Delhi District Court
It Has Been Held In Suresh Kumar vs . State Of on 29 September, 2009
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IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 94/2
Date of Institution: 21/02/06
Arguments heard on 07/09/09
Date of Decision: 23/09/09
State
1. Chander Parkash @ Raju
S/o of Sh. Ved Parkash Sharma
R/o B-5/278, Sector-5, Rohini,
Delhi.
2. Mohit Bansal
S/o Sh Dinesh Bansal
R/o B-6/217-218,
Sector-5, Rohini, Delhi
3. Vikas Rana
S/o Sh. S.P. Rana
R/o B-8/163, Sector-5, Rohini
Delhi.
FIR No. 646/01
PS - Rohini
U/s. 366/354/376(2)(g)/506/34
JUDGMENT
Before recording the statement of prosecutrix, DD no. 24 dated 07/09/01 was recorded at 2.50 p.m about the quarrel at B-6/222, Sector-5, Rohini on information, which was received from the Control Room.
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Thereafter, statement of prosecutrix was recorded who had stated that she studies in SPM college, Punjabi Bagh, in BA first year. On 07/09/01, she was going to the bus stand on foot for college and at about 8.40 a.m, when she reached at Rajiv Gandhi Cancer Hospital, she saw her neighbour Mohit Bansal standing with his red colour motorcycle near Rajiv Gandhi Cancer Hospital. On seeing her, he threatened and stopped her and asked her to sit on his motorcycle. There was no one present to help her. So he took her forcibly to Sector-11, Rohini in a flat. One boy was also present in the flat who was doing the cable work in sector-5, Rohini and he was known to her by the name of Raju. Meanwhile one another boy who had been called by Raju and Mohit by the name of Rana also came there. Thereafter, Mohit Bansal bolted the room from inside and removed her in the second room of that flat and also bolted that room and pushed her on a bed and removed his clothes and also removed her clothes, on which she started weeping and Mohit Bansal gagged her mouth and told that if she would cry then he will kill her. Thereafter, Mohit Bansal committed rape on her against her consent. Thereafter, Mohit unbolted -:3:- the door while she was wearing her clothes, but Mohit Bansal snatched her clothes and called Raju and Rana inside the room and he started wearing his clothes. She covered herself with a bedsheet. Both Raju and Rana tried to hug her then she started weeping loudly, but Raju did not restrained and started pressing her breast with his hands. Rana was seeing the same. On her cries, they left her. She wore her clothes and came down from the flat. Before her leaving the flat, Mohit also threatened her that if she will tell this fact to anyone then it would be bad for her. From outside, she took a rickshaw and came back to her house. Her mother was not present in the house, so she changed her clothes in a room and slept. At about 2.30 pm, her mother woke her and then she told about the incident to her mother. When her mother went to the house of Mohit Bansal to complaint about the same, then mother of Mohit Bansal started abusing and quarreling with her mother. Her elder sister Anuradha informed the police on telephone.
On this statement, rukka was prepared by the IO and he got the case registered u/s 365/376/342/354/34 IPC. During investigation, medical examination of the prosecutrix -:4:- was done. Clothes of the prosecutrix and the undergarments which she was wearing at the time of rape and her vaginal swab were taken and seized. Medical examination of Anuradha was also got done. Accused Mohit Bansal was interrogated and his medical examination was also got done on 29/09/01.
Accused Chander Parkash @ Raju surrendered before the Court and he was formally arrested there. One day police remand of Chand Parkash @ Raju was obtained. His medical examination was also got done and blood sample was got preserved. Motorcycle bearing no. DL-6SK-9171 was seized. Site plan of the spot and flat were prepared. The undergarments, blood samples and sample seal of accused Mohit Bansal were also seized. Accused Mohit Bansal was arrested on 30/05/02 Accused Chander Parkash made disclosure statement during investigation which was also recorded. Accused Chander Parkash @ Raju also pointed towards flat in question and the same was searched. Chargesheet was filed against accused Chander Parkash @ Raju.
Supplementary statement of prosecutrix was also -:5:- recorded on 14.09.01. FSL report was also received and filed. Supplementary chargesheet was filed against the accused Mohit Bansal and Vikas Rana who was formally arrested later on. Personal search of accused Vikas Rana was conducted on 30/05/02.
After the compliance of section 207 Cr.PC, case was committed to the Court of Sessions and was received on 21/02/02.
On 04/06/04, charge u/s 354/34 of IPC and 376(2)(g) of IPC was framed against the accused Chander Parkash @ Raju and Vikas Rana. Charge u/s 366 of IPC and 376(2)(g)/506(II) of IPC was framed against the accused Mohit Bansal to which they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined 17 witnesses in all.
PW1 is prosecutrix. She has narrated the facts of the case.
PW2 is Smt Saroj, mother of prosecutrix.
PW3 is Smt Nirmal Chhabra. She has stated that about two years back, one girl asked her way to go to -:6:- Japanese Park at about 10/11 am while she was spreading and drying her clothes outside her house.
PW Anuradha and Gulshan were dropped by the Ld APP for State.
PW4 is Ved Parkash. He was called to do some wooden work at sector-11, Rohini by Mr. Suresh Jain. He reached there and a boy, who was present in the drawing room asked him about the rates. He gave him his telephone number. He has not identified that boy before the court. He has been cross examined by Ld APP. In his cross examination, he has stated that he does not remember whether the place of working was C-3/26, Sector-11, Rohini and he has not supported the case of the prosecution.
PW5 is Dr. Sandhaya Jain. She has proved the MLC of Anuradha as Ex.PW5/A. PW6 is Dr. G.P. Kaushal. He has proved the MLC of Mohit Bansal as Ex.PW6/A. PW7 is Dr. Raj Mohan Trivedi. He has proved the MLC of accused Chander Parkash @ Raju as PW7/A. PW8 is ASI Mohd. Swalay. He has recorded the FIR of this case and proved the same as Ex.PW8/A. -:7:- PW9 is Dr. Sandhaya Jain. She has proved the MLC of the prosecutrix as Ex. PW9/A. PW10 is Sh. Samuel, Record clerk from Transport department. He has proved the RC of motorcycle no. DL- 6SK-9171 in the name of Usha Bansal and details of record are Ex. PW10/A. PW11 is HC Suresh Kumar. He joined the investigation of this case and visited in laws house of accused Chander Pakash @ Raju i.e. G-20/77, Sector-7, Rohini. The house was searched for the recovery of bed sheet, but the same was not traceable there. He has proved the memo Khana Talashi as PW11/A. PW12 is Ct Balraj Singh. He joined the investigation with Inspector R.S. Dahiya and Harish Chand. He has stated that accused Chander Parkash surrendered before the court and with the permission of the Court, he was interrogated and was arrested in this case. Accused made a disclosure statement mark PW12/AA. One day Police custody of accused Chander Parkash was obtained and he was got medically examined. Accused Chander Parkash also pointed out the flat. His blood sample was taken by the doctor and it -:8:- was handed over to him in the sealed parcel, which he further handed over to the IO. Seizure memo is Ex. PW12/A. He has identified the accused Chander Parkash @ Raju in the Court. Later on on 16.10.01, he received the sealed parcel from MHCM and took the same to FSL Malviya Nagar and deposited the same there. In the cross examination conducted by Ld APP for State, he has also admitted pointing out memo Ex. PW11/A. PW13 is HC Siksha. She was posted as the staff of PCR. She received the information from a person about the quarrel of D-6/222, Sector-5, Rohini and filled up the form. Photocopy of which is PW13/BB. Original record of the same has already been destroyed.
