Delhi District Court
State vs . (1) Bobby Kinner on 20 December, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 63/2014
Unique Case ID No.: 02404R0065762012
State Vs. (1) Bobby Kinner
S/o Late Sh. Om Prakash
R/o C6/97, Sultan Puri,
Delhi
(Acquitted)
(2) Khalibuddin @ Salimuddin
S/o Rajiuddin
R/o Village Sarai Aghat,
PS Naya Gaon, Distt. Etha,
Uttar Pradesh
(Acquitted)
(3) Lalita @ Vinod
Chela of Kinner Shobha Disco
R/o Jhuggi No. 157,
Lohiya Camp,THuts,
Haiderpur village, Delhi
(Discharged on 3.6.2014)
(4) Ram Babu Gupta @ Chandu
S/o Munshi Lal Gupta
R/o Jhuggi No. CN4,
In front of Y Block, Mangol Puri,
Delhi
And Y416, Mangol Puri, Delhi
(Discharged on 3.6.2014)
St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 1 of 32
(5) Kinner Shobha Disco
Chela of Kinner late Kishan Lal
R/o J1763, Jahangir Puri,
Delhi
(Discharged on 3.6.2014)
(6) Kinner Lakshmi
Chela of Kinner late Kishan Lal
R/o J506507, Jahangir Puri,
Delhi
(Discharged on 3.6.2014)
FIR No.: 200/2011
Police Station: Mangol Puri
Under Sections: 307/120B/201 IPC
Date of committal to session court: 6.3.2013
Date on which orders were reserved: 20.12.2014
Date on which judgment pronounced:20.12.2014
JUDGMENT:
(1) As per the allegations, on or before 24.5.2011 all the accused i.e. Bobby (transgender/ eunuch), Khalibuddin @ Salimuddin, Lalita (transgender/ eunuch), Ram Babu @ Chanda (transgender/ eunuch), Lakshmi (transgender/ eunuch) and Shobha (transgender/ eunuch) entered into a criminal conspiracy to do an illegal act by illegal means i.e. to cut the penis of complainant Ramesh @ Lilly. In furtherance of their criminal conspiracy removed the penis of Ramesh @ Lilly with such St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 2 of 32 intention and under such circumstances that he they by this act had caused his death, they would have been guilty of murder. It has also been alleged that in furtherance of their criminal conspiracy all the accused caused the evidence of the above crime to disappear with intent to screen the offenders from the legal punishment.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The present case was registered on the statement of one Ramesh @ Lilly who had alleged that on 24.5.2011 at about 10:00 PM one Chanda came to him and asked him to accompany for compromise with Lalit, Shobha and Lakshmi, on which he went to Indra Park Mangol Puri where he met Lakshmi and Shobha. He had alleged that during the talks of compromise, they offered him a Cold Drink and after consuming the same he became unconscious and when he regained consciousness, he found himself lying outside his house in the gali and found his penis cut, which fact he told to his wife after which he was taken to SGM Hospital.
(3) During investigations the accused Lalita, Lakshmi, Khalibuddin, Ram Babu Gupta and Bobby Kinner were arrested and the complainant had also given in writing that he was lured by eunuch/ transgender Lalita, Chanda and Shobha and in committing the offence Dr. Siddique was also involved. After completion of investigations charge sheet was filed against the accused Lalita, Ram Babu Gupta @ St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 3 of 32 Chanda, Shobha @ Disco, Bobby and Khalibuddin for the offence under Section 120B, 307 and 201 IPC. Later on the complainant Ramesh @ Lilly gave an affidavit that Shobha and Lakshmi were not involved in the incident.
(4) Vide order dated 3.6.2014 the Ld. Predecessor of this Court discharged the accused i.e. eunuchs/ transgenders Lalita, Ram Babu Gupta, Shobha @ Disco and Lakshmi. It is only the accused Bobby Kinner and Khalibuddin who are facing trial.
CHARGES:
(5) Charges under Sections 120B IPC, 307 r/w 120B IPC and 201 r/w 120B IPC were settled against the accused Bobby and Khalibuddin to which they pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to prove its case the prosecution has examined Seven witnesses as under:
(7) PW1 Dr. M. Das has deposed that on 25.05.2011 at about 05.05 PM he had examined one Ramesh @ Lilly, S/o Sri Chand, Aged about 50 years, who was brought by CATS A2 Incharge Ajay Kumar, with alleged history of enucleation a night before and as per the version of the patient he was unconscious till that day and when he regained conscious, he informed. According to the witness, on examination, he St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 4 of 32 found the following injuries on his person:
1. Abrasion in the right cheek measuring about 1 cm.
2. Enucleation of penis and testis with application of stitch around to scortum and penial area without any active bleeding.
