Delhi District Court
State vs . 1) Harbans S/O Ram Sadan on 28 February, 2007
:1:
IN THE COURT OF SH. N P KAUSHIK, ADDITIONAL
SESSIONS JUDGE : DELHI.
SC NO. : 76/2006
FIR NO.: 223/2002
P.S. : Ashok Vihar
U/S : 376(2)(g)/395/397/34IPC
State Vs. 1) Harbans S/o Ram Sadan
R/o Jhuggi no. N-28/G-476, CSA
Colony, WPIA, Delhi.
2) Ram Dhani S/o Raja Ram
R/o Jhuggi no. N-28/E-676, CSA
Colony, WPIA, Delhi.
3) Rajesh @ Pintoo S/o Radhey
Shyam, R/o Jhuggi no. N-28/G-
737, CSA Colony, WPIA, Delhi.
(Juvenile)
4) Pramod S/o Tapsa Ram
R/O Jhuggi no. N-28/G-413, CSA
Colony, WPIA, Delhi.
JUDGMENT:
The case of the prosecution in brief is that on 17.4.2002 a woman named Sunata aged 23 years W/o Jai Chand, R/o Jhuggi no. 120, Pragati Market, Ashok Vihar Phase-II, New Delhi made a complaint to the police stating that she was residing at the aforesaid address as tenant alongwith her husband. She was a housewife. She was pregnant for 8 months. On 16.4.2002 she developed pain in her abdomen in the morning. Her husband came to the house at about 4 Contd......
:2:pm during the duty hours. She told her husband of the pain. At 11 pm when her husband came to the house after duty hours the pain became severe. She alongwith her husband left for the park near the jhuggis to ease herself. Her husband stood at the gate of the park and she started easing herself at some distance. It was about 11.30 pm. Five young boys surrounded and caught hold of her husband. Two of the boys took out a knife and the third one waylaid her husband. Two of the boys waylaid her when she was in the process of running after getting up. The said two boys committed rape on her. These two boys then caught hold of her husband and the remaining 3 boys committed rape on her in turns. In the meantime a PCR van reached there. Seeing the lights of the vehicle all these boys started running. As she was screaming the PCR van stopped there only. All the 5 boys ran away from the park. She could see their faces in the light of the PCR van. She stated that the said boys were in the age group of 25-30. Police put her in the PCR van.
2. After investigation police filed a charge sheet against accused Harbans, Ram Dhani, Santosh, Pramod and Rajesh under section 376(2) (g) IPC r/w section 395/397/34 IPC. Two more accused persons named Bangali and Laljeet who were juvenile were sent for inquiry before Juvenile Justice Board.
3. After completion of the formalities, the case was committed to the Court of Sessions.
4. One of my Ld. Predecessors vide orders dated 14.10.2003 framed charge against the accused Harbans, Ram Dhani and Pramod Contd......
:3:under section 376 (2) (g) IPC and under section 395 IPC r/w section 397 IPC to which they pleaded not guilty and claimed trial. Accused Santosh and Rajesh were lateron found juvenile and their cases were sent to Juvenile Justice Board.
5. To prove its case, prosecution examined in all 19 witnesses.
6. PW-1 Dr. Sharda Patra stated that on 17.4.2003 prosecutrix Smt. Sunata aged 23 years was brought by PCR to Lady Hardinge Medical College and Hospital at 11 pm with the alleged history of sexual assault by five unknown persons at 11 pm on 16.4.2003. Patient was sobbing. After her examination it was found that she was primigravida (First pregnancy of about 8 months duration). In her alleged history she had disclosed that she was sexually assaulted by unknown persons in front of her husband. Her belongings and jewellery were also taken by the assailants.
PW-1 further stated that upon her examination it was found that there was a grip mark (hand) on the dorsal aspect of right forearm. There were nail marks on the medial aspect of the right forearm. There were nail marks on the medial aspect of the left little finger. Both the injuries were fresh in duration. Some grass, leaves and straw were found entangled in her scalp hair. Per abdominal examination revealed uterus of 28 X 30 in size. It was irritable cephalic. Baby was alive. There was no sign of local injury.
PW-1 further stated that the local examination of vulva revealed swelling of labia majora P/S- vaginal secretion + Contd......
