CRL. APPEAL NOS. 222/2001 & 262/2001 Page 1 of 30 HIGH COURT OF DELHI: NEW DELHI + CRL. APPEAL NO. 222/2001 & CRL. APPEAL NO. 262/2001 % Judgment reserved on: 11th November, 2009 Judgment delivered on: 20th November, 2009 BHAGWAN DASS @ MITTU ..... Appellant Through: Mr. Vineet Malhotra, Mr. K. Singhal and Mr. Shanker Chhabra, Advs. Versus STATE .....Respondent Through: Mr. Lovkesh Sawhney, APP WITH VINOD KUMAR @ BITTU .......Appellant Through: Mr. Vineet Malhotra, Mr. K. Singhal and Mr. Shanker Chhabra, Advs. Versus STATE .....Respondent Through: Mr. Lovkesh Sawhney, APP Coram: HON’BLE MR. JUSTICE A.K. PATHAK 1. Whether the Reporters of local papers may be allowed to see the judgment? Not necessary 2. To be referred to Reporter or not? Not necessary 3. Whether the judgment should be reported in the Digest? Not necessary CRL. APPEAL NOS. 222/2001 & 262/2001 Page 2 of 30 A.K. PATHAK, J. 1. Vide judgment dated 24th March, 2001 learned Additional Sessions Judge, Delhi, convicted appellants namely Bhagwan Dass @ Mittu and Vinod Kumar @ Bittu along with their co-accused Ghanshyam (since deceased), under Sections 366 and 376(2)(g) of the Indian Penal Code (for short hereinafter referred to as “IPC”); by an order dated 26th March 2001 appellants had been sentenced to face rigorous imprisonment for ten years and to pay fine of Rs. 5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for the period of two years each for the offence under Section 376(2)(g) IPC; to further undergo rigorous imprisonment for seven years and to pay fine of Rs. 4,000/- each under Section 366 IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of eighteen months each. Both the sentences were directed to run concurrently. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 3 of 30 2. Aggrieved by their conviction and sentence, appellants have preferred the present appeals. Since both the appeals arise from the same judgment and order on sentence, they are being disposed of together. 3. Briefly stated, prosecution case is that on 20th April, 1983, the prosecutrix and her younger sister were alone in their house, as their parents had gone to their native place. At about 11:30 pm accused Vinod Kumar @ Bittu and Ghanshyam knocked the door. On prosecutrix opening the door, at the instance of accused Vinod Kumar @ Bittu, accused Ghanshyam asked her to accompany them and when she resisted, accused Ghanshaym took out a knife from the pocket of his pyjama and threatened her with dire consequences. Prosecutrix got frightened and accompanied them. Accused Ghanshyam also threatened the sister of prosecutrix that in case she raised alarm or informed about this to anyone, she would be killed. Outside the house, CRL. APPEAL NOS. 222/2001 & 262/2001 Page 4 of 30 accused Bhagwan Dass @ Mittu and Lal Babu (P.O.) also joined them. They took the prosecutrix to the house of accused Ghanshyam, where accused Bittu remained downstairs while the remaining accused took the prosecutrix to the second floor through the back staircase of the said house. Accused Bhagwan Dass @ Mittu gagged the mouth of prosecutrix; whereas accused Lal Babu caught hold of her hands and made her to lie on the floor. Accused Ghanshyam removed salwar and underwear of prosecutrix and at that stage accused Bhagwan Dass @ Mittu and accused Lal Babu went out. Accused Ghanshyam committed rape upon the prosecutrix. Prosecutrix gave a fist blow on the chest of accused Ghanshyam at which he gave a fist blow on the face of prosecutrix below her eye, resulting in injury to her. She also bit the accused Ghanshyam on his chest. When prosecutrix resisted, accused Ghanshyam took out a knife and pointed it towards her and when she tried to catch the CRL. APPEAL NOS. 222/2001 & 262/2001 Page 5 of 30 knife she sustained injuries on index finger of her right hand. On seeing blood oozing out from her finger she got dead frightened. Prosecutrix also sustained bruises on her elbows while putting up resistance. On hearing some noise coming from the gali, accused Ghanshyam left her and went away. Thereafter, prosecutrix wore her clothes and returned to her house after jumping the partition wall of the neighbouring house. In the morning she went to her sister‟s house at Jhandewalan and disclosed the incident to her. Thereafter prosecutrix along with her brother-in-law and sister went to Police Post Rajinder Nagar and made a statement before Sub Inspector Pishori Lal. 4. On the basis of statement of proseuctrix, SI Pishori Lal (hereinafter referred to as I.O.) wrote a rukka and pursuant thereof FIR No. 101/83 was registered at Police Station Rajinder Nagar under Sections 376/506 read with 34 IPC. Prosecutrix was sent to Lok Nayak Jai Prakash Hospital CRL. APPEAL NOS. 222/2001 & 262/2001 Page 6 of 30 (L.N.J.P.) for medical examination where factum of rape was confirmed. Underwear and salwar of the prosecutrix were also taken in possession and sealed. 