(8) According to the witness, after initial treatment the patient was provided emergency treatment and was referred to SR (Surgery) Dr. Ashish who provided the necessary treatment to the patient. He has proved having prepared the MLC of the patient which is Ex.PW1/A. The witness has also proved the opnion given by Dr. Neel Kamal which is Ex.PW1/B which opinion was given by Dr. Neel Kamal on the application of SI Joginder Singh. He has deposed that as per the opinion given by Dr. Neel Kamal after going through the instrument kept in sealed transparent box, Dr. Neel Kamal opined that forceful amputation of private parts was possible with the instruments present in the box. (9) In his crossexamination by the Ld. Defence Counsels the witness has admitted that whenever any patient is brought in the Casualty as a medico legal case, the alleged history is asked from the patient. He has also admitted that the patient had not disclosed in the alleged history the names of the assailants. According to him, the injury no.2 was likely to be caused within one or two days before the patient was brought to him as there was no active bleeding from the wound side. He has also deposed that the injuries were sustained within 24 to 28 hours and the injuries could be possible on 24.5.2011 or 25.5.2011. He has testified that St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 5 of 32 when the patient was produced before him, he was conscious and even during examination he was conscious and hence he had opined him fit for statement.
(10) PW1A HC Mahavir Singh is a formal witness being the MHC(M), who has been examined by way of affidavit (as per the provisions of Section 296 Cr.PC) wherein he has proved entry in register No. 19 at S.No. 5284/2011, copy of which is Ex.PW1/A running into three pages.
(11) In his crossexamination by the Ld. Decence counsels the witness has deposed that he cannot say at which time the case property was deposited on 22.09.2011. He is also unable to tell whether it was deposited at 1:00 AM or 11.45 PM or at any other time. He has denied the suggestion that the case property was tampered with during the same remained in his possession at the instance of the Investigating Officer. (12) PW2 Ct. Brijesh Kumar is a formal witness, who has been examined by way of affidavit (as per the provisions of Section 296 Cr. PC) wherein he has proved that on 25.5.2011 on receipt of DD No. 50B at about 4:35 PM he along with SI Joginder Singh reached at I360, Mangol Puri, Delhi where he came to know that the injured was shifted to SGM Hospital by CAT Ambulance. Thereafter he along with SI Joginder Singh reached SGM Hospital where injured Ramesh @ Lilly was found admitted. According to the witness, SI Joginder Singh obtained the MLC of the injured and after obtaining fitness from the doctor, SI Joginder St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 6 of 32 recorded the statement of Ramesh. He has also deposed that SI Joginder Singh prepared a rukka at 6:40 PM which he handed over to him for registration of case. The witness has proved having taken the rukka to the Police Station and having got the FIR registered. He has also proved that during investigations on 26.5.2011, pursuant to a secret information they apprehended the accused Ram Babu Gupta @ Chanda from his jhuggi and after interrogating arrested Ram Babu Gupta vide memo Ex.PW2/A, his personal search was conducted vide memo Ex.PW2/B and his disclosure statement was recorded vide Ex.PW2/C and then the pointing out memo Ex.PW2/D was prepared. He has stated that at the instance of accused Ram Babu Gupta, the accused Lalita @ Vinod was apprehended from Haiderpur Jhuggies after which the accused Lalita @ Vinod was arrested vide memo Ex.PW2/E, his personal search was conducted vide memo Ex.PW2/F, his disclosure statement was recorded vide Ex.PW2/G and a pointing out memo was prepared which is Ex.PW2/H. (13) In his crossexamination by the Ld. Defence Counsels the witness has deposed that on 25.05.2011 he remained with SI Jogender Singh regarding the investigations of that case from 8AM to 12AM (midnight) and even after midnight he continued on duty with him in the investigations till 7PM on 26.05.2011. He has further deposed that he and SI Jogender had reached hospital and met the injured at about 5PM. St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 7 of 32 According to him, at that time the wife of the injured and his other family members were present near the injured and in the presence of all the family members of the injured he had given his statement on the basis of which rukka was prepared. He does not remember whether the statement of Sunita, wife of injured was recorded on that day in the hospital or not. The witness has also deposed that Ram Babu Gupta had pointed out the place of incident at I Block Mangolpuri Park at about 45PM and at that time public persons were present there. He does not remember whether accused Lalita who was arrested on 26.05.2011 had shown the place of occurrence on that day in his presence or not. He has also deposed that pointing out memos regarding both the accused namely Ram Babu and Lalita were prepared in the Mangolpuri Park by SI Jogender Singh and he had signed those pointing out memo. The witness has further deposed that this park was situated at a distance of about 200 meters from the residence of injured Ramesh. He has testified that accused Ram Babu Gupta and Lalita had told the names of other accused Shobha Disco and Laxmi in the park as the persons who had participated in the incident. He has also deposed that accused Ram Babu Gupta and Lalita after their arrest were interrogated by SI Jogender Singh and they had confessed their guilt regarding the injures cause to Ramesh. He has admitted that Ram Babu Gupta and Lalita had made disclosures statement in his presence to SI Jogender Singh and they had confessed their guilt and involvement in this case.
