Delhi District Court
State vs (1) Nesar @ Kothi on 5 September, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE
(EAST) cum ADDL. SESSIONS JUDGE, KARKARDOOMA
COURTS, DELHI.
SC No.18/2010
Unique Case ID No.02402R0013842010
FIR No.330/2009
Police Station Kalyan Puri
Under Section 376(g) IPC
State Versus (1) Nesar @ Kothi
S/o Naseruddin
R/o 18/289, Indira Camp,
Kalyan Puri, Delhi.
(2) Sunny S/o Rajender
R/o B18/370, Jhuggi, Indira
Camp, Kalyan Puri, Delhi.
(3) Mukesh S/o Kaluram
R/o 18/265, Indira Camp ,
Kalyan Puri, Delhi.
Date of Institution : 02.02.2010
Date of judgment reserved : 27.08.2011
Date of judgment : 02.09.2011
SC No.18/2010 State Vs. Nesar etc. Page 1 of 31
JUDGMENT
Three accused persons, namely, Nesar @ Kothi, Sunny and Mukesh (all in J/C) have been sent to face trial by the police of Police Station Kalyan Puri in FIR No.330/2009 under Section 376(g) IPC.
2 Facts, in brief, are that on 25.10.2009, SI Harpal Singh (PW14) received DD No.22A Ex.PW14/A to the effect that a girl had been raped. He reached jhuggi No.651, Block No.18, Indira Camp, Kalyan Puri, Delhi where he met the prosecutrix Hina (PW7). Ct. Amrik Singh (PW2) along with lady Ct. Poonam (PW1) also reached at the spot along with copy of DD No.22A. Hina (PW7) informed Investigating Officer (PW14) that she was raped. She was sent to LBS Hospital where she was medically examined vide MLC Ex.PW9/A on which Dr. Vaibhav Aggarwal gave his report Ex.PW6/A. Investigating Officer recorded statement Ex.PW7/A of prosecutrix Hina.
3 In her statement Ex.PW7/A, Hina (PW7) (hereinafter referred to as the prosecutrix) has stated that she was working as a maid in Dharma Apartments, Pandav Nagar. On 24.10.2009 at about 9.00 PM, while she was returning after completing work and was SC No.18/2010 State Vs. Nesar etc. Page 2 of 31 going towards her house at the jhuggis of Block 18, Indira Camp and when she reached at chowk of Block 18, resident of jhuggis, namely, Mukesh, Nesar and Sunny met her. She knew them well. All three of them caught hold of prosecutrix and took her to the upper floor room of nearby jhuggi of accused Sunny. She was raising alarm but nobody came forward to help her. Accused Mukesh removed her all clothes whereas accused Sunny caught hold her hands and gagged her mouth. Accused Nesar caught hold her legs. Prosecutrix tried to free from the accused persons. Accused Mukesh committed rape upon her forcibly and thereafter all three of them fled away. She wore her clothes and came to her house. Due to disturbed state of mind and social shame, she could not inform anybody about the incident.
4 She further stated that on the next day, she gained courage and informed her family members about the incident. Her brother informed the police at number 100 regarding commission of rape upon her by accused persons.
5 On the basis of her statement Ex.PW7/A, Investigating Officer SI Harpal Singh (PW14) prepared rukka Ex.PW14/B and sent the same to Police Station through Ct. Amrik Singh (PW2) for registration of FIR. In the Police Station, Duty SC No.18/2010 State Vs. Nesar etc. Page 3 of 31 Officer, HC Rajender Kumar (PW3) registered FIR Ex.PW3/A and made his endorsement on the rukka vide DD No.28A Ex.PW3/B. During investigation, SI Harpal Singh (PW14) inspected the spot and prepared site plan Ex.PW14/C. He recorded statement of witnesses under section 161 Cr.P.C. After medical examination of prosecutrix, Doctor handed over exhibits to lady Ct. Poonam (PW1) which were seized vide seizure memo Ex.PW1/A and were deposited in malkhana by the Investigating Officer (PW14).