:4:congestion + tenderness. Local examination per vagina showed Cervix 30 X 40 % effaced OS one finger, dilated. Vaginal finding :
consistent of sexual exposure as she was pregnant. However, sexual assault could not be ruled out. After examination slides from vaginal smear, pubic hair and scalp hair, nail sample and clothes of the victim were preserved and were handed over to SI Surya Prakash. Patient was fit for giving statement. PW-1 proved the MLC Ex. PW1/A. Patient was advised admission (to the hospital).
In her cross examination by the Counsel for the accused Harbans, PW-1 Dr. Sharda Patra stated that the possibility of swelling of vulva could not be ruled out due to pregnancy but tenderness as such could not happen due to that reason. There was no fresh mark/injury in vaginal region. In her cross-examination by Shri D P Sharma, Counsel for the accused Pramod, PW-1 stated that she noticed hand grip mark on the forearm, nail scratch mark on the left little finger. There were fresh marks. Marks noticed by her were forcible in nature. The possibility of the lady going into labour and bleeding in consequence thereof could be there.
In her cross examination by the Counsel for the accused Ram Dhani, PW-1 stated that the fresh injury means the one that ranged between 6 hours and 24 hours duration. The range of a grip mark varies from 6-12 hours. From MLC she could not say if the victim was sexually assaulted by one person or more than one person. PW-1 further stated that if an eight months pregnant lady is subjected to sexual assault, premature delivery is not bound to Contd......:5:
follow. The witness went to add that only if the physical assault is on abdomen, the chances of going in pre-term labour are 50-60%.
7. PW-2 HC Ramesh Chand stated that on 16.4.2003 he was posted at the PCR as In-Charge of vehicle C-9 from 8 pm to 8 am.
HC Dharamvir and Constable Driver were also present in the PCR. They were on patrolling duty. When they were going towards Sanatam Dharam Mandir, Ashok Vihar they heard the cries near Sanatam Dharam Mandir. They stopped their vehicle and started moving towards that person. After turning the headlights of the vehicle towards the park they saw 4-5 persons running outside the park. On being told by the person named Jai Chand that 4-5 boys had committed rape on his wife, Smt. Sunata was rushed to Sucheta Kriplani Hospital. Her husband was with them.
In the cross examination by the Counsel for the accused Pramod, PW-2 stated that the entry of the incident was made in the log book kept in the vehicle.
8. PW-3 Ct. Ram Nihor stated that on 17.4.2002 at 2 am a call was received in the Police Station from Lady Hardinge Hospital. It was registered vide DD no. 68B. He alongwith SI Surya Prakash went to Lady Hardinge Hospital and there they met Smt. Sunata. Lady Inspector Smt. Raj Kumari also arrived in the hospital. She recorded the statement of Smt. Sunata. PW-3 stated that he brought Rukka to the Police Station and got the FIR registered. He handed over copy of FIR and Rukka to SI Surya Prakash at the spot. IO took sealed parcel from the hospital vide memo Ex. PW3/A. It was Contd......
:6:deposited in the Malkhana.
9. PW-4 HC Shivdan Singh stated that he recorded FIR, copy of which was Ex. PW4/A. He made his endorsement on Rukka Ex. PW4/B.
10. PW-5 Ct. Ram Nihor (PW-3 Ct. Ram Nihor was cross examined as PW-5), in his cross examination stated that Inspector accompanying him recorded the statement of Smt. Sunata. In his cross examination by Counsel for the accused Harbans PW-5 stated that the Lady Constable reached the hospital within 10-15 minutes of their reaching there.
11. PW-6 Smt. Sunata, the Prosecutrix came to the witness box and stated that she was residing in Jhuggi no. 120, Pragati Market, Ashok Vihar, Phase-II, New Delhi for the last one month alongwith her husband. She was eight months pregnant. She felt some pain in her abdomen. Her husband came to the house at 4 pm and she told him the factum of pain in her abdomen. He then went to his second shift duty and returned at 11 pm. The pain had become serious by then. She went to the nearby park alongwith her husband for easing herself. The park was near the temple. She went inside the park whereas her husband remained at its gate. As she sat for toilet, 5-6 persons came there. One of them put a knife on the neck of her husband. The remaining persons started threatening her husband. She then raised alarm and started running. She reached near the temple. Two of the boys caught hold of her. They took her to a place behind the temple. She told them that she was eight Contd......
