CRL.A. No. 486/2002 Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO. 486 OF 2002 Reserved on : 20th April, 2010. % Date of Decision 6th July, 2010. PREMWATI W/O KHICHCHU .... Appellant. Through Mr.Anup Bhambani, Ms.Nisha Bhambani, advocates. VERSUS STATE OF NCT OF DELHI & ANOTHER …..Respondents. Through Ms. Fizani Hussain, advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? YES 3. Whether the judgment should be reported in the Digest ? YES SANJIV KHANNA, J.: 1. The appellant-Premwati by the impugned judgment dated 12th December, 2001 has been convicted under Section 109 read with Section 376 and Section 366A of the Indian Penal Code, 1860 (hereinafter referred to as IPC, for short) and by the order dated 13th December, 2001 has been sentenced to rigorous imprisonment of 7 years for the offence under Section 109 read with Section 376 IPC with a fine of Rs.1,000/- and in default to suffer simple imprisonment of 3 months. The appellant has been sentenced to rigorous imprisonment of 5 years and a fine of Rs.1,000/- and in default thereof to suffer simple imprisonment for 3 months for the offence under Section 366A of IPC. CRL.A. No. 486/2002 Page 2 2. Learned trial court has held that the appellant had abetted the commission of offence of rape on the prosecutrix by one Mr. Shiv Kumar in furtherance of their common intention during the period 7th to 30th August, 2000 in the house of the appellant. The trial Court has also held that the appellant had connived with Mr. Shiv Kumar to induce the prosecutrix, a minor girl, with the intent or knowing that it was likely that she would be forced into an illicit intercourse with another person. The said Mr. Shiv kumar could not be arrested and has been declared a proclaimed offender. The appellant was acquitted from the charge of gang rape under Section 376(2)(g) readwith Section 34 IPC, charge of kidnapping, concealment/abduction of a kidnapped person under Sections 363 and 368 and charge under section 506 Part II readwith 34 IPC. 3. To prove and establish the prosecution case, 11 witnesses were examined. There is no eye witness but the prosecutrix was examined as PW-2.The first question is whether the statement of prosecutrix is trustworthy, whether it inspires confidence and justifies conviction of the appellant. The prosecutrix is a minor girl, who was aged around 13 years when she was examined in the court on 30th April, 2001. She belongs to a very poor and a humble background. She was working in a bangle factory and was also employed as a domestic help in a house and used to reside in the said house at night. Her mother Salma, who is also known as Yasmin, sometime before 7th August, 2000 had got re-married to one Alam. The prosecutrix was the eldest amongst her brothers and sisters. All of them, except the prosecutrix were residing with Salma even after she got married to Alam. The prosecutrix in her statement has stated that about 7/8 months back she had gone to the house of her aunt (khala) Shabnam to enquire about the new residence of her mother. Her Uncle, Shabnam‟s husband gave her details of the new residence of the prosecutrix‟s mother. Thereafter, she went searching for her mother‟s new house. On the way, she saw Alam and changed her route and went into another street. She met Premwati at the entrance of her house and enquired if she was aware of the new premises of Salma (Yasmin). Premwati replied in negative and on prosecutrix‟s request, she gave her a glass of water. The prosecutrix sat with Premwati and told her that she was searching for the house of her CRL.A. No. 486/2002 Page 3 mother and father. On a suggestion made by Premwati, the prosecutrix agreed to stay with her. It may be relevant to reproduce here what happened thereafter in the words of the prosecutrix herself, in the statement recorded in the trial court:- “On the same day when I went to the bathroom for taking bath. Premwati touched my abdomen and said that I was pregnant. I denied said suggestion by her. At abround (sic) 5/6 pm Premwati sent me to the house of Shiv Kr. alongwith some child. Shiv Kr. was not available at his house. Thereafter I came back to the house of Premwati. After sometime Shiv Kr. came to the house of Premwati and enquired from me if I had visited his house. I told him that I was sent there by aunty, Prem Wati. On this Premwati said that I had visited the house of Shiv Kr. of my own and not on her instance. On this Shiv Kr. started reprimanding me. He told me that I should not visit his house to call him because on seeing me his mother would get angry. After some time Shiv Kr. enquired from me if I wanted to eat something but I refused. Thereafter Shiv Kr. made a pass on me by moving his hands on my body. On this Premwati said, “INHE HATH PIRANE KI ADAT HA”. Shiv Kr. then requested Premwati to go the fetch, PANI BETASA”. Premwati