6 On 26.10.2009, prosecutrix was produced before the Doctor for bony age Xray on which he gave the date of 28.10.2009. Accused Nesar and Sunny were apprehended and their disclosure statements Ex.PW2/A and Ex.PW2/B respectively were recorded. Accused Nesar was arrested vide arrest memo Ex.PW2/C and his personal search was conducted vide memo Ex.PW2/E. Accused Sunny was arrested vide arrest memo Ex.PW2/D and his personal was conducted vide memo Ex.PW2/F. Both the accused pointed out the place of occurrence vide pointing out memo Ex.PW2/G. 7 On 28.10.2009, prosecutrix was produced before Dr. Sushil Kumar (PW5) who prepared her MLC Ex.PW5/A and referred her for Forensic Medicine Expert and bone age determination. Bony SC No.18/2010 State Vs. Nesar etc. Page 4 of 31 age Xray of proseuctrix was conducted. The medical examination estimation reports are Ex.PW6/B and Ex.PW6/C prepared by one of Board of Doctors, namely, Dr. Rachna Jain (PW8). Xray form of prosecutrix is Ex.PW6/D and the examination kit is Ex.PW6/E. 8 The third accused Mukesh was searched but he could not be found. On 14.12.2009, NBW were obtained against him but he could not be arrested and was declared as Proclaimed Offender. 9 On 2.1.2011, on the basis of secret information received by HC Dinesh Kumar (PW10), accused Mukesh was arrested. He prepared kalandra under section 41.1(C) of Cr.P.C. Ex.PW10/A. Accused Mukesh was arrested vide arrest memo Ex.PW10/B and his personal search was conducted vide memo Ex.PW10/C in the said kalandra. On 18.1.2011, accused Mukesh was produced before the Court. SI Rahul Kumar (PW12) moved an application before the Court to formally arrest accused Mukesh. His disclosure statement Ex.PW12/A was recorded. Accused Mukesh was formally arrested vide arrest memo Ex.PW11/C. Accused Mukesh was got medically examined in LBS Hospital. After his medical examination, Doctor handed over exhibits to Ct. Laxman (PW11) which were taken into possession vide seizure memo Ex.PW11/A. Accused Mukesh was SC No.18/2010 State Vs. Nesar etc. Page 5 of 31 joined in the investigation who pointed out the spot vide pointing out memo Ex.PW11/B. 10 After complying with the provisions of section 207 Cr.P.C., Ld. M.M. committed the case to the Court of Sessions which in turn assigned the case to this Court for trial in accordance with law. 11 Charge under section 376(2)(g) IPC was framed against all the accused persons to which they pleaded not guilty and claimed a trial.
12 In order to prove its case, prosecution has examined 14 witnesses. PW7 Hina is the prosecutrix. PW3 HC Rajender Kumar was the Duty Officer in the police station at the relevant time. PW1 Lady Ct. Poonam, PW2 Ct. Amrik Singh, PW4 Ct. Bhupender Singh, PW11 Ct. Laxman and PW13 SI Sushil Kumar remained associated with the investigation conducted by Investigating Officers PW14 SI Harpal Singh and PW12 SI Rahul Kumar. PW10 HC Dinesh Kumar proved the documents regarding apprehension of accused Mukesh in a kalandra. PW9 Dr. Neema Sharma proved the MLC of prosecutrix prepared by Dr. Samta Gupta whereas PW5 Dr. Sushil Kumar proved her MLC dated 28.10.2009. PW8 Dr. Rachna Jain was one of the members of Board of Doctors which conducted bony age of SC No.18/2010 State Vs. Nesar etc. Page 6 of 31 proseuctrix and documents in this regard were proved by PW6 Dr. Vinay Kumar Singh.