St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 8 of 32 (14) PW3 W/HC Neel Kamal is a formal witness being the DD Writer, who has been examined by way of affidavit Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved having lodged the DD No. 50B which is Ex.PW2/A. (15) In his crossexamination by the Ld. Defence Counsels the witness has deposed that she cannot tell the name of the person who had given her the information on 25.05.2011 regarding which she had made the DD entry. According to the witness, the name of the eunuch/ transgender was not informed to her by that person. She has also further deposed that it was informed to her that one person had been forcibly taken away from I360, Mangolpuri, Delhi and they were eunuchs/ transgenders. She has testified that the copy of the DD was given to SI Jogender Singh at about 4:35 PM for necessary action and he had proceeded for inquiry. She has admitted that name of the caller was not mentioned and the name of the kidnappers were not mentioned in the DD.
(16) PW4 Sh. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. has proved that the mobile No. 9760158144 has been issued in the name of Salimuddin S/o Rafiuddin, R/o Village and Tehsil Sarai Aghat, District Ettah, UP vide Customer Application Form which is Ex.PW4/A; copy of election I Card in support of residence proof which is Ex.PW4/B; call details record from the period 15.05.2011 to 31.05.2011 St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 9 of 32 which are Ex.PW4/C1 (running into four page) and Ex.PW4/C2 (running into three pages). He has also proved that mobile no. 8800589315 has been issued in the name of Bobi, D/o Om Prakash R/o 603, Block P4, Sultanpuri, Delhi, vide Customer Application form copy of which is Ex.PW4/D, copy of election I Card in support of residence proof which is Ex.PW4/E; call details record from the period 15.05.2011 to 31.05.2011 which are Ex.PW4/F (running into 11 pages); Cell ID Chart which is Ex.PW4/G1 (Delhi circle two pages) and Ex.PW4/G2 (UP West circleone page). The witness has also proved the certificate U/s 65 B of Indian Evidence Act which is Ex.PW4/H. (17) In his cross examination witness deposed that the document Ex.PW4/A and Ex.PW4/D were not executed in his presence but he cannot tell any details of the executive/ author of the same and has voluntarily explained that he was only deposing on the basis of the official record maintained in the office. According to the witness, he does not have any personal knowledge regarding the contents of Ex.PW4/A and Ex.PW4/B and has stated that they were not prepared in his presence and he did not know who had written them. He has also deposed that on Ex.PW4/A at point X there is over writing regarding mobile number and the figure 0 has been changed to figure 1 and at point Y in the last two digits there is over writing regarding SIM number. According to the witness, these over writings are not been signed by St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 10 of 32 anybody. He has further deposed that the photo on Ex.PW4/A in the original has not been pasted but stapled. He has also deposed that at point Z on Ex.PW4/A there is no signature of the customer and any other name of the customer is not mentioned on the Customer Application Form. According to the witness, he is not a technical person and hence he cannot tell the distance a single tower would cover. He is also unable to comment on the correctness of the documents including the ID proof filed by the customer. He has testified that their main server is situated at Noida and he had retrieved the call details from his official computer alloted to him from which he had a direct access to the main server and no body else can operate the same. Witness denied the suggestion that there is no system of regular power backup in our office resulting into a data loss. Witness has also denied the suggestion that the certificate U/s 65B has been given by him in a routine manner or that the above calls details and documents have been fabricated and manipulated on the directions and at the instance of the Investigating Officer. (18) PW5 Sh. Shishir Malhotra, Nodal Officer from Aircel Ltd. has proved that the mobile No. 8802024150 has been issued in the name of Anita W/o Neetu, R/o 935, Block J, Mangolpuri, Delhi83, vide Customer Application Form copy of which is Ex.PW5/A, copy of Election ID Card in support of residence proof which is Ex.PW5/B; call details from the period 15.05.2011 to 31.05.2011 which are Ex.PW5/C St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 11 of 32 (running into eight pages); Cell ID Chart which is EX.PW5/D (running into one page) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW5/E. According to the witness, he had personally retrieved the relevant details of the calls from the system personally issued to him as he had a direct access to the server from his system.
(19) In his cross examination by the Ld. Defence Counsels the witness has deposed that the document Ex.PW5/A was not executed in his presence and he cannot tell any details of the executive/author of the same and has voluntarily explained that he was deposed only on the basis of the official record maintained in the office. According to the witness, he did not have any personal knowledge regarding the contents of Ex.PW5/A and has stated same was not prepared in his presence and he did not know who had written them. He is unable to comment on the correctness of the documents including the ID proof filed by the customer. According to him, their main server is situated at Gurgaon and he had retrieved the call details from his official computer alloted to him from which he had a direct access to the main server and no body else can operate the same. Witness has denied the suggestion that there is no system of regular power backup in their office resulting into a data loss. He has also denied the suggestion that the certificate U/s 65B has been given by him in a routine manner or that the above calls details and documents have been fabricated and manipulated on the directions and at the instance of the IO.
