bhonda etc. SC No. 85/2010 30/32 ID No.02403R0366492009 and also physically assaulted on the face, abdomen and knee. She was abducted at 10:00pm and was able to escape at 03:30pm in night" . MLC notes injuries on the left cheek , behind right ear , right little finger and right knee. Last but not the least, suggestion was given to the prosecutrix by Ld. Counsel for accused Ravi @ Bhonda that she had consented to have physical relation with him and she agreed to have meeting with him at Tajpur Pahari and a quarrel had taken place on account of taking money . Similarly, suggestion was given to her on behalf of accused Sunil, that prosecutrix has spent time with Rinku and his friends or took liquor or that she was having friendship with Rinku, at whose instance and in conspiracy with him, prosecutrix had falsely implicated Sunil. Accused have failed to show that prosecutrix was having friendship or any loveaffair with Rinku. Defence version does not seems probable at all and the alleged motive imputed to the prosecutrix to falsely implicate accused is not convincing. This Court is in agreement with the submissions advanced by Ld. Addl. PP that a lady will not put at stake her reputation in order to teach a lesson to a person having quarrel with her friend. Arguments advanced by Ld. Defence counsel in this regard are not convincing and do not appeal to common sense. Therefore, the arguments being devoid of any merits, are rejected. Evidence on record proves beyond the shadow of reasonable doubt that accused Ravi @ Bhonda and Sunil @ Nata committed gang rape upon the person of prosecutrix . No suggestion was put to Rinku (PW20) that he had any friendship with prosecutrix or that at his instance , or in conspiracy with him, prosecutrix had falsely implicated the accused Sunil. Accused Ravi @ Bhonda has not led any evidence to show that the prosecutrix had consented to have physical relations with him or she had agreed to have a meeting with him at Tajpur Pahari or quarrel took place on account of money.
Conclusion
24. To conclude, evidence on record establishes beyond the shadow of reasonable doubt that on 05.08.2009 at about 10:00pm at Taj pur Pahari Mines accused persons committed gang rape upon the prosecutrix and they committed State Vs Ravi @ Bhonda etc. SC No. 85/2010 31/32 ID No.02403R0366492009 robbery of one mobile phone make Tata Indicom , three gold rings, chain, ear rings belonging to the prosecutrix and while committing robbery and rape upon her person caused hurt to her. In view of the foregoing reasons, this Court is satisfied that prosecution has succeeded in bringing home the guilt of both the accused namely Ravi @ Bhonda and Sunil @ Nata beyond the shadow of reasonable doubt. Consequently , both the accused are hereby convicted u/s 376 (2)(g) IPC as well as under section 392 r/w 34 and section 394 r/w 34 IPC.
announced in the (VINAY KUMAR KHANNA)
open court on Additional Sessions Judge04
29th February, 2012 (SouthEast) Saket/New Delhi
State Vs Ravi @ Bhonda etc. SC No. 85/2010 32/32
ID No.02403R0366492009
IN THE COURT OF SH. VINAY KUMAR KHANNA,
ADDITIONAL SESSIONS JUDGE04 (SOUTH EAST)
SAKET COURTS: NEW DELHI
Sessions Case No. 85/2010
Unique ID No.02403R0366492009
FIR No. 280/09
PS : Badarpur
U/s. 376 (2) (g)
392/394/411/34 IPC
State
Versus
Ravi @ Bhonda ,
s/o Sh. Sh. Vijay Kumar ,
r/o A217, Tajpur Pahari, Budh
Vihar , New Delhi ..........accused no. 1
Sunil @ Nata
s/o Sh. Ram Prakash
r/o B29 Tajpur Pahari, Budh
Vihar, Badarpur, New Delhi ..........accused no. 2
ORDER ON SENTENCE
Present: Sh. A. K. Mishra and Sh. Sunil Kumar Ld. Counsels for convict Sunil .
Sh. Wasi Ur Rehman Ld. Addl PP for the State.
Both convicts produced from Judicial Custody.
