Delhi District Court
The Case Of The Prosecution In Brief Is ... vs . on 23 February, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.232/10
FIR NO. 475/04
U/S 328/342/365/376/34 IPC
PS Nangloi
Unique Case ID No. : 02404R0445752006
State
Vs.
1. Ranjit Kaur w/o Late Sh. Tarsem Singh
r/o H.No. 118, Nilothi Village, Chander Vihar,
Manav Kendar wali gali, Nangloi, Delhi.
2. Raju @ Nepali @ Bhim Sain @ Bhim Singh, s/o Santa Singh @
Sant Bahadur, r/o H.No. 118, Nilothi Village, Chander Vihar,
Manav Kendar wali gali, Nangloi, Delhi.
Also at : WZ14, Chaudhari Complex, Vishnu Garden,
Tilak Nagar, Delhi.
3. Neelam @ Billo w/o Late Sh. Ghan Shyam
r/o H1/70, Sector 16, Rohini, Delhi.
Date when committed to the court of Sessions :07.07.2006
Date when case reserved for judgment : 14.02.2011
Judgment pronounced on : 23.02.2011
JUDGMENT:
1. The case of the prosecution in brief is that on receipt of DD No.12 of PP Nihal Vihar, PS Nangloi, ASI Shri Krishan (since deceased) had reached at A118, Chander Vihar, Gali Manav Kendar SC No.232/10 Page 1/42 Wali, Nilothi, within the jurisdiction of PS Nangloi, where he found the prosecutrix whose statement was recorded by the said ASI.
2. As per statement of the prosecutrix, she was resident of Bhiwandi, Maharashtra (the full address not given by me in order to keep the identity of the prosecutrix secret) and her father was in the business of fishery and that on 10.05.2004, she with the consent and permission of her parents along with her female friend namely Ritu had gone to Jammu and Kashmir for outing by rail from Mumbai Central and they had reached Jammu on 12.05.2004 where they stayed for 15 to 20 days and were coming back to Delhi and she could not know as to whether it was Panipat or Jind Railway Station where she had got off the train for filling the water bottle and in this process she missed the train and somehow or the other, after making inquiry, she reached New Delhi Railway Station on 06.06.2004 where she was making inquiry for going back to Mumbai and at that time one lady, whose name on inquiry transpired as Ranjeet Kaur w/o Tarsem Singh r/o A118, Gali Manav Kendar wali, Chander Vihar, Nilothi, Delhi, met her and told her that the said lady was also to go to Mumbai and assured the prosecutrix to take her along with her and then the said lady offered tea to the prosecutrix, after consuming of which she came under the influence of some intoxicant and accompanied the said lady and when she regained her senses, she found herself locked in one room and in the said room at the asking of accused Ranjeet Kaur one Raju @ Nepali committed SC No.232/10 Page 2/42 rape with her without her consent and somehow she escaped from the said house and with the help of the people, police was informed on phone and during her said confinement, one day said Ranjeet Kaur along with Raju @ Nepali had taken her in a car to Sector 16, Rohini, to the house of one woman known by the name of Billo and was brought back in the evening and at the said house of the woman Billo, 2/3 persons had also raped her and that she could identify the said two ladies and Raju @ Nepali and the said persons who also committed rape with her.
3. On the basis of the said statement the FIR was got registered.
4. During investigation, site plan was prepared and the prosecutrix was got medically examined, accused Ranjeet Kaur and accused Neelam @ Billo were arrested and her undergarments, vaginal swab etc were sealed by the doctor and were handed over to the police and the same were sent to FSL and subsequent to the filing of the charge sheet the result of FSL was placed on record and the statement of the prosecutrix u/s 164 Cr.PC was got recorded and the charge sheet was initially filed only against accused Ranjeet Kaur and accused Neelam @ Billo and subsequently a supplementary charge sheet, after the accused Raju @ Nepali who was declared PO was arrested, was filed against him also.
5. On the basis of the said evidence and the charge sheet, my Ld. Predecessors, vide their respective orders framed the charges on 08.09.2006 against accused Ranjeet Kaur u/s 328 IPC and against SC No.232/10 Page 3/42 accused Neelam @ Billo u/s 5 of the Immoral Traffic (Prevention) Act and vide order dated 19.05.2007 a charge u/s 376 IPC was framed against accused Raju @ Bhim Sen.
6. On 18.01.2011, I framed additional charges against accused Ranjeet Kaur and Neelam @ Billo u/s 109/34 IPC for the offence u/s 376/34 IPC and the accused denied all the said charges against them and claimed trial.
7. The prosecution, in order to prove its case, has produced as many as 14 witnesses, which have been discussed below.
8. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and did not prefer to lead any defence evidence.
9. I have heard Ld. APP for the state, Sh. S.K. Kashyap, Advocate for accused Raju @ Bhim Sen and Sh. R.S. Gupta, Advocate for accused Ranjeet and Neelam @ Billo and perused the record.
10. PW1 is Dr. Garima Trivedi who identified the writing and signatures of Dr. Sweety Bansal on the MLC Ex.PW1/A and she also mentioned regarding injuries suffered by the prosecutrix i.e two abrasion present over left side of labia of 1 x 2 cm and she further deposed that hymen was broken which was old healed and she also deposed regarding seizure of vaginal swab, undergarments of the prosecutrix and in her cross examination she deposed that she had SC No.232/10 Page 4/42 no personal knowledge about the examination of Sujata and she had deposed on the basis of record.