PW14 is HC Joginder Singh. On receipt of DD no.24, he along with SI Dharampal reached at the place of quarrel and there he came to know that the persons involved in the quarrel had already been removed by the PCR to PP Vijay Nagar. ASI Dharampal prepared the tehrir of the case and got the case registered through him, he handed over the copy of FIR and original rukka to ASI Dharampal at BSA hospital. He received two sealed parcels and one sample -:9:- seal from the doctor which he handed over to ASI Dharam Pal and ASI Dharampal seized the same vide memo PW14/A. Thereafter, at the instance of prosecutrix site plan was prepared by the IO.
PW15 is SI Dharampal. He has proved DD no.24 as Ex. PW15/A. He reached at the place of quarrel and he came to know that PCR had removed the persons involved in quarrel. He came back to Police post, where he met prosecutrix and recorded her statement Ex. PW1/A. He prepared the rukka Ex. PW15/B and got registered the case. Thereafter, along with prosecutrix and her mother and S Anant Kiran reached at BSA hospital, where he got conducted the medical examination of the prosecutrix. Thereafter, they came back at the spot and prepared the site plan.
PW16 is Inspector R.S, Dahiya. On 11.09.01, while he was posted at DIU Cell, North West, District, investigation of this case was handed over to him. He recorded the supplementary statement of the prosecutrix and her father. He also went to the place of occurrence at Flat No. B5/136, Sector-11,Rohini, Delhi and on pointing out of prosecutrix, he prepared the rough site plan Ex.PW16/A. He -:10:- has also seized the motorcycle which was used by the accused. He has recorded the statement of witnesses regarding the seizure of motorcycle.
On 28/09/01, accused Chander Parkash @ Raju was arrested with the permission of the Court. He obtained one day Police custody of accused Chander Parkash @ Raju. Accused Chander Parkash @ Raju made a disclosure statement and led the police party to the place of incident, but nothing was recovered from there. On 16.10.01, blood sample of accused of accused Chander Parkash with other exhibits was sent to the FSL for comparison through Ct Balraj and thereafter he formally arrested accused Mohit Bansal in the court. On 30.05.02 accused Vikas Rana was also arrested formally in the Court who surrendered before the Court. He has also tendered the FSL result EX. PW16/C and Ex. PW16/D. He has also prepared the arrest memos of accused Chander parkash @ Raju, Vikas Rana and Mohit Bansal Ex. PW16/E to PW16/G respectivly and personal search memos Ex. PW16/H to PW16/I. PW17 is HC Rajender. He was working as MHC(M) at that time. On 08/09/01, SI Anant Kiran deposited -:11:- sealed parcels with him along with sample seal and also taken the same from him to deposit the same with the CFSL, Malviya Nagar for result and again were deposited with him after examination. He has proved the entry Ex. PW17/A, Ex. PW17/B and Ex. PW17/C. On completion of the prosecution evidence, statement of the accused persons were recorded. Accused Mohit Bansal has admitted that in September 2001, prosecutrix Kavita was residing at B-6/222, Sector-5, Rohini, Delhi with her family and he was residing at B-6/117, Sector- 5, Rohini, Delhi and they were known to each other and their families were also known to each other. He has also admitted that the motorcycle no. DL-6SK-9171 pertains to her mother. Rest of the case of the prosecution has been denied by him. He has also admitted that he was examined by Dr. G.P. Kaushal and motorcycle was seized in this case. Rest of the evidence of the prosecution has been denied by him. He has stated that it is a false case against him as there was an affair between him and the prosecutrix and after knowing about the same, the family of prosecutrix approached to his family with the marriage proposal, but his family refused the said -:12:- marriage proposal, due to which, there was fight between his family and the family of prosecutrix and because of the said fight, the people of the locality came to know about the said affair and this impelled the prosecutrix to get a false case registered at the behest of her parents and subsequently to depose falsely before the police and the court.
Accused Chander Parkash has also denied the case of the prosecution and has stated that he has been falsely implicated in this case. He stated that he has no knowledge about the affair of accused Mohit Bansal and prosecutrix. No such incident took place in his flat and he has no knowledge of the same.
Accused Vikas Rana also denied the case of the prosecution and has stated that he has been falsely implicated in this case. He was not aware about the incident. He further stated that he never visited at the flat of Chander Parkash @ Raju.
One DW Sh. Gulshan Kumar Sachdeva has been examined on behalf of accused Mohit Bansal. He has produced the record pertaining to Student's Union Election 2001-2002 and has proved the copy of the same as Ex. -:13:- DW1/A. The elections of the Student's Union were held as per the given schedule given on 07/09/01.
I have heard Ld APP for State and counsel Sh. R.N. Sharam for accused Chander Parkash @ Raju and Vikas Rana and counsel Sh. Hariharan for accused Mohit Bansal.
Ld Defence Counsel Sh. R.N. Sharma has contended that accused Vikas Rana was not knowing the prosecutrix. He has not been arrested at the instance of the prosecutrix. He has further contended that there is delay in the arrest of accused Mohit Bansal. He has further contended that according to the case of the prosecution, the flat has one room only and according to the deposition of prosecutrix , the other co-accused Chander Parkash @ Raju and Vikas Rana were in the second room which falsify the deposition of the prosecutrix. He has further contended that prosecutrix has not raised any alram, when she was taken by accused Mohit Bansal on motorcycle. Accused Vikas Rana has been arrested later on. He has further contended that prosecutrix has made a lot of improvements in her supplementary statement. He has further contended that PW1 prosecutrix -:14:- was not taking any books with her, although she was going to college. It shows that she had already a meeting fixed with accused Mohit Bansal. She did not raise any alarm. The flat in question was at a distance of 6-7 kilometers from the bus stop, but she did not raise any alarm. He has further contended that if she was taken away on the motorcycle then certainly she ws a pillion rider and in that circumstance, accused Mohit Bansal was not in a position to threaten her on the point of revolver and it shows that accused Mohit Bansal was not carrying any fire arm with him. He has further contended that the prosecutrix did not protest in any manner in respect of any act of accused Mohit Bansal. He has further contended that according to the case of the prosecution, accused Chander Parkash @ Raju and Vikas Rana was hiding in the bathroom. It is also alleged that accused Chander Parkash @ Raju also committed rape on the prosecutrix. He has further contended that these facts have not been told to the doctor in the hospital by the prosecutrix. He has further contended that there was a motive to implicate falsely the accused persons in this case as evident from the deposition of the PW2.
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He has further contended that PW3 Nirmal Chhabra has stated that prosecutrix was normal when she asked the way to Japanese Park. He has further contended that IO SI Anant Kiran and father of the prosecutrix have not been examined in Court.
It is argued on behalf of accused Mohit Bansal by Ld defence counsel that there was a bus stand near the house of the prosecutrix so there was no reason for her to go to any other Bus stand which was far away from her house to pick up the bus to go to her college. He has further contended that PW1 prosecutrix has not disclosed the complete facts to the police. She has denied the making of supplementary statement Ex. PW1/DA. The father of the prosecutrix has not been examined. He has further contended that evidence of PW3 Nirmal Chhabra is contrary to the factum of voting of Student Union Election on that day. He has further contended that it has not been opined in the MLC of prosecutrix that she was habitual for sexual intercourse or not. He has further contended that PW Anuradha has been dropped by Ld APP for State, so adverse inference should be drawn that if she was examined she -:16:- would not have supported the story of the prosecution. He has further contended that flat in question was in possession of father of accused Chander Parkash @ Raju.