St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 12 of 32 (20) PW6 Ramesh @ Lilly is the victim/ complainant in the present case. He has deposed that presently he is working as a labour on daily wages and prior to that he was a drumer and used to play dholak (drum) with kinners/ transgenders in the area of Mangolpuri since 1980. According to him, the Guru of the kinners transgenders was Sheela Hazi and he used to get his share from the money received by them. The witness has also deposed that his family comprises of his wife and three children out of which one is daughter and two are sons. He has testified that Sheela Hazi expired in the year 2006 and thereafter Shobha @ Disco succeeded Sheela Hazi and he started working with her. According to him, since he belong to the Balmiki Samaj he was beaten by the group of Shobha Disco and removed from the group on the ground that they would not work with him because of his caste background. He has also deposed that for large number of years the dispute continued and he made number of complaints to the police on which there was no hearing and action and in fact he was being regularly beaten by the police officials and asked to leave the area of Mangolpuri on the allegations that he was a transgender and could not stay in the area. According to the witness, he repeatedly protested but he was not being heard.
(21) The witness has also deposed that on the intervening night of 24/25.05.2011 one eunuch /kinner Chanda @ Ram Babu Gupta came to his house and called him and took him with him to Indira Park where an Innova car was standing with Lalita and other whom he could not notice St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 13 of 32 sitting inside the car. The witness has testified that there he was served a cold drink and he consumed the same after which he did not know whatever had happened. He has also deposed that next day morning when he regained his consciousness he was told that he was found lying outside his house and his wife made a call to the police and he was shifted to SGM hospital after which his statement was recorded which is Ex.PW6/A. The witness has explained that at that time he was not in his proper senses. According to him, he signed the complaint which the police had recorded of their own.
(22) The complaint Ex.PW6/A was read over to the witness after which the witness has admitted the contents of the complaint except the portions marked A to A1. He has admitted having told the police in his complaint that Shobha @ Disco, Lalita @ Vinod and Laxmi were present in the Innova car and when he regained consciousness in the morning he found himself outside his house and his private parts had been cut/ he had been castrated on which his wife made a complaint to the police. (23) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein he has admitted that he used to maintain a mobile phone bearing SIM No. 8802024150 and has voluntarily explained that the said mobile phone was snatched from him in the police station on 14.05.2011. He has also deposed that police had recorded his statement. He has admitted that he told the police that Shobha @ Disco, Lalit and Laxmi @ Chanda had committed the incident with him and has St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 14 of 32 voluntarily explained that he came to know of this fact much later. He has also admitted that the accused Lalita @ Vinod had asked him to wear ladies clothes and started collecting badhai from the area of Mangolpuri but he refused to join them in the same and that thereafter he started collecting Bhadai from the area of H, I, J and Y block Mangolpuri due to which Shobha @ Disco and her group became his enemy and they started quarreling with him. Witness has further admitted that he had told to the police that he lodged various complaints before the police and the group of Shobha @ Disco also lodged complaints against him after which a settlement was arrived at between them and it was agreed that Shobha @ Disco and her group would give him Rs.200/ per day for his household expenses and Rs. Twenty Thousand for running his rehri but they did not give him a single penny. He has also admitted having told to the police that when he asked for the money from Shobha @ Disco she called her group and they started quarreling with him. He has deposed that he was told that he could not become a part of the group of transgenders since he was a normal male and could not take away their financial rights and he was asked to become a kinner/ transgender only after which he could get his rights. He has denied the suggestion that he had told the police that he wanted to take revenge on account of which he chalked out a plan to become a transgender and he disclosed this plan to one of his kinner/ transgender friend a resident of Sultanpuri after which he went to his house on 23.05.2011 and he disclosed to him that Shobha @ St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 15 of 32 Disco and her group were stopping him from Bhadai in the area being a normal male on which Bobby offered to get him castrated from one Dr. Sidhiqui known to her so that he could join the group of transgenders. Witness has also denied the suggestion that he also told the police that he had planned with the accused Bobi that thereafter he would get the group of Shobha @ Disco falsely implicated in a false police case relating to castration in order to compel them for a compromise/ razinama. Witness denied the suggestion that he made this plan to extort money from the group of Shobha Disco since his daughter had come to age and was to be married.
