Delhi District Court
Cbi vs 1) Sanjay Chauhan on 14 March, 2011
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 69/09
CBI Versus 1) Sanjay Chauhan
S/o Sh. Bhimal Chauhan
Presently R/o Jhuggi No. 4, Ghat No. 1
Yamuna Bazar, Delhi.
Permanent R/o Vill. Kishan Pura District
Gazipur PO Jakhania, PS Sadiyabad, UP
2) Jamuna Chauhan
S/o Sh. Bhimal Chauhan
Presently R/o Jhuggi No. 4, Ghat No. 1
Yamuna Bazar, Delhi.
Permanent R/o Vill. Kishan Pura District
Gazipur PO Jakhania, PS Sadiyabad, UP
3) Mithai Lal Chauhan
S/o Inder Dev Chauhan
Presently R/o Jhuggi No. 2, Ghat No. 1
Yamuna Bazar, Delhi.
Permanent R/o Vill. Kishan Pura District
Gazipur PO Jakhania, PS Sadiyabad, UP
4) Vidhi Chauhan
S/o Inder Dev Chauhan
Presently R/o Jhuggi No. 2, Ghat No. 1
Yamuna Bazar, Delhi
Permanent R/o Vill. Kishan Pura District
Gazipur PO Jakhania, PS Sadiyabad, UP
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
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5) Munna
S/o Sh. Lakhan Prajapati
R/o 6263/33A, Ward No. 3
Mission Church Compound, Sadar Bazar
Ambala Cantt., Haryana.
Permanent R/o Village Rahispur,
Post Rampur Jakhania, Thana Tarwa,
Zila Azamgarh, UP.
6) Prakash Chauhan
S/o Sh. Vishram Chauhan
R/o 2711, Moli Complex Post Manimazra
Chandigarh.
Permanent R/oVill. Vishan Pura,
Dhir Dhar, Post Kamariya, Thana Tarwa
Zila Azamgargh, UP. (Discharged)
7) Subhash Chauhan
S/o Late Sh.Mewa Lal Chauhan
R/o H. No. 15/1495, Banai Bhagat Singh
Colony Barnala Road Sirsa (HR).
Permanent R/o Vill Bharav Pur
Post Uchori, Police Station Khanpur
Distt. Gazipur, UP. (Discharged)
8) Manguna
R/o Yamuna Bazar, Opposite Gita
Bhawan, Delhi. (Discharged)
9) Kalanna
R/o Yamuna Bazar, Opposite Gita
Bhawan, Delhi. (Discharged)
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
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Case arising out of:
RC 6(S)/2002/SIC. IV/ND
Police Station : Kashmere Gate
Under Section : 354/366/376/377/34 IPC
Judgment reserved on : 22.2.11
Judgment pronounced on : 14311
JUDGMENT
Case History
1. The present case was registered by the CBI as per directions of Hon'ble Delhi High Court passed on 22.4.02 in criminal writ petition bearing No. 648/96 filed by Smt. Nirmala Shukla W/o Sh. Ashutosh Shukla R/o Ghat No. 1, Opposite Geeta Bhawan, Yamuna Bazar, Delhi6, who had filed the aforesaid petition before Hon'ble High Court praying for registration of criminal case against certain persons who committed gang rape of her 11 years old daughter and sought issuance of necessary directions to the police. The Hon'ble High Court, on 22.4.02 directed SHO, Police Station Kashmere Gate to register FIR on the Petitioner's complaint dated 13.9.91 and thereafter directed the CBI to investigate the case.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
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2. As per the chargesheet, investigation discloses that accused persons namely Sanjay Chauhan (A1), Jamuna Chauhan (A2), Mithai Lal Chauhan (A3), Vidhi Chander Chauhan (A4) and Munna were residents of jhuggis at Ghat No. 1, Yamuna Bazar, Delhi and were residing thereof as tenants of one Smt. Krishna and her husband Late Sh. Kallu, who were owners of Ghat No. 2, Yamuna Bazar, Delhi. Complainant Sh. Ashutosh Shukla, father of the victim was residing along with his family members at Ghat No. 1, Yamuna Bazar, Delhi, which is very close to jhuggis of A1 to A5. The complainant Sh. Ashutosh Shukla is alleged to have certain dispute about ownership of Ghat No. 1 with Smt. Krishna and Late Sh. Kallu, who wanted to be the owner of Ghat No. 1 by creating nuisance and problems to Ashutosh Shukla.