Ld APP has submitted that as per the case of the prosecution and according to the FSL report, human semens was deducted on exhibits 1a, 1e, 2a, 2b and 3. 1a is underwear, 1e is two pieces of cotton wool swab, 2a is one lady kurta nd 2b is one salwar. Ex.3 is one underwear. According to the biological report, on all these exhibits, human blood of AB group was found except Ex.2a i.e. lady Kurta. He has further contended that prosecution has been able to prove the offence charged against the accused persons and has proved its case beyond reasonable doubt.
First of all let us see the evidence of Prosecutrix. In Ex.PW1/A i.e her statement recorded by the IO on 07/09/01, she has stated that accused Mohit Bansal took her away on his motorcycle by threatening her forcibly in a flat where one Raju was already present there and one Rana came there. Accused Mohit Bansal bolted room and removed her clothes forcibly and again threatened to kill her and against her wishes committed rape upon her. Thereafter, -:17:- accused Chander Parkash @ Raju tried to hug her and pressed her breast with his hands. Accused Vikas Rana was standing there and had seen all the incident and on her cries, she was left and she came out of the flat and reached at her house at about 2.30 pm. She narrated the incident to her mother. Police was informed. According to the case of the prosecution she also made supplementary statement recorded by the inspector R.S. Dahiya of DIU Cell.
Before the Court, PW1 has stated that on 07/09/01, she was going to the bus stand from her house on foot to her college. At about 8.40 am, when she reached near Rajiv Gandhi Cancer Institute, she saw accused Mohit Bansal with a motorcycle there. On seeing her, accused Mohit Bansal stopped her and threatened that he would kill her father and brother if she did not sit on his motorcycle. So she sat on his motorcycle out of fear. Accused took her to a flat at sector-11, Rohini forcibly and asked her to go upstairs after stopping his motorcycle there. She got down from the motorcycle and accused Mohit Bansal followed her so that she may go to the flat and may not run away. Now from the previous statement Ex. PW1/A, she has made some improvements. In previous -:18:- statement Ex. PW1/A, she has nowhere stated that accused Mohit Bansal threatened her that he would kill her father and brother.
Ld defence counsel has contended that distance between the spot from where she was allegedly picked up by the accused on motorcycle and flat is about 6-7 kilometers. She has also confronted with her statement PW1/A in her cross examination. She has also been cross examined and she has admitted that they passed through a bus stand of Rajiv Gandhi Cancer Institute and she did not raise any alram at that time. She has told voluntarily that it was not raised due to fear. It has been further contended that PW1 has admitted in the cross examination that she knew accused Mohit Bansal for the last 7-8 years. She has further admitted that accused Mohit Bansal called her by her name and she stopped there. She has further contended that Mohit was standing near her and he did not get down from the motorcycle. She also admitted that she did not try to run away from the spot. Public persons were present there. Ld Defence counsel has further contended that PW1 has admitted in her cross examination that accused Mohit was not -:19:- having any arm, wherein in the supplementary statement she has stated that accused Mohit was having a revolver with him. Ld defence counsel has further contended that from the conduct of the prosecutrix and from the circumstances, it is clear that she was not under fear and she had gone voluntarily with accused Mohit Bansal on his motorcycle when she was taken to the flat.
Ld Defence counsel has further contended that when they both reached at the flat, accused Mohit Bansal parked his motorcycle and even at that time, prosecutrix did not raise any alarm which shows that she had gone there voluntarily with accused Mohit Bansal if at all she had gone there.
PW1 prosecutrix has further stated before the Court that when she entered into the flat, accused Raju was also present in the room and accused Rana thereafter entered into the said flat. Both the accused persons have been identified by the prosecutrix. Accused Mohit Bansal was already known to her. Accused Raju was also known to her as he was a cable operator of the area. PW1 has further stated that as soon as, accused Rana entered into the room, -:20:- accused Mohit Bansal bolted the room from inside. Rana went inside the room which was occupied by the accused Raju. Accused Mohit Bansal then bolted the room from inside. There was a bed in that room. Ld defence counsel has contended that from the site plan of the flat Ex. PW16/A, it is clear that this is one room flat. There is one kitchen, one latrine and from the said site plan it is clear that there was no second room in the flat and it was one room flat only. PW1 has told that there were two rooms in the flat. So she has deposed falsely.
PW1 has further stated before the court that accused Mohit Bansal forcibly pushed her on a bed and thereafter he removed his clothes. She started weeping and thereafter he removed her clothes and she wept bitterly. Accused Mohit Bansal gagged her mouth with her hands and threatened her that if she would raise any alarm, he will kill her and she stopped weeping and thereafter he committed rape on her without her consent.
Ld defence counsel has contended that according to the MLC of the prosecutrix Ex. PW9/A, during examination no bruises, laceration, abrasion on body surface were found, -:21:- no bleeding, no bruises and no laceration were found on the genitals of the prosecutrix. Further hymen was found ruptured and pubic hairs not meted. No injured was found on the person of the prosecutrix which shows that prosecutrix did not resist the act of the accused Mohit Bansal and the act was with the consent. MLC of prosecutrix has been proved by PW9 Dr. Sandhya Jain. Ld defence counsel has further contended that no opinion has been given by the doctor whether the prosecutrix was habitual to sexual intercourse or not because in the MLC, it has been mentioned that hymen ruptured and it is not mentioned whether it was fresh or old. Prosecutrix has not been medically examined to see whether she was habitual to sexual intercourse.
PW1 has further stated before the Court that when after rape, she started wearing her clothes, accused Mohit Bansal snatched away her clothes and opened the door of the room and from the other room, both accused Chander Parkash @ Raju and Vikas Rana entered in that room. She became perturbed and nervous and she wrapped herself in a bedsheet which was lying on the bed. Accused Raju sat beside her and she started weeping and at that time accused -:22:- Raju threatened her not to cry otherwise they would kill her and nobody would come to know. Then accused Raju pressed her breast with hands and and kissed them and called accused Vikas Rana. Accused Vikas Rana became nervous and thereafter she put her clothes and came down and at that time accused Mohit Bansal again threatened her that if she would disclose the incident to anyone, he will kill her. PW1 has further stated before the court that she got down from the flat and found a lady sitting there. She asked from her way to go to Japanese Park, the lady told her way and then she took a rickshaw and came to her house. Ld defence counsel stated that PW2 Smt Nirmal Chhabra, although has not identified the prosecutrix nor was asked by the prosecution in the Court, has stated in the cross examination that a girl asked her way to Japanese Park in a normal way and in a very normal manner she guided her. So the prosecutrix was not abnormal, nervous or perturbed at that time, which shows that she was consenting party to the sexual intercourse as alleged if any.
PW1 has further stated before the court that when she reached at her house her mother was not at home. -:23:- It was informed to her by her married sister. She changed her clothes and found that her underwear was blood stained and thereafter she slept. Her mother woke up her at about 2.30 pm. She told the incident to her mother after about one and a half hour. Her mother went to the house of accused Mohit to told about the wrong act of accused Mohti Bansal to his mother. Mother of accused Mohit visited the house of proseuctrix and started quarreling with her and Mohit also reached at her house and he started misbehaving with them and also beaten them. Her elder sister informed the police on telephone.