left and came back with pears. We all had nashpati. Thereafter Shiv Kr. left. but I stayed at the house of Premwati. Late in the night at around 11/12, Shiv Kr. again came to the house of Premwati. After sometime Shiv Kr. asked, “WHO DEGI”. When I told him that I could not get his meaning he made a gesture with his hand. Thereafter Premwati close the door of said room from inside. and she caught hold of my hands. Accused Shiv Kr. untied narra of my salwar and removed my salwar. When I shouted accused Premwati cubbed my faced with her hands. Thereafter accused Shiv Kr. forcibly had sexual intercourse with me. Accused Shiv Kr. kept on raping me for the next 5/6 days. He rapped me on all those days. During said period whenever accused Premwati use to leave her house she use to lock me inside.” CRL.A. No. 486/2002 Page 4 4. The aforesaid statement speaks for itself. The young prosecutrix, who was barely in her teens, has been able to narrate and state the horrid time she went through. Her courage and determination are praiseworthy. 5. Learned counsel appearing for the appellant had submitted that there was no reason and cause for the prosecutrix to stay in the house of Ms. Premwati after her alleged initial conduct when she touched prosecutrix‟s abdomen and when Mr. Shiv Kumar had made a pass on her in the evening by moving his hands on her body. It was submitted that the prosecutrix did not make any attempt to run away or protest during the period from 7th to 30th August, 2000 and in her cross-examination she has admitted that she had gone for a bhandara for 3 to 4 days to a „registan‟ but did not narrate the allegation of rape or complain to anyone. It was pointed out that the prosecutrix had admitted that in the house of the appellant there was another occupant who was the owner of the building, who had a wife and two children. It was submitted that the facts stated by the prosecutrix should not be believed because the prosecutrix did not make any attempt to talk/protest to the other occupants, or inform anyone else or third parties though she had opportunity and could have easily communicated with them. 6. The fact that the prosecutrix was taken to a bhandara is also mentioned and stated by the prosecutrix in her statement under Section 164 of the Code of Criminal Procedure, 1973(Code, for short), Exhibit PW11/B, which was recorded on 25th September, 2001 before Mr. M.K Nagpal, Metropolitan Magistrate, PW -11. In her cross-examination, the prosecutrix stated that she did not inform about the rape and the mistreatment met out to her as the persons present at the bhandara were relatives and friends of the appellant. 7. While examining the contentions raised by the counsel for the appellant, one has to keep in mind the mental condition of the prosecutrix and the factual background of the case when she was with the appellant. She was a young, simple girl barely in her teens already working in a bangle making factory and also working as a domestic help. She had CRL.A. No. 486/2002 Page 5 small brothers and sisters. Her mother had got remarried to one Alam, someone she disliked. The mother had shifted her house with her brothers and sisters, without informing the prosecutrix about her new house number. The prosecutrix was yearning for love and affection which a child of her age requires and craves for, from parents and elders. Her vulnerability and helplessness are easy to appreciate and visualize in case we read following statement made before the court:- “…………..My uncle had told me that my mother was residing at 36 Berha, therefore, I proceeded for 36 Berha to meet my mother, when I reached at the gali near dispensary Gamli road, I met Alam who was previously known to me. On seeing him I changed my route and went into other Gali. In that gali I met Premwati who was sitting at the entrance of her house. I enquired from said Premwati if Yasmin has recently taken any premises in rent in the area. On this Premwati replied in the negative. Thereafter I requested Premwati for a glass of water Prem Wati made me to sit and give me water. On enquiry by Premwati I told her that I was searching for the house of my mother and father. Premwati asked me as to where I would go. I told her that nobody would keep me. On this Premwati offered that I should stay with her. I agreed to the proposal. “ 8. The appellant Premwati obviously took advantage of the situation by tempting the prosecutrix, by talking to her, showing concern, by giving her a place to reside, a place to wash and clean herself, and providing her with food. It is also easy to appreciate the reason why prosecutrix did not protest or talk between 7th to 30th August, 2000, even when she was at a bhandara for 3 to 4 days. Apparently, she was well provided for and looked after during this period. Her innocence, poverty and destitution