Delhi District Court
S.C. No.77/22.04.09 vs (1)Shahid on 3 March, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE(NORTH):DELHI
S.C. No.77/22.04.09
State
Vs
(1)Shahid, S/o Sh.Shakruddin
R/o B255, Vikas Vihar, Vikas Nagar,
Uttam Nagar, Delhi.
(2)Hemant @ Bittoo
S/o Sh. Brij Mohan Garg
R/O10/2444, Bindanpura, Karol Bagh
New Delhi.
(3)Usha, W/o Sh. Mahender Singh
R/o B1/303, Nand Nagri
Delhi.
(4)Neelam, W/o Sh. Satnam Singh
R/o H. No.418, Ram Nagar
Shahdara, Delhi.
(5)Bhawna, W/o Sh. Hemant
R/o 10/2444, Bidanpura Karol Bagh
Delhi.
(6)Sarla, W/o Sh. Shahid
R/o B255, Vikas Vihar, Vikas Nagar,
Uttam Nagar, Delhi.
(7)Ashique, S/o Sh. Mohd. Muslim
R/oC131, Gali No. 8, North Ghonda,
Suhas Mohalla, Delhi.
2
FIR NO: 535/02
PS: Timarpur
U/S 365/368/376/120B/506/34 IPC
Arguments heard: 24.02.10
Judgment announced: 03.03.10.
JUDGMENT
Brief facts of the prosecution case are that on 23.11.02 father of the prosecutrix namely, Hari Ram, lodged a report at police station Timarpur about missing of his girl by submitting that on 10.09.02 his daughter, who had gone to take tuition at Gali No. 44, Sant Nagar did not come back. He kept on searching at his level, but he could trace out the girl. The missing report was recorded by the duty officer vide DD No. 13A. The DD No.13A was handed over to SI Mahavir, Incharge P.P Jharoda for necessary action. SI Mahavir Singh made efforts to trace out the girl but she could not be traced out.
2 On 25.11.02 the father of prosecutrix came to the police post and got recorded his statement by submitting that on 21.11.02 the maternal uncle of the prosecutrix received a phone call from the prosecutrix, who told him weeping, that one boy in the name of Bittoo had enticed her. She was forced by Shahid and other persons to do wrong 3 acts. She had told that she was beaten by those persons. She also told that she was living in the flats, near bus stop Route No.212, Nand Nagri. After giving that information she disconnected the phone by saying that she would make the call again, but no phone was received by her maternal uncle after that. The father of the prosecutrix also submitted in the complaint that he went to Nand Nagri in search of girl from where he came to know that his daughter was living at S. S. Building Sahibabad. He went there and showed the photograph of his daughter to chowkidar, who told him that his daughter was living at Flat No. H2. The chowkidar also raised suspicion on the character of the boy, living in that flat. At that time, the flat No.H2 was locked. The complainant Hari Ram also submitted that he was receiving assurance from the accused that his daughter would be released. On 23.11.02 he had lodged only a missing report of his daughter in order to avoid the defamation in society and due to the assurances given by the accused to release his daughter. He had been able to catch the accused Shahid, from the Flat No. H2, when he was about to leave the flat. Accused Shahid promised the complainant that he would call her daughter. Since his daughter was not called by the accused Shahid, he produced the 4 accused Shahid before police with the suspicion that Shahid and his associates had confined his daughter with malafide intention. 3 On the basis of this complaint present FIR was registered against the accused Shahid U/S 365 r/w Section 34 IPC. On 09.02.03 the prosecutrix was recovered from H. No. 1/151, Ramesh Nagar Delhi. During investigation of the case, accused Hemant @ Bittoo was arrested on 15.4.03 from Beadenpura, Karol Bagh on the basis of secret information. His disclosure statement Ex.PW11/C2 was recorded by the IO SI Mahavir. On the pointing out of accused Hemant @ Bittoo accused Usha was arrested from Dilshad Garden on 16.4.03. On 19.06.03 accused Neelam was arrested from Janta Flats Dilshad Garden on the basis of secret information. Accused Bhavna was arrested on 14.10.04 from Super Bazar Model Town on the basis of secret information. Accused Sarla was arrested on 22.3.05 from red light, Uttam Nagar on the basis of secret information. On 30.5.05 accused Ashique was arrested from Burari crossing when he was going towards Wazirabad.