(24) The witness has identified the accused Bobi in the court but has stated that Bobi had not done anything and he had no complaints against him. According to him, in the Police Station the Investigating Officer had compelled him to name one person who the witness had identified by pointing out and not by name and is the accused Khalibuddin who according to the witness he later on came to know was a doctor but he had not saw him previously. He has stated that he was told on gun point to identify this doctor but he had nothing to state against him. He has stated that the actual offenders are Shobha @ Disco, Chanda, Laxmi and Lalita who have been let off by the police. (25) In his cross examination, by the Ld. Defence Counsels the witness has deposed that he never made any allegations against Bobi or the other person present in the court i.e. the accused Khalibuddin. He St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 16 of 32 has admitted that both these accused are innocent.
(26) PW7 Mrs Sunita is the wife of the complainant/ victim Ramesh. She has deposed that she is married to Ramesh and is having three children from Ramesh. According to the witness, her husband is a drumer by profession and initially he used to play dholak/ drums with a group of transgenders/ eunuchs headed by Sheela Hazi and after the death of Sheela Hazi one Shobha @ Disco took over of the group. She has testified that her husband had certain differences with the group of Shobha @ Disco and after the jhagra/ dispute her husband Ramesh was removed from the group, after which her husband started earning his livelihood by putting a rehri but the said group headed by Shobha @ Disco used to harass him and there was a dispute. She has further deposed that they used to insist that her husband should get himself castrated to formally join the group and her husband had been filing numerous complaints to the police in this regard but he was never heard. The witness has also deposed that she had told her husband not to get himself castrated. According to her, date she did not recollect but about three years ago Chanda @ Ram Babu Gupta came to their house and took her husband away at around 10:00 PM. She has further deposed that she kept waiting for her husband but her husband did not return and in the morning she heard the crises of her husband coming from the ground floor and when she went there she noticed blood on his clothes. The witness has testified that she asked him as to what happened on which St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 17 of 32 her husband asked her to call the police and accordingly she made a 100 number call from a STD shop. She has also deposed that the local police came and did not take any action but only when they went to DCP Office at Ashok Vihar, it was then that her husband was shifted to the hospital and the present case was registered. According to the witness, it is her husband who can tell who all were responsible for his position and she is not aware of anything more. She has testified that later her husband disclosed to her that it was Lalita, Chanda, Laxmi and Shobha who had got her husband castrated.
(27) In his cross examination by the Ld. Defence Counsels the witness has admitted that SI Jogender Singh had beaten her husband and broken his teeth.
(28) In view of the fact that the complainant i.e. Ramesh @ Lily and also Smt. Sunita Devi have not supported the allegations against the accused Bobby and Khalibuddin, the other police witnesses i.e. Inspector Gajender Singh, HC Rajbir, Ct. Ashok and Inspector Joginder Singh were not examined and the evidence of the prosecution was closed. FINDINGS:
(29) The dispute before me relates to the allegations made by one Ramesh @ Lilly a natural born male against a group of Eunuchs/ Transgenders namely Lalita, Ram Babu, Lakshmi and Shobha @ Disco alleging that he had been castrated by them. According to the St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 18 of 32 complainant Ramesh @ Lilly he is a Drummer by profession and was working with a group of Eunuchs/ Transgenders headed by Sheela Hazi and used to collect Badhai in the area along with the said group but after the death of Sheela Hazi, the Eunuch Shobha @ Disco succeeded her and it was then that his problems arose as the said group had serious objections to Ramesh @ Lilly joining them being a natural born male claiming that he had no rights of collection of Badhai. It is alleged by Ramesh @ Lilly that for the last number of years he was having serious differences with the group of Eunuchs/ Transgenders headed by Shobha @ Disco who is regularly harassing him despite his numerous complaints to the police. As per the allegations on 24.5.2011 at about 10:00 PM one Eunuch/ Transgender namely Chanda came to him and asked him to accompany for compromise with Lalita, Shobha and Lakshmi, on which he went to Indra Park Mangol Puri where he met Lakshmi and Shobha.