She and her mother were taken to PP Vijay Nagar where her statement was recorded and she was medically examined at BSA hospital. Her clothes was also seized. She has pointed out the flat where rape was committed upon her. She has also identified the motorcycle as Ex.P1 and her clothes i.e. one sky blue shirt and salwar as Ex.P2 and Ex.P3 which she was wearing at the time of incident.
Ld defence counsels for the accused persons has drawn the attention of the Court towards the cross -:24:- examination of PW1 and have contended that meeting of the prosecutrix and accused Mohit Bansal was already fixed and for this reason, she did not take any books with her on the day of the incident. She has admitted that she was not carrying any book on that day and had taken only one register with her. They further contended that PW1 has admitted in the cross examination that she did not raise any alarm at any time till she reached at the entrance of the flat. She has further stated that she did not try to call the tea vendor from the tea shop which was near to the spot. She has further admitted that the flat was having one room only. Ld Counsels have further contended that PW1 has admitted that Mohit came ahead and went inside so she was having a chance to fled away from the spot or to raise alarm, but she have not done so. She has admitted that she did not try to run away when they reached in a flat and accused Mohit was ahead of her. But again she had explained that one of his friend was behind her. She has been confronted on this fact with her statement Ex. PW1/A where it was not so recorded. She has further admitted that accused did not use any force, but again voluntarily stated that she was under threat. Again she has -:25:- been confronted with Ex. PW1/A where it was not so recorded. She has further admitted that she did not protest when accused Mohit removed her clothes, but she wept bitterly and when she was about to cry, accused Mohit told her not to cry. She has further admitted that she did not struggle when accused Mohit removed her clothes. She did not try to run away from the room. She has further stated that she struggled when accused Mohit did the wrong act. She has further admitted that she did not receive any bruises on her body at that time. She has further admitted that Mohit had not put his hands on her mouth while he was doing wrong act with her and she did not cry at that time. She has further admitted that she did not tell accused Mohit not to commit wrong act as accused Raju and Rana were inside the flat. She has further admitted that her statement was not recorded on 14.09.09 (which is supplementary statement). She has further admitted that she did not ask accused Mohit Bansal on reaching the flat as to where he had brought her. She has also admitted that she did not tell the police that when she reached sector-11, Flats, she asked Mohit Bansal where he had brought her and on this, accused Mohit told her to keep -:26:- quiet and come upstairs and not to raise her voice and if she would raise her voice then he will kill her and forcefully he took her to first floor.
In further cross examination, she has admitted that she did not state to the police that accused Rana and Raju caught hold her hands and accused Mohit removed her clothes. She has further admitted that she did not tell the police that Rana threatened her and shut her mouth and accused Mohit committed rape upon her without her consent. She has been confronted with the statement Ex. PW1/DA where it is not so recorded. She has denied the suggestion that she is habitual in sexual intercourse. She stated that she never had any sexual intercourse with any person earlier.
PW1 has again admitted in the cross examination that accused Chander Parkash only pressed her breast and did not commit the rape. She has further stated that she knows Mohit Bansal from the time when he started living in their neighbourhood. Again she has been confronted with Ex. PW1/DA wherein she has stated that Mohit Bansal was studying in first year of Satyawati College and she knows him for the last 5-6 years. She has further confronted with Ex. -:27:- PW1/DA wherein she has stated that they were having good relations with the family of accused Mohit Bansal. She has admitted that she did not tell all the facts to the police on 07.09.01. Ld defence counsel has contended that from the cross examination of PW1, it is clear that prosecutrix was knowing accused Mohit Bansal and his family and because of this, she has been able to tell that accused Mohit Bansal is having two sisters namely Priya and Charu.
PW2 is Smt Saroj. She has stated that 5-6 years ago, she had gone to doctor's shop to purchase medicine for her mother in law and at about 3.00 pm, she came back to her house where all the children were present in the house but prosecutrix was not available. So she asked for prosecutrix and she came to know that she was in her room at first floor. She asked her regarding the eating of food and the reason for her laziness, after whcih she started weeping and told her that accused Mohit Bansal had committed rape on her at sector-11. She also disclosed the name of accused Raju and Rana. Then PW2 went to the house of Mohit Bansal and contacted his mother. Mother of Mohit visited her house and the mother in law of the prosecutrix's mother, informed -:28:- mother of Mohit regarding the incident. After hearing the incident, Mother of accused Mohit started quarreling with them and accused Mohit also reached there and he started misbehaving with them and he also gave beatings. Mother of Mohit pulled hairs of PW2 and she received a minor injuries.
Ld Defence counsel of accused Mohit Bansal has stated that dispute between the parties is that there was construction work going on in the house of Mohit Bansal to which the family of the prosecutrix was objecting and that is why accused has been falsely implicated in this case. PW2 has also admitted in her cross examination that parents of accused Mohit Bansla used to dump the construction waste in lane. It has also been suggested to PW2 that accused Mohit Bansal and prosecutrix were having love affair and on coming to know about the same, the parents of prosecutrix went to the house of Mohit Bansal with marriage proposal having no other way out, but the parents of accused Mohit Bansal refused the proposal and there was a quarrel and later on they filed the false case against the accused persons. He has further contended that both the families were on visiting terms and it has been admitted so by PW2 that they were attending -:29:- the functions and marriages at each others house.
Ld Defence counsel has contended that infact no such incident took place and accused persons have been falsely implicated in this case. It is further contended that on the day of the incident i.e. 07/09/01, there was Student Union Election and it has been deposed by Sh. Gulshan Kr Sachdeva DW1, that Student's Union Election was held on 07/09/01 and timing for voting were 8.30 am to 11.30 am for day classes. He has proved the the copy of the record as Ex. DW1/A. He has further contended that PW1 has admitted in her cross examination that she casted her vote once in the Student's Union Election in the year 2001. She has further stated that she does not remember the month of election in 2001. She has further stated that the date of DUSU election in 2001 might be 07/09/01 when she casted her vote.
So from the evidence of PW1 and PW2 and from the cross examination of both the witnesses, 2-3 theories are emerging. First theory is that the prosecutrix was taken away by accused Mohit Bansal with him on his motorcycle to a flat at Sector-11, Rohini and he committed sexual intercourse with the prosecutrix with her consent, which is supported with -:30:- the medical evidence and in the cross examination, prosecutrix has admitted that she did not raise any alarm at the time when accused Mohit Bansal was taking her away on a motorcycle or in a flat or thereafter at any time or even she did not try to run away at any point of time.
Second theory as projected is that prosecutrix and Mohit Bansal were known to each other for last 5-6 years and were having love affair and when the family of the prosecutrix came to know about the same, they went to the house of Mohit Bansal with the marriage proposal, but the family of Mohit Bansal refused to the same which resulted in a false complaint. Accused has also stated so in his statement.
The third theory projected in defence is that there was a dispute in both the families due to construction work which was going on in the house of accused Mohit Bansal and the family of prosecutrix was objecting the same as family of accused Mohit Bansal used to dump all the building material in the lan.
Accused Mohit Bansal was medically examined on 08/09/01 by Dr. G.P. Kaushal. His MLC is Ex. PW6/A. His blood sample and undergarments were taken and were -:31:- sealed and were handed over to HC Anil by the doctor.