4 After completion of investigation supplementary charge sheets in respect of all accused were submitted by the IO from time to 5 time. After supplying the copies to accused, cases were sent to Ld. Sessions Court by Ld. M. Ms. on different dates.
5 Charge was framed by Ld. Predecessor on 3.7.04 against accused Sahid @ Vijay in respect of offences U/S 120B/368/376/109/506 IPC with the allegations that he(accused Shahid) in furtherance of his common intention alongwith coaccused Hemant, Neelam, Usha and another accused Sarla and Bhawna (both were PO at that time) and accused Momin, Pappu and Kajal (not arrested) entered into criminal conspiracy and in pursuance of that criminal conspiracy wrongfully confined or concealed prosecutrix in a house, situated at Sector 15, Rohini, Delhi knowing that the said girl had been kidnapped or abducted He also instigated Ashique and other persons to commit sexual intercourse upon her forcibly and threatened to kill her.
6 A separate charge was also framed by Ld. Predecessor on 3.7.04 against accused Hemant @ Bittoo and Neelam @ Bunty in respect of offences U/S 120B/366A/368/323/506I/372/376/109 IPC with the allegations that they entered into criminal conspiracy with coaccused namely, Sarla and Bhawna (both were POs at that time) and accused 6 Momin, Kajal and Pappu (not arrested) and in furtherance of the criminal conspiracy induced prosecutrix aged 17 years, on 10.09.02, to go from Gali No.44, Sant Nagar with the intent that the said girl would be forced or seduced to illicit intercourse with coaccused Ashique (not arrested at that time)and other persons. It was also alleged that the accused wrongfully confined or concealed her at different places knowing that the said girl had been kidnapped or abducted. It was further alleged that both accused beat and criminally intimidated Rashmi by threatening her with injury on her person. The accused persons also let on hire or sold the said girl to co accused Usha with the intent that the girl should be employed or used for the purpose of prostitution or illicit intercourse with the coaccused Ashique. Both accused also instigated Ashique and other persons to have sexual intercourse with her forcibly.
7 A separate charge was framed by Ld. Predecessor on 3.7.04 against accused Usha in respect of offences U/S 120B/373/376/109 IPC with the allegations that she entered into a criminal conspiracy with co accused Hemant, Neelam, Sahid and another accused Sarla and Bhawna (both were POs at that time) and accused Momin, Pappu and Kajal (not 7 arrested)and in pursuance of said conspiracy she bought/ hired or obtained possession of prosecutrix aged 17 years, with the intend that the said girl would be employed or used for the purposes of prostitution or illicit intercourse or for any unlawful and immoral purpose. She brought Reshmi in her house, situated at Rajdhani Enclave, Rani Bagh, Delhi and instigated Ashique and other persons to commit rape upon Rashmi @ Rimmi for five days and also beat her.
8 A separate charge was framed by Ld. Predecessor on 3.11.04 against accused Bhawna in respect of offences U/S 120B/366A/368/323/506I/376/109 IPC with the allegations that she entered into a criminal conspiracy with coaccused Hemant @ Bittoo, Neelam @ Bunty, Sarla (PO at that time)and accused persons Momin, Kajal and Pappu (not arrested) and in furtherance of the criminal conspiracy induced prosecutrix, aged 17 years, to go from Gali No.44, Sant Nagar with the intent that the said girl would be forced or seduced to illicit intercourse with coaccused Ashique and other persons. It was also alleged that she wrongfully confined or concealed prosecutrix knowing that the said girl had been kidnapped or abducted and beaten and criminally 8 intimidated by threatening her with injury on her person. She sold the said girl to coaccused Usha with the intend that the girl should be employed or used for the purpose of prostitution or illicit intercourse with coaccused Ashique and instigated Ashique and other persons to have sexual intercourse with her forcibly.