:7:months pregnant and requested them to spare her. Both these boys thereafter committed sexual intercourse on her without her consent. The remaining boys kept on catching hold of her husband at that time. Accused closed her mouth and eyes with the help of handkerchief. They had also put knife on her neck. Thereafter remaining 2-3 boys also committed sexual intercourse without her consent one after the other. At this time the two boys who had first committed rape on her detained her husband. Accused persons also snatched her jewellery comprising of pajeb, nose pin, ear rings and silver chain on her neck. PCR van then reached the spot. After seeing the police, accused persons ran away. She proved her statement Ex. PW6/A made to the police. She correctly identified all the accused persons in the court. She also identified her saree Ex. P1, petticot Ex. P2 and blouse Ex. P3.
In her cross examination by the Counsel for the accused Harbans, she admitted that after arrest of the accused they had gone to the Police Station. Accused persons were seen by her husband and not by her.
In her cross examination by the Counsel for the accused Pramod, PW-6 stated that the jhuggis were at a walking distance of 5-7 minutes (from the spot in question). Her husband was working in Wazirpur Industrial Area. She further stated in her cross examination that the park and the mandir were near each other. She did not notice any boundary wall of the park. There was grass, shrubs and trees in the park. They had made their entry to the park Contd......
:8:from the Gate near the temple. At the time she was easing herself, her husband was 5-6 steps away. Light was coming from the electricity pole. She did not see any care taker in the park. Her statement was recorded by the police at the spot who had reached there immediately after the occurrence. No public person reached the spot on hearing the alarm. She had requested the accused persons to leave her as she was pregnant. On confrontation with her statement Ex. PW6/A it was found having been not so recorded. She further stated that she told the police that accused had covered his eyes and had put a knife on her neck. On confrontation with her statement Ex. PW6/A it was found having been not so recorded. She admitted the suggestion that the accused were not known to her prior to the incident. She further stated that the rape was committed by making her lie down on the floor by the side of the temple where some grass was present. She received injuries on her hands, elbows, legs and knees while resisting. Her clothes were torn during resistance. She stated that there were 5-6 persons who committed rape on her. Initially two persons committed rape after which her eyes were covered.
In her cross examination by the Counsel for the accused Ram Dhani, PW-6 stated that she had told the police in her statement that she was taken behind the temple by two accused persons. On confrontation with her statement Ex. PW6/A it was found having not been so recorded. She further stated that in order to get herself released from the clutches of accused she used nail bites. She did Contd......
:9:not know if there was any tube well or pump house in the park. She admitted the suggestion that the accused persons were not known to her prior to the occurrence. She gave birth to a child in her village one month after the incident.
12. PW-7 Jai Chand, the husband of the Prosecutrix came in the witness box. He deposed on the lines of PW-6 Smt. Sunata. He also stated that on the date of incident at about 11 pm, he kept standing at the gate of the park when his wife went 10-15 steps inside the park to answer the nature's call. After some time five boys came there. Two boys caught hold of him at the knife point and the others chased his wife who had started running after having seen the incident going on with him. At the knife point he was made to sit on a bench inside the park when the three accused persons committed rape on his wife. He was watching it from a distance of 4-5 steps. The said 3 boys who had committed rape on his wife came to him and caught hold of him when the remaining two boys went to his wife and raped her. He could see the faces of all the 5 persons in the lights of PCR van clearly.
In his cross examination by the Counsel for the accused Ram Dhani PW-7 stated that he tried to raise alarm but was threatened of his throat being cut. On confrontation with his statement dated 17.4.2002 it was found having not been so recorded. He stated that all the jhuggi dwellers used the park for answering nature's call. His wife was discharged from the hospital after about 15 days of the incident.
Contd......
: 10 :Accused Harbans adopted the cross examination conducted on behalf of the accused Ram Dhani.
In his cross examination on behalf of the accused Pramod PW-7 stated that one side of the park had a wire fencing whereas the side facing the road was having a wall. His wife had told of taking away of jewellery on 18.4.2002.
13. PW-8 SI Surya Prakash stated that on receiving DD entry no. 68B, Ex. PW8/A through Ct. Ram Nihor he went to Lady Hardinge hospital. He recorded the statement of prosecutrix Ex. PW6/A. He made his endorsement Ex. PW6/B thereon. Rukka was sent through Ct. Ram Nihor on the basis of which FIR Ex. PW4/A was recorded. He received the copy of FIR and Rukka in original. He then visited the park alongwith Jai Chand (husband of the prosecutrix) and prepared Site Plan Ex. PW8/C with correct marginal notes. Doctor of Lady Hardinge Hospital handed over to him six sealed parcels bearing seal of the hospital and a sample seal. These pullandas were taken into possession vide memo Ex. PW3/A. He deposited them in the Malkhana alongwith the sample seal in an intact condition. Investigation of the case was then handed over to SI Dharambir on 18.7.2002.
