Delhi District Court
State vs Bhola Adivashi Fir ... on 31 March, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.139/2011.
FIR No.105/2011.
PS K.N. KATJU MARG.
U/s. 307/328/376/506 IPC
STATE
VERSUS
BHOLA ADIVASHI S/O. BADLU ADIVASHI
R/O. NAHRI TEHSIL, DISTRICTPANNA,
MADHYA PRADESH.
PRESENT ADD:
G16/41, SECTOR15,
ROHINI, DELHI110089.
Date of Institution in the Sessions Court :16.07.2011
Date of Arguments:23.03.2012
Date of Judgment :28.03.2012
JUDGMENT:
1. This judgment pertain to a rape committed upon an old lady of 77 years of age (who is hereinafter called as P, as her name is withheld in STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 2 view of the Supreme Court guidelines) on the intervening night of 11/12.3.2011
2. Brief facts of the prosecution story are that on 11.03.2011 prosecutrix came to her sister's house at C10/21, Sector15, Rohini and at about 6.30 pm, her sister arranged one rickshaw for her for Rohini Metro Station (West), and the said rickshaw puller (accused Bhola Adivashi) brought one white handkerchief near her face two/three times, due to which she became unconscious and regained consciousness when she fallen down on the stones. Thereafter, said rickshaw puller dragged her to a lonely place, where he gave her beating and committed sexual intercourse forcefully and thereafter left her. Two persons found her weeping in the morning in the bushes of Japanese Park, near Gole Chakkar in the morning of 12.3.2011 at about 6/6.30 a.m. came in the morning and took the prosecutrix to her house and from there her son taken her to the BSA Hospital and police was informed. The IO recorded STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 3 her statement and on the basis of said statement FIR No.105/11 was registered in the PSK.N. Katju Marg, u/s.323/328/506/376 IPC. On 13.03.2011accused was arrested. After completion of investigations chargesheet was filed u/s. 376/307/328/506 IPC.
3. Ld. MM after compliance of the provisions of Section 207 Cr.P.C. referred the case to the court of sessions, which was later on assigned to this court.
4. Vide order dated 08.08.2011, my ld. Predecessor had framed the following charges: That on 11.3.2011 between 6.30 pm to 4 pm on the road in front of the House No.10/21, Sector15, Rohini, Delhi, you put handkerchief laced with some intoxicant on the mouth of P aged about 77 years, with intent to voluntarily cause hurt to her and with intent to facilitate the offence of rape upon her and thereby you have committed offence punishable u/s. 328 IPC and within cognizance of this court.
Secondly, you after taking P on your rickshaw in her unconscious condition, you took her to in a deserted place within the jurisdiction of PS K.N.Katju Marg and during the above STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 4 mentioned period on the night intervening of 11/12.3.2011, you committed rape upon her against her wishes and without her consent by giving beatings to her and thereby you have committed offence punishable u/s. 376 IPC and within the cognizance of this court.
Thirdly, at the time of committing rape, you shut the mouth of P with such intention or knowledge and under su ch circumstances that if you had caused the death of P, you would have been guilty of murder and thereby you have committed offence punishable u/s. 307 IPC and within the cognizance of this court.
Fourthly, at the time of commission of rape, you gave criminal intimidation to P by threatening to kill her if she raise any alarm at that time and thereby you have committed offence punishable u/s. 506 IPC and within the cognizance of this court."
5. In order to prove its case, prosecution has examined as many as 23 witnesses.
PUBLIC WITNESSES
6. PW1 is the prosecutirx (P). She has deposed that on 11.03.2011 she was residing at H17, H.No. 112113, Sector7, Rohini with her younger son Arvind and on that day her other son Sanjay Prabhakar STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 5 (PW7) had dropped her to her sister Sudesh's house at C10/21, Sector15, Rohini. At about 6/6.30 pm, her sister Sudesh Sharma had arranged one rickshaw from in front of her house for Metro Station Rohini West on a fare of Rs.25/ and which her sister paid and thereafter her sister had gone to her house and the said rickshaw puller i.e. Accused (she correctly identified the accused as Rickshaw Puller) took her from there and she asked him to take her to Metro Station, Rohini, but the rickshaw puller asked more fare stating that, "Mataji 25 rupey to kam hain", she told him that, she will pay Rs.5/ to him. When he started his rickshaw, he waived one white colour handkerchief near her mouth and nose twice and thrice, due to which P felt giddiness (Achet si ho gayi) and when she regained consciousness, she found herself lying on the stones in a deserted place. Before that the rickshaw puller had started moving his rickshaw here and there in that area and had not taken her directly towards Metro Station. When she found herself lying on stones. Accused dragged STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 6 her towards a lonely place in bushes and pushed her on the stones and pressed her mouth and exhorted her that, if she cry, he will stab her (agar shor machaya to chaku mar dunga). He hit her with the stone and gave fist blows on her both eyes and pressed her neck with force and with intention to kill her when she raised alarm and thereafter accused removed her Saree and other clothes thereafter put his urinating part into her urinating part and committed rape upon her forcibly and also continued to beat her. She cried, but nobody came for her help. Accused was exhorted that if she cry, then he will break her lungs by stones (agar awaj nikali to pathar se mar mar kar fefda tod dunga). Thereafter, at about 12.30 am or 1 am (night), accused left her in injured condition, after wearing his clothes i.e. pant, after leaving her in injured condition. Due to fear of the accused, she kept mum and when accused lastly left the spot leaving her in injured condition. In the morning one or two boys came near her and asked her, what has happened (amma kya hua), she asked them to drop her at her STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 7 house and told him address of her house. Thereafter, the said two boys took her in a TSR and they dropped her at the said house, where her family members and neighbours were present and she told the facts to her sons and her sons took her to the BSA Hospital. Where her statement was recorded by the IO/WASI Krishna and same was proved by her as Ex.PW1/A. She was medically examined and her cloths were also seized by the doctors.