According to the deposition of PW17 HC Rajender, both these sealed pullandas were deposited with him by SI Anant Kiran and he entered the same at serial no. 2286 and he has proved the same as Ex. PW17/A. PW17 has not been cross examined by defence counsel for accused Mohit Bansal. MLC of prosecutrix is Ex. PW9/A. 5 sealed parcels were handed over to the police by the concerned doctor containing 2 vaginal swab, four slides of vaginal smear, pubic hair, blood samples, patients clothes and these were deposited with PW 17, by SI Anant Kiran, who entered the same in register no.19 at serial no.2286 and has proved the copy of the same as Ex. PW17/A. According to the MLC Ex.PW7/A, blood sample of accused Chander Parkash was also taken by the concerned doctor and after sealing the same it was handed over to the police which was seized by Inspector R.S. Dahiya PW16 vide memo Ex. PW12/A on 30.09.01. According to the deposition of PW17 HC Rajender, on the same day it was deposited with him and he made entry in register no.19 at serial no.2344 and he has proved the copy of the same as Ex. PW17/C. -:32:- FSL result has been tendered in evidence by PW16, Inspector R.S.Dahiya, This report is admissible u/s 239 of Cr.PC. According to the FSL report Ex. 16/C, parcel no.1 was sealed with the seal of 'SD' was containing Ex. 1a, one underwear, Ex.1b four microslides having thin whitish smear, Ex.1/c, some filamentous like material described as "pubic hair" Ex.1d dark brown liquid described as "blood samples' and Ex. 1e two pieces of cotton wool swab.
Parcel no.2 was containing (sealed with the seal of 'SD), Ex.2a, one lady kurta and Ex.2b, one salwar.
Parcel no.3 was containing one sealed parcel sealed with the seal of 'SD' containing Ex.3, one underwear. Parcel no.4 was containing one sealed cloth parcel sealed with the seal of 'SD' containing Ex.4 i.e. some dark brown flaky material described as 'blood sample of Mohit Bansal. Parcel no.5 was containing one sealed injection vial sealed with the seal of 'SD' containing Ex.5 i.e. dark brown liquid described as 'blood sample of accused Chander Parkash.
According to the results of analysis human semen was detected on Ex.1a i.e. one underwear of prosecutrix, Ex.1e i.e. two pieces of cotton wool swab taken from the -:33:- prosecutrix, Ex.2a i.e. one lady Kurta of prosecutrix, Ex.2b i.e. one salwar of the prosecutrix and Ex.3 i.e. one underwear of Mohit Bansal.
Blood wad deducted on Ex.1d i.e. blood sample of prosecutrix. Ex.4 blood sample of Mohit Bansal and Ex.5 blood sample of accused Chander Parkash. According to the biological report Ex. PW16/D, Ex.1a i.e. underwear of the prosecutrix was found having blood of AB group. Ex.1e i.e. cotton wool swab was having blood of AB group. Ex.2b i.e. salwar was found having AB group blood. Ex.3 underwear of accused Mohit Bansal was also found having blood of AB group.
The FSL report has proved that accused Mohit Bansal had committed sexual intercourse with the prosecutrix. This report itself falsify and negates the theory of Ld defence counsel that on that day, no such incident took place as has been admitted by the prosecutrix that she had gone to caste her vote in Student's Union election in the year 2001 and election was probably on 07/09/01. From the deposition of PW1 corroborated by PW3 it is clear that after the incident, the prosecutrix came back to her house.
-:34:-
The second theory of the Ld defence counsel regarding the false implication of the accused persons because the family of the prosecutrix was objecting about the construction work which was going on in the house of accused Mohit Bansal is a very week proposition and I do not think that on such week proposition, anyone will put on stake the dignity of her daughter so I am not convinced that on this proposition, there was any possibility of false implication of the accused persons in this case.
Prosecutrix has denied the suggestion that she lodged the false report at PS on realising that people have come to know about their relationship because accused Mohit Bansal told to accused Chander Parkash @ Raju about their relationship. Accused Mohit Bansal has taken different stands and has given different suggestions, but it is not so in view of the deposition of the prosecutrix. From the deposition of prosecutrix PW1 it is also clear and proved that all the accused persons were present in the flat when she was raped in the flat by accused Mohit Bansal without her consent.
Prosecutrix has specifically stated in the cross examination that she never had any sexual intercourse with -:35:- any person or with anyone earlier. She had denied the suggestion that she was habitual in sexual intercourse. She has also denied that there was a fight between her family and family of accused Mohit because they refused the marriage proposal of prosecutrix with the accused Mohit Bansal. Nothing has been brought on record that earlier any fight or quarrel took place between the families of prosecutrix and family of accused Mohit Bansal. There is not even a single complaint that any quarrel took place between both the families except the quarrel which had taken place after the disclosure of the incident by the prosecutrix to her mother.
It has been held in Suresh Kumar Vs. State of Chattisgarh, 2008 CRI. L.J. 244 as under:-
" It is a 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 prosecutrix is more reliable than that of an injured witness as she is not an accomplice but victim of the crime."
" From the medical report, it is clear that the porsecutrix was not a girl of lax moral and she was not -:36:- habituated to sexual intercourse and most probably, that was her first experience as the doctor has observed reddishness on her vagina and blood secretion and pain on touching the vagina. It is not in dispute that on the date of incident, the appellant was aged about 30 years whereas the prosecutrix was only 16 years old. In the surrounding circumstances under which sexual assault was made, element of surprise and undue influence of the appellant over the prosecutrix is writ large, therefore, submission of the prosecutrix to the lust of the appellant may be treated as a delusion and not as a deliberate and free act of her mind. From perusal of the evidence on record regarding subsequent conduct of the prosecutrix also, it appears that after the incident when she returned to her home, she saw that there was a hostile crowd of villagers, however, firstly she entered the house without talking to anyone, probably due to anguish, and when her parents expressed their disinclination to lodge report despite being pressurized by the villagers, she came out of the house and expressed her determination to lodge report and accordingly report was lodged. Had she been a consenting party as claimed by the accused in his statement under -:37:- Section 313 of CrPC , there was no occasion for her to tell about the consensual sexual intercourse to her parents and she could have simply given some excuse for being late."
PW4 has not supported the case of the
prosecution.
PW5 Dr. Sandhya Jain has proved the MLC of
Anuradha, but Anuradha has been dropped by the
prosecution.
PW6 Dr. G.P. Kaushal, has proved the MLC of
accused Mohit Bansal. He has proved that undergarment of accused Mohit Bansal was sealed with the hospital seal and was handed over to HC Anil. He has further proved that the blood sample of accused Mohit was also taken and sealed with the same seal and was handed over to HC Anil. He has further deposed that there was no evidence that accused Mohit Bansal was unable to perform the sexual act.
PW7 Dr. Raj Mohan Trivedi has proved the MLC of accused Chander Parkash. He has also given the same opinion that there was nothing to suggest that accused Chander Parkash was incapable for performing the sexual act. He has stated that blood sample of the accused Chander -:38:- Parkash was taken and it was sealed and was handed over to the police.
PW8 ASI Mohd Swalay has proved the FIR of this case as Ex. PW8/A. He has not been cross examined by both the defence counsels on any aspect.
PW10 Sh. Samuel, Record Keeper, Transport Department, has proved the RC of the motorcycle no. DL- 6SK-9171 as PW10/A and has deposed that it is in the name of Usha Bansal wife of Dinesh Bansal R/o B-6/218, Sector-5, Rohini, Delhi. This was the address of the accused Mohit Bansal at the time of the incident. This witness has not been cross examined by both the Ld counsels on any aspect.