11. PW2 is ASI Kailash Singh who has proved the copy of the FIR Ex.PW2/A. PW3 L/HC Suresh Kumar was the MHC(M) who deposed regarding deposit of the exhibits by the W/SI Savita in the Malkhana vide entry Ex.PW3/A along with sample seal of the SGM Hospital and thereafter sending the said exhibits to FSL Rohini vide RC copy of which is Ex.PW3/B. PW4 HC Sudesh deposed about taking the accused Neelam @ Billo for her medical examination. PW5 Ct. Anand Prakash accompanied the ASI Shri Krishan to the said spot and from there he took the original complaint to the PS on the basis of which he got the FIR registered and he handed over original complaint and copy of FIR to W/ASI Savita and in his presence the site plan was prepared by the IO at the instance of the prosecutrix. PW6 Ct. Rajbir deposited the exhibits of the case with FSL Rohini. PW7 L/HC Satish deposed regarding arrest of accused Ranjeet Kaur at the pointing out of the prosecutrix vide memos Ex.PW7/A and Ex.PW7/B and at the pointing out of the prosecutrix arrest of accused Neelam vide memos Ex.PW7/C and Ex.PW7/D. PW8 L/Ct. Suman deposed regarding arrest of accused Neelam @ Billo and her personal search vide memo Ex.PW7/C. PW9 W/ASI Saroj Bala took the prosecutrix to SGM hospital for her medical examination and her undergarments and vaginal swab along with one sample seal were handed over to her at SGM hospital by the SC No.232/10 Page 5/42 concerned doctor which in turn she handed over to W/SI Savita which were seized vide seizure memo Ex.PW9/A. PW10 is Ms. Preeti Aggarwal, the then Ld. MM, Rohini Courts, who proved the statement of the prosecutrix u/s 164 Cr.PC vide application Ex.PW10/A and the statement as Ex.PW10/B and the proceedings as Ex.PW10/C, the certificate with regard to the statement of the prosecutrix as Ex.PW10/D and copy of the said statement was allowed to be given to the IO vide application Ex.PW10/E. PW12 ASI Depender Singh deposed regarding the arrest of accused Raju @ Nepali @ Bhim Sen as PO in the present case vide arrest memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW12/B. PW13 Dr. Samir Pandit proved the MLC of the accused Raju @ Nepali as Ex.PW13/A and he was referred for opinion of surgery which was that the accused Raju @ Nepali was suffering from right side hydro cil and at the time of examination, the patient may not be capable of performing sexual intercourse. The said doctor was cross examined on behalf of the State by the Ld. APP who further answered that it is correct that hydro cil may be temporary and it cannot affect the capability i.e erection of penis to perform the sexual act. In his cross examination, PW13, the doctor, answered that he could not tell the duration of the said disease suffered by the said patient which depended upon the treatment and medication for the cure of the said disease. He denied the suggestion that the patient was suffering from the said disease for a SC No.232/10 Page 6/42 long time and was not capable of performing the sexual act.
12. PW14 W/SI Savita deposed about the investigation conducted by her and she proved the site plan which she prepared at the instance of the prosecutrix as Ex.PW14/A, arrest of the accused Neelam @ Billo and Ranjeet Kaur vide the said memos, recording of disclosure statements of said two female accused as Ex.PW11/C and Ex.PW11/B and pointing out of the place of occurrence by the accused Ranjeet Kaur vide memo Ex.PW11/D and medical examination of the prosecutrix vide MLC Ex.PW1/A and seizure of her undergarments, vaginal swab etc vide memo Ex.PW9/A.
13. PW14 the IO further deposed that accused Ranjeet Kaur was sitting in the PS in ladies room in the custody of L/Ct. Suman and accused Neelam was in the custody of L/HC Sudesh and that the accused Ranjeet Kaur asked the L/Ct. Suman that she wants to ease herself and she should be taken to the toilet and that on the way to the toilet accused Ranjeet Kaur gave a leg blow to L/Ct. Suman who was 7 months pregnant at that time and due to which the said L/Ct. fell down and accused Ranjeet Kaur fled away from the PS and for this incident an FIR u/s 224 IPC was registered and copy of the same is Ex.PW14/B and the L/Ct. was admitted to SGM hospital. She further deposed about recording of statement of the prosecutrix u/s 164 Cr.PC, sending of exhibits to FSL, the initiation of proceedings u/s 82 Cr.PC against accused Raju @ Nepali and his declaration as proclaimed offender by the concerned Magistrate on 23.11.2004 and SC No.232/10 Page 7/42 filing of charge sheet and thereafter arrest of accused Raju @ Nepali by HC Depender of PS Paschim Vihar and arrest of the accused Raju @ Nepali in this case vide memos Ex.PW12/A and Ex.PW12/B and disclosure statement of the accused Ex.PW14/F. Prior to that she had deposed regarding arrest of accused Ranjeet Kaur vide memo Ex.PW14/C and Ex.PW14/D at Tis Hazari courts in the court of concerned MM, the medial examination of accused Raju @ Nepali and she tendered the FSL results as Ex.PW14/K and Ex.PW14/L.