3. As per chargesheet, investigation further disclosed that A1 to A5 are rehrikhomchewalas and used to create nuisance by singing vulgar songs, drinking liquor and passing vulgar comments. They used to tease the prosecutrix and the father of the prosecutrix namely, complainant Sh. Asuhotosh Shukla had also lodged various complaints with the police regarding the said behaviour of the accused persons. When the prosecutrix was about 910 years old, accused A1 to A5 had gang raped her twice during the early days of September, 1991. They also threatened her not to disclose it to anybody otherwise they would kill her. Out of fear, victim did not inform any of her family members about SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:5:the said acts of the accused persons. On the night of 10/11.09.91 at about 12/1 O' clock when the prosecutrix was sleeping in her house, she was taken away from her house by keeping something over her mouth. She was taken to one corner of the vacant plot adjacent to her jhuggi. She became unconscious and was forcibly gang raped by A1 to A5. It is also alleged that she was subjected to unnatural intercourse and also sodomised her and forced her into oral sex.
4. The mother of the prosecutrix namely Smt. Nirmala Shukla, PW2 awoke and found that her daughter was not in the house and started searching for her. She noticed some movement in the corner of the vacant plot adjacent to her house and reached there. She found that her daughter was surrounded by Sanjay (A1) and Jamuna (A2) along with some other boys who ran away from the spot after seeing her. Mother of the prosecutrix took her home and at that time prosecutrix was found wearing only a shirt and without any underwear.
5. On the next day, Smt. Nirmala Shukla took the prosecutrix to Marwari Hospital, Delhi but she was not attended to as it was medico legal case. Doctors of LNJP hospital also did not examine the prosecutrix as it was a police case. On 13.9.91, parents of the prosecutrix approached the police and gave a complaint to Sh. Nikhil Kumar, DIG and on the same day, ASI Sujata took the prosecutrix to Aruna Asaf Ali SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:6:Hospital for medical check up and on 14.9.91 at about 1.00 am, prosecutrix was examined by Dr. Samresh Chander Chakarborty, who prepared MLC No. 1111/91. However, in absence of any lady doctor only external examination of the prosecutrix could be done. She was further referred to Hindu Rao Hospital for further examination and opinion. As per the chargesheet, she was examined at Hindu Rao Hospital but the medical records were not made available during the investigation. The prosecutrix was examined under Section 164 CrPC and her statement Ex. PW2/A is on record.
6. It is pertinent to mention at this juncture that accused persons named by the complainant in the complaint Ex. PW1/A dated 13.9.91 namely Prakash Chauhan, Subhash Chauhan, Manguna and Kalanna were not chargesheeted by the CBI for want of any evidence against them. Chargesheet was filed against above named five accused persons for having committed offence punishable under Section 354/366/376/377 r/w Section 34 IPC.
7. After completion of the proceedings under Section 207 CrPC, the case was committed before the court of Sessions for trial. CBI examined nine witnesses in support of its case. Statements of the accused persons were recorded under Section 313 CrPC wherein they alleged false implication at the hands of the mother of the prosecutrix. It was SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:7:contended by all the accused persons that mother of the prosecutrix namely Smt. Nirmala Shukla has cooked up a false story and has also tutored prosecutrix. They alleged that Smt. Nirmala Shukla wanted to grab the land from Smt. Krishna and wanted the jhuggi dwellers to pay rent to her instead of Smt. Krishna. They alleged that it is for the said reason, they had been falsely implicated in this case. Accused persons examined three witnesses in their defence inlcuding DW3 ACP Mauji Khan, who as per record conducted an enquiry on the complaint of the father of the prosecutrix.
8. I have heard detailed arguments advanced before me by Learned Special PP for CBI and by Learned Defence Counsel and have also gone through the written submissions on record and the relevant case law cited before me.