made her vulnerable and were fully exploited. Deprivation and denial of love and affection and basic material needs made her gullible. In any case, question of consent is immaterial in view of the age of the prosecutrix. Moreover, she was afraid as she did not know the persons who were present at the bhandara. In her statement the prosecutrix has stated that the said persons were either relatives or friends of Premwati. She would CRL.A. No. 486/2002 Page 6 have been nervous and frightened to make allegations lest she was harmed or dumped somewhere. She has stated that she managed to escape at the first opportunity after Premwati had taken her to a house of an old man who sells milk. Thereafter, she ran to the house of her aunt (khala) Shabnam and narrated the entire story. The aunt (khala) Shabnam, PW-6, was declared hostile and was cross-examined by the public prosecutor. In her cross-examination, she admitted that her niece had gone missing/untraceable after she had come to her house and reappeared on 30th August, 2000, when she narrated the entire story. Shabnam‟s husband Nizamuddin was examined as PW4. He reiterated that the prosecutrix had gone missing after she had come to their house asking for her mother‟s new address, which he had given to her. On 30.8.2000 the prosecutrix suddenly reappeared after 20/22 days and was taken to the police station. PW-5, Salma, the mother, has stated that she had gone to her native place in Dist. Bijnor, but her daughter, the prosecutrix had stayed back and was residing at night in the house of one Dr. Shajad. She has stated that the prosecutrix had gone missing and after she returned she had narrated the entire story. In her initial complaint to the police about disappearance of the prosecutrix, she had suspected involvement of PW-6, Shabnam and her husband Mr. Nizamuddin, PW-4. This was natural for her when the police asked her whether she suspected anyone, as the prosecutrix had gone to their house just before her disappearance. This does not make the case of the prosecution weak or untrustworthy. The contention of the appellant that she has been wrongly implicated as she had sold her plot to Mr. Shiv Kumar and because of the sale, Ms. Salma, PW-5, mother of the prosecutrix wanted to extract money, hardly requires any reference and has to be rejected as nothing but a sham and an unsubstantiated allegation. Statement of the prosecutrix, PW-2 before Mr. M.K. Nagpal, Metropolitan Magistrate under Section 164 of the Code, Exhibit PW-11/B is identical in all material aspects to the statement recorded before the court when the prosecutrix had appeared for examination. 9. Dr. Rashmi, Pool Officer, GTB Hospital,PW10, has proved the MLC of the prosecutrix, which was prepared and signed by Dr. Chanchal and is CRL.A. No. 486/2002 Page 7 marked Exhibit PW-10/A. The X- ray of the prosecutrix is PW-10/B and as per the X- ray report, the prosecutrix was between the ages of 12 to 14 years. In the MLC, PW-10/A, it is mentioned that no wounds were visible but the same records that the patient, i.e., prosecutrix had disclosed alleged history of sexual assault by one Mr. Shiv Kumar. The hymen was found to be old torn and healed. 10. It was submitted by the counsel for the appellant that the trial court had framed charges under Section 363/34, 368, 506 part II read with Section 34 IPC and Section 376(2)(g)/34 IPC but the conviction is under different sections, i.e., Section 109 read with Section 376 and 366A of the IPC. It was pointed out that no charges were framed under the said sections. Attention was drawn to the findings in the impugned judgment wherein it is recorded that no case of kidnapping etc. under Section 366/368 IPC is made out. Learned counsel had drawn my attention to the fact that charge under Section 376(2)(g) of the IPC cannot be sustained in view of the decision of the Supreme Court in Priya Patel v State of M.P AIR 2006 SC 2639. Lastly, my attention was drawn to the finding recorded by the trial court that the appellant has not been convicted under Section 506 II of the IPC by giving her benefit of doubt/no evidence. 11. It may be relevant to reproduce below the charges, which were framed against the appellant vide order dated 15th March, 2001:- “ That you Premwati alongwith you co- accused Shiv Kr. (Proclaimed Offender) infurtherance of your common intention on or about 7-8-2000, sometime after 1pm, at Gali No. 2, Jai Parkash Ngr. Usman Pur, Delhi, Kidnapped a minor girl (prosecutrix) D/o Furkan age about 12 to 14 yrs. from the lawful guardianship of her mother Salma and thereby you committed an offence punishable U/s 363/34 IPC, within my cognizance. Secondly, you Premwati on the aforesaid place for a period of 5 or 6 days from 7-8-2000 concealed and confined prosecutrix having knowledge that she had CRL.A. No. 486/2002 Page 8 been