Delhi District Court
State vs . Ramjan @ Pagla Etc. on 10 December, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No. : 57593/16
State
Versus
1). Ramjan @ Pagla
S/o Rafiqul
R/o Jahangirpuri, Delhi
And
Permanent R/o Village Maykutiya,
PS Nandigram, District Purvi
Medna Pur, Puruliya,
West Bengal.
2). Nasiruddin @ Boba
S/o Salimuddin
R/o Jhuggi No. N38/161, CD Park,
Jahangirpuri, Delhi.
3). Sheikh Jahangir
S/o Sheikh Abul
R/o Jhuggi No. N38/373, CD Park,
Jahangirpuri, Delhi
4). Shah Alam
S/o Sheikh Siraju Khan
R/o Jhuggi No. N38A/240, CD
Park, Jahangirpuri, Delhi
State Vs. Ramjan @ Pagla etc.
SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 1 of 48
FIR No. : 153/10
Police Station : Jahangirpuri
Under Sections : 458/392/395/397/376(2)(g) IPC
& 25/54/59 Arms Act
Date of Committal to Sessions Court : 29.11.2010
Date on which Judgment reserved : 05.12.2019
Date on which Judgment announced : 10.12.2019
JUDGMENT
1. All accused have been forwarded for raping and committing dacoity in night.
2. The victim, a lady of 35 years, was sleeping in her house in CBlock Jahangirpuri alongwith her 12 years son Gaurav and 10 years old daughter Yogita, in the intervening night of 01/02.05.2010 when four boys of 2025 years entered her bedroom. One of them put knife on her neck, other boy on the neck of her son, third boy on the neck of her daughter and the fourth boy picked up keys from refrigerator, opened iron almirah and took out cash of Rs. 60,000/, golden necklace, five pair of earrings, three gold chain, five gold finger rings, four gold bangles and silver jewellery of 2 kg like pajeb, tagri and guccha, etc. Some documents and Voter Icard were also taken out by him. He also picked up Nokia N95 black mobile phone kept on refrigerator. Three boys took her to another room and fourth boy put knife on the neck of her son. One of the three boys State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 2 of 48 who had taken her to another room, put knife upon her neck, remaining two boys tore her clothes and then, all three boys raped her turn by turn. She concluded the statement saying that all boys were of 2025 years and she can identify them if produced before her. When she came outside, she saw that iron grill of door of her house was broken.
3. On 10.12.2010, charge U/s 458/34, 395/34 and 376(2)
(g) IPC was framed against accused persons namely Ramjan @ Pagla, Nasiruddin @ Boba and Sheikh Jahangir and separate charge under Section 397 IPC and alternative charge U/s 398 IPC and 25/54/59 Arms Act was framed against accused Ramjan @ Pagla. On 05.04.2011, charge U/s 458/34, 395/34 and 376(2)(g) IPC was framed against accused Shah Alam. All four accused persons pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 34 witnesses.
5. As PW4, the prosecutrix deposed that she alongwith her son of 12 years and daughter of 10 years was sleeping in her house in the intervening night of 01/02.05.2010 when four boys entered her bedroom at 3.30 am. One of them put knife on the neck of her son, another put knife on the neck of her daughter and third put knife on her neck and the fourth boy picked up key from refrigerator, opened almirah and took out cash of Rs. 60,000/, gold necklace, State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 3 of 48 four gold bangles, three chains, five pair of jhumkas, jhallas, ballies, etc. and about 2 kg of silver jewellery like tagri, guccha and pajeb, etc. He also picked up Nokia N95 mobile phone containing SIM no. 9999808024. There was a door between house no. 1325 & 1326. She further deposed that three boys forcibly took her to other room on the strength of knife. They had put knife on the neck of her son also and threatened that if she raised noise, she and her children would be killed. They tore off her clothes and raped her turn by turn. All four boys ran away with the looted property. Later, she noted that the door grill of house no. 1325 had also been removed. Her son gave intimation of the incident on telephone to tenant Ranjeet Babu who came downstairs and informed the police which came to the spot and recorded her statement Ex.PW4/A. She next deposed that Nokia 95 mobile phone was purchased from Hongkong and she did not have bill of the same. Its SIM card was in the name of Ranjeet Babu. She next deposed that fifth boy was standing guard near the window. But she could not tell about him in first statement and revealed in supplementary statement by naming that boy as Saifuddin as she came to know of his name when she went to Juvenile Justice Board, Kingsway Camp for his TIP. She identified all four accused saying that accused Sheikh Jahangir, Shah Alam and Nasiruddin had raped her. Shah Alam and Nasiruddin had done oral sex also. She next deposed that she went to Tihar Jail for TIP of State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 4 of 48 accused persons but they refused to participate and she, lateron, identified them in the court and came to know of their names for which her supplementary statements were recorded. She next deposed that she was medically examined in BJRM hospital and her clothes including underwear, which she was wearing at the time of incident, were taken from her in the hospital which were converted into a pullanda which was handed over to the IO. She further deposed that accused Ramjan @ Pagla had put knife on the neck of her son. Before leaving her house, accused persons left one of their knife on the bed. That knife and broken iron grill were seized vide seizure memo Ex.PW4/B, bearing her signature at pointA. She identified her torn salwar, shirt and underwear as Ex.P1. Three grill pipes have been exhibited as Ex.P2 (colly.) and knife as Ex.P3.
PW17, Gaurav Kushwaha, son of the prosecutrix, deposed that he alongwith his mother and sister Yogita was sleeping in his house in the night of 02.05.2010 when he heard some noise at 3.00 am due to which he woke up and saw four persons armed with knives. One of them put knife on his mother, the second boy put knife on his sister, third on him and the fourth boy picked up key from refrigerator, opened almirah and took out documents, jewellery and money. Three boys took her mother in another room and fourth boy kept on putting knife upon him. They left after half an hour. Later, he came to know that clothes of his mother were torn by them State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 5 of 48 and they had done badtamiji with her. He pointed out towards Ramjan as the person who had put knife on him. He pointed out towards accused Nasiruddin as the person who had put knife upon his sister and pointed out towards accused Jahangir as the person who had put knife upon his mother. He pointed out towards fourth accused Shah Alam saying that he had picked up key from fridge and taken out jewellery and money from almirah.
PW21, Yogita, daughter of the prosecutrix, deposed all the facts stated by her brother/PW17. When she was asked whether she can identify the accused persons, initially she replied that she was scared of them. She was asked to assist the court in legal process and then she identified all four accused persons correctly.
PW3, tenant Rajith Babu, deposed that he used to reside on the second floor of house no. 1326 owned by the prosecutrix. He received a telephone call from her at about 3.30 am on 02.05.2010 about robbery in her house. He went downstairs and found the house ransacked. He noticed that the grill of the door had been removed. Then he gave intimation of the incident to police on 100 number by using his mobile phone no. 9899505005. Later, the prosecutrix told him that four accused persons had barged into her house and they had raped her by putting knife on her children. In answer to a leading question by additional PP, he deposed that he had taken SIM no. 9999808024 on his identity which was being State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 6 of 48 used by the victim.