9. The prosecution examined the prosecutrix as PW2. Mother of the prosecutrix Smt. Nirmala Shukla was examined as PW1. Besides the aforesaid witnesses, Medical Superintendent of Sardar Vallabh Bhai Patel Hospital, East Patel Nagar, Delhi was brought into the witness box as PW3, who deposed that he has seen photocopy of MLC No. 1111/91 dated 14.9.91, which he had supplied to the IO/Insp. R. K. Jha vide Ex. PW3/A. The said photocopy of the MLC was duly attested by PW3 Dr. SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:8:M. Lal. Dr. S. Chakraborty, who had examined prosecutrix vide MLC No. 1111/91. He was examined by CBI as PW4. He deposed that on examination of the prosecutrix, he did not notice any external injury on the body of the patient and he further referred the case to Gynae Department of Hindu Rao Hospital. The registration of the FIR No. 250/02 Police Station Kashmere Gate was proved by PW5 ASI Ramvir, who was working as Duty Officer at Police Station Kashmere Gate at the relevant time. The copy of the FIR is Ex. PW5/A. Dr. Kamla Sharma, who was working Department of Gynae, LNJP was examined as PW6. She deposed that as per OPD slip Mark D bearing No. 14287 dated 26.9.91, one patient female of 10 years was brought to her OPD and that she was referred to Casualty. The original casualty register for the period w.e.f. 03.8.91 to 24.9.91 of HRH was produced by PW8 Sh. Satender Kumar Tyagi, who deposed that he was posted in HRH since March, 1998 as Medical Record Officer. He deposed that as per entry number 35713 one girl aged 10 years female child was brought to the casualty of HRH on 14.9.91 and that he supplied attested copy of the said entry to CBI Insp. and the same is Ex. PW8/A. IO/Insp. R. K. Jha was examined as PW9. He proved order of Hon'ble Delhi High Court dated 22.4.02 Ex. PW9/A and deposed that on the basis thereof FIR No. 250/02 Police Station Kashmere Gate was registered. He also deposed regarding various letters addressed to the Delhi Police for making available original records pertaining to the case and deposed that as per their reply the SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:9:concerned documents had been destroyed. He also deposed that the statement of the prosecutrix was got recorded by Learned Metropolitan Magistrate, Delhi, the same is Ex. PW2/A.
10. I have considered the arguments advanced before me. The main argument of Learned Defence Counsel in this case is that the testimony of the prosecutrix PW2 and her mother PW1 is not trustworthy and cannot be relied upon inasmuch as PW1 Smt. Nirmala Shukla has falsely implicated accused persons in this case. It was submitted that she wanted to grab the land of Smt. Krishna, under whom accused persons were tenants and wanted them to pay the rent to her.
11. It was further submitted that the prosecution has failed to corroborate the testimony of the prosecutrix and her mother by way of any medical evidence. Learned Defence Counsel submitted that ther is no medical report of the prosecutrix on record, nor it has been established that she was subjected to rape by the accused persons, as alleged.
12. The third arguments advanced on behalf of accused persons was that despite the fact that locality was thickly populated, no other independent person from the locality has been examined by the prosecution, in order to prove the allegations against accused persons. It was submitted that in absence of any independent eyewitness, accused SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:10:persons cannot be convicted solely on the basis of testimony of the prosecutrix and her mother. It was submitted that the mother of the prosecutrix is definitely an intersted witness and in absence of any corroboration of the deposition of the prosecutrix from any independent source, accused persons merit acquittal.
13. On the other hand, Learned Special PP for CBI cited several judgments in support of his arguments that a person charged for the offence of rape can be convicted on the basis of sole testimony of the prosecutrix and it is not necessary to insist for corroboration of the prosecutrix, if it inspires confidence and appears to be credible. It was also argued that in the presence case, there is no reason to disbelieve the prosecutrix since it is highly improbable in view of social ethos of this country that either prosecutrix or her parents would set up a false case of rape as the same would affect the prospects of marriage of the prosecutrix in future.
14. Learned Special PP for CBI further argued that testimonies of defence witnesses are false and that they are interested witnesses.
15. I have considered the aforesaid submissions and the relevant case law. It is now necessary to look at the evidence on record in the present case in the light of the aforesaid.
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16. The prosecutrix, as aforesaid was brought into the witness box as PW2. She deposed that in the year 1991 when she was about 910 years of age, she was residing with her parents at Ghat No. 1, Yamuna Bazar, Delhi. She also deposed that she know all the accused persons as they were their neighbours and were doing the work of rehri khomchawalas. Prosecutrix further deposed that during that period, whenever she used to pass through her street, accused persons misbehaved her by abusing, touching her breast and other parts of her body. The prosecutrix further deposed first instance, accused Mithai Lal and Sanjay lifted her and took her to their jhuggi which was near to her house where she was raped by accused Mithai Lal. She deposed that she was threatened that if she disclosed this incident to their parents, they would kill her and throw her away, as in the past also they had done like this with others. Out of fear, she did not narrate the incident to her parents.
17. The prosecutrix also stated that after some days, accused Munna and Vidi brought her to their jhuggi but allowed her to go saying that her condition was not well. After 56 days accused Mithai Lal and Sanjay forcibly brought her to their jhuggi and Sanjay removed her clothes and accused Munna committed rape upon her. She also stated that accused Mithai Lal and Sanjay who were present at the place of incident caught hold of her hands from both sides to facilitate the commission of offence by accused Munna.