14. In her cross examination, the IO of the case replied that she did not record the statement of any of the neighbour where the prosecutrix was confined. The IO did not collect any document with regard to accused Ranjeet Kaur as owner of the house where the accused was confined, as per her further answer. However, she replied that the driving license of accused Ranjeet Kaur was seized which was kept in a purse and same was mentioned by her in personal search of the accused vide memo Ex.PW7/A which was released to accused on superdari by the order of the concerned court. It was observed by this court that in the seizure memo Ex.PW7/A there was no mention of any driving license to which the witness submitted that as the accused had run away and her posters were published with her photograph and the same was taken from the driving license itself and copy of the same was in police file, on which this court further observed the copy of the poster to be kept SC No.232/10 Page 8/42 on the judicial record as Ex.PX and copy of the same was supplied to the Ld. Defence Counsels. She admitted it as correct that address of accused Raju @ Nepali at the time of arrest was mentioned different but he was residing with the accused Ranjeet Kaur as her driver. She further replied that no driving license of accused Raju @ Nepali was seized nor any statement of any neighbour was recorded in this respect that accused Raju @ Nepali was working as driver of accused Ranjeet Kaur. She further replied that on inquiry she came to know that accused Ranjeet Kaur was residing in the jhuggi No.475, Faiz Road, Karol Bagh and was indulged in the act of prostitution from there but as no public person was willing to make his statement to that effect, she could not record the statement of any public person in this regard. She did not collect, as per her answer, any document with regard to ownership of the said jhuggi. The IO further replied that statements of father and other relatives of the prosecutrix were not recorded nor she visited native place of the prosecutrix at Maharashtra. However, she answered that the message was sent to SSP concerned through DCP concerned at Delhi and Ct. John Patric and another Constable of Delhi Police, both hailing from Maharashtra, were sent to the residence of the prosecutrix, who informed the parents of prosecutrix with regard to the said incident and whereabouts of the prosecutrix at Delhi. The IO denied the suggestion that the prosecutrix was of immoral character who used to run away from the house for about 20 days or SC No.232/10 Page 9/42 more than that. She further denied that the prosecutrix herself was a prostitute who used to leave her house for the said occupation without telling her parents or without the permission of her parents. She could not tell about the education of the prosecutrix. She further denied the suggestion that the prosecutrix was mentally retarded, as wrong. The IO further replied that accused Raju was not put to any TIP but he was named in the FIR and his description was given by the prosecutrix as well as by accused Ranjeet Kaur. She further denied the suggestion that the prosecutrix wanted to extort money from the accused and as the accused refused for the same, the prosecutrix got implicated the accused falsely in the present case.
15. PW11 is the prosecutrix who deposed that on 10.05.2004, she along with her friend Ritu, with the permission of her parents, left for Jammu and Kashmir from Mumbai Central and they reached Jammu on 12.05.2004 where they stayed for about 15 days and thereafter they took train from Jammu for Delhi and that on the way at Panipat she got down from the train for filling her water bottle and in the meanwhile the train left the station and that she managed to come to New Delhi Railway Station from Panipat and at the New Delhi Railway Station, accused Ranjeet Kaur, present in court, met her and informed that she (the accused) was also going to Mumbai and she (the accused) would be leaving her (the prosecutrix) at Mumbai and thereafter accused Ranjeet Kaur brought some tea and offered her the same and after consuming the tea, she felt giddy and SC No.232/10 Page 10/42 that the accused Ranjeet Kaur took her in a maruti car to her house at Delhi where the accused Raju @ Nepali, present in court, was also present who committed rape on her forcibly without her consent and wish and that thereafter accused Ranjeet Kaur called another old person and she was sent along with him forcibly in a room but he could not commit rape with her as she raised alarm and started weeping and the said old man left the place. She further testified that thereafter accused Ranjeet Kaur along with accused Raju @ Nepali took her to the house of accused Billo, present in the court, at Rohini, Delhi in a car and the accused Billo was also involved in the same activities and that at the house of accused Billo also one or two persons were called who committed rape with her forcibly without her consent and wish and that she was taken back to the house of accused Ranjeet Kaur from the house of accused Billo and she was confined at the house of accused Ranjeet Kaur which was locked from outside and she jumped out of the main gate and became free and she went to an STD booth which was being run by a lady who gave her shelter by hiding her and informed the police and that the police reached the STD booth and recorded her statement which is Ex.PW11/A. She further deposed that police accompanied her to the house of accused Ranjeet Kaur and the house was pointed out by her and thereafter she was taken to the hospital for her medical examination and her statement was also recorded at the PS and the accused Ranjeet Kaur was taken to the PS and that the son of the SC No.232/10 Page 11/42 accused Billo was also taken to the PS and accused Billo was also arrested by the police. She further deposed that arrest memos of accused Ranjeet Kaur and accused Billo were signed by her which are Ex.PW7/B and Ex.PW7/D and their personal search were also conducted vide memos Ex.PW7/A and Ex.PW7/C. She further testified that disclosure statement of accused Neelam @ Billo and accused Ranjeet Kaur were signed by her and same are Ex.PW11/B and Ex.PW11/C and she also signed the pointing out memo of the house by accused Ranjeet Kaur which is Ex.PW11/D and that she was also taken to Tis Hazari Courts where, before a Magistrate, her statement was recorded which was signed by her and same is Ex.PW10/B.