6. PW1 Ct. Devender Singh registered DD No.6B Ex.PW1/A on 02.05.2010 at 3.45 am on receipt of telephonic information from lady Ct. Anita of PCR regarding theft in house no. C1326, Jahangir Puri.
PW12 HC Raj Singh was Incharge of PCR Van Commander 37 on 02.05.2010 when he reached house no. C1325 1326, Jahangirpuri at 3.37 am after receipt of call from control room, where he came across victim and her two children. After sometime of reaching, SI Mahender Singh alongwith staff also arrived there.
PW13 WHC Asha deposed that on 02.05.2010, she reached house no. C13251326, Jahangirpuri and met SI Narender and prosecutrix whose clothes were not in proper condition and she wrapped her in a chaddar and took her to BJRM Hospital where, after medical examination, the doctor gave her sealed pullandas which she handed over to the IO who seized the same vide seizure memo Ex.PW13/A. PW20 HC Gajender Singh deposed that DD No. 6B was marked to SI Balkar Singh and SI Narender Singh and so, he alongwith them reached to the spot and found rod of iron gate of the house broken. A khukhri was lying on the bed and the almirah was found ransacked. IO recorded statement of victim, crime team State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 7 of 48 inspected the spot and the victim was sent to BJRM Hospital with W/HC Asha for medical examination and he and IO also accompanied them. After her medical examination, rukka was prepared and handed over to him, upon which he got the case FIR registered and thereafter, he reached to the spot and handed over copy of FIR and original rukka to the IO who prepared sketch Ex.PW20/A of the khukhri. IO put khukhri into a pullanda and sealed the same with the seal of NSY. The broken grills lying on the spot were also converted into a pullanda which was sealed with the seal of NSY. Pullandas of both articles were seized vide seizure memo Ex.PW4/B. He identified three iron grill pipes as Ex.P2 (colly.) and khukhri as Ex.P3.
PW23 retd. SI Balkar Singh deposed that DD No. 6B was marked to him by duty officer and to SI Narender by SHO on 02.05.2010. They both and HC Gajender reached the spot and found iron grills of the gate broken and a khukhri lying on the bed. Articles of iron almirah were also found ransacked. He further deposed that SI Narender recorded statement of the victim, prepared rukka and handed over the same to HC Gajender who got the case FIR registered and returned to the spot and handed over copy of the FIR to SI Narender. Sketch of khukhri was prepared at the spot. Khukhri was wrapped in a cloth pullanda which was sealed with the seal of NSY. The iron rods lying at the spot were also wrapped in a State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 8 of 48 cloth pullanda and sealed with the seal of NSY. Both pullandas were taken into possession vide seizure memo Ex.PW20/B. He next deposed that accused Shah Alam was arrested by ASI Tahir Hussain in FIR No. 409/10 under Arms Act in which he disclosed his involvement in the present case. When he came to know of that development, he conducted the investigation and arrested accused Shah Alam vide arrest and personal search memos Ex.PW23/A and Ex.PW23/B respectively. He pointed out the place of rape and pointing out memo ExPW23/C was prepared.
7. PW2 ASI Ranbir Singh registered case FIR Ex.PW2/A on 02.05.2010 on receipt of rukka through HC Gajender.
PW5 SI Matadin was Incharge of Mobile Crime Team, Northwest District when he alongwith finger print proficient Ct. Ram Kishan and photographer Ct. Parvinder reached the spot and met SI Balkar Singh and Narender Singh and other staff members. He found grills of the room broken and almirah in open condition. A chhura was lying on a bed in another room. Two chance prints were lifted from the almirah. He prepared report Ex.PW5/A and handed over to IO.
PW6 Ct. Ram Kishan examined the spot carefully and lifted two chance prints from two lockers of the almirah, prepared report Ex.PW6/A and handed over to the IO. The chance prints were sent to Finger Print Bureau, Kamla Market.
State Vs. Ramjan @ Pagla etc.
SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 9 of 48
PW10 Ct. Parvinder clicked 12 photographs
Ex.PW10/B1 to Ex.PW10/B12 of the scene of crime. The negatives are Ex.PW10/A1 to Ex.PW10/A12.
8. PW11 Ct. Bijender deposed that on 08.06.2010, he alongwith SI Narender, Ct. Sri Pal and a secret informer reached jhuggis behind PS Alipur and apprehended accused Ramjan @ Pagla and arrested him vide arrest and personal search memos Ex.PW11/A and Ex.PW11/B respectively and his disclosure statement Ex.PW11/C was recorded. He got recovered a button actuated knife from beneath mattress (taat) in his jhuggi. IO prepared sketch Ex.PW11/D of the knife whose total length was 23.4 cm, length of blade was 10.7 cm and length of handle was 12.7 cm. Pullanda of the knife was prepared which was sealed with the seal of NSY and seized vide seizure memo Ex.PW11/E and seal after use, was handed over to him. His face was muffled with a cloth and he led the police party to H. No. C132526, Jahangirpuri and pointed out a room of the incident consequent to which pointing out memo Ex.PW11/F was prepared. Then he took the police party to other jhuggis in search of his associates but they were untraceable. He was got medically examined in BJRM Hospital and case property was deposited in the malkhana. He was brought out of lock up on 22.06.2010 and taken to BJRM hospital where he was again medically examined and after examination, the doctor handed over a State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 10 of 48 sealed pullanda containing his exhibits alongwith sample seal which was seized by the IO vide seizure memo Ex.PW11/G. He next deposed that he deposited the case property in FSL on 29.07.2010, vide R.C. No. 72/21/10.
PW18 Ct. Jagdish alongwith SI Narender was present near Kushal Cinema on 12.06.2010 at about 11 am when a secret information was received that a person by the name of Nasiruddin @ Boba, who had complicity in the present case, was present in his jhuggi no. 38/161, CD Park, Jahangirpuri. They reached there, apprehended and arrested him vide arrest and personal search memos Ex.PW18/A and Ex.PW18/B respectively and his disclosure statement Ex.PW18/C was recorded. Then he led police party to the place of occurrence and pointed out that place consequent to which pointing out memo Ex.PW18/D was prepared. He was got medically examined in BJRM Hospital.
9. PW14 Ct. Mrityunjay alongwith SI Narender came to Rohini Court on 26.06.2010 and took accused Nasiruddin @ Boba on one day police custody. He was got medically examined in BJRM hospital and after examination, the doctor handed over his exhibits and sample seal in sealed pullanda which were seized vide seizure memo Ex.PW14/A. He deposed that the IO received a secret information on 31.08.2010 regarding proclaimed offender Sheikh Jahangir. In pursuant to information, they reached jhuggis of CD State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 11 of 48 park, Jahangirpuri, apprehended accused Sheikh Jahangir and arrested him vide arrest and personal search memos Ex.PW14/B and Ex.PW14/C respectively and his disclosure statement Ex.PW14/D was recorded. He pointed out the place of incident consequent to which pointing out memo Ex.PW14/E was prepared.