In his cross examination by the Counsel for the accused Ram Dhani and Harbans, PW-8 admitted that before receiving DD no. 68B he did not have any information of the occurrence. There was only one Pujari in the temple nearby who resided there. On inquiry the said Pujari had expressed his ignorance of the Contd......
: 11 :occurrence. It was for this reason that his statement was not recorded. PW-8 admitted that there were kothis near the place of occurrence.
In his cross examination by the Counsel for the accused Pramod PW-8 stated that he had no knowledge of the case under section 302/307/34 IPC against Shambhu, Amarnath, Vinod @ Chiri and Pappu. He stated that he had no knowledge that HC Mahabir put pressure on the complainant Vinod to compromise the matter with the accused persons in that case. He did not know if for that reason Vinod, the brother of the accused Pramod made complaint to the DCP or to the court concerned. He denied the suggestion that he involved accused Pramod falsely at the instance of other police officials. He further stated that the distance between Mandir and the Pump house was 50 yards. He noticed signs of violence at the place of occurrence. He did not find broken bangles, blood or semen at the place of occurrence. Park was surrounded by a boundary wall. Pump House was locked at that time. Jai Chand, husband of the prosecutrix was not medically examined as he had no marks of violence on his body.
14. PW-9 HC Badlu Ram stated that he joined the investigation of the case with SI Dharmbir, SI Sanjay Goswami, SI Anand Kumar, HC Mishri Lal, Ct. Shamsher, Ct. Jagdish, Ct. Satender and Ct. Ashok Kumar. On 22.4.2002 at 6 pm IO received a secret information that the boys involved in this case were sitting in the park near DDA Flats. Passersby were asked to join but they Contd......
: 12 :refused to do so. Police party went to the park at DDA Flats and surrounded the canopy inside the park. 5-6 boys were sitting under the canopy. They started running after seeing the police party. Out of them 4 boys were apprehended. SI Sanjay Goswami and Ct. Shamsher apprehended accused Harbans. Accused Ram Dhani was apprehended by HC Mishri Lal and Ct. Jagdish. Accused Rajesh was apprehended by SI Anand Kiran and Ct. Ashok (accused Rajesh is a Juvenile). PW-9 further stated that the disclosure statements of accused persons Ex. PW9/A, Ex. PW9/B and Ex. PW9/C were recorded. Their arrest memos Ex. PW9/D, Ex. PW9/E and Ex. PW9/F were prepared. He proved their personal search memos Ex. PW9/G, Ex. PW9/H and Ex. PW9/I. Accused persons were got medically examined. After the medical examination of the accused Harbans, doctor handed him over one sealed parcel containing undergarments of accused Harbans and blood sample sealed with the seal of the hospital and a sample seal. These items were taken into possession vide memo Ex. PW9/J. After examination of the accused Ram Dhani, a sealed parcel containing undergarments of accused Ram Dhani and blood sample sealed with the seal of the hospital and a sample seal were handedover to him. These items were taken into possession vide memo Ex. PW9/K. One sealed parcel containing undergarments of accused Pramod and blood sample sealed with the seal of the hospital and a sample seal were also given. These items were taken into possession vide memo Ex. PW9/L. In his cross examination by the Counsel for the accused Contd......
: 13 :Harbans, PW-9 stated that the distance between the place at which information was received and the place of arrest of accused persons was less than half a km. Writing work was done while sitting in the park under the canopy. There was natural light at that time. They came back to the Police station at about 11.30 pm. In his cross examination by the Counsel for the accused Ram Dhani, PW-9 stated that he signed Ex. PW9/E after reading it.
In his cross examination by the Counsel for the accused Pramod PW-9 stated that the secret information was received by SI Dharambir Singh. He did not know if Shambhu and Vinod were involved in a murder case of Police Station Ashok Vihar during his tenure there. He did not know if injured Vinod had complained against the Police Officers for persuading him not to give evidence in case FIR No. 630/99 u/s 302/307/34 IPC in Police Station Ashok Vihar.