9 A separate charge was framed by Ld. Predecessor on 16.05.05 against accused Sarla in respect of the offences U/S 120B/366A/368/323/506I/376/109 IPC with the allegations that she entered into a criminal conspiracy with coaccused Hemant @ Bittoo, Neelam @ Buntry and Bhawna and accused Momin, Kajal and Pappu (not arrested) and in furtherance of the criminal conspiracy induced prosecutrix aged 17 years to go from Gali No.44, Sant Nagar with the intent that the said girl would be forced or seduced to illicit intercourse with coaccused Ashique and other persons. It was also alleged that they wrongfully confined or concealed prosecutrix knowing that the said girl had been kidnapped or abducted and beaten and criminally intimidated her by threatening her with injury on her person. She sold the said girl to accused Usha with the intend that the girl should be employed or used for the 9 purpose of prostitution or illicit intercourse with coaccused Ashique and instigated Ashique and other persons to have sexual intercourse with her forcibly.
10 A separate charge was also framed by Ld. Predecessor on 24.08.05 against accused Ashique in respect of offence U/S 376 IPC with the allegations that on 10.09.02, in a house situated at Rajdhani Enclave, Rani Bagh he committed rape, for five days, upon the person of prosecutrix, aged 17 years, who was kidnapped or abducted on 10.09.02 from Gali No.44, Sant Nagar, Delhi by coaccused persons Sarla, Bhawna, Momin, Kajal and Pappu.
11 All the accused pleaded not guilty to the said charges and claimed trial.
12 To prove its case prosecution has examined 39 witnesses. They are prosecutrix(PW1), Sh. Hari Ram (PW2), Sh. Brijesh Kumar(PW3), HC Manraj (PW4), Sh. Avilash Kumar(PW5), Smt. Sheela (PW6), Ct. Balasahab(PW7), Sh. Ram Chand(PW8), W/ASI Roshni(PW9), HC Hari Parsad (PW10), SI Mahabir Singh(PW11), Ct. Anil Kumar (PW12), ASI Sushma Ikka(PW13), Ct. Rambir Singh(PW14), Ct. 10 Sudhakaran(PW15), Ct. Dharambir Singh(PW16), HC Surender(PW17), HC Hari Kishan(PW18), SI Braj Mohan(PW19), SI Arvind(PW20), W/HC Beena(PW21), Ct. Satish Pal(PW2) Ct. Anup Singh(PW23), HC Sita Ram (PW24), Inspector Sunil Srivastava (PW25), Ct. Hemant Singh (PW26), HC Shyam Babu (PW27), Inspector Mahesh Chand(PW28), Ct. Rajbir (PW29), Dr. Akash Jhanjhee (PW30), Ct. P. K. Raju (PW31), HC Sunita (PW32), Dr. Om Prakash Prasad (PW33), Dr. Rekha Jain(PW34), Dr. Rajender Kumar (PW35) & Dr. Archana Sinha, Ld. M. M(PW36), W/HC Vedwati (PW37), Woman Const. Sushma (PW38) and HC Hari Parsad (PW39). 13 Statements of all accused have been recorded, wherein they have stated themselves to be innocent. They have also stated that they have been falsely implicated in the case.
14 Accused did not examine any witness in their defence. 15 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State I have perused the case file.