He had alleged that during the talks of compromise, they offered him a Cold Drink and after consuming the same he became unconscious and when he regained consciousness, he found himself lying outside his house in the gali and found his penis cut (emasculated), which fact he told to his wife after which he was taken to SGM Hospital on which he lodged a police complaint and the FIR was registered. (30) The allegations made by Ramesh @ Lilly were investigated and it is alleged that initially after the arrest of Ram Babu Gupta and Lalita @ Vinod during interrogation they made a disclosure statement St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 19 of 32 and confessed about their involved in the case whereas Shobha @ Disco and Lakshmi denied their involvement claiming that at the relevant time when the alleged incident took place, they were collecting Badhai at J506/507, Jahangir Puri in a Programme which continued till 11:00 PM and had also presented a CD in support of their defence. Later during investigations Ramesh @ Lilly came to the SHO Police Station Mangol Puri and handed over a memorandum dated 24.5.2011 informing him that there was no such incident of Castration by the accused Lalita, Ram Babu, Lakshmi and Shobha as claimed by him initially. He has further explained that he was a natural male and there was an objection by the group of Eunuchs to his collecting the Badhai in the area along with them and used to quarrel with them and he was fed up of their obstructions and hence he alongwith Bobby another Eunuch/ Transgender designed a plan and got himself emasculated/ castrated through one Khalibuddin @ Salimuddin (accused) which he did out of his own volition in order to become a Eunuch so that he could collect the Badhai in the area. Ramesh @ Lilly further informed the SHO Police Station Mangolpuri that in pursuance to the same on 24.5.2011 the accused Khalibuddin @ Salimuddin had come to Mangol Puri along with Bobby and he went to the house No. I360, Mangol Puri where Khalibuddin @ Salimuddin carried out the surgical castration/ emasculation. In the said memorandum Ramesh @ Lilly further informed the SHO that he had named other persons namely Lalita, Ram Babu and St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 20 of 32 Lakshmi only because they used to support Shobha @ Disco. It is mentioned by the Investigating Officer in the charge sheet that this memorandum/ affidavit was also placed before the Ld. Court at the time of application filed by the accused Lalita, Ram Babu, Lakshmi and Shobha for grant of bail and the above accused were admitted to bail in the light of the above memorandum. It is in this background that the Investigating Officer Inspector Jogender Singh then filed the charge sheet not only against the accused Lalita, Ram Babu, Lakshmi and Shobha claiming that they had been named by Ramesh @ Lilly in the FIR recorded on his statement but also against the accused Bobby and Khalibuddin @ Salimuddin on the ground that the investigations conducted by him revealed that the version given by Ramesh @ Lilly was false and incorrect and rather it is Bobby and Khalibuddin @ Salimuddin who had carried out the emasculation/ surgical castration of Ramesh @ Lilly which is the second version which has emerged.
(31) It is writ large from the bare reading of the charge sheet that as per the prosecution case while on the one hand it was alleged by the victim/ complainant Ramesh @ Lilly that the group of Eunuchs/ Transgenders headed by Shobha @ Disco comprising of Lalita, Ram Babu and Lakshmi had emasculated/ castrated him to seek a revenge whereas on the other hand during the investigations it emerged that it was the complainant Ramesh @ Lilly himself who in connivance with the accused Bobby eunuch/ transgender had voluntarily got himself St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 21 of 32 emasculated/ castrated by Khalibbudin @ Salimuddin only to implicate the rival group of Eunuchs/ transgenders comprising of Shobha @ Disco, Lalita, Ram Babu and Lakshmi so that he could independently and exclusively collect the Badhai in the same area over which the group of Shobha @ Disco was claiming and exercising exclusive territorial rights. (32) Before coming to the merits of the allegations, counter allegations and the evidence before me, I may observe that on the face of it the dispute relates to collection of Badhai and the territorial rights connected with the same. Transgender communities have existed in most parts of the world with their own local identities, customs and rituals. They are called baklas in the Philippines, berdaches among American Indian tribes, serrers in Africa and hijras, jogappas, jogtas, shivshaktis and aravanis in South Asia. The Transgender Community in India, which has a recorded history of more than 4,000 years, was considered to have special powers because of its thirdgender status. It was part of a well established `eunuch culture' in many societies, especially in West Asia, and its members held sanctioned positions in royal courts. (33) Transgenders/ Eunuchs trace their origins to myths in the Ramayana and the Mahabharata. Rama, while leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the `men and women' to return to the city. Among his followers the Transgenders/ Eunuchs alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 22 of 32 Lord Rama sanctioned them the power to confer blessings on people on auspicious occasions like childbirth and marriage, and also at inaugural functions. This set the stage for the custom of Badhai in which Transgenders/ Eunuchs sing, dance and confer blessings. (34) The legend in the Mahabharata is that Aravan, the son of Arjuna and Nagakanya, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandavas in the Kurukshetra war. The only condition that he made was to spend the last night of his life in matrimony. Since no woman was willing to marry one who was doomed to be killed, Krishna assumes the form of a beautiful woman called Mohini and marries him. The Transgenders/ Eunuchs of Tamil Nadu consider Aravan their progenitor and call themselves aravanis.
(35) The Transgender community is divided into seven houses, each headed by a `nayak' who appoints gurus or spiritual leaders to train their wards or `chelas' in badhai and protect them. Trasngenders/ Eunuchs in South India do not have the same cultural role as their counterparts in North India and most of them take up sex work as a means of earning a living.
(36) Kothi is a term used to describe male homosexuals who take on the female role; they are largely from a nonEnglishspeaking lower middleclass background. Many kothis marry owing to family pressure but continue to have same sex relationships. There is a symbolic St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 23 of 32 relationship between kothis and Transgenders/ Eunuchs, which has been strengthened because of the lack of other support systems for kothis in cities and smaller towns.