13 After completion of prosecution evidence, statements of accused persons under section 313 Cr.P.C. were recorded wherein all the accused persons have denied the allegations levelled against them in toto and stated that they have been falsely implicated in this case and that they are innocent. Accused Mukesh has stated that two days prior to the incident, they had a fight with Rahish who was friend of prosecutrix and with a view to take revenge, he has been roped in the present case. He denied the occurrence. He further stated that Hina is a girl of bad character and she was arrested by police previously and after the incident also. He further stated that he pointed out the place where fight took place between them and Rahish. Accused Mukesh opted to lead evidence in his defence whereas other two accused did not opt to lead evidence in their defence. 14 DW1 Smt. Nazma in her testimony has stated that in the month of October, 2009, a quarrel had taken place between all the accused with one Rahis and complainant Hina had threatened to implicate accused in some heinous offence. She has also testified that complainant was not raped by anyone and no such incident had taken SC No.18/2010 State Vs. Nesar etc. Page 7 of 31 place. Similarly DW2 Smt. Lovely who is a social activist has testified that a quarrel had taken place between accused persons and Rahis on 15.10.2009 and complainant had threated to implicate accused in a false case. She further deposed that later on she came to know that accused have been arrested. She has also deposed that no such incident of rape had taken place. DW3 Kamla has also deposed that she know accused persons and that they are innocent. She has also stated that no incident had taken place in her presence as she did not hear any noise at about 9/9.30 PM on 2.4.10.09. 15 I have heard. Ld. Addl. PP for the State and Ld. Counsels for accused persons. I have meticulously gone through their submissions and material available on record.
16 It has been argued by Ld. Addl. PP that the prosecutrix was a minor girl at the time of incident and she has fully supported the case of prosecution. He has further argued that being a minor, consent if any, of the minor, is immaterial. He has further argued that the prosecutrix has specified the role of each and every accused. There are minor contradictions in her statement but she otherwise attributed role of accused persons. He has further argued that there is sufficient material on record which go to prove the case SC No.18/2010 State Vs. Nesar etc. Page 8 of 31 against accused persons beyond all reasonable doubt. 17 On the other hand, Ld. Defence counsels have argued that there are material discrepancies in the statements of the prosecutrix as she has contradicted her statement made to the police while making deposition in the Court. On behalf of accused Nesar and Sunny, it has been submitted that there are no allegations against them and even the prosecutrix has not deposed anything against them. It is further argued by Ld. Defence counsels that the medical record of the prosecutrix also does not support the case of the prosecution that any rape was committed upon her as injuries on her person were old ones. 18 It has been argued by Ld. Addl. PP that at the time of incident prosecutrix was a minor girl and has relied upon the report of her bony age.
19 Perusal of record shows that in her statement Ex.PW7/A, prosecutrix informed her age as 18 years. In MLC Ex.PW9/A also her age is mentioned as 18 years. As per age estimation report Ex.PW6/C, she was found to be aged between 16 and 17 years. It is a settled law that in case of bony age report, there is always a margin of 2 years on either side and benefit of two years is generally given to the accused by taking age on the upper side. Thus, SC No.18/2010 State Vs. Nesar etc. Page 9 of 31 if so, calculated, her age on the date of incident comes to be 19 years. 20 Therefore, keeping in view of the fact that the prosecutrix herself mentioned her age as 18 years in her statement Ex.PW7/A and in her MLC Ex.PW9/A and in view of her bony age report, I am of the considered opinion that prosecutrix was major i.e. above 18 years at the time of incident. Therefore, there is no force in the contention of Ld. Addl. PP that prosecutrix was a minor girl at the time of incident.
21 The case of the prosecution is solely based on the testimony of the prosecutrix. In her testimony, prosecutrix (PW7) has deposed that in the month of April at about 910 PM, when she was coming back to her home after finishing her work, one boy Mukesh was standing there and he caught hold of her. He took her to the roof of house of Sunny despite her resistance. Mukesh was accompanied by two boys, namely, Sunny and Nesar. She further deposed that at the roof, they removed her cloths and raped her against her will and without her consent. She also deposed that all the three accused also threatened her to kill, if she told the story to anyone. She stated that this incident took place at the point of knife on her body. She has also stated that they used the knife while committing rape upon her. She SC No.18/2010 State Vs. Nesar etc. Page 10 of 31 came to her house and narrated entire story to her mother. She along with her mother went to Police Station and made report to police vide Ex.PW7/A. On the way to Police Station, accused Mukesh met them and told to defame her if she reported the matter to police. She further deposed that accused Nesar and Sunny were arrested vide arrest memos Ex.PW2/C and Ex.PW2/D and their personal searches were conducted vide memos Ex.PW2/E and Ex.PW2/F. She was medically examined at LBS Hospital. She also pointed out the place of occurrence to the police.