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18. The prosecutrix further deposed that after 45 days of second incident, one day at midnight, while she was sleeping in her jhuggi by the side of her brother, she suddenly woke up and saw that accused Jamuna and Sanjay were lifting her from the 'takhat' where she was sleeping. She stated that accused persons put some cloth on her face and she became unconscious. When she regained her consciousness, she found herself naked without any clothes and her whole body was stained with dirty stains including blood. She also deposed that she was at some other place outside her house and her clothes were lying beneath her body. She stated that she was smelling foul from her mouth and all the five accused persons were present there at that time. The prosecutrix also deposed that she was unable to lift herself and walk and her mother reached outside the jhuggi where she was lying and her mother brought her to her jhuggi and her mother took her to Marwadi Hospital in the area of Chandni Chowk on the next day. After her examination, doctor refused to give any treatment to her saying it is police case. She also deposed that she was thereafter taken to Police Station Kashmere Gate and she was brought to Civil Hospital for medical examination from where she was referred to Hindu Rao Hospital.
19. The prosecutrix further deposed that accused persons were taken to Police Station by ACP Mauji Khan, who came to their jhuggi after some days but no action was taken against them. Her mother filed SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:13:writ petition in Hon'ble High Court and she was produced by CBI officer for recording of her statement before Magistrate. She identified her signatures on her statement recorded under Section 164 CrPC, the same is Ex. PW2/A.
20. The mother of the prosecutrix PW1 namely Smt. Nirmala Shukla deposed that on the 10th of the month which she could not remember when all her family members were sleeping at about 1/1.30 am, she woke up and found that one of her daughters were missing and tripal on that side was found cut. She went outside looking for her daughter and heard one Inderjeet telling 'Ispe daal do'. She found one charpai in standing position and another charpai was laid down. She reached near those charpais and found her daughter sitting near the charpai towards a tree of Belpatra. At the same spot, she found Sanjay, Jamuna, Mithai, Vidhi, Munna, Kanthua and Birchha and some other people who fled away from the spot. She identified accused persons present in court and they were most of those persons who were present at that time. She also deposed that accused persons were telling her daughter to run away to her home, however, her daughter was not saying anything. PW1 further deposed that some smell of liquor/medicine was coming from her mouth and she was in drowsy condition. Her hands, face and a portion of her waist were wet as these had been freshly washed. Even after repeated queries, she was not able to tell as to why SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:14:she was there. She dragged her daughter to her house and made her lie down. PW1 further deposed that she took her to Marwari Hospital for medical examination and slowly prosecutrix disclosed to her mother that accused persons namely Jaumuna, Brichha, Munna, Mithai, Vidhi and certain other persons used to catch hold of her in the past whenever she happened to pass nearby. They used to remove her cloths and 'gandi baatein karte the'. She also stated that she had observed on two occasions her daughter was without any underwear and on her questioning her daughter replied that the people who used to catch hold of her also used to threaten her with a knife and that she had been raped by the said persons. However, at this juncture, my Learned Predecessor while recording the testimony of PW1, observed that witness i.e. PW1 has not used the word 'rape' but she stated that the words and the language is so indecent that she could not speak all this.