She further deposed that her statement was recorded by Ms.Vandana, ld. MM u/s. 164 Cr.P.C.,as Ex.PW1/B. She further deposed that she identified the accused Bhola Adivashi at Rohini Jail before ld. MM and identified her signatures in TIP proceedings Ex.PW1/C at point A, and proved the TIP proceedings as Ex.PW1/C. She also identified her clothes i.e. Saree Ex.P1, blouse Ex.P2, Brassier Ex.P3 and Peticot Ex.P4, which she was wearing at the time of incident. She also identified her slippers Ex.P5. She also identified one artificial jaw Ex.P6 and stated that artificial STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 8 jaw alongwith teeth she was wearing at the time of incident. She also identified her spectacles Ex.P7 and stated that she was wearing the same on the date of incident.
She was cross examined at length by the ld. Amicus Curiae. In which she stated that she left her sister's house for her house in rickshaw for Rohini Metro Station West, as she intend to walk to her home from there. She does not know the exact route of her house and feeling giddiness, therefore, she did not come to know that accused was taking her in a wrong directions. She did not know the name of the person who dropped her to her home, but they were Muslim by religion. Police recorded her statement in the hospital and later on by the IO. ld. MM also recorded her statement. She denied the suggestion that accused is not the person who had sexually assaulted on her or that she had wrongly identified the accused in the TIP.
7. PW7 Sanjay Prabhakar has deposed that on 11.3.2011 at STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 9 about 2 p.m., he dropped his mother (P) at Rohini West Metro Station and from there his mother took RTV to reach at his aunt Smt. Sudesh's house situated at Sector15 and his mother told that she will return to the house herself and at about 9 pm, when he returned back, his mother did not return till that time then he talked with her aunty/masi and she informed him that prosecutrix has already left her home at about 6.15/6.30 p.m. in a rickshaw from her house. Thereafter, he searched for her in all the hospitals and the police stations throughout whole night. On the next day i.e. 12.3.2011 at about 7 a.m., he went to the PS of Sector7, Rohini, alongwith photographs of her mother. There he received information that his mother had reached at the house in a worse/critical condition. He came back to his house and find his mother in a auto rickshaw and she was in very bad condition, she was brought by two public persons. He took her mother to the BSA Hospital in the same auto and informed to the police that police had recorded statement of his mother. Later on, a lady STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 10 Magistrate also reached at the hospital and recorded statement of his mother. During investigations, his mother also identified the accused in the Jail.
In his cross examination, he deposed that he searched his mother alongwith his neighbours and relatives in the intervening night of 11/12.3.2011 and he informed to the police first time on 10/11 p.m., but police did not record his statement in the intervening night of 11/12.3.2012. In fact, police did not record his statement at all.
8. PW13 Mohd. Nazim has deposed that on 12.3.2011 he alongwith other labourers including Mahboob were laying the PNG Pipeline for the construction company namely Sonvi. They used to reside behind the Japanese Park, near kali Mandir, where they used to park their machines. On that day, he alongwith Mahboob had gone to answer the nature's call early in the morning at about 6.30 a.m. in the bushes of Japanese Park, when they reached near the right side of the Gole STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 11 Chakkar, they heard the voice of weeping (Karahna), they saw an old lady was weeping and they asked her, 'as to what happened, on which she said that she want to go to her son Sanjay Prabhakar. He alongwith Mehboob took her to her house in a TSR on the directions of said old lady, where her son Sanjay Prabhakar met and they handed over the prosecurtrix to him.
In his cross examination he stated that the said old lady was wearing clothes at that time, but he did not remember whether she was wearing full clothes. He admitted that many persons were gathered there. He admitted that he had left the lady at her house on the gate and police recorded his statement on the same day.
9. PW14 Mahboob has also deposed on the similar line. He also deposed that he alongwith Nazim went to answer the nature's call at 6.15/6.30 a.m. in the bushes of the Japanese Park, when they heard the voice of weeping. Then they saw an old lady was weeping and asked her, as to what happened to her and she replied that, she want to go to her son STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 12 Sanjay Prabhakar and said old lady disclosed her name as P. He alongwith Nazim took the said lady to her house to Sector7 in a TSR, where her son Sanjay Prabhakar met they handed over her to Sanjay Prabhakar.
In his cross examination, he deposed that said old lady was wearing her clothes at that time, but she was not able to get up or walk on her own, as she was in injured condition. Police met them for the first time at their tent. Police recorded his statement.
MEDICAL EVIDENCE:
10. PW2 Dr. Divya Goyal deposed that prosecutrix was referred to her for hypertension and coronary artery disease. She examined prosecutrix and her observations encircled in MLC No.56/11 Ex.PW2/A and her opinion is at point X. She was not cross examined.
11. PW4 Dr. Pratima, SR, Gynae, BSA Hospital has deposed that she has to come to depose in place of Dr. Shanti (SR, Gyne) who has already left the services of the hospital and her present whereabouts are STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 13 not known in the hospital record. She stated that MLC Ex.PW2/A is in the handwriting of Dr. Shanti from point Z to Z and bears her signatures at point A. In her cross examination, she added that she has not prepared the MLC or examined the prosecutrix herself.
12. PW9 Dr. Nikhil Raj, Senior Resident, Dental, BSA Hospital has deposed that on 12.03.2011, he examined prosecutrix and gave dental notes on the MLC Ex.PW2/A at point X, which bears his signatures at point X1, he found tenderness and swelling present over left side of mandible, no teeth was present, she was wearing upper denture, lower denture was not present. There was a blood clot (haemotoma) on the floor of the mouth of the patient. He was not cross examined by the ld. Amicus Curiae.
13. PW12 Dr. Harkesh, SR, ENT, BSA Hospital has deposed that on 12.3.2011 he examined the prosecutrix, who has complaint of nasal bleeding and nasal pain. On her examination he find no active nasal bleeding was found, clotted blood was present bilateral nasal cavity. Nasal STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 14 tenderness present. Nasal bond creapitus present. No nasal swelling, no nasal deformity and nasal septum in midline. He proved his opinion Ex.PW12/A on MLC Ex.PW2/A. He was also not cross examined.
14. PW15 Dr. Rachna Pathak, Senior Resident, Eye Department, BSA Hospital, deposed that prosecutrix was referred to her for examination. She found on her examination that periorbital ecchymosis with sub conjunctiva haemorrhage over temporal bulbar conjunctiva and her observations is at encircled portion B1 to B1 of MLC Ex.PW2/A. She was not cross examined.