22 In her cross examination by Ld. Defence counsel, she stated that earlier she was working as maid servant in Kothi. She used to go on job at about 8.00 AM and return back by 5.00 PM. On the day of incident, she was coming back on foot and became late due to heavy work. All the three accused met her on the way. She came to know about the name of accused Mukesh after a few minutes of the incident. She knew all the accused persons prior to incident. She further stated that she did not know the number of jhuggi where she was raped. No public person met her on the way when all the accused persons were taking her away forcibly despite her resistance. She further stated that after the incident, she firstly informed her mother SC No.18/2010 State Vs. Nesar etc. Page 11 of 31 after returning back to her house. She further stated that distance between her place of work ad her residence was about an hour walk. She left the place of her work at about 9/10 PM. She admitted that there were number of jhuggis at the place of occurrence. She stated that she came to know about the names of accused Nesar and Sunny during occurrence. She further stated that names of Nesar and Sunny were told to her by one Mahesh. She admitted that there was electric light in the Mohalla and that roofs of 67 jhuggis were connected with each other. She stated that she raised alarm at the time of incident but no one came to help her. She admitted that whenever she used to late, her parents used to make inquiry from her place of work. When she returned back to her house after the incident her parents met her in the house and she told them about the incident. She further stated that her mother made call at number 100. She further stated that her statement was not read over to her by the police. She admitted that she was raped by accused Mukesh and not by accused Nesar and Sunny. 23 It has been argued by Ld. Defence counsels that the prosecutrix has not fully supported the case of the prosecution and there are material discrepancies in her statements. It has been argued that in her statement before the police, she stated that she was raped by SC No.18/2010 State Vs. Nesar etc. Page 12 of 31 accused Mukesh only whereas in her examinationinchief she deposed that she was raped by all the accused persons. They have further argued that there are discrepancies with regard to date of alleged incident, use of knife, information given by prosecutrix to her family members and calling police.
24 From the perusal of testimony of prosecutrix, it is correct that there are certain discrepancies in her statements, but the same are not such which could adversely affect the case of the prosecution. Perusal of statement Ex.PW7/A made by the prosecutrix (PW7) to the police shows that she stated that on 24.10.2009 at about 9.00 PM, she met all the accused persons who took her to the jhuggi of accused Sunny where rape was committed upon her. In her examination in chief, she has not given the exact date of incident but deposed that it was the month of April and the time given by her was 910 PM. It is correct that she has not given the exact date of incident but she stated that she was examined by the Doctor at LBS Hospital. Perusal of MLC Ex.PW9/A shows that prosecutrix was medically examined on 25.10.2009 i.e. after a day of incident. The date of incident as 24.10.2009 has also been corroborated from DD No.22A Ex.PW14/A vide which information was received that a rape was SC No.18/2010 State Vs. Nesar etc. Page 13 of 31 committed in the night. The Investigating Officer (PW14) has also stated that on 25.10.2009, he visited the spot and after getting medically examined the prosecutrix, he recorded her statement Ex.PW7/A dated 25.10.2009. It is pertinent to mention that statement of prosecutrix was recorded in the Court after about a year of incident and it is quite possible she did not recall the exact date of incident. But she has stated the exact time of the incident and specified role of accused persons.
25 Another discrepancy pointed out by Ld. Defence counsels is that the proseuctrix has not levelled any allegations against accused Nesar and Sunny and even did not specify role of these accused persons.