21. It may be noted that in the present case there is no other independent eyewitness, as has also been argued by Learned Defence Counsel. However, Learned Special PP for CBI argued that conviction of the accused persons for rape can be made on the sole testimony of the prosecutrix and it is not necessary to insist for corroboration of the prosecution, if it inspires confidence and appears to be credible. He relied upon judgment of Hon'ble Supreme Court titled as Phool Singh Vs State 2009 V AD (Cri.) (DHC) 231, wherein it is held that innocence of SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:15:the accused persons has not been substantiated either from cross examination of witnesses or by leading defence evidence. On the other hand, the prosecutrix categorically stated the role of appellant in commission of rape upon her. It was held that sole testimony in rape case can be relied upon without any corroboration. Hon'ble Delhi High Court propounded the aforesaid by relying upon the decision of Hon'ble Supreme Court in Rajoo and Ors. Vs State of M. P. 2009 I AD (SC) 37, Om Prakash Vs State of UP 2006 V AD (SC) 134, State of Maharasthra Vs Kewal Chand Jain AIR 1990 (SC) 658. Further, in Shankar Sahani Vs State of Govt. of NCT of Delhi, the Hon'ble High Court affirmed the aforesaid view. It was submitted that prosecutrix PW2 and her mother PW1 has established that the local police did not pay any heed to their repeated complaints regarding offence committed by the accused persons. It was argued that testimonies of PW2 and PW1 are consistent with each other. It was further submitted that the mother of the prosecutrix PW1 cannot be treated as an interested witness in this case. Rather, she is natural and truthful witness of the incident in question. It has been established from the testimonies of PW1 and PW2 that on the date of incident at about 1/1.30 prosecutrix was kidnapped and taken to open filed for the purpose of committing rape upon her. Learned Special PP for CBI submitted that PW1 is the mother of the prosecutrix and had no reason to cast a dent on the chasity of her minor daughter SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:16:which may affect prospects of her marriage life and it is only because of the atrocities committed by the accused persons the parents of the minor daughter come forward to lodge complaint. He argued that PW1 had seen the accused persons near the prosecutrix soon after the commission of offence and also deposed that hands, face and a portion of her waist were wet as these had been freshly washed. She also noticed that prosecutrix was not able to walk properly and foul smell was emanating from the mouth of the prosecutrix. PW1 also deposed that on seeing her, accused persons fled away from the spot. It was submitted that in the light of the aforesaid deposition of PW1, it has been established beyond reasonable doubt that prosecutrix was subjected to rape by the accused persons after she was kidnapped from her jhuggi. He argued that conduct of the accused persons i.e. their running away from the spot after commission of the crime also support the version of the prosecution witnesses. He submitted that though no medical report is available on record, however, in the light of the testimony of PW1 and PW2 coupled with the statement of the prosecutrix recorded under Section 164 CrPC which is Ex. PW2/A, it has been established on record that the accused persons have committed alleged offences.
22. It was further submitted that admittedly there is no evidence of the internal medical examination of the prosecutrix due to the fact that prosecutrix did not get proper response from the examining doctor as SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:17:well as local police. However, reliance was placed on a judgment of Hon'ble Supreme Court titled as Wahild Khan Vs State of MP 2009 V AD (Cri) (SC) 711 (Supra) in support of the arguments that absence of the examining doctor who conducted MLC, it is not necessary to insist for corroboration of testimony of the prosecutrix if it inspires confidence and appears to be credible. It was submitted that in the said judgment hymen of the prosecutrix was found to be intact and Hon'ble Supreme Court has held that depth of penetration is immaterial even a slightest penetration is sufficient. He submitted that in view of the aforesaid, Prosecution has been able to establish the offence punishable under Section 366/376/377/34 IPC against accused persons. He further relied upon the testimony of the prosecutrix, who had deposed that on several earlier occasions, accused persons used to abuse her and touch her breast and other parts of body.
23. I have considered the submissions made before me in the light of evidence on record and the relevant case law in the light of several judgments of Hon'ble Apex Court as well as Delhi High Court. There cannot be any doubt that in a case under Section 376 IPC, testimony of the prosecutrix does not require any corroboration from any other source, if her statement is found to be credible and trustworthy. However, at the same time, it cannot be lost sight of that testimony of prosecutrix must establish guilt of accused persons beyond reasonable doubt. Prosecution SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:18:in order to prove the allegations against accused persons must prove each and every ingredient of the alleged offence beyond reasonable doubt.
24. On going through the testimony of the prosecutrix PW2, I find that she has deposed that when she was subjected to sexual exploitation in one manner or the other by the accused persons. She has deposed that whenever she used to pass from the street, accused persons used to abuse, touch her breast and other parts of her body.
25. In her further deposition, the prosecutrix has deposed that on one occasion, accused Mithai and Sanjay lifted her and took her to their jhuggi and accused Sanjay removed her clothes and accused Mithai committed rape upon her. She had clearly deposed that no other accused at that time has any role in the incident of first time.
26. She also deposed that on that day after the incident, accused persons left her outside their jhuggi and threatened not to disclose this incident to anybody otherwise they would kill her and she out of fear did not narrate to her parents.
27. Now, coming to the incident which as per case of the prosecution occurred on intervening night of 10/11991, the prosecutrix deposed that she was sleeping by the side of her brother when she woke SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:19:up and saw accused Jamuna and Sanjay were lifting her from 'takhat'. They put some cloth on her face and she became unconscious and upon regaining her consciousness, she found herself naked without any clothes and her whole body was stained dirty stains including blood. She deposed that she was smelling foul from her mouth and all the accused persons were present there at that time.