15. PW16 Dr. Dinesh Tyagi, Special Psychiatrist, BSA Hospital deposed that patient is required for physical rest and psychological support as he deposed that on MLC No. 56/11 at observations encircled portion.
She was not cross examined.
16. PW17 Dr. Kshitij Srivastav, he stated that he medically examined prosecutrix and found defuse swelling and tenderness on the STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 15 lower back region and left gluteal region of the patient and gave his opinion in encircle portion Ex.PW17/A on MLC No. 56/11. He was also not cross examined.
17. PW18 Dr. Prashant Saxena, SR (Surgery), BSA Hospital, he medically examined prosecutrix on 12.03.2011and found following injuries:
1. Periorbital bruises bilaterally.
2. Bruises over forehead and chin.
3. Nasal tenderness positive.
4. Tenderness lower chest left side.
And he deposed that patient was admitted in the Surgery Department at the hospital and gave his observations Ex.PW18/A and also deposed that she was discharged on 22.3.2011 and he prepared discharge summary Ex.PW18/B. In his cross examination, he admitted that injuries may be caused by trauma of any kind including falling on the ground while face was towards the ground.
18. PW20 Dr. Vijay Dhankar, deposed that he came to depose before the court in place of Dr. Raghvender Singh, with respect to MLC STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 16 No.1788/11 pertaining accused Bhola Adivashi. The said MLC is in the handwriting of Dr. Florence Almeida and Dr. Raghvender Singh, as both the doctors have left the services of the hospital and their present whereabouts are not known. He further deposed that he can identify their handwritings and signatures. He further proved the MLC as Ex.PW20/A. In his cross examination, he admitted that the MLC was not prepared in his presence and he has no personal knowledge of the case. In reply to the questions, however, person is examined to determine whether a person is capable of performing sexual act or not. He further stated that sexual intercourse by a male depends on the normal anatomical and physiological developments of the person and if no abnormalities are found, it is considered that, the person is capable of performing sexual intercourse.
POLICE WITNESSES
19. PW5 Ct. Harish Kumar has deposed that he was posted as STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 17 photographer in the Mobile Crime Team, Outer District and on 12.3.2011, he alongwith crime team reached at the spot and taken the photographs Ex.PW5/1 to Ex.PW5/6 and their negatives are Ex.PW5/7 to Ex.PW5/12.
In the cross examination, he deposed that they went to the spot on a government vehicle and remained there for about one hour. He denied the suggestion that he did not take the photographs.
20. PW6 WASI Raj Bala has deposed that on 12.3.2011, she was working as duty officer, and on that day at about 1.40 p.m., she received rukka from Ct. Kashi Nath sent by WASI Krishna and on the basis of same registered the FIR Ex.PW6/A and also made endorsement on the rukka Ex.PW6/B. After registration of the FIR, further investigations were marked to WASI Krishna and copy of the FIR and original rukka were handed over to Ct. Kashi Nath for handing it over to WASI Krishna. She was not cross examined.
21. PW8 Ct. Kashi Nath, deposed that on 12.3.2011 on receiving STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 18 the DD No. 12B, he alongwith SI Kuldeep reached at BSA Hospital and there SI Kuldeep collected the MLC of the prosecutrix and made inquiry from the prosecutrix. On inquiry he came to know that the incident took place in the are of PS K.N. Katju Marg. Thereafter, he informed his higher officers and thereafter WASI Krishna came there and she recorded the statement of the prosecutrix, prepared the rukka and he took the same to the PSK.N.Katju Marg and got registered the FIR and after coming from the PS he handed over the copy of original rukka and copy of FIR to IO/WASI Krishna.
In the cross examination, he stated that gents duty officer took 3045 minutes in recording the FIR. He denied the suggestion that he did not take the rukka to the PS or did not join the investigations.
22. PW19 HC Surender Singh has deposed that on 12.3.2011 he alongwith IO/WASI Krishna and Ct. Ved Prakash reached at the spot i.e. an open ground, near DTC Depot and in his presence Crime Team officials STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 19 took the photographs of the spot. IO seized one pair of of lady chappal of golden brown and black colour, one artificial jaw, one glass of spectacles, one frame of spectacles having one glass and one pair of inner patava of the gents shoes and one brown colour gents underwear on which Rupa frontline was written, which were lying there and which were kept in a pullanda by the IO and sealed with the seal of SK and seized vide seizure memo Ex.PW19/A. On 13.3.2011 after reaching at Sector16, near Sarvodaya School, they found a rickshaw puller and the said rickshaw puller on seeing the police party started moving from there. On the directions of the IO, the said rickshaw puller was apprehended and Ct. Ved Prakash took his formal search and during search a lady handkerchief was recovered from his possession. On inquiry the said rickshaw puller disclosed his name as Bhola Adivashi i.e. accused, who is present in the court. Thereafter, said rickshaw puller was interrogated by the IO and he confessed that he had STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 20 committed rape with the said old lady on 11.3.2011. Thereafter, accused was arrested vide memo Ex.PW19/B by the IO and his disclosure statement was recorded vide Ex.PW19/C and handkerchief was seized by the IO, after preparing the pullanda and same was sealed with the seal of SK and prepared the seizure memo Ex.PW19/D and thereafter, IO had seized the rickshaw vide memo Ex.PW19/E. He further deposed that at the instance of accused they reached at G16/41, Sector15, Rohini, Delhi and accused had opened the lock of his room and on his instance one pair od sport shoes marka Firari of 7 number, one white colour handkerchief from the bed and one small bottle of diluter were recovered, which were seized by the IO and prepared seizure memo Ex.PW19/F. Thereafter, accused was taken for his medical examination. He identified the aforesaid seized articles.