5. Statement of prosecutrix under Section 164 Cr.P.C. was recorded before the Metropolitan Magistrate. During the investigation, shawl of the prosecutrix was seized from the spot. Accused persons were arrested. Accused Ghanshaym got recovered the knife from a trunk lying in his house which was seized vide a seizure memo. Accused Ghanshyam was also got medically examined. His semen sample was taken; his underwear and pyjama, which he was wearing at the time of arrest, were also seized. Pyjama, underwear and semen sample of the accused along with salwar, underwear and vaginal swab of the prosecutrix were sent to Central Forensic Science Laboratory (CFSL), Delhi and its report was obtained. Statement of witnesses were recorded by the I.O. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 7 of 30 6. After completion of investigation, charge sheet was filed in the court of learned Metropolitan Magistrate, who took cognizance of the offence and after supplying the copies of the documents to the accused persons, committed the case to the Sessions court for trial as offences under Section 366/376 IPC are exclusively triable by the Sessions Court. 7. Charges under Sections 452/366/506/376(2)(g) read with Section 34 IPC were framed against the appellants and accused Ghanshyam. Separate charge under Section 27 of the Arms Act was also framed against the accused Ghanshyam. Accused persons pleaded not guilty and claimed trial. 8. During trial, prosecution examined fifteen witnesses in all. Prosecutrix was examined as PW1. Her sister Ms. Asha Rani was examined as PW2. Brother-in-law of the prosecturix namely Ashok Kumar was examined as PW3. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 8 of 30 Shri Fauja Singh, father of the prosecutrix, was examined as PW6. SI Pishori Lal, who had investigated the case, was examined as PW15. Other witnesses are formal in nature either being police officials or doctors. 9. After prosecution closed evidence, statement(s) of the accused persons under Section 313 Cr.P.C. were recorded. Accused persons denied their complicity in the crime and claimed themselves to be innocent. Accused Vinod Kumar @ Bittu stated that he was innocent and had been falsely implicated. No reason was given by him as to why he was falsely implicated. No defence evidence was lead by him. Accused Bhagwan Dass @ Mittu also took similar plea, which was taken by the accused Vinod Kumar @ Bittu. He also did not lead any evidence in his defence. 10. After hearing the arguments of learned counsel for accused persons and scrutinizing the entire ocular and documentary evidence on record, learned Additional CRL. APPEAL NOS. 222/2001 & 262/2001 Page 9 of 30 Sessions Judge held that the testimony of prosecturix was trustworthy and reliable, inasmuch as her testimony was supported by both the medical and scientific evidence. Learned Additional Sessions Judge concluded that the prosecution had succeeded in proving its case beyond the shadow of reasonable doubt that the accused persons had forcibly taken the prosecutrix from her house, in furtherance of their common intention, whereafter, prosecutrix was raped by accused Ghanshaym in his house with the help of other co-accused persons namely Vinod Kumar @ Bittu and Bhagwan Dass @ Mittu. Learned Additional Sessions Judge held that intention of all the accused persons, as it was borne out from the record, was to abduct the proseuctrix for the purpose of sexual assault. Consequently, appellants along with accused Ghanshyam were convicted under Section 366 as well as 376(2)(g) IPC. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 10 of 30 11. As per learned Additional Sessions Judge, minor discrepancies, as pointed by the learned counsel in the cross examination of the prosecutrix, had no bearing on the merits of the case. Plea taken by the learned counsel for the accused that there was delay in lodging the FIR was also not acceptable as incident took place in the middle of night, inasmuch, as the prosecutrix had returned home at about 2:00 am, at which point, she was not expected to go to Police Station to lodge a complaint, more so when there was no male member available in the house. In the morning she went to her sister‟s house and thereafter to the Police Station and her this conduct was quite natural. 