Having convicted the accused for the offence u/s 376 (2) (g) IPC as well as under Section 392 r/w 34 and 394 r/w 34 IPC , I have heard Ld. Counsels for convicts as well as convicts in person and Ld. Addl. PP for the State on the point of sentence.
State Vs Ravi @ Bhonda etc. SC No. 85/2010 33/32
ID No.02403R0366492009
Learned Counsel for convict Sunil @ Nata submits that convict is 22 years of age having parents and one unmarried sister. It is submitted that convict was pursuing 10th class from Open School, Ellahabad, UP. Convict Ravi @ Bhonda submits that he is 22 years of age having mother, brother and unmarried sister. He has prayed for a lenient view. It is submitted that convicts belong to a poor strata of society and are not in a position to pay fine . It is submitted that convicts are not previous convict and no other case is pending against them. He prayed that a lenient view be taken.
Learned Addl. PP submits that it is not a case where lenient view should be taken against both the convicts . He submits that here is a case where the crime committed by the convicts have a deleterious effect on civilised society. He submits that the crime of gang rape committed by the convicts is grave by its nature. He submits that a rape is a crime more heinous than murder as it destroys the very soul of a hapless woman. He has prayed that both accused should be awarded maximum deterrent punishment so that the message should go to the society, potential offenders and the perpetrator of such kind of offence.
In Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204 , it was observed that "Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offence so demands." Crimes of violence upon women need to be severally dealt with. The socioeconomic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Court is expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The Court has to hear the loud cry for justice by society in cases of the heinous crime of rape and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. In this case, there are no extenuating or mitigating State Vs Ravi @ Bhonda etc. SC No. 85/2010 34/32 ID No.02403R0366492009 circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum. Gang rape by the convicts is bound to cause a serious psychological harm to the prosecutrix and is a traumatic experience which often persists throughout life. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for lenience is wholly misplaced.
Considering all aspects of the matter, I am of the considered opinion that for the offence punishable under Section 376 (2) (g) IPC, a sentence of ten years rigorous imprisonment and a fine of Rs. 25,000/ against each of the convict , will meet the ends of justice. In default of payment of fine, both convicts shall further undergo simple imprisonment for six months. For the offence under Section 392/34 IPC, both convicts shall undergo a sentence for a period five years rigorous imprisonment and a fine of Rs. 5,000/. In default of payment of fine, both convicts shall further undergo simple imprisonment for one month. For the offence under Section 394/34 IPC, both the convicts shall undergo a sentence for a period seven years rigorous imprisonment and a fine of Rs.5000/. In default of payment of fine, both convicts shall further undergo simple imprisonment for one month. All the aforesaid sentences shall run concurrently. Both convicts are in judicial custody since 07.08.2009 . A period of two years, six months, twenty eight days undergone by both the convicts in judicial custody, during trial till date, shall be set off u/s 428 Cr. P. C. against the term of imprisonment imposed on both of them . It is ordered that entire fine proceeds, if paid, shall be released to the prosecutrix as compensation.
Further more, in view of Section 357A Cr P. C. which was inserted by the Code of Criminal Procedure (Amendment) Act, 2008, Section 28 (which came into force on 31.12.2009) , every State Government in coordination with Central Government has to prepare "Victim Compensation Scheme" for the purpose of awarding compensation to the victims , who suffered loss or injury , as a result of the crime and who require rehabilitation. In this regard, Government of National Capital Territory of Delhi shall take necessary steps to State Vs Ravi @ Bhonda etc. SC No. 85/2010 35/32 ID No.02403R0366492009 prepare a scheme for providing funds for the compensation of victim in this case. Copy of this order be sent to the Chief Secretary, Government of NCT of Delhi for information and for doing needful. A copy of this order be given to both the convicts. File be consigned to record room.
announced in the (VINAY KUMAR KHANNA)
open court on Additional Sessions Judge04
05th March , 2012 (SouthEast) Saket/New Delhi
State Vs Ravi @ Bhonda etc. SC No. 85/2010 36/32
ID No.02403R0366492009
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ID No.02403R0366492009
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