16 Out of the 39 witnesses PW1 is the star witness being the prosecutrix. She has deposed that in the year 2002 she was taking tuitions in gali No. 44, in a tuition centre. ON 10.09.02 one lady namely Kajal, who 11 was earlier living rent in her house, met her. She (Kajal) instigated her (PW1)against her family members and told that her parents would marry her in a bad family. She (Kajal) took her to a Gurudwara, at Ashok Vihar by enticing her. Kajal made her to stand outside the Gurudwara and went near Gurudwara by saying that she would come back in a short while. In the meanwhile, accused Hemant @ Bittoo, present in court, came there in a car alongwith Bhawna (second wife of accused Hemant) and Sarla (mother of Bhawna). Accused Hemant @ Bittoo told her to sit in the car. She (PW1) was known to Hemant as he was the husband of Kajal, who was his first wife. She (PW1) was under the impression, at that time, that Kajal was sitting in the car. She (PW1) sat in the car. She (PW1) asked Hemant and other persons, sitting in the car, as to where Kajal was. Upon this, they told her that Kajal was not there and they do not know about Kajal. Those persons took her around Ghanta Ghar area. She (PW1) told them to stop the car and drop her but they did not stop the car. It was night time so she was taken to a rented house of Hemant @ Bittoo at Tri Nagar. At that time Neelam @ Bunti, her two children and two daughters of Sarla namely Poonam and Anu and a man were present there. Bhawna 12 took her in a room, where that man was sitting. Bhawna came outside that room after leaving her there. The man molested her and committed rape upon her without her consent. That man gave some money to Sarla and went away. She complained to those persons, present there, about the rape and molestation by that man. On that, the persons told her that she had been brought there for that purpose only. She was not feeling well on that day and was suffering from fever. The persons told her to sleep in the room. Accused Hemant @ Bittoo locked in the room. In the morning, he opened the lock of the room. She (PW1) saw that Usha, present in court was there. Hemant @ Bittoo told Anu and Poonam (daughters of accused Sarla)to take her (PW1) upstairs as they wanted to talk something with her. After some time, when she (PW1) came downstairs Bhawna and Sarla told her (PW1) to wear Jeans and sit in the car, after wearing the jeans. Accused Bittoo, Bhawna, Sarla and Momin were present in the car, in which she (PW1) was made to sit. Usha also accompanied them in a separate car. She was taken to Rajdhani Enclave where Ashique was present. The house, at Rajdhani Enclave was taken on rent by Usha . Some talks took place between 13 them. After some time, Ashique came to the room in which she (PW1) was sitting. He started molesting her. She (PW1) complained about the molestation by Ashique to Usha, Sarla, Bittoo and Bhawna . They started beating her and told that she had been brought there for that purpose only. In the night, she was again taken to rented house of Hemant at Tri Nagar. On the next day, she was again brought to Rajdhani Enclave, where she was forced to have sexual intercourse with Ashique. Hemant @ Bittoo threatened her that if she did not do the same (sexual intercourse), she would be taken to G. B. Road and they would get money for the same. Ashique committed rape upon her without her consent. Therefter, Usha, Bittoo, Bhawna and Sarla used to take her at different places. She was produced before different men and was forced for sexual intercourse with those persons. She does not know the names of those persons and places. All this continued till 21.11.02. On 21.11.02 she was taken to Nand Nagri, at the house of sisterinlaw of Sarla, where one passport agent was present. They (accused) were planning to get her passport made. She was sent with passport agent in Nand Nagri, where she told the whole incident to 14 that passport agent. That agent helped her in informing her maternal uncle on phone. The passport agent was told by