10. PW8 ASI Tahir Hussain alongwith Ct. Kishan Pal went to KBlock, Jahangirpuri on 08.12.2010 to attend a quarrel call and got registered FIR no. 409/10, U/s 323 IPC and 27/54/59 Arms Act. He deposed that a person namely Shah Alam had already been apprehended by public persons at the spot and so, he arrested him in that FIR and after interrogation, recorded his disclosure statement Mark X1 in which he disclosed his complicity in the present case and hence, he handed over a copy of his disclosure statement to IO SI Balkar Singh.
Evidence of PW26 Ct. Kishan Pal is the repetition of evidence of PW28 ASI Tahir Hussain.
PW25 Ct. Pankaj deposed that he alongwith SI Narender Singh came to Rohini Court on 22.12.2010 and the IO applied for one day police custody of accused Shah Alam which was granted. The accused was medically examined in BJRM hospital and after examination, the doctor gave his exhibits in a sealed parcel with sample seal which were seized vide seizure memo Ex.PW25/A. State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 12 of 48
11. PW7 Dr. Seema identified the signature and handwriting of Dr. Pradeep Kumar and Dr. Sumitra, S.R. Gynae, who had examined the prosecutrix on 02.05.2010 initially and internally respectively. She is acquainted with their handwriting and signature as she had seen them signing and writing during the course of duty. Their present whereabouts were not known. She deposed that as per MLC, Dr. Pradeep Kumar found no fresh external injury on the body of victim. She next deposed that the prosecutrix told lady Dr. Sumitra that when she alongwith her son and daughter was sleeping in her house on 02.05.2010, four unknown persons came there at 3.30 am after breaking the door, robbed jewellery and cash and three persons sexually assaulted her. By that time, she came to the hospital, she had changed her clothes but had brought the same for sampling. She next deposed that the lady doctor did not find any fresh external injury on her perineum. There was no blooding, no discharge and no laceration. There was no tear or laceration on vaginal wall and there was no bleeding from vagina.
PW9 Dr. Gopal Krishna identified his own signatures and that of Dr. Rahul on the MLC of accused Ramjan saying that Dr. Rahul was no more working in the hospital and his whereabouts were not known. He deposed that he examined accused Ramjan @ Pagla on 22.06.2010, found no fresh external injury on his body, collected his blood sample, sealed the same and handed over to the State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 13 of 48 IO and referred him to S.R. Surgery where he was examined by Dr. Rahul who opined that there was nothing to suggest that accused Ramjan @ Pagla was not capable of committing sexual intercourse.
PW8 Dr. R.S. Mishra identified the signatures and handwriting of Dr. Ram Chander and Dr. Vikas, who had examined accused Nasiruddin @ Boba initially and for potency respectively. He deposed that both doctors were not available in the hospital and their whereabouts were also not known. He was conversant with their handwriting and signatures as he had seen them signing and writing in the course of duty. He deposed that the doctor had collected blood sample of accused Nasiruddin @ Boba and handed over to the IO in sealed condition. Dr. Vikas opined that there was nothing to suggest that he was not capable of doing sexual intercourse.
PW27 Dr. Rajesh Satija deposed that accused Shah Alam was examined by Dr. Ajit Tripathi in BJRM Hospital on 22.12.2010 in his supervision, prepared MLC Ex.PW24/A and referred him to S.R. Surgery where he was examined by Dr. Rahul, who opined him potent.
PW24 Dr. Neeraj Chaudhary identified the signatures and handwriting of Dr. Ajit Tripathi and Dr. Rahul, who had examined Shah Alam on 22.12.2010 initially and for potency respectively. He deposed that both doctors were not available in the State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 14 of 48 hospital and their present whereabouts were not known. He was conversant with their handwriting and signatures. He deposed that Dr. Rahul opined accused Shah Alam potent.
12. PW15 Ld. MM Sh. Vishal Singh deposed that accused Ramjan @ Pagla refused to participate in TIP in jail no. 5, Tihar on 11.06.2010 despite warning that an adverse inference can be drawn against him during trial.
PW19 Ld. MM Sh. Neeraj Gaur deposed that accused Nasiruddin @ Boba refused to participate in TIP in Rohini jail on 25.06.2010 despite warning that an adverse inference can be drawn against him during trial.
PW32 Ld. MM Sh. Naveen Gupta deposed that accused Sheikh Jahangir refused to participate in TIP in his chamber on 01.09.2010 despite warning that an adverse inference can be drawn against him during trial.
PW34 Ld. MM Mr. Bhupender Singh deposed that accused Shah Alam had refused to participate in TIP on 16.12.2010. He next deposed the mandatory TIP of accused Shah Alam was conducted in Tihar Jail on 15.01.2011 in which he was correctly identified by the prosecutrix.
13. PW16 HC Rajesh Kumar deposed that three, one, one, one and one sealed pullandas alongwith their sample seals were deposited with him on 02.05.2010, 22.06.2010, 26.06.2010, State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 15 of 48 07.09.2010 and 22.12.2010 respectively for which he made entry nos. 3645, 3710, 3715, 3789 and 3902 Ex.PW16/A (colly.) in register no. 19. He handed over four sealed pullandas and three sample seals to Ct. Bijender on 29.07.2010, vide R.C. no. 72/21/10 Ex.PW16/B for deposit in FSL, Rohini and after deposit, he handed him over receipt acknowledgment Ex.PW16/C. He next deposed that one sealed pullanda and one sample seal were handed over to Ct. Mahesh on 27.09.2010 vide R.C. no. 102/21/10 Ex.PW16/D for deposit in FSL and after deposit, he gave him receipt acknowledgment Ex.PW16/E. PW22 Ct. Mahesh deposed that he collected a sealed pullanda and a sample seal of BJRM hospital from MHC(M) on 27.09.2010 and deposited the same in FSL without tampering.
PW33 Ms. Poonam Sharma, Assistant Director (Biology), FSL, Rohini deposed that four sealed parcels received in the lab on 23.07.2010, were marked to her for examination. The seals was intact as per forwarding letter and she prepared the reports Ex.PW13/A and Ex.PW13/B. Human semen was detected on Ex. 1d
- 2a, Ex. 1d - 2b, Ex. 1g 1, Ex. 1g 2 & 2c.
14. PW29 SI Vineeta Prasad deposed that investigation was assigned to her on 25.08.2010 and after going through the file, she came to know that two accused persons namely Ramjan @ Pagla and Nasiruddin @ Boba had already been arrested, juvenile State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 16 of 48 Saifuddin had been apprehended and two accused persons namely Sheikh Jahangir and Shah Alam were yet to be arrested as they were proclaimed offenders (P.O.). She filed chargesheet against those persons. She further deposed that accused Sheikh Jahangir was arrested on 31.08.2010 and his potency test was got conducted on 21.09.2010 and supplementary chargesheet was filed against him on 04.10.2010.
PW10 SI Sandeep deposed that the investigation was assigned to him on 26.12.2010. After going through the case file, he came to know that TIP of accused Shah Alam was fixed for 04.01.2011. But the complainant was not present on that day and hence, it was adjourned to 15.01.2011. TIP was conducted on that day and thereafter, he filed supplementary chargesheet against accused Shah Alam on 02.03.2011.