16. PW11 in her cross examination has replied that accused Ranjeet Kaur herself was driving the said car when she was being taken from Railway Station to the house of the accused and she was sitting at the back seat alone and nobody was holding her. She further replied that she was conscious that the car was being driven but she was under the effect of some intoxicating substance after consumption of the said tea and she was not in a position to recollect in her mind as to how much time was taken from the Railway Station to the said house of the accused in the car nor she had any idea about the distances because she was at Delhi for the first time. She further replied that window panes of the car were open and she did not notice if the car stopped at any traffic signals. She could not SC No.232/10 Page 12/42 tell the time when she reached the house of accused Ranjeet Kaur but it was noon time. She further replied that accused Ranjeet Kaur took her inside the house as she was feeling drowsy and that the house was near an Ashram and was constructed only up to ground floor having 2/3 rooms and after some time she had a bath and that accused Ranjeet Kaur gave her clothes to the prosecutrix to wear and thereafter accused Raju @ Nepali offered her food and after having food she recovered from the said drowsiness. She further replied that she was kept in the said house for 2/3 days and there were houses on three sides of the said house and she never went to the roof of the said house and she was taken to the house of accused Billo after about 3 days and for the said three days she was confined in the said house of accused Ranjeet Kaur which was being locked and there was a pet dog also in the house. She further replied that they started from the place where she was kept for the house of accused Billo in the evening and accused Ranjeet Kaur and Raju @ Nepali took her outside the house up to the car and that the public persons were coming and going at that time and that the accused Ranjeet Kaur was driving the car at that time also and she was sitting at the back seat and accused Raju @ Nepali was also sitting at the back seat and it took about one hour in reaching Rohini by the car and that she remembered that car stopped at traffic signal only once. She further answered that she did not notice any traffic police and she volunteered that she did not notice the said things because of the SC No.232/10 Page 13/42 fear as accused Ranjeet Kaur was having a knife tied around her body and that she could see the knife while accused Ranjeet Kaur was driving the car. She further answered that house of the accused Billo was having 3 or 4 stories but the accused Billo was residing at the ground floor and that it was 10.30 p.m when she was taken inside the house of accused Billo. She further replied that she could not tell the name of the locality or the Sector as she was stranger to Delhi and she was taken back to the house of accused Ranjeet Kaur after about 12 mid night. She further answered that it was morning hours when she jumped the gate of house of accused Ranjeet Kaur and escaped towards the STD booth and it was probably 6th day of the month when she escaped from the house of accused Ranjeet Kaur but she did not recollect the name of the month. She further answered that there was an Ashram towards one side of the house of accused Ranjeet Kaur and towards other side an Army official was residing who was known to accused Ranjeet Kaur and that the serving persons at the Ashram were present inside who were not known to her and the public persons were also on the road when she was proceeding on the road after escaping from the house of accused Ranjeet Kaur. She further replied that during the time she was kept in the house of accused Ranjeet Kaur, the accused visited sometimes and the accused Raju @ Nepali was continuously present there. She further replied that police reached the STD booth after about an hour and recorded her statement. She further replied that police might SC No.232/10 Page 14/42 have recorded her statement twice but her statement was not read over to her by the police and she again said that she did not recollect as to whether her statement was read over to her or not. She did not know if accused Ranjeet Kaur was a Sikh or that there was a ritual of keeping five things by a Sikh with him or her. She further replied that she had studied up to under graduate and could not complete her graduation because of the trauma she suffered due to this incident and her mother had sent her to mental hospital for treatment and that she was hospitalized for mental treatment for two months and she further volunteered that her mother was afraid of sending her outside the house as she may suffer another such incident with her. She further replied that even she had married now out of her own free will and that she suffered that mental dis balance only after the said incident. She denied the suggestion that she was still under treatment for mental ailment. She further replied that after the incident, in the following year, she was hospitalized for said two months. She answered that she did not know the registration number of the said car. She denied the suggestion that the said W/SI tutored her and according to the dictate and command of the W/SI she made her statement before the Magistrate. She further replied that she took the police to the house of accused Ranjeet Kaur from the STD booth but she was not taken to the house of said accused after her statement was recorded by the police at the PS. She denied the suggestion that she herself was a prostitute or that in order to fetch SC No.232/10 Page 15/42 money from the accused she had falsely implicated them in this case. She volunteered that accused were also saying the same thing to her that she may take money from them and back out from this case. She denied the suggestion that she voluntarily submitted to the sexual intercourse to accused Raju @ Nepali and to the said two persons at the house of accused Billo. She further denied the suggestion that there was a dispute over the charging of the money as a consideration for her sexual intercourse and for this reason she has falsely implicated the accused.
17. Ld. Defence Counsels have raised contentions that FSL result is negative and favouring the accused and that the said deposition of the prosecutrix as PW11 is nothing but a bundle of lies and there are contradictions in her statement and that the identity of the accused has not been established and that no independent public witness was joined in the investigation. They have further contended that prosecutrix was roaming around without the permission and consent of her parents and she herself was of easy virtue and that the medical evidence belies the prosecution case and that accused are victims at the hands of the police and that charge u/s 5 of the ITP Act fails as there is no evidence on the record and that there is no scientific evidence for Section 328 IPC. They have further contended that the doctor who examined Raju @ Nepali, deposed that accused was incapable of having sexual intercourse and that there was no medical evidence on the record.
SC No.232/10 Page 16/42
18. On the other hand, Ld. Addl. PP has contended that there is a consistency in the statement of the prosecutrix given to the police Ex.PW11/A, statement before the Magistrate u/s 164 Cr.PC Ex.PW10/B and her deposition before the court. It is further submitted on behalf of the State that accused are previous convicts under the ITP Act. It has been further contended that there is no need of any corroboration of the deposition of PW11 as the deposition is self evident and that there was no motive for the prosecutrix to falsely implicate the accused as the prosecutrix was a stranger to Delhi and was hailing from Maharashtra. It has been further submitted by the Ld. Addl. PP that Presiding Officer of this court has the occasion to see the demeanor of the prosecutrix who was although speaking in Hindi but she was not well versed in the said language. It has been further submitted that suggestions given to the prosecutrix that she herself was a prostitute and she wanted to extort money from the accused and on refusing the same the accused were falsely implicated by the prosecutrix or that the prosecutrix was mentally retarded, were not substantiated by the accused or even otherwise if a female is in the profession of prostitution or she is mentally retarded or she may be under anesthesia on the surgery table or she may be under the influence of some intoxicant, nobody has got a right under the law to commit sexual intercourse with her without her consent. Ld. Addl. PP has further pointed out the conduct of the accused Ranjeet Kaur who was arrested but she SC No.232/10 Page 17/42 managed to escape from the custody illegally and the conduct of accused Raju @ Nepali who was found missing soon after the incident and as such, the said conduct of the said two accused also go to establish the deposition of the prosecutrix.
19. I find some force in the contentions raised by the Ld. Defence Counsels up to the contentions that there is no evidence for Section 5 of the ITP Act, as is mentioned in the charge sheet itself, which was not forwarded under Section 5 of the ITP Act nor the said persons, to whom she was allegedly offered for prostitution, could be traced out nor the investigation was conducted by a special police officer as is required u/s 13 of the said Act. Hence, benefit of doubt is extended to the accused Neelam @ Billo for the charge u/s 5 of the ITP Act and she is acquitted of the said charge.