28. Smt. Nirmala Shukla, PW1, mother of the prosecutrix also deposed that on the date of the incident at about 1.30 am, she woke up and found her daughter i.e. prosecutrix missing. On searching, she found one Inderjeet saying 'ispe daal do' and found one charpai in standing condition and another charpai was lying down. She found the prosecutrix standing near the charpai and at the spot all the five accused persons and some other persons were present who fled away from the spot on seeing her. At that time, as per PW1 prosecutrix was wearing only a frock and her underwear was missing. Some foul smell of liquor/medicine was coming from her mouth. She was in a drowsy condition and her hands, face and a portion of her waist were wet as these had been freshly washed. It is noteworthy that as per PW1, prosecutrix was not able to state as to what had happened despite repeated querries.
29. PW1 also stated that the prosecutrix later told her that she used to be raped by accused persons. However, it is also pertinent to mention SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:20:at the same time that Learned Predecessor of this court while recording her statement observed that witness i.e. PW1 has not used the word 'rape' but she stated that the words and the language is so indecent that she could not speak all this. Though, undoubtedly in a case of sexual assault, the uncorroborated testimony of the prosecutrix is sufficient to convict the accused, however, at the same time it cannot be lost sight of that in a case of rape, onus is always upon the prosecutrix to prove affirmitively each and every ingredient of offence, it seeks to establish. It is well settled law that unless offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for the offence. There is initial presumption of innocent of the accused and the Prosecution has to bring the offence home by leading reliable and cogent evidence.
30. It would be noticed from the testimony of prosecutrix PW2 and her mother PW1 that none of these witnesses deposed about having commission of offence under Section 376 IPC by the accused persons in any manner whatsoever. The law regarding offence of rape is fairly well settled and in order to prove the same, the Prosecution must establish:
(i) that the accused had sexual intercourse with the woman in question;
(ii) that the act was done under circumstances falling under any of the five descriptions specified in Section 375;
(iii) that such woman was not the wife of the accused; or, if she was his SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:21:wife, she was under fifteen years of age;
(iv) that there was penetration.
It is also not disputed that the depth of penetration in an offence under Section 376 IPC, as argued by Learned Special PP for CBI and has also been laid down by Hon'ble Supreme Court in a catine of judgments including Aman Kumar & Anr. Vs State of Haryana AIR 2004 SC 1497.
31. However, the fact still remains that there must be irrefutable evidence on record to establish the aforesaid ingredients before accused can be convicted for offence under Section 376 IPC. The testimony of PW2 prosecutrix and her mother PW1, in the present case would show that none of the said witnesses deposed that any of the accused persons had sexual intercourse with the prosecutrix on the intervening night of 10/11991. There is no evidence whatsoever regarding any penetration. The prosecutrix, PW2 probably under influence of some stupifying substance clearly deposed that on the night of the incident, upon regaining her consciousness she found herself naked and her body was stained with dirty stains. She also deposed that her clothes were lying beneath her body and foul smell was coming from her mouth. In other words, though prosecutrix deposed about the presence of five accused persons near her when she regained consciousness on the night of the incident in question. She on account of being unconscious was unable to SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:22:deposed anything about any sexual intercourse or penetration whatsoever by any of the accused persons. Admittedly, there is no medical evidence even remotely suggestive of any forced sexual intercourse with the prosecutrix in the present case.
32. Analysing the testimony of PW1 from this angle, I again find that that the deposition of PW1is silent to this effect. PW1 merely deposed that she found the accused persons standing near the prosecutrix, who at that time was wearing frock on her person and her underwear was missing and some foul smell was coming from her mouth. Mother of the prosecutrix, PW1, though deposed that the prosecutrix was in drowsy condition and portion of her body appeared to have been freshly washed, she failed to depose anything about any sexual intercourse with the prosecutrix by the Accused persons. It is noteworthy that it was not deposed either by prosecutrix or by PW1 that there were even any signs of sexual intercourse by way of vaginal bleeding or marks of injury upon the person of the prosecutrix when she was found in semi naked condition by mother of the prosecutrix. The prosecutrix, herself was unconscious and thus did not depose regarding any forced sexual assault upon her.
Thus, although there is evidence regarding her condition after the alleged rape, yet there is not even an iota of evidence to prove the actual commission of offence of rape as defined under Section 375 IPC.
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33. In the light of aforesaid facts and circumstances and material on record, I find that the accused persons cannot be convicted for offence punishable under Section 376/34 IPC. Further, I find no evidence on record to establish the allegations of Section 377 IPC against accused persons. Neither the prosecutrix nor her mother PW1 deposed that anything as regards any carnal intercourse against the order of nature was committed by the accused persons with the prosecutrix. The argument of Learned Special PP that foul smell was emanating from the mouth of the prosecutrix is, in my opinion, not sufficient to conclude that the offence punishable under Section 377 IPC was committed by the accused persons.