15. PW31 Inspector Narender, first IO, deposed that on receipt of DD No. 6B in the night intervening 01/02.05.2010, he alongwith SI Balkar Singh and HC Gajender reached the spot and found iron grills of door of house no. C1325 broken and a khukhri lying on the bed. There was an entry gate from flat no. C1325 to C 1326 in which an iron almirah was found in open condition and articles were lying scattered. The complainant and her two children were present. The crime team was called which inspected the spot. He next deposed that the complainant was found wrapped in a State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 17 of 48 bedsheet. He alongwith HC Asha and HC Gajender took her to BJRM Hospital where she was medically examined and after examination, the doctor handed over her two sealed pullandas and sample seal to HC Asha, who produced the same to him which he seized vide seizure memo Ex.PW13/A. He recorded statement Ex.PW4/A of the prosecutrix in the hospital, made rukka Ex.PW31/A and got the case FIR registered through HC Gajender. He next deposed that after collecting crime team report from Incharge, he alongwith complainant and HC Asha came to the spot and prepared rough site plan Ex.PW31/B on her pointing out. In the meantime, HC Gajender also came there and handed over copy of FIR. Then he prepared sketch of the khukhri. The knife (khukhri) and broken iron grills were seized vide seizure memo Ex.PW4/B and supplementary statement of the victim was recorded. He alongwith HC Gajender and SI Balkar Singh visited jhuggis of CD Park, Jahangirpuri in search of accused but there was no clue. He next deposed that HC Asha alongwith complainant went to crime office Kamla Market on 04.05.2010 for preparing the portrait of accused persons and on her pointing out, two portraits were prepared, which resembled with the faces of accused Nasiruddin @ Boba and Shah Alam. After recording supplementary statement of the victim, he obtained copies Ex.PW31/C1 and Ex.PW31/C2 of the portraits. Next deposition is about secret information on 09.05.2010 regarding State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 18 of 48 the presence of one of the accused of this case, in his CD Park jhuggis and so, he alongwith informer and HC Ram Avtar went there and apprehended JCL Sheikh Saifuddin who disclosed complicity of accused Ramjan @ Pagla, Nasiruddin @ Boba and Shah Alam alongwith him in the case in hand. He obtained their NBWs but they could not be arrested. Then he talked about presence of accused Ramjan @ Pagla in his jhuggi behind PS Alipur and hence, he alongwith Ct. Bijender, Ct. Sri Pal and informer went there and he was overpowered on the pointing out of secret informer and arrested vide arrest and personal search memos Ex.PW11/A and Ex.PW11/B respectively and his disclosure statement Ex.PW11/C was recorded. He got recovered a button actuated knife from under the pillow placed on a gunny bag in his jhuggi. After preparing sketch Ex.PW11/D of the knife, it was converted into a pullanda which was sealed with the seal of NSY and seized vide seizure memo Ex.PW11/E. Then he led police party to the place of incident and pointed out the place of rape and dacoity pursuant to which pointing out memo Ex.PW11/F was prepared. Then he led police to jhuggis situated in C & D Block park in search of his associates but they were not available. He next deposed that TIP application Ex.PW31/D for accused Ramjan @ Pagla was allowed and hence, he alongwith complainant reached Tihar Jail but he refused to participate in the same. He recorded statement of the complainant State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 19 of 48 regarding identification of the accused.
He next deposed that accused Nasiruddin @ Boba was arrested in the presence of Ct. Jagdish and secret informer from the jhuggis of C & D park and his face was covered with a cloth and then, he led the police party to the place of crime and pointed out that place resulting into preparation of pointing out memo Ex.PW18/B. He was produced in court in muffled face and sent to judicial custody. He next deposed about taking of accused Ramjan @ Pagla on two days police custody on 21.06.2010 for apprehension of his associates but those accused persons and the case property could not be found. He was brought to police station where complainant identified him and her supplementary statement was recorded.
PW31 next deposed that accused Ramjan @ Pagla was taken out from lock up on 22.06.2010 and medically examined in BJRM Hospital and after examination, the doctor collected and sealed his blood sample and handed over to him which he seized vide seizure memo Ex.PW11/G. PW31 next deposed that he alongwith the complainant went to Rohini Jail on 25.06.2010 where TIP of accused Nasiruddin @ Boba was to be conducted by Ld. MM Sh. Neeraj Gaur but he refused to participate. He alongwith Ct. Mrityunjay took accused Nasiruddin @ Boba on two days police custody on 26.06.2010 for State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 20 of 48 the search of his associates and case property but none of them could be found. He was taken out from lockup for interrogation next day and in the meantime, the prosecutrix came to the police station and identified him and her supplementary statement was recorded.
He next deposed that accused Sheikh Jahangir and Shah Alam were declared P.O. on 26.07.2010 and case property was sent to FSL on 25.02.2010.
PW31 was sent to New Police Line for arrangement of Common Wealth Games and hence, case file was handed over to MHC(M).
After return from that duty, the investigation was again assigned to him and after going through the case file, he came to know that chargesheet had already been filed by SI Vineeta Prasad against accused Ramjan @ Pagla and Nasiruddin @ Boba. Two accused namely Jahangir and Shah Alam were yet to be arrested.
On 31.08.2010, on secret information that accused Sheikh Jahangir was present in his jhuggi, he alongwith informer and Ct. Mrityunjay reached there and arrested him. He suffered disclosure statement Ex.PW14/D. His face was muffled with a cloth and thereafter, he pointed out the place of incident pursuant to which pointing out memo Ex.PW14/E was prepared. Then he took police party to the jhuggi of coaccused Shah Alam but he was not available. He was produced in court next day in muffled face and an State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 21 of 48 application for his TIP was moved. But he refused to participate in TIP in the court of Ld. MM Sh. Naveen Gupta.
He alongwith Ct. Ravi took accused Sheikh Jahangir on one day police custody on 06.09.2010 and he led them to the jhuggi of CD Block in search of accused Shah Alam but he was untraceable. He was brought back to police station where complainant came and identified him and her supplementary statement was recorded. He was taken to BJRM hospital on 07.09.2010 where his blood sample was collected, sealed and handed over to him which was seized vide seizure memo Ex.PW31/E. His potency test could not be conducted on that day and it was conducted on 21.09.2010 in the presence of SI Vineeta Prasad, Ct. Surender and in his own presence. The case property was sent to FSL on 27.09.2010. Supplementary chargesheet against accused Sheikh Jahangir was filed by SI Vineeta Prasad on 04.10.2010. Second potency test of accused Sheikh Jahangir was got conducted on 19.10.2010.
PW31 next deposed that accused Shah Alam was arrested in FIR No. 409/10, u/s 323 IPC and 27/54/59 Arms Act, PS Jahangirpuri by ASI Tahir Hussain and in that case, he made disclosure statement regarding his involvement in the present case and he was arrested by SI Balkar Singh. His TIP was fixed on 16.12.2010 and so, he alongwith complainant reached jail no. 7, State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 22 of 48 Tihar but he refused to participate. On the same day, the complainant made statement to him that she would have definitely identified accused Shah Alam if he had participates in TIP. He was produced in the court in muffled face on 22.12.2010 and was taken on one day police custody. His potency test was got conducted in BJRM Hospital. After that test, the doctor collected his blood sample, sealed the same and handed over the sealed pullanda and sample seal to him which he seized vide seizure memo Ex.PW25/A. Then he moved application for mandatory TIP of accused Shah Alam which was fixed for 04.01.2011. He was transferred thereafter, and hence, he handed over the case file to MHC(R) on 24.120.2010. He identified the case property correctly.