20. The contention raised on behalf of the accused that the doctor who examined accused Raju @ Nepali deposed that accused was incapable of having sexual intercourse, is baseless in view of the said deposition of the doctor PW13 who deposed that at the time of examination and due to the hydro cil the patient may not be capable of performing sexual intercourse at the time of medical examination and it is admitted case that the accused Raju @ Nepali was a proclaimed offender and he was arrested subsequently at a very late stage regarding whom a supplementary charge sheet was filed. It is clarified by the doctor in the cross examination by Ld. APP for the state that swelling due to hydro cil, as has been mentioned in the SC No.232/10 Page 18/42 MLC, can be temporary and it cannot affect the capability i.e erection of penis to perform the sexual act. Hence, the said contention raised on behalf of the accused is merit less, more so that no such question or suggestion was thrown to the prosecutrix that accused Raju @ Nepali was incapable of performing the sexual intercourse with her.
21. With regard to the contention raised on behalf of the accused that their identity has not been established nor any TIP was got conducted particularly of accused Raju @ Nepali, the Hon'ble Supreme Court has answered the said contention in case titled Malkhansingh and others Vs. State of Madhya Pradesh reported as 2003 CRI. L.J. 3535 wherein it has been held as follows:
"The facts, which establish the identity of the accused persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by S. 162 of Cr.PC. Failure to hold a test identification parade would not make inadmissible the evidence of SC No.232/10 Page 19/42 identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix, a victim of gang rape to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicity reliable. There is no error in the reasoning of the Courts below. The facts of the case shows that the prosecutrix did not even know the appellants accused and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992 and she deposed in Court on August 27, 1992. The prosecutrix is a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances concurrent finding by Courts that the identification of the appellants by the prosecutrix in Court does not require further corroboration cannot be interfered with."
22. In the present case also the prosecutrix was confined by the SC No.232/10 Page 20/42 accused and she had the ample opportunity of noticing not only the faces but the minute features of the accused and as such, their identity has been well established by the prosecutrix by pointing out towards them in the court and also by attributing specific roles played by the three accused. Hence, the said contention is hereby rejected being merit less.
23. Coming to the contentions that there was no corroboration to the deposition of the prosecutrix or that it was a bundle of falsehood or that there were contradictions in her deposition or that no independent public witness was joined in the investigation or that prosecutrix was of loose and immoral character and that she was mentally retarded, all the said contentions have been very well answered by the exhaustive judgment of the Hon'ble Apex Court titled State of Punjab Vs. Gurmeet Singh and others reported as (1996) 2 SCC 384 wherein it has been held in para 8 as follows:
"The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is SC No.232/10 Page 21/42 no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
It has been further held by the Hon'ble Apex Court in para 8 as follows:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be SC No.232/10 Page 22/42 allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and tendency to conceal outrage of sexual aggression are factors which the courts should not overlook."
It has been further held by the Hon'ble Apex Court in para 8 as follows:
"The prosecutrix was a village girl. She was a student of Xth class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony."
It has been further held by the Hon'ble Apex Court in para 8 as follows:
"The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on that account."SC No.232/10 Page 23/42
It has been further held by the Hon'ble Apex Court in para 8 as follows:
"A girl, in a traditionbound nonpermissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy."
It has been further held by the Hon'ble Apex Court in paras 10, 14 and 16 as follows:
"The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as "a girl of loosemorals" or "such type of a girl". We express our strong disapproval of the approach of the trial court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a Judge. Suchlike stigmas have the potential of not only discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society suffer by letting the criminal escape even a trial. The courts are expected to use selfrestraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole - where the victim of crime is discouraged - the criminal encouraged and in turn crime gets rewarded! Even in cases, unlike the present case, where there is some acceptable SC No.232/10 Page 24/42 material on the record to show that the victim was habituated to the sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the courts, for after all it is the accused and not the victim of sex crime who is on trial in the court."
It has been further held by the Hon'ble Apex Court in para 21 as follows:
"Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 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 to her testimony, short 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 to its responsibility and be sensitive while dealing with cases involving sexual molestations."
24. Same view was reiterated by another Division Bench of the SC No.232/10 Page 25/42 Hon'ble Supreme Court in the case titled Vishnu @ Undriya Vs. State of Maharashtra reported as 2006 (1) JCC page 78 wherein in paras 26 and 29 the said law was again repeated.
25. Applying the said law laid down by the Hon'ble Apex Court to the facts of the present case, it is not disputed at all that the prosecutrix was a stranger to Delhi and she has no motive to falsely implicate the accused and the part of her deposition which was confronted with her previous statement given to the police Ex.PW11/A in her cross examination on behalf of the accused, as noted down above, was found mentioned in her statement given before the Magistrate u/s 164 Cr.PC which is Ex.PW10/B. The fact that accused Ranjeet Kaur took her in a maruti car was not mentioned in her statement Ex.PW11/A. The fact that one old man was also sent to commit sexual intercourse with her but he could not commit the same as she started weeping and raising alarm, was also not found mentioned in her previous statement Ex.PW11/A. The reason that she did not mention about the said old man may be various because no sexual intercourse was committed with her by the said old man but this discrepancy is no ground to cast a doubt over her remaining portion of the deposition. The fact that she was taken in a maruti car from the Railway Station was not found mentioned in her previous statement Ex.PW11/A but the same was got confirmed in her further cross examination on behalf of the accused where while answering to a question the prosecutrix uttered SC No.232/10 Page 26/42 that her vision became blurred and as such, she could not notice the public persons and things were not clearly visible to her after consuming the tea and that accused Ranjeet Kaur took her while holding her by hand to the car at that time. Needless to say that even these facts of accused Ranjeet Kaur taking her by holding her hand up to the car were also not mentioned by her in her statement Ex.PW11/A given to the police and as such, this fact is not so material so as to throw the case of the prosecution altogether. Moreover, the fact that she freed herself after jumping the gate of the house where she was confined was not found recorded in her statement Ex.PW11/A but the said fact was deposed by her before the Magistrate in her statement Ex.PW10/B. Same is with regard to the reporting the matter to the lady running the STD booth who gave her shelter and hide her was not found mentioned in her statement Ex.PW11/A but the said fact was found mentioned in her said statement u/s 164 Cr.PC Ex.PW10/B. It is in this background that the said facts cannot be taken to be as improvements or are of such a value so as to discard her testimony as a whole. I have reproduced her cross examination above in order to point out that she had answered every doubt tried to be created on behalf of the accused in her cross examination. Her deposition that she had no idea about the distances because she was at Delhi for the first time supports her case of rape by the accused abetted by the two female accused. The fact that the persons who raped her at the house of accused Billo SC No.232/10 Page 27/42 could not be traced out, is no ground to hold that she was not raped at all by them.