34. However, on the basis of aforesaid testimony of PW1 and PW2, it has been established beyond reasonable doubt that the accused persons in furtherance of their common intention kidnapped prosecutrix from her jhuggi on the night of the incident where she was sleeping on a takhat in order that she may be forced or seduced to illicit intercourse. The said intention of the accused persons is clearly evident from the deposition of PW2, prosecutrix, who deposed that accused Jamuna and Sanjay lifted her from takhat where she was sleeping and put some cloth on her face after which she became unconscious. She further deposed that on regaining consciousness, she found herself naked and her body was stained with dirty stains and her clothes were lying beneath her body.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:24:She also deposed about the presence of all the accused persons at that time.
35. Similarly, PW1, the mother of the prosecutrix who in the middle of the night at about 1.30 am woke up and found her daughter i.e. prosecutrix missing, found the accused persons standing near the spot where where the prosecutrix was standing wearing only a frock and without any underwear. She also deposed that body of the proecutrix appeared to have been freshly washed and some foul smell was coming from her mouth. Further, there is unrebutted testimony of the prosecutrix as well as her mother PW1 that at the time of the incident, the prosecutrix was minor.
36. The aforesaid deposition of PW1 & 2, in my view, thus establish that Accused persons in furtherance of their common intentions kidnapped the prosecutrix from her jhuggi while she was sleeping with an intention that she may be forced or seduced to illicit intercourse and thus committed an offence punishable under Section 366/34 IPC.
37. Besides the aforesaid, it has also been borne out from the testimony of PW1 and PW2, as discussed herein above, that the prosecutrix was found in seminaked condition by the time her mother reached the spot. Prosecutrix herself deposed that when she regained SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:25:consciousness on the night of the incident, she found herself completely naked. It has already been held herein above that accused persons had kidnapped the prosecutrix with an intention to compel her or seduce her to illicit intercourse. It has also been established on record that the prosecutrix was kidnapped from her jhuggi by accused persons by covering her mouth with the help of a cloth after which she became unconscious. She also deposed that after regaining consciousness, she found herself completely naked. The aforesaid facts and circumstances thus clearly establish that the accused persons committed an offence punishable under Section 354/34 IPC inasmuch as there is sufficient evidence on record that they assaulted and used criminal force upon the prosecutrix intending to outrage her modesty and thus committed an offence punishable under Section 354/34 IPC. I am supported in my view by the judgment of Hon'ble Court in Aman Kumar & anrs. Vs State of Haryana AIR 2004 SC 1497 (Supra wherein it has been laid down that: "Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:26:in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object".
38. On the basis of evidence on record, all the five accused peresons namely Sanjay Chauhan, Jamuna Chauhan, Mithai Lal, Vidhi Chauhan and Munna Chauhan are hereby convicted under Section 354/366/34 IPC. However, for want of sufficient evidence, they are acquitted for offence punishable under Section 376/377/34 IPC. Let Accused persons be heard on the point of sentence. Announced in the Open Court On 14.03.2011.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:27:
14.3.11 Present: Sh. Anil TanwarLd. SPP for CBI.
All five accused are present on bail with Counsel Sh. Hari Om. Vide separate judgment announced in open court today, all the five accused peresons namely Sanjay Chauhan, Jamuna Chauhan, Mithai Lal, Vidhi Chauhan and Munna Chauhan are hereby convicted under Section 354/366/34 IPC. However, for want of sufficient evidence, they are acquitted for offence punishable under Section 376/377/34 IPC.