26 I am not convinced with this argument of Ld. Defence counsels. In her statement Ex.PW7/A before the police, prosecutrix has stated that when she was taken to the jhuggi of accused Sunny, accused Mukesh removed her clothes, accused Sunny held her hands and gagged her mouth, accused Nesar held her legs whereas accused Mukesh committed rape upon her. In her examination in chief, she stated in simple language that all the three accused persons caught hold of her and took her to the roof of accused Sunny where her SC No.18/2010 State Vs. Nesar etc. Page 14 of 31 clothes were removed and she was raped. In her cross examination by Ld. Defence counsels, she clarified that she was raped by accused Nesar and not by other accused persons but she has specifically stated that all the three accused persons met her on the way and she was taken to jhuggi where she was gang raped. Although, it is correct that the prosecutrix slightly differed in her statement, made before the police and in Court, yet she has duly supported the case of the prosecution that on the day of incident, on way to her house, she was stopped by all the three accused persons, they took her to the jhuggi of Sunny where she was raped. In her statement before the police, she had specified the role of all the accused persons but in her testimony before the Court, she simply stated that all the accused persons took her to the jhuggi where rape was committed upon her. Though, she has not specified the role of accused persons in her testimony before the Court, but she categorically stated that all the three accused persons were together at the time of commission of rape upon her. Therefore, there is no force in the contention of ld. Defence counsels that prosecutrix has not specified the role of accused Nesar and Sunny. 27 Another discrepancies mentioned by Ld. Defence counsels are with regard to use of knife, information by the prosecutrix SC No.18/2010 State Vs. Nesar etc. Page 15 of 31 to her family members and information given to police. 28 In her examination in chief, prosecutrix has stated that act of rape was committed on the point of knife by accused persons and when she returned back home, she narrated entire story to her mother and they made report to the police vide Ex.PW7/A. Statement Ex.PW7/A made by prosecutrix to the police shows that there is no mention of knife in it. It is mentioned therein that prosecutrix after commission of rape, reached her house and informed her family members next day. Thereafter, her brother informed the police. The prosecutrix during cross examination has stated that she is illiterate and her statement was recorded by the police. She specifically stated that her statement was not read over to her by the police. It may be that the police had not recorded complete facts as stated by her to the Investigating Officer. The discrepancy with regard to use of knife, information of rape given by her either to her mother or to her family members is of no consequence. Therefore, I am of the considered opinion that these discrepancies are not of much significance but are minor in nature.
29 So far as identity of accused persons as culprits is concerned, the prosecutrix during her testimony in the Court identified SC No.18/2010 State Vs. Nesar etc. Page 16 of 31 all the accused persons. She has stated that she knew the accused persons prior to incident as they were living in the same locality. Even, it is not disputed by the accused persons that alleged incident of rape was committed in the jhuggi of one of the accused, namely, Sunny. The only ground taken by them is that a quarrel had taken place at that place and no rape was committed there. This fact proves the case of the prosecution that accused Sunny was also resident of same locality apart from other accused persons.
30 In view of aforesaid discussion, I am of the considered opinion that the discrepancies pointed out by ld. Defence counsels are not of vital significance and do not have force to adversely affect the case of the prosecution as the same are bound to occur due to lapse of time, social status and living of the prosecutrix as it has come on record that she was illiterate. Reliance is placed upon the authoritative pronouncement of Hon'ble Apex Court in case titled Vishveshvaran Vs. State (Reported in AIR 2003 SC 2471) in which it was held that to appreciate the evidence of the prosecutrix, the courts have to adopt a different approach and shall not be get swayed by minor contradictions or discrepancies.
31 From the reading of testimony of prosecutrix (PW7), SC No.18/2010 State Vs. Nesar etc. Page 17 of 31 the prosecution has duly established that on the day of incident, she was stopped by all the accused persons on the way to her house and was taken to jhuggi of accused Sunny where she was raped by accused Mukesh. She has categorically deposed the role of each and every accused by saying that all the three accused persons took her to the roof of house of accused Sunny despite her resistance. She also deposed that on the roof, all the three accused persons were present where she was raped. The identity of accused persons has duly been established. In MLC Ex.PW9/A also, prosecutrix has informed the Doctor that on 24.10.2009, she was caught by three boys and took her to the terrace of accused Sunny. She also informed the Doctor that accused Sunny and Nesar caught her hands and legs whereas accused Mukesh raped her. This fact also corroborates the testimony of prosecutrix that the prosecutrix was gang raped by accused persons at the jhuggi/house of accused Sunny.