the accused to drop her at Sunder Nagari at the house of parents of Neelam. In the morning when she (PW1) tried to run away from the house of Neelam, accused Shahid, Bhawna and Sarla, met her on the way and took her to Shalimar Garden. In the house at Shalimar Garden accused Neelam @ Bunty and Pappu (not arrested)gave beating to her as she tried to ran away from the house of Neelam. She was taken from Shalimar Garden by Bittoo, Sarla and Bhawna to various places, as they (accused) had come to know that the police had arrived at the house of Sarla for searching her. On 25.11.02, she was taken to Saharanpur in Maruti car by one Hafiz. She came to know in Saharanpur that Shahid had been apprehended by the police at Shalimar Garden as Bittoo had telephoned about the arrest of accused Shahid, to Hafiz and Sarla. When Sarla came to know, about the apprehension of Shahid, by the police, she gave beating to her in the car and abused her. Accused Sarla took her to Ghaziabad, in the house of her sisterinlaw (Nanad). She stayed there for about one and half month. From there she was taken to the house of another sisterinlaw of Sarla at 15 Shahdara where they stayed for about 12/13 days. Thereafter she (PW1) was taken to Ramesh Nagar in the house of another sisterinlaw of Sarla where they stayed for about 78 days. From there she was taken to Shahdara. Sarla threatened her (PW1) that if she told the incident to police or anybodyelse, her accomplishes would kill her, her maternal uncle and her whole family. On 09.02.03 her maternal uncle namely Sh. Brijesh Munjal reached at the house at Ramesh Nagar, where she was staying. She was brought to P.P Sant Nagar and was interrogated by the police. She was got medically examined. Thereafter, she was brought in the court, where her statement was recorded by the Magistrate. PW1 has identified her signature on her statement U/S 164 Cr.P.C, Ex.PW1/A. She has also identified her suits, which are collectively exhibited as Ex.P1 to P5. On 16.4.03 she alongwith police, accused Hemant @ Bittoo and lady police went to the house of Usha at GTB Enclave. On the pointing out of accused Hemant @ Bittoo, Usha present in court was arrested. 17 In crossexamination by Ld. counsel for accused Shahid and Neelam @ Bunty PW1 has deposed that Shahid came alongwith them when he was brought by Bittoo from Hapur. The passport agent had taken 16 her on twosheeler scooter and left her at the house of Neelam. She tried to run away from the house of Neelam. PW1 denied the suggestion that Neelamdid not beat her. She denied that Shahid did not live in Delhi or he did not beat her. She denied that she falsely implicated Shahid and Neelam in this case.
18 In crossexamination of ld. counsel for accused Usha, PW1 has deposed that she (PW1) did not know Usha earlier. Usha came at Tri Nagar on the next day when Bittoo had taken her in the car. She (Usha) came in the morning with her driver. Usha told Bhawna to tell her (PW1) to wear jeans. One person namely Ashique was present in the house of Usha apart from other accused. When she (PW1) was brought to the house of Usha at Rajdhandi Enclave they stayed in the house of Usha till evening and thereafter they came back to the house at Tri Nagar. Ashique was sent by Usha. She (Usha)herself came alongwith Ashique. She denied that she (PW1) was coming and going at different places with her own wishes. PW1 has admitted that Usha was not aware earlier that she was kidnapped and abducted by Bittoo. She herself told her (Usha) after 10/15 days about this fact (confronted with statement U/S 164 Cr.P.C 17 Ex.PW1/DA, wherein it is not so recorded specifically). PW1 denied that Usha did not meet her again after the disclosure of facts regarding kidnapping and abduction. She does not remember the dates and places where she met her because of passing of time. She denied that Usha never misbehaved or threatened her. She denied that Usha never told her to go upstairs with Ashique. She denied that Usha never met her and she has falsely implicated Usha in this case.