In his cross examination he stated that he left the PS at about 2/2.15 pm in a government vehicle alongwith IO WASI Krishna and Ct. Ved STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 21 Prakash and SHO of PSK.N. Katju Marg. He further deposed that on 13.3.2011 they went to search the accused on two private motor cycles. Only accused was found present at Sarvodaya Vidyalaya, Sector16, Rohini, where they reached at about 7.45 pm. He admitted that the said place was surrounded by the shops and houses and the public persons were present there and IO had asked them to join the proceedings, but they refused to join the same, but IO did not give any notice to them. The house of accused was single story having two room. He denied the suggestion that accused was not in the manner described by him or no proceedings were conducted in the manner as mentioned by him in his examination in chief. He also denied the suggestion that he did not take part in the investigations.
23. PW21 WASI Krishna is the IO. She deposed that on 12.3.2011 on the directions of Inspector Arun Kumar, ATO, PSNorth Rohini, Delhi she reached at BSA Hospital, where ASI Kuldeep of PS Prashant Vihar STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 22 met her who told her about the incident or rape against an old lady and on the directions of DCP, investigations was handed over to her. She met with P in BSA Hospital in Emergency Ward and recorded her statement. She collected the MLC of the P, and prepared ruka Ex.PW21/A and gave the same to Ct. Kashi Nath, who took the rukka to the PSK.N.Katju Marg for registration of FIR. In the meanwhile, SHO Inspector Sanjeev Kumar had reached at the hospital. HC Ram Parvesh handed over one pullanda in sealed condition with the seal of SD to her and she seized the same vide Ex.PW21/B. She had also prepared the seizure memo Ex.PW21/B1. Ct.Kashi Nath reached at the hospital and handed over copy of FIR No. 105/11 and original rukka to her. Thereafter, she added the offence u/s. 307 IPC , as there was allegations of attempt to murder. SHO called the Crime Team official at the spot. Thereafter, she reached at teh spot and find one pair of ladies slipper make Bata of golden and black colour, one spectacles with one glass, one glass of spectacles, one lower drencher, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 23 two patavas of gents shoes and one brown colour gents underwear of Rupa Frontline. Which she sealed with seal of SK and seized vide memo Ex.PW19/A. Crime team officials took the photographs in her presence.
On 13.03.2011 she alongwith HC Surender and Ct. Ved Prakash reached at Sector16, Rohini, near Sarvodaya School, where she found a rickshaw puller and the said rickshaw puller on seeing them started moving from there. There she directed HC Surender to stop him and HC Surender apprehended him. She identified the said rickshaw puller as accused Bhola Adivasi, by pointing towards him. Ct. Ved Prakash took his search on her direction and found one lady handkerchief from the pocket of his pant. She seized the same vide memo Ex.PW19/D, after making pullanda and sealed the same with the seal of SK and accused was arrested vide memo Ex.PW19/B. Thereafter, she recorded his confessional statement Ex.PW19/C and thereafter she seized his rickshaw Ex.PW19/E. Thereafter accused took them to his house i.e. At G16/41, Sector15, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 24 Rohini, Delhi, where accused opened the lock of the gate and led them to his room. Thereafter at his instance one pair of sports shoe marka Farari, one white colour handkerchief from the bed and one small bottle of diluter were recovered and said articles were kept in separate cloth pullandas, sealed with the seal of SK and seized the same vide memo Ex.PW19/F. Thereafter, accused was sent to BSA Hospital for his medical examination. After medical examination, Ct. Ved Parkash handed over her accused Bhola Adivashi and one pullanda in sealed with the seal of SD containing the samples in respect of accused Bhola Adivashi and she seized the same vide memo Ex.PW21/C and thereafter she deposited all the seized articles in the malkhana.
On 14.3.2011 she alongwith SHO, PSK.N. Katju Marg and other staff reached at BSA Hospital and collected the MLC of accused and accused was thereafter produced before the court of ld. MM in muffled face. Accused Bola Adivashi was kept in muffled face since the time of his STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 25 arrest. Thereafter, she had moved an application for conducting of TIP proceedings of the accused vide application Ex.PW21/D. HC Runa Rathore had moved an application for recording statement of the prosecutrix on 15.3.2011. Statement of the prosecutrix was recorded in BSA Hospital u/s. 164 Cr.P.C. she collected the documents of the proceedings on 22.3.2011, she sent the exhibits to the FSL vide RC no. 35/21/11 through Ct. Dinesh.
On 05.04.2011, TIP of the accused Bhola Adivashi was conducted at Rohini Jail and she collected the TIP proceedings documents. On that day P had shown place of incident to her and on P's instance she had prepared the site plan Ex.PW21/F. She collected the crime team report Ex.PW21/G. She further collected the FSL Report Ex.PW21/J and Ex.PW21/K and after completion of the investigations, file the chargesheet, she identified the articles, which were seized by her during investigations.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 26 In her cross examination she deposed that she do not remember the name of the DCP of her district, who reached at the BSA hospital. She stated that she does not remember the impression of the sample seal. She further stated that the fact of adding section 307 IPC was mentioned in the case diary. She identified the exact location of spot by finding the goods which she later on seized and also son of the prosecutrix told her about the spot. She further stated that the place of arrest of accused was surrounded with shops and dwelling houses and she asked three/four shopkeepers to join the proceedings, but they all refused to join the same. She denied the suggestion that photographs of the accused was taken in the PS and she shown the same to the prosecutrix or that she falsely implicated the accused due to huge media pressure upon the police officials.
24. PW22 Ct. Dinesh has deposed that on 22.3.2011 two sealed pullandas sealed with the seal of SD and another sealed pullanda sealed STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 27 with the seal of SK were taken by him for depositing the same at the FSL vide RC no.35/21/11, copy of RC Ex.PW22/A and deposited the same in the FSL and obtained receipt of the same vide Ex.PW22/B. He was not cross examined.
25. PW23 HC Shiv Ram is the MHC(M) has deposed that on 12.3.2011 WASI Krishna deposited with him six sealed pullandas, sealed with the seal of SK and he made the relevant entry in this regard in register no.19 at serial no. 221/11vide Ex.PW23/A and on 23.03.2011 IO had deposited one rickshaw, one sealed pullanda containing handkerchief of the prosecutrix, sealed with the seal of SD, he made the relevant entry in this regard at point A on Ex.PW23/B. He also handed over one another pullanda containing one torn brown underwear of Rupa Frontline in sealed condition with the seal of SK and made entry in this respect at point B on Ex.PW23/A and also handed over one sealed pullanda with the seal of SD. Ct. Dinesh made relevant entry in this respect at point A on Ex.PW23/B. STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 28 The said articles were taken by Ct. Dinesh vide RC no. 23/21 with the direction to deposit the same in FSL alongwith FSL Form and Ct. Dinesh handed over receipt. He was not cross examined by the ld. Amicus Curiae for accused.