32 The commission of rape upon the prosecutrix has duly been corroborated by medical evidence. MLC Ex.PW9/A of the prosecutrix shows that her hymen was not intact. Doctor also found teeth mark on right side of the breast of prosecutrix. The report for victim of sexual abuse Ex.PW6/E also establishes that sexual SC No.18/2010 State Vs. Nesar etc. Page 18 of 31 intercourse was done with the prosecutrix as her hymen was found to be torn. So, the medical evidence also corroborates the testimony of the prosecutrix that she was subjected to sexual intercourse. 33 I have gone through the judgment of Hon'ble Supreme Court in case of State of Punjab Vs. Gurmit Singh (Reported in AIR 1996 SC 1393) that the testimony of a victim of sexual assault needs no corroboration and conviction can be founded on her testimony alone unless there are compelling reasons. 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. The evidence of a victim of sexual offence is entitled to great weight, absence of corroboration notwithstanding. 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. Similar views were expressed by the Hon'ble Supreme Court in case titled, State of H. P. Versus Asha Ram (Reported in AIR 2006 SC 381). In another case, titled Aman Kumar and another Versus State of Haryana, (AIR 2004 SC 1497), it has been held that it is well settled that a prosecutix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her SC No.18/2010 State Vs. Nesar etc. Page 19 of 31 testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestrian than injured witness. 34 In the present case, testimony of prosecutrix is quite natural and trustworthy. She identified all the accused persons as culprits who took her to the jhuggi of accused Sunny where rape was committed upon her. In view of aforesaid authoritative pronouncements, her testimony is reliable to base the conviction of accused persons. Even, her testimony has duly been corroborated by medical evidence. In nut shell, it can be said that now, it is settled law that the statement of the prosecutrix is the key to the success to the case of the prosecution. In my considered opinion, statement of prosecutrix (PW7) is reliable which has duly been corroborated by medical evidence and accused persons are liable to be convicted. 35 It has further been argued by Ld. Defence counsels that there was no fresh injury marks on the person of prosecutrix. Perusal of MLC Ex.PW9/A of prosecutrix shows that she was having abrasions over right forearm and skin lesion with scaling below mid clavicle (collarbone). Doctor opined that abrasions on right forearm were old ones and no definite opinion can be given with regard to skin lesion. Although, it is correct that injuries on the forearm of SC No.18/2010 State Vs. Nesar etc. Page 20 of 31 prosecutrix were opined to be old ones, yet it is not the case of prosecution or prosecutrix that she received any such injuries during the occurrence. So, injuries being old ones does not in any manner relates to the incident. It is not even the case of the prosecution that prosecutrix received any such injury at the time of commission of rape upon her.
36 Defence taken by the accused Mukesh is that no such incident of rape had taken place and he has been falsely implicated in the present case by the prosecutrix with a view to take revenge as they had a fight with one Rahish who was friend of the prosecutrix. To prove his defence, he has examined three witnesses, namely, Smt. Nazma (DW1), Smt. Lovely (DW2) and Smt. Kamla (DW3). All these defence witnesses have deposed on almost similar lines that a quarrel/fight had taken place in October, 2009 between accused persons and Rahish and that prosecutrix threatened them to implicate them in a false case. They also deposed that no such incident of rape had ever taken place.
37 Smt. Nazma (DW1) during cross examination has stated that she had not witnessed any incident (either of quarrel or rape). Smt. Lovely (DW2) has stated that she wanted to save accused SC No.18/2010 State Vs. Nesar etc. Page 21 of 31 persons whereas Kamla (DW3) has admitted that she had been called by the mother of accused Mukesh who asked her to save her son. DW1 and DW2 have also stated that they did not make any complaint to any Senior Officer regarding false implication of accused persons.