kidnapped from the lawful custody of her mother Salma and thereby you committed an offence punishable U/s 368 IPC, within my cognizanace. Thirdly, you during the aforesaid period and on the aforesaid place infurtherance of your common intention with your co-accused Shiv Kr. (Proclaimed Offender) criminally intimidated prosecurtix by threatening her that if she resisted the rape and wept, her brother and sisters would be killed and you thereby committed an offence punishable U/s 506 part II read with Section 34 IPC, within my cognizanace. Fourthly, you Prem Wati during the aforesaid period and at the aforesaid place in furtherance of your common intention with your co-accused Shiv kr. (Proclaimed Offender) was party to gang rape committed on minor by your co-accused Shiv Kumar and thereby you committed an offence punishable U/s 376 (g)/34 IPC and within my cognizance. And I hereby direct that you be tried by this court for the above charges. ” 12. The Supreme Court in Willie (William) Slaney versus State of Madhya Pradesh, AIR 1956 SC 116 observed that the Code is a procedural law and, therefore, has to be interpreted in a manner that does not frustrate ends of justice by introduction of needless technicalities. The object of the Code is to ensure that the accused gets a full and a fair trial as per certain well established and well understood principles that accord with our notions of natural justice. Vivan Bose J. observed that in procedural laws disregard of provisions of certain nature can be fatal to trial and at once can invalidate the conviction but certain other procedural aspects may not be fatal and the irregularities can be cured and in that event conviction must stand unless the court is satisfied that there was CRL.A. No. 486/2002 Page 9 prejudice. Further, the Code has dealt with some aspects and full effect must be given to these provisions. The courts have to administer justice and justice requires punishment of the guilty as much as protection of the innocent and this essence of the Code should not be lost in technicalities. Principles of natural justice and fair play must be brought to bear, when determining a matter of prejudice as in indulging guilt. The courts are concerned to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities be, whether traceable to charge or want of one. Vivan Bose J. held: “17. This, we feel, is the true intent and purpose of Section 537(a) which covers every proceeding taken with jurisdiction in the general phrase “or other proceedings under this Code”. It is for the Court in all these cases to determine whether there has been prejudice to the accused; and in doing so to bear in mind that some violations are so obviously opposed to natural justice and the true intendment of the Code that on the face of them and without anything else they must be struck down, while in other cases a closer examination of all the circumstances will be called for in order to discover whether the accused has been prejudiced. 18. We now proceed to examine the relevant sections of the Code, Chapter XLV deals generally with irregular proceedings. There are certain irregularities which do not vitiate the proceedings. They are set out in Section 529. No question of prejudice arises in this class of case because the section states categorically that they shall not vitiate the proceedings. Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice. These are set out in Section 530. A third class is dealt with in Sections 531, 532, 533, 535, 536(2) and 537. There, broadly speaking, the question is whether the error has caused prejudice to the accused or, as some of the CRL.A. No. 486/2002 Page 10 sections put it, has occasioned a failure of justice. The examples we have given are illustrative and not exhaustive. What we are seeking to demonstrate is that the Code has carefully classified certain kinds of error and expressly indicates how they are to be dealt with. In every such case the Court is bound to give effect to the express commands of the legislature: there is no scope for further speculation. The only class of case in which the Courts are free to reach a decision is that for which no express provision is made.” 13. In a subsequent paragraphs Vivan Bose J. has opined “43. Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done, what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. 44. In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be CRL.A. No. 486/2002 Page 11 material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended by counsel (Atta Mohammad v. King-Emperor) it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that “no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused” (Abdul Rahman v. King-Emperor). But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases “however” alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as