OTHER OFFICIAL WITNESS
26. PW10 Shri Jagmohan, ld. Metropolitan Magistrate has deposed on 14.3.2011 he was posted as link Metropolitan Magistrate of Shri Sudhansu Kaushik and on that day one application for conducting the TIP was placed before him, which he put on 24.3.2011 and on that day, he fixed the date of TIP on 5.4.2011.
On 5.4.2011, he conducted the TIP of accused Bhola Adivashi in District Jail Rohini, where P identified the accused Bhola Adivashi and proved his detailed TIP Report as Ex.PW1/C, which bears his signatures at point B and thumb impression of accused at point C and his signatures at point D and signatures of P at point A. STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 29 In his cross examination he has deposed that signatures of other inmates of jail, who were selected by the accused were obtained, after the proceedings were recorded.
27. PW11 Ms. Vandana, ld. Metropolitan Magistrate has deposed that on 15.3.2011, she was posted as MM. On that day, an application for recording statement u/s. 164 Cr.P.C. was marked to her by Shri Sudhansu Kaushik, ld. MM. She alongwith Inspector Sanjeev Kumar went to BSA Hospital at about 4.30 p.m. There P found in the hospital in Ward No.52, room no.1 and bed no.1, she was undergoing treatment under the supervision of Dr. Abhishek Kundu and he submitted his report that "P" was in a fit statement of to depose and proved that report as Ex.PW11/A and she recorded statement of Inspector Sanjeev Kumar regarding identification of "P", which part of her TIP proceedings and she recorded statement "P", which is Ex.PW1/B, which bears her signatures at point B. She was not cross examined by the accused.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 30
28. After conclusion of the evidence, statement of accused u/s. 313 Cr.P.C. was recorded, in which all the incriminating evidence were put to him, he denied all the incriminating evidence. He has further stated that he was falsely implicated in this case, due to huge media pressure upon the police officials to solve the case.
29. I have heard the arguments on behalf of Shri Sukhbeer Singh, ld. Addl. PP for the State and Shri Sudhir Shokeen, ld. Amicus Curiae for accused.
30. Ld. Addl. PP for the State has argued that testimony of PW1 proved that it is the accused whose rickshaw was hired by PW1 and he has taken PW1 to the secluded place near Japanese Park and committed rape upon her and also attempted to cause her death. Therefore, guilt of the accused is proved and statement of 'P' is sufficient to convict the accused in case of rape. Even otherwise, her statement is duly corroborated by the medical evidence and statement of other witnesses, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 31 hence, guilt of the accused is proved beyond reasonable doubts and he is liable to be convicted for offence charged against him.
31. On the other hand, ld. Amicus Curiae for the accused submits that there are number of contradictions in the statement of PWs, therefore, their testimonies cannot be believed. No independent public witness has been examined by the prosecution either at the time of arrest of the accused or at the time of recovery of alleged bottle of diluter and handkerchief by which, accused has allegedly make the prosecutrix unconscious. Neither Smt. Sudesh Sharma in whose house the prosecutrix had gone on the day of incident and who arranged the rickshaw has been examined by the prosecution, therefore, testimony of P is not corroborated that she took the rickshaw from her sister's house or she visited there. He further argued that there are number of contradictions in the statement of P and other witnesses and considering this contradictions statement of P is not reliable. Therefore prosecution has failed to prove the guilt of the STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 32 accused beyond reason doubts, hence, accused is entitle to be acquitted of the charges against him.
FINDINGS: It is settled law that prosecutrix is not an accomplice and no corroboration is required if her testimony inspires confidence appears probable as held in the case Madho Ram & Anr Vs The State of U.P., AIR 1973 SC 469 as under: [T] the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 33 It was held in case Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat, AIR 1983 SC 753 (1) as under: Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration not withstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming.
Corroboration may be insisted upon when a woman having attained majority is fou nd in a compromising position and there is likelihood of STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 34 her having levelled such an accusation on account of the instinct of self - preservation, or when the 'probabilities factor' is found to be out of tune.
However, in Devender Singh & Others Vs. State of H.P. AIR 2003 SC 3365, it was held by the Hon'ble Supreme Court that: the law is well settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.p. Vs. Gian Chand (2001) SCC 71, on a review of decisions of this Court, it was held that conviction for an offence or rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied on. This court further held : "if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance of her testimony, short STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 35 of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive or its responsibility and be sensitive while dealing with cases involving sexual molestations.........." The most important witness of the prosecution case is the PW1/P. She has stated that on 11.3.2011 she had taken rickshaw of accused on hire for going to West Metro Station, Rohini from her sister's (Smt. Sudesh ) house at Sector15, Rohini, at about 6/6.30 p.m., but accused had waived one white colour handkerchief near her face and mouth twice or thrice, due to which she felt giddiness (Achet si Ho Gayi) and she regained consciousness, when she fell on the stones. Thereafter rickshaw puller dragged her to a lonely place, in the bushes and where he pressed her mouth and also threatened her that, if she raised alarm or cried, then he will stab her. Accused had given her fist blow on her both eyes and committed forcible sexual intercourse with her after removing her clothes. She has also stated that her statement Ex.PW1/B recorded by the STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 36 ld. MM Ms. Vandana (PW11). On perusal of the statement Ex.PW1/B, I found that, she has deposed almost same facts wich she has deposed in her statement recorded in this court. She identified the accused Bhola Adivashi as the rickshaw puller. She has also stated that she identified the accused in the TIP proceedings, conducted by the PW10, Shri Jagmohan, ld. MM on 05.04.2011 and proved the same as Ex.PW1/C. Nothing has come out in the cross examination by the ld. Amicus Curiae for the accused, which could dent the testimony of PW1/P. I am not agree with the contention of ld. Amicus Curiae that since she has deposed that she was taken to hospital in the same TSR, whereas, PW13 & PW14 has deposed that, they dropped P to her house and thereafter driver of the TSR went away from there. In my view said contradiction is minor in nature and do not affect the credibility of the witness. It is held by the Hon'ble Supreme Court of India in a case titled as Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat, AIR 1983 SC 753(1) that "Over much importance cannot STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 37 be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident, It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to observe the details.