16. Under section 313 Cr.P.C., all the accused took the defence of false implication.
17. Two defence witnesses have been examined. DW1 Mohd. Gyasuddin, fatherinlaw of accused Nasiruddin @ Boba, deposed that on 01.05.2010, Nasiruddin came to his house in night hours and stayed for whole night. Accused used to work as labourer in a tent house. Police took him from his house assuring that he would be let off after enquiry. Lateron, he came to know that he had been arrested in the present case. Police officials threatened him that if he took any action against them, they would implicate him also in a false case.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 23 of 48 DW2, mother of accused Shah Alam, deposed that on the day of the incident, his son i.e. accused Shah Alam was present in the jhuggi. After 34 months, police came to her house and arrested him. She was ill on that day and when she asked the reason of his arrest, the police officials told that they would leave him after enquiry. Lateron, she came to know that her son had been falsely arrested in this case.
18. The first argument of ld. defence counsel is that the prosecutrix did not tell description of any of the accused in complaint dated 02.05.2010. Without description, identification of the accused before court is not proper. He further argued that all accused persons were shown to victim by the police just after arrest and hence, they refused to participate in TIP and so, adverse inference cannot be drawn against them. He further submitted that there is a long delay in conducting TIP.
The second argument is that pointing out of place of incident by accused is of no help to the prosecution case because nothing was recovered consequent to those memos and hence, they are inadmissible U/s 27 of Indian Evidence Act. Moreover, after making of complaint and preparation of site plan, the place of incident was already in the knowledge of the police and nothing was discovered, consequent to pointing out memos.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 24 of 48 The third argument is that the accused never absconded from their place of residence. Infact, they were not aware that the police was searching them. The police never visited their house alongwith notice or warrants.
The next argument is that no robbed article was recovered from any of the accused and hence, the prosecution version of dacoity is not corroborated.
Ld. defence counsel next argued that no injury on the body of the private parts of the victim was noted by the doctor. A lady who is gangraped by three persons, cannot remain without injury and hence, no corroboration is coming from the medical evidence.
Ld. defence counsel next argued that as per FSL report, the underwear was found stained with human semen. But it was not seized by police vide seizure memo Ex.PW13/A. The underwear was lateron planted.
The last argument is that the prosecutrix did not tell PW3 at the earliest that she had been raped also. She cooked up a story and made exaggerated version in complaint.
19. Ld. Additional PP replied that the prosecutrix had given description of the accused persons in her complaint saying that they were of 2025 years. The defence counsel is not right to say that the complaint is descriptionless. Moreover, identification of the State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 25 of 48 accused before the court is the only substantive piece of evidence and TIP etc. is only to lend credence to substantive evidence. All accused have been identified not only by prosecutrix but her children also. He submitted that there is no delay in conducting TIP. The accused persons, without any reason, refused to participate in TIP and hence, adverse inference be drawn against them.
On pointing out memos, he admitted that no physical object was discovered pursuant to pointing out of the place. He submitted that the pointing out is not admissible U/s 27 of the Indian Evidence Act but it is admissible U/s 8 of the act.
Regarding abscondence, he argued that all four accused persons had ran away from their jhuggis, after coming to know arrest of juvenile. Moreover, two accused persons namely Sheikh Jahangir and Shah Alam were declared proclaimed offender (P.O.).
He admitted that no robbed article was recovered from any of the accused as they had consumed the same due to late arrest. But he submitted that such kind of recovery is only corroborative in nature and if the version is corroborated by other kind of evidence, non recovery is not fatal.
He next argued that the testimony of rape victim is like evidence of an injured witness and even if she does not have any injury on the body, her evidence prevails upon if it is proved that somebody had done sexual intercourse with her.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 26 of 48 Ld. Additional PP replied that it has been deposed by the prosecutrix that her underwear was seized in the hospital. It has been deposed by PW13 WHC Asha that after medical examination, the doctor handed her over two exhibits of the victim, which she gave to the IO who seized the same. He further submitted that it has been deposed by the MHC(M) that two exhibits of the victim alongwith sample seal and two exhibits of two accused alongwith their sample seals were sent to FSL. It has been deposed by PW33 that she examined the underwear of the victim. He further submitted the underwear was produced in the court which has been identified by the victim as Ex.P1. So, mere nonmention of underwear in seizure memo Ex.PW13/A is of no consequence.
Lastly, he submitted that due to untoward incident, the prosecutrix could not tell complete facts to her tenant PW3 Rajith Babu and hence, he reported to the police that only theft was committed in the house. But when she was examined by the doctor and police, she told them the facts in detail about dacoity and rape.
20. IDENTIFICATION:
As per the evidence of prosecutrix, the accused persons after committing robbery and rape, ran away from her house and thereafter, she called her tenant PW3 who was residing upstairs in the same house. He came down and she told him about the incident. It was he who reported the matter to the police.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 27 of 48
21. In complaint Ex.PW4/A, she gave vivid detail of the incident. She first told about the robbery incident and the manner in which it was committed. Then she told about the rape committed by three boys by taking her in another room whereas the fourth boy was still keeping knife upon her son. These three boys had raped her turn by turn. It is further mentioned that the age of the boys was about 2025 years and that she can identify them very well. Perusal of the complaint shows that the complainant had given some description of the accused persons to the police. Hence, defence counsel is completely wrong in arguing that the complaint is descriptionless about the accused.
Now let us see whether the age of the accused persons is matching with their age as told by the prosecutrix. When the accused persons namely Ramjan @ Pagla, Nasiruddin @ Boba, Sheikh Jahangir and Shah Alam were examined under section 313 Cr.P.C., they told their age as 28 years, 30 years, 30 years and 27 years respectively. They were examined so on 02.05.2019 and incident took place exactly nine years ago. So, as per accused persons themselves, they were of 19, 21, 21 and 18 years on the day of the incident. So, their age is quite matching with the age described by the victim.
Moreover, not less than 2030 minutes might have taken in the whole incident. First, three accused persons put knives upon State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 28 of 48 victim and her children, fourth accused picked up keys from refrigerator, opened iron almirah and removed cash, jewellery and documents. Thereafter, three accused took her to another room and raped turn by turn. Two accused persons namely Shah Alam and Nasiruddin @ Boba had done oral sex also. Hence, prosecutrix and her both children had more than sufficient time to see the accused persons.