12. I have perused the testimony of prosecutrix PW1 and find the same to be trustworthy and reliable. Her testimony had remained unshattered in her cross examination on material points. Her version is also corroborated from the medical evidence as injury/bruises were found on her face and elbows. Semen found on her underwear was of the CRL. APPEAL NOS. 222/2001 & 262/2001 Page 11 of 30 same group which was found on the underwear of the accused Ghanshyam i.e. „A‟ group. However, I am of the view that so far as accused Vinod @ Bittu is concerned, he is entitled to benefit of doubt as far as offence under Section 376 is concerned, as prosecutrix had given different versions at different stages of investigation and the trial, as regards his presence at the time of rape. In the FIR she had stated that accused Bittu remained downstairs while the other accused took her to second floor; in her statement under Section 164 Cr.P.C. she stated that Bittu was asked to go to back by the accused Ghanshyam while they were on their way to the house of Ghanshyam; but in her deposition in the court, she stated that accused Bittu also went upstairs. 13. So far as kidnapping is concerned, from the testimony of PW1 it is clear that accused Bittu, accused Mittu along with their co accused Ghanshyam and Lal Babu had kidnapped the prosecutrix knowingly well that prosecutrix may likely to be forced or seduced to illicit intercourse. So far as accused Mittu is concerned, he had even played overt acts while accused Ghanshyam forcibly raped the prosecutrix. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 12 of 30 14. Prosecutrix PW1 has categorically deposed that on 20th April, 1983, she along with her younger sister was alone in the house when at about 11:30 pm someone had knocked the door, on inquiring as to who was at the door, accused Bittu responded by saying that he had some work with her. After prosecutrix opened the door Ghanshyam and Vinod Kumar @ Bittu were found standing there; appellant Ghanshyam asked her to accompany them and when she showed reluctance he took out a knife from his pyjama and threatened that if she did not accompany them he would kill her and her sister. She as well as her sister got scared and started weeping. Accused Ghanshyam kept the knife at her back and ordered her to move. He also threatened her sister to stop weeping, otherwise, she would be done to death. At some distance she saw accused Lal Babu and Mittu and they also joined them. Accused Lal Babu (P.O.) and Mittu started walking ahead of her; while accused Ghanshyam and accused Bittu were following her, with the knife at her back. The accused took her to the second floor of the house of accused Ghanshyam from the back stair case of the said house. Lal Babu muffled her face with his hands while CRL. APPEAL NOS. 222/2001 & 262/2001 Page 13 of 30 accused Mittu caught hold of her legs. Thereafter accused Ghanshyam forcibly opened her salwar and underwear. After her clothes were removed other accused persons went out and accused Ghanshyam put his hand on her mouth. Prosecutrix gave a blow on the chest of accused Ghanshyam at which he gave a blow on her left cheek. Accused Ghanshyam pulled out a knife and when she tried to catch the knife she received injuries on index finger of her right hand. Then accused Ghanshyam committed rape upon her. She raised alarm. Someone shouted from the downstairs, at which accused Ghanshyam got up and went out. She also put her underwear and salwar and came back to her house. Since it was night time and she as well as her sister were terrified, they remained in the house. In the morning prosecutrix went to her sister‟s house and narrated the incident to her sister and thereafter she along with her sister Smt. Raj Rani and her sister‟s husband Mr. Ashok Kumar went to Police Post. Her this statement has remained unshattered in her cross examination on material points. No material discrepancy could be pointed out in her statement by the learned counsel for the accused, with regard to her CRL. APPEAL NOS. 222/2001 & 262/2001 Page 14 of 30 version about her kidnapping by the accused persons and her being raped by accused Ghanshyam with the help of co- accused Mittu. 