PW11 HC Suresh Kumar had joined the investigation with IO and visited the in-laws house of
accused Chander Parkash i.e. at H.NO. G-20/77, Sector-7, Rohini, where IO searched the house for the recovery of bed- sheet but the bed sheet was not traceable there. IO prepared memo in this respect which is Ex. PW11/A. PW12 is Ct Balraj Singh. He joined the investigation with Inspector R.S. Dahiya on 29.09.01. In his presence, accused Chander Parkash was formally arrested in -:39:- the court and accused Chander Parkash made disclosure statement. One day police custody of accused Chander Parkash was obtained. Accused Chander Parkash led the police party to flat no. B-5/136, Sector-11, Rohini and pointed out the same where accused Mohit had committed rape on a girl. Blood sample of accused Chander Parkash was also taken during the medical examination which was sealed and seized vide memo Ex. PW12/A. He had identified the accused Chander Parkash before the Court. He had also collected one sealed parcel from MHCM and took the same to FSL, Malviya Nagar for examination. He has been cross examined by Ld APP on some points. Therein, PW12 has admitted that accused Chander Parkash had made a disclosure statement and led the police to H. No. G-20/77, Sector-7, Rohini. Memo in this regard was preapred which is ExPW11/A. This witness has been cross examined by Ld defence counsel for accused Bansal, but nothing came out to disbelieve his testimony in this respect. He has stated that house of accused Chander Parkash was found lying locked and keys were requisitioned from the family members of the accused Chander Parkash. This deposition of PW12 proves that flat where the incident -:40:- took place belongs to accused Chander Parkash.
PW13 HC Siksha has deposed about the PCR form, which was filled up by her on 07/09/01.
PW14 HC Joginder Singh along with PW15 SI Dharam Pal, on 07/09/01, on receipt of DD no.24 at about 4.0 pm reached at B-222, Sector-5, Rohini and came to know that persons involved in quarrel had already been removed by PCR to PP Vijay Vihar. He also got registered the case and reached at the spot and came to know that SI Dharampal had already left for BSA hospital. He also reached there and handed over the copy of FIR and rukka to ASI Dharampal. Doctor also handed over two sealed parcels and one sample seal to him and he handed over the same to ASI Dharampal and SI Anant Kiran. IO prepared the seizure memo in this regard mark PW14/A. Thereafter on the pointing out of prosecutrix, site plan of the place of occurrence was prepared.
PW15 SI Dharampal has proved the DD no.24 as Ex. PW15/A. He has also proved the rukka as Ex. PW15/B. He has further corroborated with PW14 HC Joginder Singh that on the pointing of prosecutrix, site plan of place of -:41:- occurrence was prepared, i.e.from where the prosecutrix was stated to have been kidnapped.
PW16 Inspector R.S. Dahiya has stated that on 11.09.01, he was posted at DIU hospital and investigation of this case was handed over to him. He recorded the supplementary statement of prosecutrix. He along with the complainant and her father went to the place of occurrence i.e. B-5/136, Sector-11, Rohini and on the pointing out of prosecutrix, prepared the site plan of the spot Ex. PW16/A. He also seized the motorcycle which was used by the accused to take prosecutrix from sector-5, Sector-11 vide memo Ex. PW1/B. He recorded the statement of witnesses. He also arrested the accused Chander Parkash and recorded his disclosure statement Ex. PW12/AA and accused also led the police party to the place of incident but nothing was recovered at the instance of the accused as was disclosed by him. He has corroborated PW14 that father of the accused Chander Parkash has opened the said lock with the key. He has further corroborated with the other witnesses that blood samples of accused was taken during his medical examination, which was sealed and was handed over to the -:42:- police. Thereafter, he sent the exhibits to FSL for expert opinion and he also arrested the accused Mohit Bansal when he surrendered before the Court. He also arrested the accused Vikas Rana who surrendered before the court. He has also tendered the FSL result as Ex. PW16/C and Ex. PW16/D. He also prepared their arrest memos and personal search memos as Ex.PW16/E to PW16/G and PW16/H to PW16/I. Both Ld defence counsels has contended that PW1 prosecutrix cannot be believed as it is evident from her deposition that there were two room in the flat where the alleged incident took place and has further contended that PW16 has also stated in the cross examination that it was a janta flat and had only one room besides bathroom and latrine etc. There was a rear gate in the room which leads way to bathroom etc. Prosecutrix has also admitted that the flat was having only one room. She has further stated that when the accused Mohit Bansal committed rape on her, accused Raju and Rana were hiding in the bathroom at that time. She has further stated in cross examination that she knew that -:43:- accused Raju and Rana were in the flat when accused Mohit Bansal committed rape on her. There might be misunderstanding about two rooms or one room with toilet and bathroom. From the deposition of PW16, it is clear that there was one rear gate leading to toilet and bathroom and PW1 might have misunderstood the same as another room.
Identify of accused Mohit Bansal is not disputed. Identity of accused Chander parkash also not disputed as prosecutrix was knowing accused Chander Parkash being the cable operator of the area. In respect of identity of accused Vikas Rana, who has been identified by the prosecutrix in the Court, she has stated in the cross examination that she did not know accused Rana prior to this incident and also he was not shown to the prosecutrix at the PS and she met him in the flat first time and she has seen the accused Rana after the incident in the court only. So identity of the accused Vikas Rana is also proved beyond reasonable doubts and it is also proved by the prosecutrix that they all three were present in the flat at the time of incident.
PW16 has been cross examined by Ld Defence counsel for accused Mohit Bansal that he did not seek any -:44:- clarification as whether the prosecutrix was habitual to sexual intercourse or not, to which he has explained that if the examinee is habitual to sexual intercourse, doctor himself mentions the same in the MLC. From this deposition, it is clear that prosecutrix was not habitual to sexual intercourse. She herself has stated in her cross examination that she never had any sexual intercourse with any person earlier and has denied the suggestion that she was habitual to sexual intercourse.
PW17 HC Rajender has deposed about the deposits of sealed pullandas with him while he was working as MHCM. After deposits of the same, pullandas were sent to FSL for examination and were against deposited with him.
The witnesses examined by the prosecution have corroborated each other and their testimonies inspired confidence. There is nothing on record to disbelieve the testimonies in any manner.
It has been held in Moti Lal Vs. State of M.P., 2008 CRI.L.J. 3543" It needs no emphasis that the physical scar on a rape victim may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is -:45:- not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery."
It has been held in Vikki alias Vijayakumar V. State of Harihar Town, 2008 CRI. L.J. 3787 as under :-
" Both of them went towards the river side are concerned, these are minor infirmities and discrepancies and they are of such nature that they can be disregarded, because they do not affect the core of the testimony of the prosecutrix. The Apex Court in the case of State of Himachal Pradesh V. Asha Ram (2006 Cri LJ 139): ( AIR 2006 SC 381), has laid down the law that where the evidence of the prosecutrix is more reliable, minor contradictions or any discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. The Apex Court also observed in the said case that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons in seeking -:46:- corroboration."
In view of the above discussions and from the deposition of prosecutrix PW1, it is clear that she had gone with accused Mohit Bansal at her own will because the prosecution has not been able to prove from the statement of the prosecutrix that she was kidnapped and abducted by accused Mohit Bansal and it is also clear from her deposition that she had gone with accused Mohit Bansal at her will and she was not induced by the accused Mohit Bansal in any maner. Although accused Mohit Bansal was having intention to have sexual intercourse with the prosecutrix in the flat, but the act of taking away the prosecutrix by accused Mohit Bansal with him on his motorcycle does not fall within the definition of abduction or kidnapping in any manner. Accordingly, accused Mohit Bansal is acquitted for the offence punishable u/s 366 of IPC.