Adjourn to 17.3.11 for arguments on the point of sentence.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
14.3.11 SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:28:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 69/09 CBI Versus 1) Sanjay Chauhan S/o Sh. Bhimal Chauhan Presently R/o Jhuggi No. 4, Ghat No. 1 Yamuna Bazar, Delhi. Permanent R/o Vill. Kishan Pura District Gazipur PO Jakhania, PS Sadiyabad, UP 2) Jamuna Chauhan S/o Sh. Bhimal Chauhan Presently R/o Jhuggi No. 4, Ghat No. 1 Yamuna Bazar, Delhi. Permanent R/o Vill. Kishan Pura District Gazipur PO Jakhania, PS Sadiyabad, UP 3) Mithai Lal Chauhan S/o Inder Dev Chauhan Presently R/o Jhuggi No. 2, Ghat No. 1 Yamuna Bazar, Delhi. Permanent R/o Vill. Kishan Pura District Gazipur PO Jakhania, PS Sadiyabad, UP 4) Vidhi Chauhan S/o Inder Dev Chauhan Presently R/o Jhuggi No. 2, Ghat No. 1 Yamuna Bazar, Delhi Permanent R/o Vill. Kishan Pura District Gazipur PO Jakhania, PS Sadiyabad, UP SC No.69/09 : CBI vs. Sanjay Chauhan & Ors. :29: 5) Munna S/o Sh. Lakhan Prajapati R/o 6263/33A, Ward No. 3 Mission Church Compound, Sadar Bazar Ambala Cantt., Haryana. Permanent R/o Village Rahispur, Post Rampur Jakhania, Thana Tarwa, Zila Azamgarh, UP. Case arising out of: RC 6(S)/2002/SIC. IV/ND Police Station : Kashmere Gate Under Section : 354/366/376/377/34 IPC Judgment pronounced on : 14.03.11 ORDER ON SENTENCE
1. All the above named convicts were convicted for offence punishable U/s 366/354/34 IPC vide judgment dated 14.03.11.
2. I have heard the submissions made by Ld. Counsel for all the convicts and by Ld. Spl. PP for CBI.
3. It is submitted on behalf of the convicts that they are poor labourers with no previous criminal record. All of them are the sole bread earners of their respective families and have minor children to support. It is also submitted that they are facing trial in this case since the year 2002 and a prayer for taking lenient view is made.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:30:
4. On the other hand, Ld. Spl. PP on behalf of CBI submits that considering the nature and gravity of the offences committed by the convicts, they do not deserve any leniency. He also submits that sexual offences against women are on the rise in Delhi and thus, strict punishment should be awarded to the convicts so as to have a deterrent effect. He submits that the convicts be awarded maximum prescribed sentence, keeping in view the fact that the prosecutrix was barely 1011 years of age at the time of commission of aforesaid offences.
5. I have given my thoughtful consideration to the matter in hand and keeping in view the facts & circumstances of the case, though it cannot be doubted that has been a prolonged litigation, yet at the same time, it must be kept in mind that the prosecutrix was minor when she was made victim of the aforesaid offences by the convicts. It is also borne out from the record that the parents of the prosecutrix had to run from pillar to post in search of justice and finally their plea was heard by Hon'ble Delhi High Court after which the present case was registered. It is also on record that much of the medical evidence was also lost on account of delayed investigation. The rise in incidents of sexual offences against women in Delhi also demands that such offenders should be awarded stringent punishment for the benefit of the society as a whole.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
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6. Moreover, the interest of justice demands that the rights of the victim must also be kept in mind while awarding the sentencing to the convicts besides considering the submissions made on behalf of the convicts.
7. In the light of the aforesaid, all the above named convicts are sentenced to Rigorous Imprisonment for two years each for offence punishable U/s 354 IPC, in addition to payment of fine of Rs.1000/ each, in default whereof, they shall undergo Simple Imprisonment for one month.
8. Further, all the above named convicts are sentenced to Rigorous Imprisonment for five years each for offence punishable U/s 366 IPC, in addition to payment of fine of Rs.2,500/ each, in default whereof, they shall undergo Simple Imprisonment for three months. Let them be taken into custody.
9. Both the sentences shall run concurrently. The convicts shall be entitled to benefit of S.428 CrPC. Copies be given free of cost to all the convicts. File be consigned to Record Room. Announced in the Open Court On 17.03.2011.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.
:32:CBI/RC6(S)/00 SC No. : 69/09 17.03.11.
Present: Sh. Anil Tanwar - Ld. Spl. PP for CBI.
All the five accused on bail with Counsel Sh. Hari Kishan. Vide order on sentence announced of even date on separate sheets, all the above named convicts are sentenced to Rigorous Imprisonment for two years each for offence punishable U/s 354 IPC, in addition to payment of fine of Rs.1000/ each, in default whereof, they shall undergo Simple Imprisonment for one month.
Further, all the above named convicts are sentenced to Rigorous Imprisonment for five years each for offence punishable U/s 366 IPC, in addition to payment of fine of Rs.2,500/ each, in default whereof, they shall undergo Simple Imprisonment for three months. Let them be taken into custody.
Both the sentences shall run concurrently. The convicts shall be entitled to benefit of S.428 CrPC. Copies be given free of cost to all the convicts. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.69/09 : CBI vs. Sanjay Chauhan & Ors.