15. Her testimony with regard to her kidnapping from her house by the accused Bittu, Mittu and co-accused Ghanshyam had been consistent throughout. Her version that accused Bittu and Ghanshyam had come to her house at about 11:30 PM, and knocked the door; after she opened the door, accused Bittu and Ghanshyam took her with them at the point of knife, with the help of accused Mittu and Lal Babu, has remained unshattered. From her statement it is clear that accused Bittu, Mittu along with accused Ghanshyam and accused Lal Babu (P.O.) took the prosecutrix from her house to the house of accused Ghanshyam at the point of a knife. It is apparent from her testimony that all the accused surrounded her while taking her from her house to the house of accused Ghanshyam. It is also apparent from her cross examination that accused persons took her from her house, up to the house of accused Ghanshyam, from the back gali and not from the main road. From the conduct of accused persons it is clear that they were sharing CRL. APPEAL NOS. 222/2001 & 262/2001 Page 15 of 30 common intention of kidnapping the prosecutrix. She was taken away from her house to the house of accused Ghanshyam, in odd hours of night i.e. at about 11:30 pm, through the back gali at the point of knife. This conduct of theirs is sufficient enough to impute knowledge on their part that the prosecutrix was likely to be forced to sexual intercourse; Even more so, when prosecutrix was in fact subsequently raped by the accused Ghanshyam at the second floor of his house with the active help of accused Mittu. Accordingly, I am of the view that learned Additional Sessions Judge has rightly convicted both the appellants persons for the offence under Sections 363/34 of Indian Penal Code. 16. I do not find any force in the arguments of learned counsel that the accused Bittu was not sharing common intention vis a vis main accused Ghanshyam. It was contended by learned counsel that accused Bittu was not aware that accused Ghanshaym was having a knife and that he would threaten the prosecutrix; That accused Bittu had not played any overt act while accused Ghanshyam took the prosecutrix with him to his house. Initially in the statement CRL. APPEAL NOS. 222/2001 & 262/2001 Page 16 of 30 made under Section 161 Cr.P.C. prosecutrix stated that accused Bittu had remained outside the house; whereas while making a statement before the Magistrate under Section 164 Cr.P.C. she stated that accused Bittu was sent back by the accused Ghanshyam from midway. While deposing in the court prosecutrix stated that accused Bittu had come up to the second floor and caught hold of her hands. According to the learned counsel this is a material discrepancy with regard to the previous statement of the prosecutrix. He has further contended that in her statement under Section 164Cr.P.C. as well as in her deposition in the court, prosecutrix had stated that someone shouted from downstairs as to who was raising alarm upstairs, at which accused Ghanshyam got up and went away and she also put on her underwear and salwar and jumped over the roof of the adjoining house and from there she returned to her house. This, according to the learned counsel, clearly showed that she was a consenting party. She had accompanied accused Ghanshyam to his house and when one of the neighbours noticed this, she ran away from there after jumping the partition wall. I do not find any force in CRL. APPEAL NOS. 222/2001 & 262/2001 Page 17 of 30 this contention of learned counsel for the accused Bittu. As far as role of accused Bittu with regard to kidnapping of prosecutrix is concerned, the same has been clearly specified by the prosecutrix and is consistent in all her statements i.e. statement under Section 154 Cr.P.C., statement under Section 164 Cr.P.C. as well as her statement made on oath in the court, during the trial. She has consistently stated that someone had knocked the door and when she enquired as to who was at the door, accused Bittu spelled out his name and told that he had some work with her. After prosecutrix opened the door, accused Ghanshyam asked her to accompany them at point of knife. He also threatened to kill her and her sister. Thereafter, accused persons took her to the house of accused Ghanshyam. It is apparent from the testimony of prosecutrix that all the accused were together while they took the prosecutrix from her house to the house of accused Ghanshyam. So far as incident of kidnapping is concerned, her testimony is consistent against all the accused persons including accused Bittu. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 18 of 30 17. However, in my view, accused Bittu is entitled to benefit of doubt as far as his participation in the offence of rape is concerned. In FIR prosecutrix stated that accused Bittu had accompanied other accused persons up to the house of Ghanshyam but remained downstairs. In her statement under Section 164 Cr.P.C. she deposed that accused Bittu was asked by the co-accused Ghanshaym to go back, while they were on their way from her house to the house of accused Ghanshyam. In her statement in the court, prosecutrix deposed that accused Bittu had played an overt act while she was being raped by accused Ghanshyam. According to her, accused Bittu caught