22. Identification of the accused in TIP is not a substantive evidence. Such identification only increases the weight of deposition of witnesses regarding identification of the accused persons in the court. In the case in hand, accused Ramjan @ Pagla was arrested on 08.06.2010 and he refused on 11.06.2010 to participate in TIP vide proceedings Ex.PW15/B held before Ld. MM Sh. Vishal Singh, saying that the IO had taken his photographs in the police station. On that day, the prosecutrix had also gone to jail for his identification and when he refused to participate, she made supplementary statement that she would have definitely identified him, had he participated in TIP. On 21.06.2010, accused Ramjan @ Pagla was in police custody in the police station, when she had gone there and identified him vide supplementary statement Ex.PW4/DD to the effect that he was the same accused who had put knife on the neck of her son.
When the prosecutrix appeared in the witness box, she State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 29 of 48 identified him. Her son PW17 Gaurav identified him as the person who had put knife upon him. Victim's daughter PW21 Yogita initially refused to identify any of the accused persons saying that she was scared of them, but when she was assured by the court, she identified all the accused persons.
23. Accused Nasiruddin @ Boba was examined on 12.06.2010 and he refused on 25.06.2010 to participate in TIP proceedings Ex.PW19/B, Ex.PW19/C and Ex.PW19/D held before Ld. MM Sh. Neeraj Gaur saying that the police had taken his photographs with camera and mobile.
He was on one day police custody in police station on 27.06.2010 when victim saw him there and made supplementary statement that accused Nasiruddin @ Boba was the same person who picked up key from refrigerator, took out cash, jewellery and documents from iron almirah and raped her. When she appeared as PW4, she identified him as the person who had committed robbery, raped and had oral sex with her. Her son PW17 Gaurav identified him as the person who had put knife on his sister. PW21 Yogita also identified him.
24. Accused Sheikh Jahangir was arrested from jhuggi no. N38/373, CD Park, Jahangirpuri on 31.08.2010 and he refused on 01.09.2010 to participate in TIP vide proceedings Ex.PW32/A, Ex.PW32/B, Ex.PW32/C and Ex.PW32/D saying that he had been State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 30 of 48 shown to the witness in police station and that his photographs were also taken by the police. He was in police custody on 06.09.2010 when victim identified him in the police station and made supplementary statement that he was one of the persons who had committed robbery and raped her. When she appeared as PW4, she identified him as the person who had robbed and raped her. PW17 Gaurav identified him as the accused who had put knife on his mother. PW21 also identified him.
25. Accused Shah Alam was arrested on 08.12.2010 and he refused on 12.12.2010 to participate in TIP to be held before Ld. MM Sh. Bhupinder Singh saying that he had been shown to the witness at the time of arrest. But the police moved an application U/s 54A Cr.P.C. for mandatory TIP which held on 15.01.2011 and he was duly identified by the prosecutrix. When the victim appeared as PW4, she identified him as the person who robbed and raped her and also committed oral sex. Her son PW17 Gaurav identified him as the man, who had picked up key and taken out articles from iron almirah. PW21 Yogita also identified him.
26. Following was held by Hon'ble High Court of Delhi, in Imran vs. State, Crl. A.N. 949/18, decided on 22nd August 2019:
28. The Apex Court in the case of Mukesh & Anr vs State for NCT of Delhi & Ors. arising out of S.L.P. (Criminal) Nos. 31193120 of 2014, wherein the court held that State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 31 of 48 identification in court, which is not preceded by any test identification parade is also equivalent to substantial evidence. Relevant portion of the same is quoted below:
145. In the case at hand, the informant, apart from identifying the accused who had made themselves available in the TIP, has also identified all of them in Court. On a careful scrutiny of the evidence on record, we are of the convinced opinion that it deserves acceptance.
29. Indubitably, the refusal to participate in Test Identification Parade, if no plausible reason is offered, would be sufficient to draw an adverse inference against the appellant that had he participated in the Test Identification Parade he would have been identified by the prosecutrix. In the present case, all arrangements to hold the Test Identification Parade were made but the appellant refused to participate in the Test Identification Parade proceedings. It has also emerged from the testimony of PW17 (IO Rajni Chopra) that no photos of the appellant were shown to the prosecutrix prior to his arrest. Since the appellant declined to participate in Test Identification Parade proceedings an adverse inference can surely be drawn against him at least in order to corroborate the prosecution case.
27. It becomes clear from above discussion that some description of all accused persons was given by the victim in complaint which is matching with the detail given by themselves.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 32 of 48 Three accused persons had refused to participate in TIP but they were identified in the police station. The fourth accused namely Shah Alam refused to participate in TIP but in mandatory TIP, he was identified by the victim. All accused persons have been identified by PW4, PW17 and PW21 in the court. They had more than sufficient time to remember their description as they had remained in their house for about 2030 minutes.
The accused persons refused to participate in TIP saying that they had been shown to the victim and their photographs had also been clicked by police. These facts were in their exclusive knowledge and hence, onus was upon them to prove them. But they could not discharge that onus.
28. In view of above discussion, it is held that accused persons have been correctly identified by the victim and her children.
29. POINTING OUT MEMOS:
Accused Ramjan @ Pagla pointed out the place of incident in the presence of PW11 Ct. Bijender and PW31 Inspector Narender on 08.06.2010, consequent to which pointing out memo Ex.PW11/F was prepared.
Accused Nasiruddin @ Boba pointed out the place of incident on 12.06.2010 in the presence of PW18 Ct. Jagdish and PW31 Inspector Narender and pointing out memo Ex.PW18/D was State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 33 of 48 prepared.
Accused Sheikh Jahangir pointed out the place of incident vide memo Ex.PW14/E on 31.08.2010 in the presence of PW14 Ct. Mrityunjay and PW31 Inspector Narender.
In the same way, accused Shah Alam pointed out the place of incident on 08.12.2010 vide memo Ex.PW23/C SI Balkar Singh.
30. It is correct that no physical object was discovered consequent to pointing out of the place of incident and hence, the same are not admissible U/s 27 of the Indian Evidence Act. But these are very much admissible U/s 8 of the Indian Evidence Act as the conduct of the accused persons. In this regard, the prosecution case is well covered by Randhir Singh vs. State of Haryana, CRA No. D850DB2009 decided by Hon'ble Punjab & Haryana High Court on 12th January 2015, in which it was held:
"54. The pointing out of the place from where the dead body of Suresh Kumar was thrown in the Bhakhra Canal is admissible in evidence as the conduct of the accused under section 8 of the Evidence Act, 1872. To support view reference can be made to case H.P. Administration Vs. Om Parkash AIR 1972 Supreme Court 975. In case Parkash Chand Vs. State (Delhi Administration) AIR 1979 Supreme Court 400, the Hon'ble Apex Court laid down as under: "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 34 of 48 the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigating which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 161 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act".
55. The same principle of law has been reiterated by Hon'ble Apex Court in case A.N. Venkatesh and Anr. Vs. State of Karnataka AIR 2005 (SC) 3809.
56. The Division Bench of this Court in case Anupam alias Anup Vs. State of Haryana 2006 (1) RCR (Criminal) 56 has also laid down that the pointing out of the place to the police officer were crime was committed would be admissible as conduct under Section 8 of the Evidence Act.
57. Thus, in view of the consistent ratio of law laid down in the cases referred above, the pointing out of the place from where the crime articles have been recovered and the dead body was thrown in the canal are further the strong incriminating State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 35 of 48 circumstances against appellant Randhir Singh".