26. The prosecutrix was given some strange suggestions wherein there comes an admission of the offence on the part of the accused. It has been suggested to her that she voluntarily submitted to the sexual intercourse to accused Raju @ Nepali and to the said two persons at the house of accused Billo which she denied as wrong giving a clear inference that sexual intercourse was committed with her by accused Raju @ Nepali and said two persons with her consent but not as rape and when the same was denied by the prosecutrix, it amounts to an admission on the part of the accused. She was further suggested that she herself was a prostitute and she wanted to fetch money from the accused and for the said reason she has falsely implicated them which she not only denied but further uttered that this was the same thing which the accused were saying to him to take money from them and to back out from this case. Again when the prosecutrix was being taken to the house of accused Billo, as answered by her in her cross examination, she was sitting at the back seat along with accused Raju @ Nepali and she further answered that she did not notice any traffic police because of the fear as accused Ranjeet Kaur was having a knife tied around her body and that she could see the knife while accused Ranjeet Kaur was driving the car. Strangely enough factum of accused Ranjeet Kaur having a knife tied around her body was again admitted by the SC No.232/10 Page 28/42 accused when, in her further cross examination, the prosecutrix was suggested that accused Ranjeet Kaur was a Sikh and that there was a ritual of keeping five things by a Sikh with him or her. This court can take judicial notice of the said five things which are kept as a religious ritual by a Sikh which includes Hair (Kesh), a Bangle (Kara), a dagger or a knife like weapon (Kirpan), comb (Kangha) and underwear (Kachha). However, the prosecutrix answered that she did not know if accused Ranjeet Kaur was a Sikh or that there was a ritual of keeping five things by a Sikh with him or her. The only inference can be drawn is that accused were suggesting to the prosecutrix that it was the religious ritual due to which the said Kirpan was kept by accused Ranjeet Kaur and not to threaten the prosecutrix. But the Ld. Counsels for the accused misdirected themselves as it was a sufficient threat for the prosecutrix in the circumstances in which she was placed at that time and a person who may not be knowing about the rituals of other person, may take a particular ritual as a threat to him or her. After all the said knife (Kirpan) was a weapon and the prosecutrix has rightly taken the same as a weapon and which may have created an impression in her mind that if she was going to do anything against the accused, the said knife may be used to cause injury to her by way of punishment. These are the answers and the circumstances which lent a support to the deposition of the prosecutrix as PW11.
27. Coming to the contentions raised on behalf of the accused SC No.232/10 Page 29/42 with regard to medical evidence on the record by way of MLC Ex.PW1/A. Ld. Counsels for the accused wants me to rely on the portion that hymen of the prosecutrix was broken which was old and healed but when the Ld. Addl. PP opposed the same by pointing out that there were two abrasions present over left side of labia of the size of 1 x 2 cm, Ld. Defence Counsels have taken the shield behind the fact that this MLC has not been proved by Dr. Sweety Bansal who internally examined the prosecutrix and some other doctor has proved the MLC by way of identifying the handwriting and signatures of Dr. Sweety Bansal and the contents of the same cannot be held to have been proved. This submission is nothing but blowing hot and cold in the same breath. Be as it may, the fact has been established beyond reasonable doubt that the prosecutrix was medically examined just after reporting the matter to the police and even if I take the MLC as has not been proved by the concerned doctor, but the fact that she was medically examined gives support to her deposition as PW11.
28. The contention that FSL result is negative is not disputed as the semen could not be detected on the salwar, underwear and vaginal swab of the prosecutrix but this also does not help to the accused for various reasons that when the said things were seized by the doctor, by that time semen may not be available on the said things or in all practical realities, particularly in the situation in which the prosecutrix was at the time of her rape, there may not be SC No.232/10 Page 30/42 clothes over her body so that chances of semen falling on the same may be there. Moreover, this FSL result Ex.PW14/L was not confronted to the prosecutrix at the time of her cross examination so as to give her a chance to explain or to accept. Hence, not finding the semen on the clothes and in the vaginal swab is not a ground to say that no rape was committed.
29. Every person has a right to roam freely as per his or her wish and roaming of a person does not give a license to the accused to commit an offence with the person who is roaming. Similarly, even if I take the prosecutrix as prostitute, for the sake of arguments and not holding so, nobody has a right to commit rape with her as has been held by the Hon'ble Supreme Court in the said referred judgments. If she was mentally retarded, as has been suggested on behalf of the accused, she was required to be given medical aid for the same and that too by two female accused if at all the prosecutrix had come in their company of her own but not to allow facilitation of her rape by the other accused.
30. The contention raised on behalf of Ld. Addl. PP that the accused are previous convicts, is admittedly not supported by any documentary evidence to that effect on the record nor any charge to that effect has been framed against the accused. Hence, the said submission of the Ld. APP is rejected having no evidence for the same.
31. Further contention of behalf of the accused that they are SC No.232/10 Page 31/42 victims at the hands of the police is again not substantiated by them by producing any defence evidence or by putting their case to the police officials as alleged in the said contention. Thus, the same is rejected having no ground for the same.