From the evidence of the prosecutrix as deposed by her and corroborated by other witnesses, the prosecution has been able to prove beyond reasonable doubt that accused Mohit Bansal committed rape upon her without her consent otherwise there was no occasion for the prosecutrix -:47:- to weep bitterly and at the same time there was no occasion for accused Mohit Bansal to close her mouth with his hands and threaten her that if she will raise alarm then he would kill her and asked her to stop weeping.
From these circumstances, it is clear that sexual intercourse committed by accused Mohit Bansal with prosecutrix was not with her consent and accused Mohit Bansal committed rape upon the prosecutrix without her consent.
It is also clear from the conduct of the accused Mohit Bansal as deposed by the prosecutrix that after committing rape upon her without her consent, he opened the bolt of the room leading to the other portion where accused Chander Parkash @ Raju and Vikas Rana were present and thy both entered the room in which prosecutrix was sitting on bed in naked condition and on seeing both the accused Raju and Rana, she wrapped herself with the bedsheet. If it would have been sexual intercourse with consent between prosecutrixt and the accused Mohit Bansal out of love affair, then accused Mohit Bansal was not required to call other accused persons i.e. Raju and Rana to be -:48:- present there and also to invite them in the room where he had committed rape upon the prosecutrix without her consent.
It is also evident from the conduct of the accused Mohit Bansal as deposed by the prosecutrix that accused Chander Parkash @ Raju set beside the prosecutrix and prosecutrix was weeping at that time, he threatened her not to weep otherwise they would kill her and nobody would come to know about the incident and then accused Chander Parkash pressed and kissed her breast and called accused Vikas Rana there but the prosecutrix started weeping loudly and he retracted. Then she put her clothes and came out of the flat to go down. At that time also accused Mohit Bansal gave threat to her that in case she will tell the incident to anyone he would kill her.
From the whole incident, it is clear that intention of accused Mohit Bansal was to commit rape on the prosecutrix without her consent which he committed and also because accused Chander Parkash @ Raju and Vikas Rana were also present there to commit rape on the prosecutrix, but as the prosecutrix started weeping loudly so retracted.
It has been proved by the prosecution beyond -:49:- reasonable doubt that prosecutrix was taken by accused Mohit Bansal on his motorcycle on that day to the flat of accused Chander Parkash @ Raju with the intention to commit rape upon the prosecutrix without her consent. Presence of other co accused persons i.e. Chander Parkash @ Raju and Vikas Rana also shows that they were having common intention to commit gang rape upon the prosecutrix without her consent and in furtherance of their common intention, accused Mohit Bansal picked the prosecutrix on some pretext and took away her to the flat at sector 11, Rohini of accused Chander Parkash @ Raju which belonged to accued Chander Parkash @ Raju raped her. It is corroborated with the medical evidence and from the evidence of PW1 and 2 i.e. Prosecutrix and her mother. It is clear that after the incident the mother of prosecutrix having no other alternate after the incident approached the family of accused Mohit Bansal for a marriage proposal which was only to save the future of the prosecutrix but it was denied. Hence the matter was reported to the police and it is not so that marriage proposal was refused and because of that a false case has been registered against the accused persons -:50:- at the instance of the prosecutrix. The conduct of the accused Mohit Bansal and his family is also to be noted as is evident from the evidence of PW2 that after hearing the incident, mother of accused Mohit Bansal started quarreling with them and accused Mohit Bansal also reached there and started misbehaving with them and also started beating them. Mother of accused pulled the mother of prosecutrix from her hair and she received the minor injuries. It does not seem to be plausible that merely on refusal of the marriage proposal any family would go to the such extent that the girl will get register a false case of rape against boy because in such circumstances she would not get anything except spoiling her future, so there seems to be no possibility of false implications on this pretext.
It has been held in Rajendra Datta Zarekar V. State of Goa, 2008 CRI. L.J. 710 as under:-
" The rape leaves a permanent scar and has a serious psychological impact on the victim and also her family members and, therefore, no one would normally concoct a story of rape just to falsely implicate a person. In the present case, there was not even an iota of evidence to show that -:51:- PW1 Pushpa or her husband Satyam Ahire had any reason whatsoever to falsely implicate the accused-Rajendra. We have carefully gone through the evidence and in our opinion the evidence lead y the prosecution fully establishes the case against the accused-Rajender beyond any shadow of doubt".
Explanation 1 of section 376(2)(g) reads:- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section.
From the deposition of prosecutrix PW1, it is proved beyond reasonable doubt that she was threatened by accused Mohit while he committed rape upon her without her consent. Thereafter accused Chander Parkash @ Raju also threatened her when he pressed her breast and prosecutrix started weeping loudly. Later when she came down, from flat to go down at that time also accused Mohit gave threats to her that in case she will tell the incident to anyone he would kill her.
In view of the above, prosecution has been able to prove the offence u/s 376(2)(g) of IPC read with -:52:- explanation 1, and with offence ui/s 506 part II, against all the accused persons beyond reasonable doubt for which they are held guilty and are convicted.
Accused Chander Parkash @ Raju and Vikas Rana are not being convicted separately u/s 354/34 of IPC as they have been convicted already for a grave offence u/s 376 (2)(g) of IPC Announced in Open Court on dated 23/09/09 ( Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi -:53:- IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 94/2 Date of Decision: 23/09/09 Date of order on sentence: 29/09/09 State
1. Chander Parkash @ Raju S/o of Sh. Ved Parkash Sharma R/o B-5/278, Sector-5, Rohini, Delhi.
2. Mohit Bansal S/o Sh Dinesh Bansal R/o B-6/217-218, Sector-5, Rohini, Delhi
3. Vikas Rana S/o Sh. S.P. Rana R/o B-8/163, Sector-5, Rohini Delhi.
FIR No. 646/01
PS - Rohini U/s. 376(2)(g)/506 Part-II of IPC ORDER ON SENTENCE 29/09/2009 Present. Ld. Addl. PP for the State.
All the three convicts in J.C. with their respective counsels.
I have heard Ld. Addl. PP for the State and learned -:54:- defence counsels on the point of sentence.
Learned Addl. PP submits that all the accused have been convicted U/s. 376 (2) (g) and 506 Part II of IPC. Minimum sentence provided U/s. 376 (2) (g) is ten years rigorous imprisonment with fine, hence maximum punishment be awarded as per law. In support of his contention, he has relied upon Sevaka Perumal, Etc. Vs. State of T.N. AIR 1991 Supreme Court 1463, wherein it has been held:
" It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
Therefore, undue sympathy to impose inadquate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then -:55:- resort to private vengeance. It is,therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
Sh. R.N. Sharma, learned defence counsel, submits that convict Chander Prakash is having a daughter, aged five years. He is having old aged parents and is the sole bread earner of his family. He is not involved in any case previously nor convicted in any case previously.
He further submits that convict Vikas Rana is having one daughter, aged five years, having old aged parents. He is also not involved in any criminal case previously nor convicted in any case previously.
Learned defence counsel Sh. R.N. Sharma further submits that no overt act has been alleged against accused Chander Prakash and Vikas Rana. Accused Mohit Bansal has already been acquitted for offence U/s. 366 of IPC and both these convicts have been convicted for the offence U/s. 376 (2) (g) of IPC under explanation I only and they have not committed rape upon the prosecutrix.
He further submits that considering the above -:56:- special and adequate reasons, lesser sentence of imprisonment from the minimum sentence as provided, be awarded.