(3) The power of observation differ from person to person. But one may notice, another may not notice. An object or movement might impose its image on person's mind, whereas it might go unnoticed on the part of the another.
(4) By and large people cannot accurately recall a conversations and reproduced the very words used by them or heard by them.
They can only recall a main purport of the conversation. It is unrealistic to a witness to be a human tape recorder.
(5) In regard to an exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of moment at the time of interrogations. And one cannot expect STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 38 people to make very precise or reliable estimates in such matters. Again it depends on the time sense of individuals, which varies from person to person.
(6) Ordinary a witness cannot be expected to recall accurately. The sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confuse, or mixed up when interrogated later on.
(7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of moments. The subconscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved. Though the witness is giving a truthful and honest account of occurrence witnessed by him -perhaps it is a short of psychological defence mechanism activated on the spur of moment.
It is evident from the MLC Ex.PW2/A that P was taken to the hospital immediately, after dropping by PW13 & PW14 as MLC shows time of her arrival to the hospital at 7.45 a.m. Hence it is immaterial in which STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 39 auto she has been taken to the hospital. Accused is not known to him previously, neither she has any previous enmity with him. Therefore, there is no reason why she will depose falsely against the accused. Police may be under pressure to solve the case , but P has no such pressure, she has no reason to identify the wrong person, whether she is very well aware that if she will identify the wrong person then real culprit will go scot free. Her Statement appears to be probably, reliable and trustworthy. She has identify the accused in Judicial TIP, as well as, in court.
Therefore, considering the testimony of PW1, I am of the view that the the case against the accused is proved beyond reasonable doubts that he committed forceful sexual intercourse with the prosecutrix and also caused injuries to her after her to a secluded place and same is sufficient for conviction of the accused without any corroboration in view of the above mentioned pronouncement made by the higher Courts.
Even then, as a abandoned caution I look for corroboration, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 40 same is also available in the case. PW7 Sanjay Prabhakar has stated that he has dropped his mother i.e. P at Rohini West Metro Station on 11.3.2011 from there her mother took RTV and reached at her Masi's residence at Sector15, Rohini, her mother told him that, she will return to the house herself. But, when he came back at 9 pm to his house, he found that his mother did not return till that time, therefore, he contacted his Masi, who informed him that P has left her house at about 6.15/6.30 pm in a cycle rickshaw and thereafter he searched her and on the next day, when he was in the PS, he came to know that her mother has been brought to the house in a worse critical condition by public persons persons. Thus, testimony of PW7 corroborates to the version of P, that she had come to the house of her sister on 11.3.2011 and that on 12.3.2011, she was dropped in injured condition by public persons at her house.
PW13 Mohd. Nazim has stated that on 12.3.2011, he came at the behind Japanese Park, near Gole Chakkar to answer the nature's call STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 41 and found P/PW1 there at about 6.30 a.m. and later on he and PW14 dropped prosecutrix to her house. PW14 has also deposed the same facts, they appeared to be natural witnesses. Same fact has been deposed by the PW14 Mahboob in his testimony There is no cross examination to the fact that they had any enmity with the accused. Thus the testimony of PW13 and PW14, corroborate the testimony of PW1/P that she was taken in a secluded place at behind Japanese Park, in injured condition on the intervening night of 11/12.03.2011, where rape was committed upon her.
Further the recovery of personal articles of PW1 like one pair of of lady chappal of golden brown and black colour, one artificial jaw, one glass of spectacles, one frame of spectacles having one glass, which were seized by PW21/IO vide Ex.PW19/A from the spot corroborates that P was taken to the said place of the incident. Further finding of her spectacle frame with only one glass and one separate glass, which may have came out when accused gave fist blow on her eyes, corroborates that she was STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 42 subjected to fist blows on her eyes.
Medical evidence also corroborate the testimony of PW1/P that she was subjected to forceful sexual intercourse. In Modi Medical nd Jurisprudence & Toxicology of its 22 evidence in page no. 495 in para no. 3 it is mentioned that : "The ingredients that are essential for proving a charge of rape are the accomplishment of the act with force and resistance. It is necessary to prove that the resistance offered by the woman was upto her utmost capability, and that every means, such as shouting, crying, biting, beating etc. had been tried to prevent the successful commission of the act. The act is regarded as rape if the woman has yielded out of fear, duress or complete exhaustion. A woman may be accused of an indecent assault on a man but not rape".
Further on page no. 502 of the same Book: "(ii) Marks of Violence on the body "The body, especially the forearms, wrist, face, breasts, chest, lower part of abdomen, inner aspect of thighs and back, should be examined for marks of violence, such as scratches, abrasions and bruises caused as a result of struggle. If present, they should be properly identified, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 43 recorded and carefully described as regards their shape, size, situation and probable duration. Such marks are more likely to be found on the bodies of grownup women who were able to resist than on the bodies of children who are incapable of offering any resistance. There may be teeth marks on breasts, nipples, cheeks or lips. Swabs from teeth bite area should be taken for the presence of saliva of the accused for investigation".
32. On perusal of the MLC of prosecutrix Ex.PW2/A, I found that similar kind of injuries have been found on the body of P, as suggest by the Modi's Book ( as above mentioned) as indicator of rape. PW2 Dr. Divya Goyal has stated that on 12.3.2011 she has examined P, a 76 years old lady and at that time she was referred for hypertension and coronary artery disease and she has proved the MLC as Ex.PW2/A. Further Dr. Pratima PW4 has stated that Dr. Shanti SR (Gyne) has examined her and Dr. Shanti gave her examination report on point Z to Z on MLC Ex.PW2/A. She further stated that she does not know the handwriting of Dr. Shanti, as she has worked with him and seen him during STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 44 writing and signing. On perusal of the portion Z to Z of MLC Ex.PW2/A, I found following injuries: On General Examination: Bruises over periorbital region 5.5cm approx.