32. Coming to the offence u/s 328 IPC, it has been vehemently contended that there is no report of chemical analyst proved on record that some intoxicating substance was administered to the prosecutrix. On the contrary, Ld. Addl. PP has submitted that in her examination in chief as well as in her cross examination the prosecutrix has clearly deposed that she felt giddy after consuming the tea given to her by accused Ranjeet Kaur and that she has reached the New Delhi Railway Station at about 6 a.m and as per submission of the Ld. Addl. PP, in Indian circumstances the tea is generally consumed in morning hours and she has further answered that accused Ranjeet Kaur brought two cups of tea in potter's cups made of clay (Kulhar) and she was consuming tea from one of the said cups and the other cup was in the hand of accused Ranjeet Kaur and she did not know if Ranjeet Kaur had consumed the tea from the cup which she was having in her hand and that within two or three minutes of consuming the tea she started feeling giddy and the accused Ranjeet Kaur took her while holding her from hand to the car at that time and that her vision became blurred and as such, she could not notice the public persons and things were not clearly visible to her after consuming the tea and that she was not in a SC No.232/10 Page 32/42 position to notice the time taken in bringing her to the car from the platform due to her said state of mind. Ld. Addl. PP has submitted that this deposition from the mouth of the prosecutrix is sufficient to convict the accused for the offence u/s 328 IPC because such intoxicating drugs/medicines are available in the market that even the traces of the same could not come in gastric leverage taken by the doctor from the stomach of a person who had consumed the said drugs/medicines for various reasons such as, early melting or evaporation or coming out of the body by way of urine, stool passing or vomiting. In her support, Ld. Addl. PP has cited two judgments of the Hon'ble Madras High Court and Allahabad High Court.
33. In the judgment of the Hon'ble Madras High Court titled Xavier @ Thambi Vs. Inspector of Police, Railway Police reported as 1993 Crl. L.J 3506 wherein the conviction of the accused u/s 328 was upheld and no report of any chemical or biological analyst was available in that case and the deposition of the complainant/victim were held sufficient to convict the accused coupled with recovery of the belongings of the victims at the instance of the accused which were robbed from the possession of the victims while they were unconscious due to the influence of fruitnik drinks mixed with some poisonous substance.
34. In the judgment of the Hon'ble Allahabad High Court titled Gaya Prasad Vs. State of UP reported as 1996 Crl. L.J. 1599, the SC No.232/10 Page 33/42 accused alleged to have offered intoxicating biscuits to the complainant who became unconscious after consuming the same and subsequently the accused was arrested with valuable articles belonging to the complainant and some intoxicant pills were also recovered from his possession, the conviction was upheld by the Hon'ble High Court despite the fact that no report of the chemical analyst or other scientific evidence was proved on record.
35. I am in complete agreement with the said submissions of Ld. Addl. PP and the said deposition of the prosecutrix, who was stranger to Delhi, and if she would have known about the intoxicating substance being administered to her through tea, she would not have consumed the same and she would not have succumbed to the commands of accused Ranjeet Kaur.
36. From the said evidence on the record, particularly the deposition of the prosecutrix as PW11 who was stranger to Delhi, it has been proved beyond reasonable doubt that she fell in the trap of flesh hunters such as accused and the prosecutrix as a female who relied on another female such as accused Ranjeet Kaur with regard to her assurance of taking her back to Mumbai but the accused defrauded her and sexually exploited the prosecutrix by way of facilitating her rape by accused Raju @ Nepali and by the said two other persons at the house of accused Billo and the accused Ranjeet Kaur by administering the intoxicant in her tea made a helpless girl at the Railway Station more helpless so that offence of rape may be SC No.232/10 Page 34/42 facilitated with the prosecutrix and in fact the rape was committed with the prosecutrix. Hence, the accused Ranjeet Kaur is held guilty and is convicted for the offence u/s 328 IPC and she is also held guilty and convicted for the abetment of the offence of rape u/s 109 r/w Section 376 IPC and accused Raju @ Nepali @ Bhim Sen is also held guilty and convicted for the offence u/s 376 IPC and accused Neelam @ Billo is also held guilty and convicted for the offence u/s 109 r/w Section 376 IPC.
(Announced in the open court on 23.02.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.232/10 Page 35/42 IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER), ROHINI COURTS, DELHI SC NO.232/10 FIR NO. 475/04 U/S 328/342/365/376/34 IPC PS Nangloi Unique Case ID No. : 02404R0445752006 State Vs.
1. Ranjit Kaur w/o Late Sh. Tarsem Singh r/o H.No. 118, Nilothi Village, Chander Vihar, Manav Kendar wali gali, Nangloi, Delhi.
2. Raju @ Nepali @ Bhim Sain @ Bhim Singh, s/o Santa Singh @ Sant Bahadur, r/o H.No. 118, Nilothi Village, Chander Vihar, Manav Kendar wali gali, Nangloi, Delhi.
Also at : WZ14, Chaudhari Complex, Vishnu Garden, Tilak Nagar, Delhi.
3. Neelam @ Billo w/o Late Sh. Ghan Shyam r/o H1/70, Sector 16, Rohini, Delhi.
ORDER ON SENTENCE Present: Ld. APP for the State.
Convicts are produced in JC along with Sh. Pradeep Chaudhary, Adv. who has filed vakalatnama today for convict Ranjeet Kaur and convict Raju @ Nepali and Sh. S.K. Kashyap for convict Neelam.
SC No.232/10 Page 36/42
An application u/s 217 Cr.PC has been moved on behalf of convict Ranjeet Kaur and convict Raju @ Nepali @ Bhim Sen.