(37) During the era of British Raj, Administration had attempted to eradicate Eunuchs (Hijras), who they saw as "a breach of public decency. Later AntiEunuchs (Hijra) laws were repealed; but the law outlawing castration, a central part of the Eunuch community, was left intact, though rarely enforced. During the British Rule in India they were placed under Criminal Tribes Act 1871 and labelled as 'Criminal Tribe' and hence subjected to compulsory registration, strict monitoring and stigmatized for a long time but after the independence they were denotified in the year 1952 but the stigma still continues (Source: 'A right to Exist: Eunuchs and the State in Nineteenth Century India' by Laurence W. Preston and 'Colonialism and Criminal Castes' by Gayatri Reddy).
(38) Badhai's are customary exclusive rights in certain fixed territorial areas over which the Transgenders/ Eunuchs claim their exclusive jurisdiction. They perform at Wedding Ceremonies as their blessings are considered auspicious and collect door to door Toli Badhai collections. Traditionally their roles were as of Caretakers of Harems and now their main occupation are Badhai offering of blessings in return of money or dancing or sex work. As per the research about 1.2 million eunuchs are exist in India.
St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 24 of 32 (39) Recently, the Hon'ble Supreme Court in the case of National Legal Services Authority Vs. Union of India, W.P. (Civil) No. 604/2013 decided on 15.4.2014 wherein the Bench comprising of Hon'ble Mr. Justice K.S. Radhakrishnan and Hon'ble Mr. Justice A.K. Sikri has taken a serious note of the existing status of Eunuchs as noted herein above and after dealing with the various Human Rights and Constitutional issues relating to the Transgender community, declared them as a Third Gender, which relevant portion of the order I quote as under:
"....... We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons' right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Serosurvellance Centres since St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 25 of 32 Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life......."
(40) Now coming to the facts of the present case, at the very Outset I may observe that in so far as the accused Lalita, Ram Babu, Lakshmi and Shobha @ Disco are concerned, they have already been discharged by the Ld. Predecessor of this Court on 3.6.2014 finding no St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 26 of 32 primafacie evidence to proceed against them. In so far as the accused Bobby and Khalibuddin @ Salimuddin are concerned, the complainant Ramesh @ Lilly, himself has made no allegations against them and they have been roped in by the Investigating Officer Inspector Jogender Singh after concluding that the incident in question did not take place in the manner as alleged by the complainant Ramesh while on the contrary it was a case of Voluntary Emasculation/ Castration by Ramesh @ Lilly himself in connivance with Bobby and Khalimuddin @ Khalibuddin only to remove Shobha @ Disco and her group of Eunuchs/ Transgenders from their way so that they could have uninterrupted and exclusive Badhai collection rights in the same territory from where the group of Shobha @ Disco operates.
(41) The Electronic Evidence comprising of the Call Detail Records of the accused Bobby and Khalibuddin @ Salimuddin has been placed before this Court by the Investigating Officer which according to him would confirm their presence in the area. However, I note that the Investigating Officer has not placed before this Court the relevant Call Detail Records of the accused Lalita, Ram Babu, Lakshmi and Shobha @ Disco in order to rule out their presence in the area where the offence was committed and there is no reason why it has been withheld from the Court. This Electronic Evidence which is now being relied upon by the Investigating Agency is selective in nature and it is highly unfortunate that the Investigating Officer on his part should have been selective in his St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 27 of 32 approach, to have collected and placed on record the material which supported his version and claims but not the material (in the form of Call Detail Records of discharged accused Lalita, Ram Babu, Lakshmi and Shobha @ Disco) so as to defeat the version of the complainant Ramesh @ Lilly and justify his own version.
(42) In so far as the Medical Record of the complainant Ramesh @ Lilly is concerned, it confirms Emasculation/ Surgical Castration but according to Dr. M. Dass (PW1) the injuries were not fresh, there being no active bleeding from the wound side and was likely to be caused one or two days prior to the examination of the patient. This creates a serious dent in the version given by Ramesh @ Lilly with regard to the correctness of the allegations made against Lalita, Ram Babu, Lakshmi and Shobha @ Disco, thereby showing that perhaps what Ramesh @ Lilly said was not true as regards the manner in which the incident took place.
(43) This being the background, the manner in which the Investigating Officer has filed the charge sheet before the Court is in total contravention of the existing law. In case if the Investigating Officer did not find the allegations the accused Lalita, Ram Babu, Lakshmi and Shobha @ Disco to be true, the only option he had was to file a Closure Report before the Court of the Ld. MM. I fail to understand, under what provisions he has made all these persons i.e. Lalita, Ram Babu, Lakshmi and Shobha @ Disco against whom according to his own conclusions he St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 28 of 32 did not find any evidence and also Bobby and Khalibuddin @ Salimuddin (who according to the Investigating Officer had connived with Ramesh to get him emasculated/ castrated), as accused before the Court in the same charge sheet despite the allegations being self contradictory as per his own investigations.