Swelling plus bruise are red in colour over chin about 5X4cm approx.
Swelling + bruise in red colour.
Tenderness+Swelling over nose, blood clot in B/L restness. No active bleeding.
Tenderness over lower spinal area.
Bruise on forehead measuring 2.2cm.
On Internal Examination: No injury in parenial region, pubic greyish sperse Cut mark over on inner side of lebia minova 0.5cm X 1 cm approx. No acti ve bleeding.
No bruises on vaginal vulva.5/.5 cm each.
Further PW9 Dr. Nikhil Raj has found on the medical examination of P that, "there was heavy tenderness and swelling on her left side of mandible and blood clot on the floor of the mouth.
PW12 Dr. Harkesh has examined P from ENT side and he STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 45 found clotted blood present in the bilateral nasal cavity.
PW15 Dr.Rachna Pathak is from the Eye Department. On examination of P found that periorbital ecchymosis with sub conjunctiva haemorrhage over temporal bnulbar conjunctiva.
PW18 Dr. Prashant Saxena, SR, Surgery on examination of P has found, periorbital bruises bilaterally, bruises over forehead and chin, Nasal tenderness positive and tenderness lower chest left side.
Thus, the medical examination of the P proved that P was subjected to severe beatings, including fist blows over her mouth and eyes, which caused her the aforesaid injuries.
Hence, MLC of P corroborates that the prosecutrix has received external injuries, as well as, internal injuries on her body including private parts, which could not be possible without sexual intercourse being done forcefully.
The contention of ld. Amicus Curiae that in the FSL Report STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 46 Ex.PW21/J, semens could not be detected on the clothes of the prosecutrix creates doubt that accused has committed rape with her. In my view for commission of rape, detection of semens of accused on the clothes of prosecutrix is not necessary, as even slight penetration is sufficient for commission of rape. Explanation of Section 375 IPC says that, 'mere penetration is sufficient to constitute an offence of rape'. In the Book of Modi's Medical Jurisprudence and Toxicology it mentioned in para no.1 of page no.495 as under: "Thus to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, sufficient for the purpose of the law".
Thus it cannot be said that, since semens of accused were not found on the clothes of the P. therefore, no rape is committed with her. It is settled law is that wherever there is some contradictions between the scientific evidence and ocular evidence, then ocular evidence is to be given STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 47 preference, if same is probable and trustworthy.
The MLC of the accused Ex.PW20/A proved that accused was not incapable of performing sexual intercourse. Therefore, from the medical evidence, it is proved beyond reasonable doubts that she was subjected to forceful sexual intercourse and beatings. Which corroborates oral testimony of PW1.
33. Now coming to the question of identity of accused. PW1 has identified the accused in TIP Proceedings, conducted at Jail. The accused was rickshaw puller is also corroborated through the testimony of PW3, owner of rickshaw, who has deposed that accused has taken the rickshaw from hi m on daily rent basis in the sum of Rs.30/ per day and he has given wrong name as Kamlesh and address while taking the rickshaw from him on rent basis, due to which he could not trace him. He has also identified his rickshaw , which has been given on rent basis to accused Bhola Adivashi. There is no ground to disbelieve his testimony. As far as, STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 48 contention of ld. Amicus Curiae for the accused that no witness was joined at the time of his arrest. In my view same is not possible to the prosecution as it has been said by the Hon'ble Higher Courts time and again, it is the tendency of the public persons, not to take participate in the police proceedings in order to save themselves from giving evidence and going to the PS and courts later on and also due to threat to be caused by the accused in future.
34. Further the contention of ld. Amicus Curiae for the accused that there are number of discrepancies in the statement of public witnesses, such as the PW8 Ct. Kashi Nath had deposed that the duty officer was gents, whereas PW6 WCT Raj Bala, duty officer, who had registered FIR is a lady or that PW13 & PW14 stated that auto driver went away after dropping P at her house. Whereas, P says that she was taken to the hospital in the same TSR or that there is contradictions in the statement PW13 & PW14, whether P was wearing full clothes or not, when STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 49 she was found by them. In my view, all these contradictions are minor in nature and do not go to the root of the matter and thus, do not create any dent in the credibility of the testimony of public witness. In this regard I again rely upon judgment Bharwada Bhoginbhai Hirjibhai Vs State of Gujrat (Supra)
35. In view of the abovesaid facts and circumstances, I held that testimony of PW1/P is probable, consistent and reliable, which is duly corroborated by the ocular testimony of other witnesses, as well as, medical evidence. It is proved beyond the reasonable doubts that accused has committed rape with the prosecutrix against her wishes and also threatened her that he will break her lungs, if she raise voice. Thus, it is proved that he is guilty of criminal intimidation. Hence, I convict the accused Bhola Adivashi u/s. 376 IPC and 506 IPC.
36. As far as, other contention of the ld. Addl. PP for the State that accused had caused injuries to the prosecutrix with the intention to kill her. STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 50 I do not find the said contention forceful. From the MLC Ex.PW2/A, it is proved that prosecutrix had been caused several injuries, but these injuries are not sufficient enough, which could resulting to the death of the prosecutrix. Doctors have not opined injury either as grievous or dangerous. Further the accused has not used any weapon to cause injuries to the prosecutrix. It appears that he has given beating to the prosecutrix only with the intention that she should submit herself for sexual intercourse without any resistance. Therefore, in these circumstances, it would not be proper to convict the accused for offence u/s. 307 IPC. But certainly it is proved that, he caused injuries to P, therefore, I convict the accused for offence punishable u/s. 323 IPC for causing hurt to the prosecutrix.