15. PW-10 Ct. Alok Kumar stated that on the instructions of the IO on 13.6.2002 he collected 14 sealed parcels sealed with the seal of IO of BJRM hospital. He deposited these parcels alongwith sample seal and form of FSL at FSL, Malviya Nagar. These parcels were taken vide RC no. 105/21. Till the parcels remained in his possession, these remained intact.
16. PW-11 Ct. Ram Kumar stated that on 17.4.2002 he was on duty at Lady Hardinge hospital. He collected 6 sealed parcels sealed with the seal of Lady Hardinge hospital alongwith sample seal. He then handed them over to SI Surya Prakash.
Contd......
: 14 :17. PW-12 Dr. S Narang of BJRM hospital identified the signatures of Dr. Vivek Singh on MLC no. 13876 to 13878. He also identified the signatures of Dr. Kumar Vishwas on MLC no. 13879. He proved MLCs Ex. PW12/A to Ex. PW12/D. In his cross examination PW-12 stated that the whereabouts of the Doctors were not known to the hospital after they left the services of the hospital.
18. PW-13 Dr. Charanjit Singh stated that on 23.4.2002 accused Pramod and Harbans were brought to the hospital for their bone age estimation. Accused Pramod was found more than 20 years of age on that day. Age of the accused Harbans was estimated between 18 and 21 years. He proved X-Ray in respect of accused Pramod Ex. PW13/A and that of the accused Harbans, Ex. PW13/B.
19. PW-14 SI Anand Kiran stated that on 22.4.2002 he joined investigation with SI Sanjay Goswami at 5.30 pm. He deposed on the lines of PW-9 HC Badlu Ram.
20. PW-15 HC Dharambir Singh stated that on 16.4.2002 he was posted in PCR as Gunman. At about 11.40 pm they reached the park near Saraswati Jain Mandir, Ashok Vihar near Sanatam Dharam Dharamshala. He saw that inside the park at a distance of 50 steps, a lady was crying. 4-5 boys were near her. They turned their vehicle towards the park. The headlights of the vehicle were focussed towards the park. They rushed inside the park. After seeing them the said 4-5 boys ran away. They then reached the lady. Her husband was also present. Lady was in a bad condition. They Contd......
: 15 :brought her and her husband in the vehicle. The husband gave details of the incident. Lady was continuously weeping. She was brought to Sucheta Kriplani hospital by the same PCR and admitted there.
In his cross examination PW-15 stated that the distance between mandir and the park was about 60 steps. Mandir was known as Sanatan Dharam Mandir. He admitted that there was total dark in the park. Park was having little grass on it. They did not chase the boys who had run away. They did not see any person coming out of Mandir on hearing cries.
In his cross examination by the Counsel for the accused Ram Dhani and Pramod, PW-15 stated that it took about 10-15 minutes in getting the patient admitted to the hospital. They were at a distance of 40-50 steps when the accused persons ran away and within their sight. They (police party) did not use any weapon. There was no electric light in the park. Victim lady was conscious and was made to lie down on the seat in the van.
21. PW-16 SI Sanjay Goswami stated on the lines of PW-14 SI Anand Kiran.
22. PW-17 Ct. Vijender Singh proved the handwriting and signatures of SI Dharambir Singh on the arrest memo of the accused Harbans, Pramod, Ram Dhani, Santosh and Rajesh Ex. PW9/F, Ex. PW9/D, Ex. PW9/E, Ex. PW17/A and Ex. PW17/B respectively. He stated that he had seen SI Dharambir Singh writing and signing as he was the Reader to SHO and SI Dharambir Singh was posted there in Contd......
: 16 :Police Station Ashok Vihar. He also identified the signatures of SI Dharambir Singh on the Personal Search memos Ex. PW9/G, Ex. PW9/H, Ex. PW9/I, Ex. PW17/C in respect of accused persons of the present case and the accused Rajesh (a Juvenile). The witness also proved the Seizure Memo Ex. PW9/J vide which blood samples were sealed. He stated that it bore the signatures of SI Dharambir Singh at point A. Seizure Memo of the undergarments of accused Ram Dhani and Pramod, Ex. PW9/K and Ex. PW9/L were also in the handwriting of SI Dharambir Singh bearing his signatures at point A. Besides this, the witness proved the disclosure statements Ex. PW9/A, Ex. PW9/B and Ex. PW9/C in respect of accused Pramod, Ram Dhani and Harbans respectively. He further stated that the pointing out memos Ex. PW17/D, Ex. PW17/E and Ex. PW17/F in respect of accused Ram Dhani, Pramod and Harbans respectively were also in the handwriting of SI Dharambir Singh. His signatures appeared at point A. PW-17 also proved the application for TIP moved by SI Dharambir Singh, Ex. PW17/G. Ex. PW17/H was an application for supplying the copy of TIP proceedings and moved by SI Dharambir Singh.