31. ABSCONDENCE:
It has been deposed by PW11 Ct. Bijender that accused Ramjan @ Pagla took the police party to his jhuggi in the search of his associates but they were untraceable. PW31 Inspector Narender deposed that he alongwith HC Gajender and SI Balkar Singh visited jhuggis of CD Block park, Jahangirpuri in the search of all accused persons but there was no clue. He further deposed that he obtained their NBWs but they could not be arrested. About accused Ramjan @ Pagla, he deposed that he led the police party to jhuggis situated in C & D Block Park in search of his associates but they were not available. It is his next deposition that accused Ramjan @ Pagla was taken on two days police custody on 21.06.2010 for apprehension of his associates but neither the accused persons nor case property could be traced. He next deposed that he alongwith Ct. Mrityunjay took accused Nasiruddin @ Boba on two days police custody on 26.06.2010 for the search of his associates and case property but none of them could be found. He next deposed that accused Sheikh Jahangir took police party to the jhuggi of Shah Alam but he was not available. Sheikh Jahangir was taken on police custody on 06.09.2010 and he led them to the jhuggi of Shah Alam but he was again untraceable.
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 36 of 48
32. The police moved an application on 15.05.2010 for issuance of NBWs against all accused persons pleading that the JCL (juvenile) had disclosed their complicity in his disclosure statement. The application was allowed and NBWs were issued for 09.06.2010. But accused Ramjan @ Pagla was arrested on 08.06.2010 and in this way, his NBWs had already been executed before the appointed date. On 09.06.2010, the police sent back NBWs of accused Ramjan @ Pagla saying that the same had already been executed. But regarding accused persons namely Nasiruddin @ Boba, Sheikh Jahangir and Shah Alam, the endorsement was that they were avoiding arrest deliberately and intentionally. The police requested for issuance of process U/s 82 Cr.P.C. The application was allowed and process was issued for 19.07.2010.
But accused Nasiruddin @ Boba was arrested on 12.06.2010 itself. On 19.07.2010, the police filed back process U/s 82 Cr.P.C. with the report that the same was executed on 10.06.2010. It requested that process U/s 83 Cr.P.C. be issued against two remaining accused persons namely Sheikh Jahangir and Shah Alam. The application was allowed and process U/s 83 Cr.P.C. was issued for 26.07.2010.
On 26.07.2010, the police filed back process U/s 83 Cr.P.C. duly executed and simultaneously, moved an application for declaring accused Sheikh Jahangir and Shah Alam as proclaimed State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 37 of 48 offenders. The application was allowed and those accused persons were declared P.O. on 26.07.2010.
In this manner, accused Ramjan @ Pagla absconded from 15.05.2010 to 08.06.2010, accused Nasiruddin @ Boba from 15.05.2010 to 12.06.2010, accused Sheikh Jahangir from 15.05.2010 to 31.08.2010 and accused Shah Alam from 15.05.2010 to 08.12.2010.
33. There can be no conviction solely on the basis of abscondence as it is a very small circumstance. Abscondence may be due to some several reasons. But in the case in hand, the accused persons did not explain the reason of their absconding. They merely stated that they were present at home. But that statement is false. On this score, the case of the prosecution is well covered by Sujit Biswas vs. State of Assam, (2013) 12 Supreme Court Cases 406, wherein, it was held:
22. Whether the abscondence of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kukmar Mondal vs. State of W.B. wherein the Court observed:
"27. In Matru v. State of U.P. this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under:
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 38 of 48 '19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of selfpreservation. The act of absconding is no doubt relevant piece of evidence to be considered alongwith other evidence. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter, he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.'.
28. Absondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjeet that mere absconding by the appellant after after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusion either of guilt or of guilty conscience".
State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 39 of 48 While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru and State of M.P. v. Paltan Mallah.
23. Thus, in a case of this nature, the mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstance, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See Paramjeet Singh v. State of Uttarakhand & S.K. Yusuf v. State of W.B.)".
34. RECOVERY:
The prosecution and accused are admitting that no robbed article was recovered from any of the accused persons. As per prosecutrix, Rs. 60,000/ cash, a gold necklace, four gold bangles, three chains, five pairs of jhumkas, jhallas, earrings, etc. and about 2 kg of silver jewellery like tagri, guccha and pajeb, etc. and Nokia N95 mobile phone were robbed by the accused persons.
But, if the testimony of a rape victim is consistent and trustworthy, non recovery of robbed articles does not cause any dent to prosecution case. In the case in hand, the evidence of the prosecutrix is consistent thoroughly. She is corroborated by her son and daughter. Recovery of any article, is used just to corroborate the State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 40 of 48 testimony of the star witness. In the case in hand, the corroboration is provided by PW17, PW21 and other circumstantial evidence instead of robbed articles. To the same effect was held in Shri Balram v. State, Crl. A. 956/15 decided by Hon'ble Delhi High Court on 18th October 2016 and Krishna vs. State (Govt. of NCT) of Delhi, Crl. A. 979/13 decided by Hon'ble Delhi High Court on 6th February 2015.
35. It is the case of the prosecution that the accused persons had trespassed in the house of the victim by breaking iron grill of door of H. No. C1325. When IO alongwith his team reached, three iron grills were lying there. Those iron grills were taken into possession and have been identified by witnesses as Ex.P2. While fleeing away from the spot, the accused persons had left a knife Ex.P3 on the bed which alongwith iron grill pipes was seized vide seizure memo ExPW4/B. These recoveries have been proved by prosecutrix, PW20 HC Gajender Singh and PW31 IO SI Narender. Sketch Ex.PW20/A of the knife (khukhri) was also prepared. Length of its blade is 20.7 cm and total length was 32.01 cm.
Accused Ramjan @ Pagla was arrested on 08.06.2010 and button actuated knife was seized from him in his personal search which was taken into possession vide memo Ex.PW1/E by IO in the presence of PW11 Ct. Bijender. Its sketch Ex.PW11/D was prepared. Length of the blade was found as 10.7 cm, breadth as 2.5 State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 41 of 48 cm and total length of the knife was 23.4 cm.
The recovery from the spot and from accused Ramjan @ Pagla also corroborate the prosecution story.
36. INJURIES:
PW7 Dr. Seema identified the signatures and handwriting of Dr. Sumitra who had medically examined victim internally on 02.05.2010. She deposed that the victim had no fresh external injuries. There was no bleeding, no discharge and no laceration. There was no bleeding from the vagina. As per MLC Ex.PW7/A, the prosecutrix had no external injury on both breasts.
As per the evidence of PW7 and MLC Ex.PW7/A, the prosecutrix had no external or internal injury. As per victim, first all four accused persons entered in her house at 3.00 am, three accused persons put knife upon her and two children and fourth accused removed cash and jewellery from iron almirah. Thereafter, one accused put knife upon her son and three other accused took her to another room and committed rape turn by turn. Two accused persons had also oral sex with her. So, before committing rape, the victim was put under the fear of not only of her death but also of her two children. In that situation, no lady can be expected to oppose the misdeeds being committed with her. There was complete submission and hence, the prosecutrix did not suffer any injury and so, absence of any external or internal injury on her body, is of no State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 42 of 48 help to any of the accused persons.