19 In crossexamination by Ld. counsel for accused Hemant @ Bittoo PW1 has deposed that she went to Ramesh Nagar in January, 2003 and stayed at Ramesh Nagar for 2 weeks. She did not tell the neighbours that she was brought by Sarla etc. as they (accused)told her not to say anything to anyone. She does not know the year when Shalini came to stay in her house as a tenant as she was too young at that time. Shalini was living alone in her house. She was having good relations with Shalini so long she stayed in their house. Shalini was also having good relations with her parents. Shalini used to come to meet her parents even after leaving rented accommodation. She went once or twice to meet Hemant at the house of Hemant alongwith her parents. She used to go for shopping 18 with Shalini from the house of Hemant. She denied that Hemant never came alongwith Shalini to her house in Sept. 2002. She does not remember whether she told the Magistrate that there was already a person in the house of Tri Nagar, who raped her. She does not remember whether she told the magistrate that Bhawna had taken her to the room or not. Her parents were present when she was brought to give the statement U/S 164 Cr.P.C. Her parents were outside the court. She did not have any talk with her parents at that time. She does not remember whether she stated before the Magistrate that Hemant asked her to have sexual intercourse with Ashique . She told the police that those people used to take her for sexual intercourse at different places but she does not remember, if she stated so before the Magistrate or not. She does not remember, if she stated to the police or Magistrate while telephoning her maternal uncle that the accused persons were getting wrong acts done by her. She telephoned her maternal uncle from a public booth, which was at Nand Nagri. She was fully conscious at that time. She did not try to run away when she was going on the scooter with the passport agent. She denied that she was not happy with her parents and that is the reason she 19 has left her house of his own. She denied that Hemant has not done anything as alleged by her in her statement. She denied that she went to Ghaziabad, Saharanpur etc. on her own free will. She denied that she was more than 18 years of age at the time of alleged incident. IO Mahavir Singh met outside the court when her statement U/S 164 Cr.P.C was recorded, but she was not having any talk with him. She denied that she was not kidnapped or abducted by Bittoo. She denied that she falsely implicated the accused Bittoo.
20 In crossexamination by Ld. counsel for accused Bhawna, PW1 has deposed that Usha, Bhawna, Bittoo and Sarla alongwith their driver Momin used to take her at different places. She was produced before different men and was forced to do sexual intercourse with them without her consent. These persons used to take money from them. This continued upto 21.11.02. She cannot tell the names and addresses of those persons who had committed rape upon her at the instance of accused persons. She has further deposed that Bhawna was involved in the prostitution and she used to go with her and used to take money. Bhawna used to go to hotels as well as in different rooms for 20 prostitution and she also used to take her with her. Bhawna alongwith other accused had once taken her to the house of Usha but she does not remember the place where Bhawna took her with her for prostitution. PW1 denied that Bhawna or other accused persons did not get involved in the prostitution or that they never took her anywhere or that Bhawna or other accused persons never did any wrong act upon her. She denied that Bhawna was not arrested on her pointing out.
21 Another material witness examined by the prosecution is PW8 Ramesh Chand. He has produced the Birth Record Ex.PW8/A wherein the date of birth of prosecutrix is shown as 2.8.1985. In other words, as per the testimony of PW8 prosecutrix was minor as she was 17 years, one month and eight days old on the date of commission of offence. It is worth noting that an opportunity to crossexamine this witness was given to accused but they did not avail of that opportunity.
22 Prosecution has also examined Dr. Rajnder Kumar as PW35. As per the testimony of PW35 blood and semen could not be detected on the lady shirt, salwar, and chunni as per report Ex.PW35/A 23 In the present case, only accused Ashique has been charged 21 for commission of offence U/S 376 IPC. In her examinationinchief, recorded after the arrest of accused Ashique and Sarla, PW1 has identified accused Sarla in court. However, she did not identify accused Ashique by submitting that Ashique is not present in court. Since PW1 did not identify accused Ashique in court, she was crossexamined by ld. Addl. P.P, wherein she deposed that she did not state to the police that she went to Tis Hazari on 31.5.05 to contact her lawyer at about 2.30 PM. She saw one person, in the custody of police, and identified as Ashique, who committed rape upon her. She did not tell the police regarding the parentage of Ashique as Mohd. Murslim, R/o 424 Gali No.10, Delhi. She denied that she had identified the Ashique as accused of this case. Since PW1 has failed to identify accused Ashique in court and no semen was found on her clothes Ex.PW1 to Ex.P5 as per the testimony of PW35, I am of the considered view that prosecution has also not been able to prove its case beyond reasonable doubt against accused Ashique in respect of offence U/S 376 IPC. Accordingly, accused Ashiq is acquitted of the offence U/S 376 IPC.