(44) The law as it stands, of now, is that Emasculation/ Castration of a male by his own volition and consent is not an offence and it is only a forcible Emasculation/ Castration which is an offence. It is alleged that the sole motive which propelled Ramesh @ Lilly to opt for Voluntary Castration was monetary gain i.e. for securing Badhai collection rights in the area to the exclusion of the other group of Eunuchs (i.e. group headed by Shobha @ Disco) which rights are traditionally available only to Eunuchs/ Transgenders.
(45) Ironic it is, and hypocrisy writ large that in our country while on the one hand a natural born male who with the sole purpose of achieving monetary gains by way of acquisition of Badhai rights to the exclusion of the Transgenders/ Eunuchs with whom these rights are traditionally vested, gets himself Castrated of his own volition conveniently gets away with it, while on the other hand the mere mention of Castration (Chemical or Surgical) as a form of punishment for serial rapist and pedophiles, evokes strong sentiments and kickup an intellectual storm by terming it as Tallibanic and Barbaric, despite its legalization in the so called Civil World. It is, of course, another matter St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 29 of 32 and we as a Nation should not and ought not to encourage such regressive practices of collection of Badhai traditionally stereotyped to a particular gender i.e. Eunuchs/ Transgenders, which practices are required to be immediately banned in terms of the law so declared and the sentiments so expressed by the Hon'ble Apex Court in the case of National Legal Services Authority Vs. Union of India (Supra), being unconstitutional and illegal and immediate steps need to be taken to bring this marginalized gender (Transgenders/ Eunuchs) within the main stream of the society so that they are not treated as outcastes. (46) In the present case the complainant Ramesh @ Lilly has given a clean chit to the accused Bobby and Khalibuddin while orally incriminating Lalita, Ram Babu, Lakshmi and Shobha @ Disco (all group of Eunuchs/ Transgenders) to whom the Investigating Officer has given a clean chit and the Ld. Predecessor Court refused to proceed there being no material primafacie to proceed against them. The Medical Evidence confirms Emasculation/ Castration but does not support the version of the complainant Ramesh and establishes that the injury was more than two days old. On the face of it the dispute relates to groups of Eunuchs/ Transgenders involved in practice of collection of Badhai being their sole source of income and the complainant Ramesh @ Lilly being a natural male was excluded from their group by Shobha @ Disco and hence in order to bring himself within their folds for controlling the territorial Badhai Rights - Ramesh along with Bobby created their group St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 30 of 32 after Ramesh @ Lilly got himself Emasculated/ Castrated. In the given situation, I fail to understand under what provisions of law can the complainant Ramesh @ Lilly be compelled by the Investigating Officer to become a witness against himself or to inculpate himself and also Bobby and Khalibuddin. The Investigating Officer has made a mockery of law and created his own procedures and in case if he had concluded that the complaint filed by Ramesh @ Lilly and the allegations against Lalita, Ram Babu, Lakshmi and Shobha @ Disco were false, he had no business to file the charge sheet against all of them by adding Bobby and Khalibuddin also as accused since Castration by one's own volition/ consent is not an offence, and the only option open to him was to file a Closure Report which he has not done.
(47) The Deputy Commissioner of Police Sh. Vikramjeet Singh has appeared along with the ACP Sh. Manoj C. and has conceded that the manner in which the charge sheet has been filed by the Investigating Officer does not appear to be legally proper. He has further conceded that in case if there was no material against the accused so named by the complainant the only option available for the Investigating Officer was to file a closure report and if recommended legal proceedings in case the complainant was found to have made a false complaint. He has submitted that he does not endorse the manner in which the Investigating Officer has conducted himself and he shall take up the issue departmentally. St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 31 of 32 (48) Be that as it may, in so far as the accused Bobby and Khalibuddin are concerned, the Ld. Addl. Public Prosecutor on instructions of the Investigating Officer has chosen not to examine the remaining police witnesses i.e. Inspector Gajender Singh, HC Rajbir, Ct. Ashok and Inspector Joginder Singh, there being no other incriminating material on record against the accused Bobby and Khalibuddin either direct or circumstantial, medical, forensic or electronic. Hence, in this background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused beyond reasonable doubt. Benefit of doubt is being given to the accused Bobby and Khalibuddin who are hereby acquitted of the charges under Section 120 B IPC, 307 r/w 120B IPC and 201 r/w 120B IPC. Their sureties be discharges as per rules.
(49) Copy of this Judgment be placed before the Deputy Commissioner of Police (Outer) for information and necessary action at his level.
(50) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 20.12.2014 ASJII(NW)/ ROHINI St. Vs. Bobby Etc., FIR No. 200/11, PS Mangol Puri Page No. 32 of 32