37. PW13 WHC Asha deposed that after medical examination of the victim, the doctor handed her over two exhibits and a sample seal in sealed condition which she gave to the IO who seized the same vide seizure memo Ex.PW13/A. The seizure memo shows that two sealed pullandas were seized by the IO. One pullanda was a paper box and the other was containing sexual evidence collection kit. The paper box i.e. envelope as per seizure memo was containing torn salwar and jampher of the victim. There is no mention that the envelope was containing underwear of the victim also.
But it has been deposed by the victim expressly that her underwear was seized in the hospital. HC Asha also deposed that she had handed over two sealed parcels to the IO. That fact has been admitted by the IO also saying that he deposited the case property with MHC(M). PW16 MHC(M) HC Rajesh Kumar deposed that two sealed parcels and a sample seal were deposited with him by IO on 02.05.2010. He next deposed that on 29.07.2010, he handed over four sealed pullandas and three sample seals to Ct. Bijender for deposit in FSL, vide R.C. No. 72/21/10. The proceedings done by MHC(M) are corroborated vide documents like register no. 19 Ex.PW16/A, R.C. Ex.PW16/B and acknowledgment receipt Ex.PW16/C. It has been deposed by PW33, FSL expert that the State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 43 of 48 exhibits received in the FSL were in intact condition as their seals matched with the seals mentioned in the forwarding letter. As per her report, she had examined underwear of the prosecutrix also. So, there is consistency in the prosecution case right from taking into possession of underwear from hospital till its production in the court as Ex.P1. Definitely, there is a slight omission that the IO did not mention specifically in seizure memo Ex.PW13/A that paper envelope was containing an underwear also alongwith her other clothes. But that omission is of no help to any of the accused because it has been proved by other witnesses that the underwear of the victim was definitely seized in the hospital, deposited in the malkhana and was sent to FSL for examination and the same was found stained with human semen.
As per FSL report dated 09.05.2011, whitish smear and underwear of the prosecutrix were found stained with human semen. It is pertinent to mention that the rape was committed at about 3.30 am and the victim was medically examined at 9.45 am on the same day and clothes and samples were seized at that time. The FSL report suggests that sexual intercourse had definitely taken place with the victim. Only point to be seen is whether it was with or without her consent. On this issue, she deposed that it was without her consent and hence, the presumption U/s 114 (A) of Indian Evidence Act comes into play. The case of the prosecution is State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 44 of 48 covered by State of Rajasthan vs. Roshan Khan & Ors., Criminal Appeal No. 7980 of 2005 decided on 15th January 2014, wherein it was held by Hon'ble Apex Court: "14. Thus, the evidence of the prosecutrix (PW
2) is clear that all the six respondents, Akbar, Jangsher, Roshan, Yakoob, Kadar and Shafi, committed rape on her without her consent and forcibly. This evidence of the prosecutrix (PW2) is also corroborated by the evidence of the informant (PW1), who had himself witnessed Akbar committing rape on the prosecutrix. PW 2 had also informed PW1 soon after the rape by the accused persons that not only Akbar but the other five respondents also had forcibly committed rape on her. The evidence of PW1 and PW2 that all the six respondents had committed rape on the prosecutrix is also corroborated by the complaint (Ext.P1) made by PW1 to the police within a few hours of the incident as provided in Section 157 of the Indian Evidence Act. Dr. Ramlal (PW7) has opined after medically examining the prosecutrix that there was nothing to suggest that she had not been raped. To confirm whether rape was committed on the prosecutrix by the six accused persons, the vaginal swab and vaginal smear as well as salwar and kameej of the prosecutrix and the pants and underwears of the accused persons were sent by the letter (Ext.P31) to the FSL, Rajasthan, and as per the report of the FSL, Rajasthan (Ext.P39), human semen was detected in the vaginal swab and vaginal smear (Exts.1 & 2 from packet 'A'), salwar and kameej of the prosecutrix (Exts.3 & 4 from packet 'B'), two pants (Ext.5 from packet 1, and Ext. 8 from State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 45 of 48 packet 3) and two underwears (Ext.7 from packet 2, and Ext.10 from packet 4). The medical evidence, therefore, also corroborates the evidence of PW1 and PW2 that there was sexual intercourse between the prosecutrix and the accused persons.
15. We cannot accept the submission of Mr. Siddharth Dave, learned amicus curiae for respondent No.5 that the finding given by the High Court that the prosecutrix may have gone with the accused persons on her own is a plausible one and should not be interfered with under Article 136 of the Constitution. As we have already noticed, the prosecutrix (PW2) has deposed categorically that all the six persons had raped her without her consent and forcibly. Section 114A of the Indian Evidence Act, 1872 clearly provides that in a prosecution for rape under clause (g) of subsection (2) of Section 376, IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Since the prosecutrix (PW2) has categorically said that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. The defence has not led any evidence to rebut this presumption. In our considered opinion, the High Court could not have, therefore, held that there were circumstances to show that PW2 had gone on State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 46 of 48 her own and on this ground acquitted the respondents".
38. DD NO. 6B:
The prosecutrix deposed that just after the incident, she called her tenant PW3 downstairs and told him about the incident and he gave information to police on 100 number. PW3 admitted that initially, the prosecutrix told him only about robbery. Simultaneously, he deposed that she had told him about rape also but after sometime. On his information, DD No. 6B was registered at 3.45 am to the effect that there was theft in H. No. C1326, Jahangirpuri.
After the incident of robbery and rape, one can imagine the mental condition of the victim. In that state of mind, no person is expected to tell everything in one go. That is why, she told PW3 only about theft/robbery giving rise to DD No. 6B at 3.45 am. But when she was medically examined at 9.45 am, a lot of time had elapsed from the incident which was sufficient for her to relax and to come into proper state of mind. At that time, she told the doctor that when she alongwith her daughter and son was sleeping in her house, there came four unknown persons at 3.30 am by breaking the door and took out jewellery and money on the point of sharp weapons. She further told the doctor that three persons committed sexual assault with her body. Hence, it is held that when she told PW3 State Vs. Ramjan @ Pagla etc. SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 47 of 48 about the incident, the prosecutrix was not in complete sense and when she came out of traumatic mental condition, she told about the rape also to the examining doctor.
39. CONCLUSION:
In view of above discussion, all accused persons are held guilty U/s 458/34 and 376(2)(g) IPC. Accused Nasiruddin @ Boba, Sheikh Jahangir and Shah Alam are held guilty U/s 395 IPC also. Accused Ramjan @ Pagla is held guilty U/s 397 IPC.
UMED Digitally signed
by UMED
SINGH SINGH GREWAL
Date: 2019.12.12
GREWAL 17:23:48 +0530
Announced in the open Court (Umed Singh Grewal)
On this 10th December 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Ramjan @ Pagla etc.
SC No. 57593/16; FIR No. 153/10, PS Jahangirpuri Page No. 48 of 48