2224 The term 'Criminal conspiracy' has been defined under Section 120A of Indian Penal Code which is reproduced here for ready reference:
When two or more persons agree to do, or cause to be done (1)an illegal act, or (2)an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy :
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
In State (Delhi Admn.) V. V. C. Shukla AIR 1980 SC 1382 it was held by Hon'ble Supreme Court that in order to prove a criminal conspiracy which is punishable under Section 120B there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
In Mohammad Usman Mohammad Hussain Maniyar & Ors. V. State of Maharashtra (1981) 2 SCC 443 it was held by Hon'ble Supreme Court that the courts while drawing an inference from the materials brought on record to arrive at a finding a to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be 23 proved by adduction of circumstantial evidence and/or by necessary implication.
In Mohmed Amin alias Amin Choteli Rahim Miyan Shaikh and Anr. V. C.B.I through its Director, 2008 (14) SCALE 240(AIR 2008 SC (Supp) 938) it was held by Hon'ble Supreme Court that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
25 Section 107 Indian Penal Code is reproduced as below:
A person abets the doing of a thing, who FirstInstigates any person to do that thing; or SecondlyEngages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;
ThirdlyIntentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1 ............................................. Explanation 2Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
In Kishori Lal V. State of M.P.(2007) 10 SCC 797: (2007 AIR SCW 4380) it was held by Hon'ble Supreme Court that Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with 24 the proved offence.
26 Section 366A IPC provides as under: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
27 In the present case, PW1 has deposed that on 10.09.02 one Kajal took her to Ashok Vihar Gurudwara where she had called her husband Hemant @ Bittoo alongwith Bhawna, Sarla and driver Momin. She (Kajal) left her near Gurudwara by saying that she would come in a short while. After that, accused Hemant came to her with her Indica car and asked her to sit in the car. She sat in the car by believing that Kajal was also sitting in the car but Kajal was not in the car. She (PW1) asked them to stop the car but they did not stop the car. They took her at Tri Nagar where accused Neelam @ Bunty, her two children, three daughters of Sarla and Raju son of Sarla were present. Bittoo asked the person, who were present in the home at Tri Nagar, to keep a watch on her (PW1) so that she might not escape. She (PW1) has narrated all these facts in her statement U/S 164 Cr.P.C Ex.PW1/A. In her examination recorded after 25 filing of supplementary chargesheet against accused Bhawna Sharma. PW1 has deposed that all the accused namely, Usha, Bhawna, Bittoo and Sarla used to take her at different places. She was produced before different persons and was forced to do sexual intercourse with them without her consent. The accused used to take money from these persons. Similar is the deposition of PW1 in crossexamination of accused Bhawna. On a careful consideration of the evidence of PW1 in examinationinchief as well as in crossexamination, it is concluded that the evidence is consistent and lucid. The evidence is reliable. There is nothing in crossexamination to the contrary. It is proved from the evidence of PW1 that there was conspiracy to kidnap her with intent that she would be forced or seduced to illicit intercourse with another persons. Towards that end, Hemant @ Bittoo, Bhawna and Sarla kidnapped her in this case. She was confined at different places. When PW1 tried to run away from the house of Neelam, accused Shahid, Bhawna and Sarla met her on the way and took her to Shalimar Garden. Accused Usha, Bhawna, Hemant @ Bittoo and Sarla used to take PW1 at different places. She was produced before different persons and was 26 forced to have sexual intercourse with different persons without her consent. Thus, offence under Section 120B read with Section 366A IPC is proved against accused Shahid, Hemant @Bittoo, Usha, Neelam, Bhawna and Sarla. Moreover, offence under Section 366A read with Section 120B IPC is proved against accused Hemant @ Bittoo, Bhawna and Sarla. Further, offence under Section 368 read with Section 120B IPC is proved against accused Neelam, Shahid, Bhawna and Sarla. Still further, offence under Section 109 read with Section 376 IPC is proved against accused Usha, Bhawna, Hemant @ Bitoo and Sarla. However, evidence on record does not attract the provisions of Section 372 and 373 IPC. 28 In the present case, accused Neelam, Hemant, Sarla and Bhawna have also been charged by Ld. Predecessor for the commission of offence U/S 323 & 506 (Part 1).