Heard the arguments on the said application. It has been submitted on behalf of the said two convicts that the charge was added in the case u/s 109/34 IPC against accused Ranjeet Kaur and admittedly no charge was added for accused Raju @ Nepali @ Bhim Sen and it has been further submitted that witnesses were not recalled to cross examine them on behalf of said convict and as such, a prejudice has been caused to the convict Ranjeet Kaur.
On the other hand, Ld. Addl. PP has submitted that stage is already over and this court cannot go behind the judgment now and at that time the previous counsel did not offer to call any other witness despite opportunity was given.
Section 217 Cr.PC reads as under:
"217. Recall of witnesses when charge altered - Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed
(a) to recall or resummon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to SC No.232/10 Page 37/42 be material."
I have gone through the order dated 18.1.2011 when additional charge u/s 109/34 IPC for the offence of rape was added against both the convicts Ranjeet Kaur and Neelam @ Billo and both the then advocates were present at that time and arguments were also heard. In the operative part of the said order it is mentioned as below:
"Both the counsels have submitted that they do not want to recall any witness after the additional charge. Even otherwise, as per deposition of the prosecutrix both the said female accused were very well knowing the case against them and as such, no prejudice was going to be caused."
Although the ingredients and requirement of Section 217 Cr.PC as per sub clause (a) have already been fulfilled vide order dated 18.1.2011, but even otherwise, by way of explaining the law, I am of the considered opinion that all the witnesses including the IO and the prosecutrix were thoroughly cross examined on the aspect from the point of view of Section 109 IPC also when it was suggested and questioned to the witnesses that no intoxicant substance was administered to the prosecutrix so as to make her under the influence of intoxicant and it was again questioned and suggested that the prosecutrix was never taken to the said house of the convict Ranjeet Kaur and it was thoroughly cross examined that the convict Raju @ Nepali was not facilitated to commit rape with the prosecutrix or accused Neelam @ Billo never got arranged certain persons who committed rape with the prosecutrix although I have already held in my judgment that said persons could not be brought to the SC No.232/10 Page 38/42 books. Mere change of a counsel and that too moving the application at a belated stage is no ground to set aside the order dated 18.01.2011 and the clock cannot be set back on this account alone. Hence, this application is nothing but an afterthought and in order to wriggle out of their conviction, the same has been moved for defeating the ends of justice. Hence, the said application is hereby rejected.
Heard on the point of sentence.
It is submitted on behalf of the convict Ranjeet Kaur that she is 55 years of age and she has two daughters and two sons and age of her daughters at present is 38 and 26 years respectively and that there is no case at present against her.
It has been submitted on behalf of convict Raju @ Nepali that he has got one daughter who is married and one son who is yet to be married and there is no case pending against him.
It has been submitted on behalf of convict Neelam @ Billo that she is 55 years of age having three sons and one daughter of the marriageable age of 22 years who is yet to be married and that there is no case pending against her at present.
On the other hand, Ld. APP for the State has submitted that considering the conduct of the convicts as proved in the case, no leniency should be given to them and maximum punishment be provided so that deterrent effect of the same may go to the society.
Section 109 IPC mentions that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and SC No.232/10 Page 39/42 no express provision is made by this code for the punishment of such abetment, be punished with the punishment provided for the offence.
From the judgment, it is clear that offence of rape did result due to the abetment of the convict Ranjeet Kaur and Neelam @ Billo and hence, as per command of Section 109 IPC, they are liable to be punished with the punishment provided for the offence of rape.
Section 376 IPC provides that whoever, except in the cases provided for by sub section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine.......
A proviso has been added to said Section 376 IPC that for adequate and special reasons to be mentioned in the judgment, a sentence of imprisonment for a term of less than 7 years may be imposed.
It is admitted case on behalf of both the parties that the offence for which the convicts have been held guilty do not fall under sub clause (2) of Section 376 IPC.
Despite thinking in my mind that two convicts are females and of 55 years of age, I could not convince my mind on judicial principles that the said two convicts whose own daughters are of the age more than the age of prosecutrix and both the said convicts who should have acted as mother to the prosecutrix who was a complete stranger to Delhi and even was not well versed in Hindi language, acted in a barbaric manner and even a flesh hunter, if he would have been a male, as we see daily in this SC No.232/10 Page 40/42 male dominated society, would not have done that with the prosecutrix what has been done by the said two female convicts giving rise to a satire in the society that it is not the male which is against the interest and dignity of females but it is the female who is the enemy of the female and which has become evident in the present case. The more the age of a person, he or she should become a responsible citizen and not to lure or induce or cheat a person to his or her detriment as has been done in this case. In the said circumstances, I am of the considered opinion that there are no adequate and special reasons for imposing a sentence of imprisonment less than the minimum mandatory punishment provided for the offence. Hence, both the said female convicts are directed to undergo RI for a period of ten years for the offence u/s 109/34 IPC for the offence u/s 376 IPC and both the said convicts are also liable to pay a fine of Rs.25,000/ each. The convict Ranjeet Kaur is further to undergo RI for 7 years for the offence u/s 328 IPC and a fine of Rs.10,000/ is also imposed upon her for the offence u/s 328 IPC. Both the sentences of convict Ranjeet Kaur shall run concurrently.
Convict Raju @ Nepali @ Bhim Sen is punished and directed to undergo rigorous imprisonment for a period of ten years and he shall also be liable to pay a fine of Rs.25,000/ for the offence u/s 376 IPC.
In case of default in payment of fine, convict Raju @ Nepali and convict Neelam @ Billo shall further undergo SI for a period of one year respectively and convict Ranjeet Kaur shall further undergo SI for a period of one year and six months in default of payment of fine. All the SC No.232/10 Page 41/42 convicts are extended benefit of Section 428 Cr.PC. Let the warrants be prepared accordingly and copies of the judgment dated 23.02.2011 and copy of this order be given forthwith to all the convicts and the file be consigned to the Record Room.
(Announced in the open court on 28.02.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.232/10 Page 42/42