23. PW-18 Shri Suraj Bhan Ld. MM, Delhi stated that the application Ex. PW17/G was marked to him for conducting TIP of the accused Ram Dhani, Pramod, Harbans and Rajesh. TIP was finally conducted on 14.5.2005. Accused persons were produced before him in muffled faces. Accused persons refused to undergo TIP. Their statements in this behalf were Ex. PW18/A to Ex.
Contd......
: 17 :PW18/D. Certificate of correctness of proceedings was Ex. PW18/E. Applications were moved by the IO for supply of the copy of proceedings which were Ex. PW17/I and Ex. PW17/H. He made his endorsements Ex. PW18/F and Ex. PW18/G thereon.
24. PW-19 ASI Ram Pal Singh stated that on 17.4.2002 SI Surya Prakash deposited with him six pullandas alongwith sample seal in Police Station Ashok Vihar. He made entry in Register no. 19, copy of which was Ex. PW19/A. On 13.6.2002 he sent pullandas vide RC no. 105/21/2002 through Ct. Ashok Kumar to FSL Malviya Nagar. On 19.9.2002 the FSL result was received by him. He made entry to this effect at point Y. On 23.4.2002, SI Dharambir Singh deposited with him 12 pullandas sealed with the sample seal of the case. He proved the copy of the relevant entry in Register no. 19 Ex. PW19/B. Samples were sent to FSL, Malviya Nagar vide RC no. 105/21/02 through Ct. Alok Kumar.
PW-19 stated that on 7.5.2002 SI Dharambir Singh deposited with him two pullandas, one of which was a blood sample and other a sample seal. These were duly sealed with the seal of BJRM hospital. He made entry in Register no. 19, Ex. PW19/C. Case property was not tampered by anybody till it remained in his custody.
25. Statements of the accused persons were recorded U/s 313 Cr. P C. They denied all the incriminating evidence put to them. In his statement recorded u/s 313 Cr. P C accused Ram Dhani stated that he was taken to the Police station on the pretext of some inquiry Contd......
: 18 :and falsely implicated. In his statement recorded u/s 313 Cr. P C accused Pramod stated that he was falsely implicated as his brother was a witness in a murder case and the persons from the complainant's side were accused in that case. The accused persons of the said case were the residents of a village near the village of the complainant. Their names were Shambhu, Amarnath, Vinod @ Chiri and Pappu. Accused Harbans stated in his statement under section 313 Cr. P C that on 21.4.2002 certain persons came in civil uniform and took him to the Police Station and falsely implicated.
26. I heard the arguments addressed by the Counsels for the accused persons and the Addl. P.P. for the State.
27. PW-6, Prosecutrix Smt. Sunata and PW-7 her husband are the persons who are alleged to have seen the crime being committed. Statement of prosecutrix is fully corroborated with the statement of her husband Jai Chand. Both of them stated that on 16.4.2002 she developed pain in her abdomen. She was carrying a pregnancy of 8 months. She complained of it to her husband at 4 pm. Not taking it too seriously, husband left for his second shift duty and returned at 11 pm. Pain became more serious. Husband took the wife to a nearby park for easing herself. Husband kept on standing at the entrance of the park when the wife took a few steps forwards, to ease herself. 5-6 boys came there. One of the boys put a knife on the neck of her husband. They also threatened him. Prosecutrix raised alarm and started running. Two of the boys caught hold of her and took her to a place behind the temple. She Contd......
: 19 :made a request to them to leave her as she was eight months pregnant. First these two boys committed rape on her and thereafter the boys detaining her husband committed rape. The job of detaining the husband of the prosecutrix at that time was done by the first two boys who had completed the act of forcible sexual intercourse. Incidentally the PCR van passing nearby heard the cries of prosecutrix and entered the park. Seeing the light emanating from the head lights accused persons ran away. Prosecutrix and her husband could see the accused persons in that light. Accused persons refused to undergo TIP and simply stated that they were shown to the witnesses. They did not indicate as to on what date, time and place they were shown to the witnesses. Shri D P Sharma, Learned Counsel for the accused Pramod has pointed out the contradiction in the statement of prosecutrix Ex. PW6/A made to the police and the statement made in the Court. Learned Counsel has submitted that in her statement in the Court she stated that the accused persons had covered her eyes and had put knife on her neck. It was not got recorded while making statement to the police. Both the witnesses have referred to the use of knife by the accused persons. The husband Jai Chand was detained on knife point. Prosecutrix and her husband were not far off from each other at that time. Threatening the wife with the knife for a few seconds and non mention of it in the statement made to the police was not a material omission. For that reason it can not be labelled as a contradiction of significance.