29 In the present case PW33 Dr. Om Parkash has medically examined the victim on 10.2.03 vide MLC Ex.PW11/B. A perusal of MLC Ex.PW11/B shows that no fresh injury was seen on the person of victim by PW33. There is no other record to show that all these accused ever inflicted some injuries on the person of victim. Accordingly, all these 27 accused are acquitted of the offence U/s 323 IPC.
30 PW1 has deposed and has proved that accused Sarla had threatened her at Shahdara that if she told the incident to police or anybody, then Shahid would kill her, her maternal uncle and her whole family. PW1 has also deposed that she was forced to sexual intercourse with different persons. When she complained to accused she was threatened by them by saying that she had been brought there for that purpose ad she did not do that work she would be left at G.B. Road and they would get money for that. All these proved facts show that the victim was under the constant threat of accused persons with injury to her person, and injury on her family members. Hence, offence U/s 506 (Part I) is also proved against accused Hemant, Neelam, Bhawna and Sarla beyond reasonable doubt.
31 In the present FIR Ex.PW4/A has been registered on 25.11.02 whereas the offence has allegedly been committed by the accused on 10.09.02. I am of the considered view that delay in lodging of FIR has been sufficiently explained by the father of the prosecutrix, who has been examined as PW2. He has clearly deposed that on 21.11.02 he lodged 28 only the missing report of his daughter at PS Timarpur and did not show any suspicion on anybody in order to save his honour in the society. The compliant was lodged only after the arrest of accused Shahid, when he (Shahid) did not call for return of his daughter despite assurance. 32 So far as the question that statement of PW U/S 164 Cr.P.C was tutored one as her parents were standing outside the court on the date of recording of her statement by ld. M.M is concerned, I am of the considered view that this plea of accused is devoid of any merits because PW1 has clearly deposed that her parents were outside the court but she did not talk with them on the day when her statement was recorded by the Magistrate.
33 So far as the question of not examining S. K. Babbar, Passport Agent and Tutor Sanjay by the prosecution, I am of the considered view that court has to see the quality and not the quantity of witnesses, examined by the prosecution.
34 In the present case, PW1 has deposed that she did not carry any cloth with her on 10.09.02. However, her father PW2 has identified the suits of his daughter, which are collectively exhibited as Ex.P1 to P5. The 29 accused have taken the plea that when the prosecutrix had not taken any cloth with her, how could his father identify the clothes of his daughter at the time of seizure of the clothes by the PW11. I am of considered view that this plea/argument of the accused is also devoid of any merits as PW2 has explained in crossexamination by ld. counsel for accused Hemant that his daughter had managed to remove the clothes as well as watch from the house before the relevant date. He has deposed that her gold rings were also found missing and she had also taken Rs.400/ with her. 35 To conclude, accused Ashique is acquitted of the offence U/S 376 IPC. Accused Shahid, Hemant @ Bittoo, Usha, Neelam, Bhawna and Sarla are convicted in respect of offence U/S 120B read with Section 366A IPC. Accused Hemant @ Bittoo, Bhawna and Sarla are convicted in respect of offnece U/S 366A read with Section 120B IPC. Further accused Neelam, Shahid, Bhawna, Sarla are convicted in respect of offence U/S 368 read with Section 120B IPC. Further accused Usha, Bhawna, Hemant @ Bittoo and Sarla are convicted in respect of offence U/S 109 read with Section 376 IPC. Accused Sarla, Bhawna, Hemant @ Bittoo, Neelam are acquitted of the offence U/S 372 30 IPC. Accused Usha is acquitted of offence U/S 373 IPC. Accused Sarla, Bhawna, Hemant and Neelam are acquitted of the offence U/S 323 IPC. Accused Hemant @ Bittoo, Neelam, Bhawna and Sarla are convicted in respect of offence U/S 506 (Part I) IPC.
Announced in open court on (Smt. Bimla Kumari) 3.3.2010 Addl. Sessions Judge (North):Delhi