38 In the absence of any complaint made by either of the defence witnesses regarding false implication of accused persons in the present case and in the absence of any complaint regarding incident of earlier quarrel or fight between accused persons on the one hand and Rahish, friend of the prosecutrix, on the other hand, the version of the defence can not be believed. There is no evidence or material on record to show that any such incident of fight between accused persons and Rahish had taken place which could be the motive on the part of the proseuctrix to falsely rope in the accused persons in the present case. There is no material with regard to familiarity of prosecutrix of said Rahish. Even no suggestion has been given to the prosecutrix during her cross examination by Ld. Defence counsels that any such quarrel/fight between accused persons and Rahish had taken place and that the prosecutrix falsely involved them in the present case just to take revenge of that fight. No question was put to the SC No.18/2010 State Vs. Nesar etc. Page 22 of 31 prosecutrix with regard to his familiarity or friendship with Rahish. 39 It is a matter of common law that in Indian society, any girl or woman would not make such allegations against such a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, the girl or woman would be extremely reluctant even to admit any such incident had taken place which is likely to reflect on her chastity. She would be also conscious of the dangerous of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are.
40 In view of this position of the matter, I am of the considered opinion that accused persons have failed to probabilise their defence that they have been falsely implicated in the present case. Conclusion 41 Keeping in view the above discussion, I am of the considered opinion that the prosecution has duly established beyond reasonable doubt that on the day of incident, all the three accused SC No.18/2010 State Vs. Nesar etc. Page 23 of 31 persons stopped the prosecutrix on the way to her house and took her to the house of accused Sunny where rape was committed upon her by them.
Gang rape is defined under Section 376(2)(g) of IPC. Explanation 1 to the Section reads as under : "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub section."
42 Section 376(2)(g) of IPC embodies a principle of joint liability and the essence of that liability is the existence of common intention. In the present case, the prosecutrix (PW7) has specifically deposed that accused persons were having common intention of raping her and that was the reason for taking her to the roof of house of accused Sunny where gang rape was committed upon her. She has specifically deposed that on the day of incident, while she was going to her house after finishing work, she was stopped in the way by all the three accused persons. She also deposed that accused persons forcibly took her to the house of accused Sunny despite her resistance. She further deposed that at the house of accused Sunny, she was being raped by accused Mukesh and at that time, other two accused Nesar SC No.18/2010 State Vs. Nesar etc. Page 24 of 31 and Sunny were present. She identified all the three accused persons at the time of her deposition in the court.
43 From the testimony of prosecutrix (PW7), it stand established beyond reasonable doubt that she was taken forcibly to the house of accused Sunny by all the three accused persons. Though, it is correct that accused Sunny and Nesar had not committed rape upon the prosecutrix but it was accused Mukesh who committed rape upon her, but as per Explanation 1 to Section 376 of IPC, every member of a group is deemed to have committed gang rape upon a woman when she was raped by one or more person in a group. In view of trustworthy deposition of prosecutrix, I am of the considered opinion that the prosecution has duly established that she was being gang raped by all the accused persons as they were having common intention of raping her and all of them were actively involved in the commission of rape upon her.
44 As per findings in case of State of Punjab Vs. Gurmit Singh (supra), State of U.P. Vs. Asha Ram (supra) and Aman Kumar and Another Vs. State of Haryana (supra), testimony of prosecutrix needs no corroboration and her testimony is alone sufficient to base the conviction of an accused. In the present case, the SC No.18/2010 State Vs. Nesar etc. Page 25 of 31 testimony of prosecutrix (PW7) is found to be reliable and trustworthy. She has specifically assigned the role of each and every accused in commission of gang rape upon her. Her testimony has duly been corroborated by medical evidence.
45 The ld. Defence counsels have mentioned certain discrepancies in the testimony of prosecutrix, but from a careful examination of testimony of prosecutrix, I am of the considered opinion that the discrepancies pointed out are not of vital significance but are minor in nature which are bound to occur due to lapse of time. Said discrepancies are not such which could go to the root of case and in my considered view, does not adversely affect the case of prosecution.