Contd......
: 20 :28. Next argument advanced by Shri D P Sharma, Ld. Defence Counsel is that the police failed to lift the grass from the place of occurrence to show that there were signs of any struggle having taken place. In the MLC Ex. PW1/A Dr. Sharda Patra made a mention of having found grass/straws in the hair of the prosecutrix. It shows that she was laid on the grass. The argument is frivolous as it is not possible that always signs are left on the grass. Learned Defence Counsel has also drawn the attention of the court to the report of PW1 Dr. Sharda Patra given in MLC Ex. PW1/A. Doctor had opined that the sexual assault could not be ruled out. Perusal of the FSL report shows that human semen was detected on two vaginal swabs microslides, petticot, saree and the underwear. The expression, "sexual assault could not be ruled out" does not mean that the intercourse had not taken place. It means the confirmation was yet to be made. It was CFSL report which showed the presence of human semen in the vaginal swabs of the prosecutrix. Clearly there was a discharge of human semen in the vagina of the prosecutrix. Obviously penetration of the penis had taken place. For these reasons the argument does not hold water. Learned Counsel has also pointed out the contradictions in relation to the presence of electric light on the poles. The plea taken is that in this court she testified that there was electric pole nearby whereas before Juvenile Justice Board she sated that there was no light. The prosecutrix was not confronted with the statement made by her before Juvenile Justice Board. The contradiction hence cannot be looked into. Even Contd......
: 21 :otherwise it is too small a contradiction as in a thickly populated city like Delhi even in the absence of electric pole light inside the park, the visibility remains due to the lights coming from the poles on the roads.
29. Last argument put forth by the Learned Counsel is that there is a contradiction in the place of occurrence. Prosecutrix stated that she was taken behind the temple whereas her husband stated that she was taken to the Pump House. A close scrutiny of the record shows that PW-7 Jai Chand, husband of the prosecutrix stated that the two boys took his wife near the Pump House inside the park. It has come on record in the Site Plan Ex. PW8/C that the Pump House and the temple are very near to each other. The argument therefore is devoid of merit.
30. Last submission made by Shri D P Sharma, Ld. Defence Counsel is that the prosecutrix as per her version sustained injuries on her legs, elbows, knees and waist. Learned Counsel pointed out to the MLC of the prosecutrix showing nail marks on the medial aspect of the little finger. It also showed the presence of grip mark (on hands) on the dorsal aspect of right forearm. The prosecutrix is an illiterate lady. Her version that she received injuries on certain parts has not to be taken literally as there could have been invisible injuries. Presence of the fresh nail marks and fresh grip mark on her body clearly shows that she had put up resistance. All the three Counsels appearing differently for the accused persons have put a suggestion to the prosecutrix that the accused persons and the Contd......
: 22 :prosecutrix were not known prior to the incident in question. It goes to show that the accused persons admitted of non existence of any enmity between them on the one hand and the prosecutrix or her husband on the other. Defence side had put a suggestion to the prosecutrix and her husband of their association with the persons named Shambhu, Amarnath, Vinod @ Chiri and Pappu. These persons were allegedly involved in a case of murder. Prosecutrix and her husband denied having any familiarity with the said persons. It contradicts the case of accused persons when they tried to associate the aforesaid persons with the prosecutrix and her husband and at the same time they want this court to believe that the accused party and the prosecutrix were not known to each other prior to the incident. Be that as it may, no defence evidence has been led by the accused persons to establish any link between the incident in question and the involvement of Shambhu, Amarnath, Vinod @ Chiri and Pappu in a case of murder.
31. Prosecutrix and her husband both identified the accused persons in the court. Prosecutrix categorically stated that she was not shown the accused persons in the Police Station. All the accused persons refused to undergo TIP. The only inference that can be drawn is that they avoided their TIP with an ulterior motive. Credibility of the statement of the prosecutrix and her husband has remained unimpeached. I am, therefore, of the view that the accused persons committed sexual intercourse on the prosecutrix PW6 Smt. Sunata without her consent in terms of section 376(2) (g) IPC.