hold of her hands before she was pinned down on the floor. Three different versions were given by her as to the role of accused Bittu with regard to the offence of rape committed by accused Ghanshyam. So far as offence under Section 376 IPC is concerned, it can be said that accused Bittu did not play any overt act. It cannot be said that accused Bittu was sharing common intention with accused Ghanshyam while he actually committed rape upon the prosecutrix. For the sake of arguments even if it is presumed that he was sharing CRL. APPEAL NOS. 222/2001 & 262/2001 Page 19 of 30 common intention with accused Ghanshyam with regard to rape of the prosecutrix initially but he had withdrawn from the actual act midway. For this reason accused Bittu is entitled to benefit of doubt with regard to his complicity in the said offence of rape. 18. Learned counsel for accused Mittu has argued that the offence was committed on 20th April, 1983. Section 376(2)(g) was substituted by way of Criminal Law (Amendment) Act 43 of 1983 on 25th December, 1983. Under the unamended Act, there was no provision of “gang rape”. Accordingly, accused Mittu could not have been convicted and sentenced by the learned Additional Sessions Judge under Section 376 (2)(g) of the Indian Penal Code. He has further contended that in view of the Article 20(1) of the Constitution, accused, Mittu could not have been convicted under Section 376(2)(g) of the Indian Penal Code, as the said provision was not in existence in the statute book as on the date of commission of offence, which took place on 20th April, 1983. Minimum punishment as prescribed under Section 376(2)(g) could not have been awarded to the accused as the same was not prescribed under the CRL. APPEAL NOS. 222/2001 & 262/2001 Page 20 of 30 unamended provision of Section 376 IPC. He has further contended that at the most accused Mittu could not have been convicted under Section 376 IPC by taking aid of Section 34 of IPC. According to him, in the facts of this case, Section 34 of IPC was not attracted since no evidence had come on record to show that the accused Mittu was sharing common intention with accused Ghanshyam, Bittu and Lal Babu (P.O.) either in the forceful kidnapping of prosecutrix or in the rape committed by accused Ghanshyam. He has contended that the liability of one person for an offence committed by another in the course of crime committed by several persons arises under Section 34 IPC only if this is done by them in furtherance of their common intention to commit such a crime. Prosecution has to show that all the accused were acting in furtherance of their common intention. Prior meeting of mind between the accused persons to commit a particular crime has to be shown by the prosecution by leading cogent evidence before Section 34 of IPC is employed in a given case. He has placed reliance on Daya Shanker vs. State of M.P. reported in 2009(1) CRL. APPEAL NOS. 222/2001 & 262/2001 Page 21 of 30 Scale 665 and Sripathi & Ors. vs. State of Karnataka reported in 2009(5) Scale 5. 19. Learned counsel has contended that from the statement of prosecutrix it is clear that accused Mittu had not accompanied accused Ghanshyam and accused Bittu while they knocked the door of the house of prosecutrix. Accused Mittu had not uttered a word while prosecutrix was taken from her house to the house of accused Ghanshyam. Merely because accused Mittu was going in the gali ahead of the prosecutrix by itself would not be sufficient to show that accused Mittu was sharing the common intention with other accused persons to kidnap her. He has further contended that prosecutrix has given different statement with regard to the role of accused Mittu at different stages of investigation and trial. Initially, she stated that accused Mittu was with other accused persons when prosecutrix was taken to the second floor and he had also gagged her mouth. Subsequently, she stated that accused Mittu caught hold of her hands. Lastly, while deposing in the court, she stated that accused Mittu remained at the ground floor while she was taken to second floor by other three accused persons. CRL. APPEAL NOS. 222/2001 & 262/2001 Page 22 of 30 Later, accused Mittu came at the second floor and caught hold of her legs. According to the learned counsel, these are material discrepancies in her statements, with regard to the role played by accused Mittu. 20. I do not find any force in the contention of learned counsel for the accused Mittu, that version of the prosecutrix cannot be relied regarding the role played by the accused Mittu. Prosecutrix has categorically stated that accused Mittu was outside her house; Accused Ghanshyam put a knife