In support of his contentions, learned counsel has relied upon Suresh Balkrishna Nakhava Vs. State of Maharashtra 1998(5) Bom CR 494, 1998 CRI. L.J. 284 wherein it has been held:
" The case debated whether the sentence of seven years of rigorous imprisonment and fine, was adequate in light of the extenuating circumstances- The accused, who was charged with the case of rape of minor, was convicted and was awarded sentence of rigorous imprisonment for seven years and fine- The Court held that in view of the fact that the minor had attended puberty, the child born of the offence had been given in adoption to a good family- Further, the accused, the only earning member of his family, had three minor children and he agreed to deposit Rs. Four lakhs in the name of the prosecutrix- Therefore, on sentence for rape was to be reduced- Subsequently, the Court reduced the sentence to rigorous imprisonment for six months, alongwith fine- However, the amount of compromise was to be deposited in -:57:- bank so as to secure maximum periodical returns."
He has further relied upon Padam Bahadur Darjee Vs. State of Sikkim 1981 CRI.L.J 31 wherein it has been held:
"The accused is hardly 22 years of age. Moreover, considering the social set up on which the accused and the prosecutrix have been brought up and other relevant circumstances, we find that the sentence is highly excessive. In this connection, the following observations made by Krishna Iyer, J. in Phul Singh V. State of Haryana 1980 Cri. L.J. 8 (SC) are also relevant:
Ordinarily, rape is violation, with violence, of private person of a woman- an outrage by all canons. In our conditions of escalating sex brutality a 4 year term for rape is not excessive. But here, the offender is in his early twenties and signs of repentance are seen. The victim and her parents have forgiven the molester who is a first cousin, says counsel. An affidavit from the father in law of the woman has been filed and, if needed counsel is ready to produce the victim's statement that she has forgiven the criminal. While it is possible that the accused may procure such condonation -:58:- from an unwilling victim, the fact remains that the two families being close cousins are ready to take a lenient view of the situation. Of course, this does not bind the Court in any manner. Therefore, taking an overall view of the familiar and the criminal factors involved, we reduce the imprisonment from 4 years to 2 years' R.I."
Learned defence counsel has further relied upon Shri Joaquim Constantinho Carvalho Vs. State 1996(4) Bom CR58, (1995) 97 BOMLR 88 wherein it has been held:
" In this particular case there is abundant evidence on record to show that the offence of rape was committed by the appellant when at the relevant time he appears to be of a young age of 25 years only, which means that he was not sufficiently mature and settled as far as his mind is concerned. Further, the said evidence also shows that the prosecutrix and the appellant were in love for a period of more than one year prior to the incident and that when this happened she was hardly three months short of the age of 16 years when Fernada chose to leave her parental house and accompany the appellant to Alnawar. This fact by itself suggests that the prosecutrix seems to have willingly -:59:- accompanied the appellant when he proposed her to go along with him. Further, we are very much impressed with the offer made by Mr. Dessai, on behalf of the appellant, to marry the prosecuttrix at any time inspite of the prosecutirix"s refusal to get married to him. Indeed in this regard the evidence on record clearly points out that even after the porsecutrix had gone home she continued to maintain good relations with the appellant and did not even complain to her parents about the act of the said appellant. In her deposition the prosecutrix acknowledged that even after the complaint was lodged and she gave her statement to the Police she continued to move along with the appellant and only later on when she came to know about his past life she decided to break her relationship with him. All these fads go to suggest that the action of the appellant does not come within the purview of a crude act of rape committed by the appellant for the only purpose of satisfying his libidinous tendencies. Therefore, considering also the young age of the appellant and the past love relationship he was maintaining with the prosecutrix coupled with his willingness even now to marry her, we are of the view that this aspect is to be considered as -:60:- a mitigating circumstance amounting to an adequate and special reason calling for attenuation in accordance with the first proviso to Section 376 of the Indian Penal Code.
Sh. N. Hari Haran, learned defence counsel, submits that convict Mohit Bansal has appeared regularly in this case and this is the first case in his life. He is still unmarried, aged about 26 years. He further submits that during the trial, accused has completed his study and has become Chartered Accountant in 2008. He has reformed himself. He is the sole bread earner of his family. The prosecutrix is now married person and is settled, with children. He further submits that lesser sentence than the minimum prescribed sentence be awarded. In support of his contention, learned defence counsel has relied upon Phul Singh Vs. State of Haryana (1979) 4 Supreme Court Cases 413 wherein it has been observed:
" We must, however, direct our attention in a different penological direction. For sentencing efficacy in cases of lust-loaded criminality cannot be simplistically assumed by award of long incarceration, for, often that remedy aggravates the malady. Punitive therapeutics must be -:61:- more enlightened than the blind strategy of prison severity where all that happens is sex-starvation, brutalisation, criminal companionship, versatile vices through bio- environmental pollution, dehumanised cell drill under 'zoological conditions' and emergence, at the time of release, or an embittered enemy of society and its values with an indelible stigma as convict stamped on him - a potentially good person 'successfully' processed into a hardened delinquent, thanks to the penal illiteracy of the Prison System. The Court must restore the man."
Learned defence counsel has further relied upon Ram Kishan Aggarwala Vs. State of Orissa (1976) Supreme Court Cases 177 wherein it has been observed:
" we therefore hold that the conviction is correct. Counsel for the appellant movingly su8bmitted that his client is past 70, belongs to a respectable family, has served some days in jail and may not be incarcerated again. Having regard to the beastliness of the crime and the short term of imprisonment imposed, we are in no mood to attenuate the punishment, and accordingly, dismiss the appeal.
One parting thought. According to temporal laws -:62:- and lights we judge. Who knows this jail life of an old man may, by a process beyond our ken, kindle in him a new flame of search for the Truth and make him a finer person, inside and outside? No one is too old to become good and De Profundis was written in prison by a sex pervert who was also a literary genius."
Considering the above facts and circumstances and the judgments relied upon by Ld. Addl.PP and both learned defence counsels and also considering the observations made in Dhananjoy Chaterjee Vs. State of West Bengal 1994(1) R.C.R. (Criminal) 429 which are as under:
" In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to -:63:- imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration." , There are special and adequate measures as mentioned above to impose lesser sentence than the minimum prescribed sentence U/s. 376 (2) (g) of IPC. Accordingly, sentence of seven years R.I. is imposed on each convict with fine of Rs. 25,000/- (rupees twenty five thousand only) each . In default of payment of fine, each convict shall further undergo simple imprisonment for a period of one year and nine months U/s. 376 (2) (g) of IPC.
Sentence of three years rigorous imprisonments imposed on each convict with fine of Rs. 25,000/- (rupees twenty five thousand only) each . In default of payment of fine, -:64:- each convict shall further undergo simple imprisonment for a period of nine months U/s. 506 part II of IPC.
All the substantiative sentences of imprisonment shall run concurrently.
Benefit of section 428 CrPC be given to all the three convicts.
A copy of this order be also given to all the three convicts free of cost.
At this stage, learned defence counsel Sh. N. Hari Haran submits that in view of the above sentence as awarded, as convict Mohit Bansal fulfills the conditions, so, he may be released on probation.
Considering the gravity and nature of offence, I am not inclined to give the benefit of probation to convict Mohit Bansal. Accordingly, the request is declined.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in Open Court on ( Virender Kumar Goyal) dated 29/09/09 Additional Sessions Judge Fast Track Court Rohini : Delhi -:65:-