46 All the three accused persons have duly been identified by the prosecutrix in the court being the culprits who took her to the roof of accused Sunny where rape was committed upon her. She was well acquainted with the accused persons as all of them are the residents of same locality where prosecutrix was residing. Even the accused persons have not disputed the fact that they were not the residents of same locality where prosecutrix was residing. The identity of accused persons has also been established from the fact that SC No.18/2010 State Vs. Nesar etc. Page 26 of 31 accused themselves have taken the plea that they were falsely implicated by prosecutrix as she was having grudge against them as they had a fight with one of her friend, namely, Rahish. 47 The accused persons have tried to set up defence that they have been falsely implicated in the present case by the prosecutrix as she wanted to take revenge from them as accused persons fought with her friend namely, Rahish. But the accused persons have failed to produce any material or convincing evidence to establish their defence. It is a settled law that an accused can establish his case either by way of adducing evidence or from the crossexamination of prosecutrix witnesses. Even the accused persons have failed to prove their defence from the crossexamination of prosecutrix. The evidence led by accused persons does not prove their defence that they have been falsely implicated in the present case by the prosecutrix. They have failed to prove that there was any fight between them and Rahish, alleged to be friend of prosecutrix and that was the reason for their falsely implication in the present case. Accused persons have miserably failed to probabilise their defence that they have been falsely involved in the present case by the prosecutrix as she wanted to take revenge from them.
SC No.18/2010 State Vs. Nesar etc. Page 27 of 31 48 Keeping in view the aforementioned facts and circumstances and the discussion made in detail, all the three accused persons, namely, Nesar @ Kothi, Sunny and Mukesh are hereby held guilty for the commission of offence punishable under Section 376(2)
(g) of IPC and are convicted accordingly.
Announced in the open Court ( P.S. TEJI )
Dated: 02.09.2011 District Judge (East)
cum Addl. Sessions Judge
Karkardooma Courts, Delhi
SC No.18/2010 State Vs. Nesar etc. Page 28 of 31
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST), KARKARDOOMA
COURTS, DELHI.
SC No.18/2010
Unique Case ID No.02402R0013842010
FIR No.330/2009
Police Station Kalyan Puri
Under Section 376(g) IPC
State Versus (1) Nesar @ Kothi
S/o Naseruddin
R/o 18/289, Indira Camp,
Kalyan Puri, Delhi.
(2) Sunny S/o Rajender
R/o B18/370, Jhuggi, Indira
Camp, Kalyan Puri, Delhi.
(3) Mukesh S/o Kaluram
R/o 18/265, Indira Camp ,
Kalyan Puri, Delhi.
ORDER ON SENTENCE
Vide my judgment dated 02.09.2011, all the
SC No.18/2010 State Vs. Nesar etc. Page 29 of 31
three convicts Nesar @ Kothi, Sunny and Mukesh have been convicted for the commission of offence punishable under Section 376(2)(g) of IPC.
2 I have heard Ld. Addl. PP for the State, Sh.
V.K. Singh, Ld. Amicus Curiae for convicts Nesar and Sunny as well as Ld. counsel for convict Mukesh on the point of sentence. 3 The learned Addl. PP has argued that convicts have committed a heinous crime of gang rape of an innocent girl. It is further argued that innocent girls became victim of lust of other persons and they be given exemplary punishment provided under the law.
4 On the other hand, learned counsel for convict Mukesh has argued that he is a young boy. He has recently been married in the year 2009. He has a wife and a bed ridden ailing mother to support and he is the only bread earner in the family. On behalf of convict Nesar, it is submitted that he was 20/21 years of age at the time of offence. He is the first time offender. He is having old aged parents in the family to support. On behalf of convict, Sunny, it has been submitted that he was 22 years of age at the time of offence. His old aged mother is completely dependent SC No.18/2010 State Vs. Nesar etc. Page 30 of 31 upon him. It is prayed that keeping in view the young age and familial circumstances of the convicts, a lenient view may be taken while awarding sentence to them.
5 In view of facts and circumstances of the present case, all the convicts are hereby awarded rigorous imprisonment for a period of 10 years and fine of Rs.5,000/ each for the offence punishable under Section 376(2)(g) IPC. In default of payment of fine, convicts shall further undergo SI for three months each.
6 The convicts shall be entitled for the benefit of the provisions of Section 428 of Cr.P.C. Copies of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 05.09.2011 District Judge &
Addl. Sessions Judge, I/C (East)
Karkardooma Courts, Delhi
SC No.18/2010 State Vs. Nesar etc. Page 31 of 31