37. As far as charge u/s. 328 IPC is concerned, the prosecutrix in her testimony had deposed that accused waived a white colour handkerchief in front of her face three/four times, due to which she felt STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 51 giddiness and became subconscious (Achet si Ho Gayi). The testimony of PW21 WASI Krishna proved that accused had got recovered one white colour handkerchief from the bed and one small bottle of diluter from the House No. G16/41, Sector15, Rohini, Delhi, which was seized by her vide Seizure memo Ex.PW19/F. Her testimony is corroborated by the PW19 HC Surender Singh with PW21 at the time of arrest and recovery of these articles with the IO. The contention of the ld. Counsel for the accused that at the time of recovery of these articles no public person had joined the proceedings, therefore, recovery is doubtful. Even otherwise, recovery of handkerchief and diluter is not of any help to the prosecution, as same has not been sent for chemical examination, whether it contains any poisonous, stupefying or intoxicating substance. But in my view due to lapse of the IO the testimony of PW1 cannot be discarded. She has stated that accused has brought one handkerchief in front of her mouth and due to which she felt like unconsciousness, due to which accused managed to take her at STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 52 secluded place, instead. Therefore, I am of the view that the handkerchief might have some substances which make P unconscious. Hence, I held that offence u/s. 328 IPC is also proved against the accused.
38. In view of aforesaid facts and circumstances, accused Bhola Adivashi stands convicted for offence punishable u/s. 376/506/323/328 IPC. Now to come up for order on sentence on 31.03.2012.
Announced in the open court (SANJEEV KUMAR)
On 28.03.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC
53
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.139/2011.
FIR No.105/2011.
PS K.N. KATJU MARG.
U/s. 307/328/376/506 IPC STATE VERSUS BHOLA ADIVASHI S/O. BADLU ADIVASHI R/O. NAHRI TEHSIL, DISTRICTPANNA, MADHYA PRADESH.
PRESENT ADD: G16/41, SECTOR15, ROHINI, DELHI110089.
ORDER ON SENTENCE 31.03.2012.
Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Convict Bhola Adivashi is in JC.
Shri Sudhir Shokeen, ld. Amicus Curiae for accused. STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 54
1. Vide Judgment dated 28.03.2012, accused Bhola Adivashi was convicted for offence u/s. 376/323/328/506 IPC.
2. The prosecution case was that Prosecutrix hired a rickshaw of convict Bhola Adivashi on 11.3.2011 from her sister's residence to Rohini West Metro Station. But convict instead of taking her to the destination took her to a secluded place and where he had committed rape with her on the intervening night of 11/12.3.2011 and also caused her severe injuries and thereafter left her.
3. It is argued by the ld. Addl. PP for the State that the manner in which convict has committed the rape with an old lady (Prosecutrix) of 77 years of age by abducting her to a secluded place, after breaking her trust and caused number of injuries to the Prosecutrix , which has put her in a great trauma and also brought shame to her and her family and such a fag end of her life, convict does not deserve any leniency and he deserves maxmimum punishment for which he has been convicted. STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 55
4. On the other hand, ld. Amicus Curie for the convict submits that accused is an illiterate person and he does not know the consequences of the act and he is a young boy of the age of 22 years and his entire life is ahead of him and convict is not involved in any crime previously. Further ld. Amicus Curiae submits that accused has old mother and father and a younger brother to look after and he is the only bread winner of his family and due to said reason, he has been migrated to Delhi. In such circumstances, lenient view may be taken against the convict.
5. I have considered the rival submissions. This case is a glaring example that no woman is safe, whatever her age is. In this case, Prosecutrix is an old lady of 77 years of age, whereas convict is of the age of just 22 years. Thus the prosecutrix is more than the age of his grand mother. But even then this has not deter the convict to commit rape with a helpless and old lady. The convict has not only committed rape with her but has also given severe beating to her, which caused number of injuries on STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 56 her, due to which she had to remain hospitalized for many days. Thus, prosecutrix was subjected to aggravated sexual assault by the convict.
6. In this case, convict is a rickshaw puller and prosecutrix is a passenger, who sat in the rickshaw of the convict trusting that he will drop her to her destination. But convict Bhola Adivashi had different intentions. He instead of taking to her destination took her to the secluded place, near Japanese Park, where not only committed rape but also gave severe beatings to her. This conduct of the convict can create shock waves in the thousands of other ladies passengers, whether they are safe in city like Delhi to go alone while transporting by different modes of transport, like the rickshaw.
7. Therefore, in my view the convict is not only required to be punished with severe sentence, as he committed such a heinous crime with the prosecutrix, but Court is also required to send a message to all such persons, so that, it could deter them to do such things. Both these STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 57 goals can be achieved through the proper sentencing. It has been held by the Hon'ble Supreme Court of India in para no.17 of the Judgment "State vs Karnataka Vs. Krishnappa AIR 2000 SC 1470"
"........The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the stage and age of sexually assaulted female and gravity of the criminal act. Crimes of violence upon women need to be severelly dealt with. Socioeconomic, status, religion, race, caste or creed of the accused or the victim are irrelevant consideration in sentencing the policy. Protection of society and deterring the criminal is the avowed object of law that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in the heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection, therefore, imposition of proper sentence by the court......."
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 58
8. In the abovesaid facts and circumstances, in my view convict deserves no leniency, despite the fact that he is a young man of only 22 years of age or has old parents to look after. The act of the convict is so ghastly and inhuman act that same cannot be condoned and lighter sentence cannot be imposed. Therefore, I award convict the following sentences: FOR OFFENCE U/S. 376 IPC:
Convict is sentenced to undergo Life Imprisonment for offence u/s. 376 IPC.
FOR OFFENCE U/S. 328 IPC:
Convict is sentenced to undergo Rigorous Imprisonment of Five Years for offence u/s. 328 IPC.
FOR OFFENCE U/S. 323 IPC:
Convict is sentenced to undergo Simple Imprisonment for Six Months u/s. 323 IPC.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC 59 FOR OFFENCE U/S. 506 IPC:
Convict is sentenced to undergo Rigorous Imprisonment of Two Years u/s. 506 IPC. All the sentenced shall run concurrently.
The convict shall be entitled for benefit of Section 428 Cr.P.C. A copy of Judgment and that of order on sentence be provided to the Convict. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 31.03.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
STATE VS BHOLA ADIVASHI FIR NO.105/11//PSK.N.KATJU MARG U/S. 307/328/376/506 IPC