Contd......
: 23 :32. Now coming to the charge under section 395 IPC r/w section 397 IPC, the prosecutrix in her statement to the police Ex. PW6/A did not make any mention of her jewellery items having been removed by the accused persons. Her statement was recorded at 4.15 am, i.e., about four and a half hours after the incident. She had however disclosed to PW-1 Dr. Sharda Patra that the accused persons also took away her belongings and jewellery. In her examination-in-chief, the prosecutrix after giving a narration of all events of the incident sequentially stated at the end only that the accused persons snatched her pajeb, nose pin, ear rings and silver chain. It was at this point that the PCR van reached the spot. No police witness saw the accused persons removing the ornaments of the prosecutrix. There is no injury to her ankles, nose, ears or neck occurring at the time of snatching of these items. This part of the allegation does not inspire confidence. Accused persons Harbans, Ram Dhani and Pramod are hence acquitted of the charges under section 395 IPC r/w section 397 IPC. Accused persons Harbans, Ram Dhani and Pramod are hence held guilty and convicted for the commission of the offence U/s 376(2)(g) IPC only.
They be heard separately on the point of sentence on 3.3.2007.
ANNOUNCED IN OPEN COURT ( N P KAUSHIK )
28th FEBRUARY, 2007 ADDL.SESSIONS JUDGE:
DELHI.
Contd......
: 24 :
IN THE COURT OF SH. N P KAUSHIK, ADDL.SESSIONS
JUDGE : DELHI.
SC NO. : 76/2006
FIR NO.: 223/2002
P.S. : Ashok Vihar
U/S : 376(2)(g) IPC
State Vs. 1) Harbans S/o Ram Sadan
R/o Jhuggi no. N-28/G-476, CSA
Colony, WPIA, Delhi.
2) Ram Dhani S/o Raja Ram
R/o Jhuggi no. N-28/E-676, CSA
Colony, WPIA, Delhi.
3) Pramod S/o Tapsa Ram
R/O Jhuggi no. N-28/G-413, CSA
Colony, WPIA, Delhi.
POINT OF SENTENCE :
Accused Harbans, Ram Dhani and Pramod have been convicted for the offence U/s 376 (2)(g) IPC vide my separate judgment announced on 28.2.2007.
2. The submission of Mrs. Sadhna Bhatia, Amicus-Curiae for the accused Harbans is that the accused is a first offender and an young man of 24 years. His father is dead. Ms. Anu Narula, Amicus-Curiae for the accused Ram Dhani submitted that the accused is an young man of 22 years and having a wife to maintain. He is also the first offender. Sh. Bhavesh Kumar Sharma, Counsel for the accused Pramod submitted that the accused is an young man Contd......
: 25 :of 22 years and a first offender.
3. The aggravating circumstances of the case are that the convicts committed rape on the woman who was pregnant for eight months. Rape had been committed in the presence of her husband after detaining him on knife point.
4. The mitigating circumstances of the case are that the convicts are of the age group of 22 to 24 years. They are all first offenders. Convicts have already undergone a period of imprisonment of about five years. In the circumstances of the case, I am of the view that the ends of justice shall met in case the convicts named Harbans, Ram Dhani and Pramod are awarded the punishment of RI for a term of 10 years U/s 376 (2)(g) IPC. They are also sentenced to pay fine to the tune of Rs.1,000/- each. In default of payment of fine, they shall undergo further imprisonment for a period of three months. Ordered accordingly.
Benefit of set off under section 428 Cr.P. C. be given to all the convicts.
Copy of the judgment and order on sentence be given to the convicts free of costs.
File be consigned to records.
ANNOUNCED IN OPEN COURT ( N P KAUSHIK )
3rd MARCH, 2007 ADDL.SESSIONS JUDGE :
DELHI.
Contd......
: 26 :
Convicts Harbans, Ram Dhani and Pramod are awarded the punishment of RI for a term of 10 years U/s 376 (2)(g) IPC. They are also sentenced to pay fine to the tune of Rs.1,000/- each. In default of payment of fine, they shall undergo further imprisonment for a period of three months. Ordered accordingly.
Benefit of set off under section 428 Cr.P. C. be given to all the convicts.
Contd......