Amit vs State
2010 Latest Caselaw 650 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision: 05th February, 2010


+                    CRL.APPEAL No.364/2005

AMIT                                            ......Appellant
              Through:      Mr.Ajay Verma, Advocate


                                    Versus

STATE                                           ......Respondent
              Through:      Mr.M.N.Dudeja, Advocate


                     CRL.APPEAL No.561/2009

RAHUL @ BUDH PRAKASH                 ......Appellant
         Through: Mr.Deepak Sharma, Advocate


                                    Versus

STATE                                           ......Respondent
              Through:      Mr.M.N.Dudeja, Advocate


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the 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

PRADEEP NANDRAJOG, J. (Oral)

1. Appellant Rahul and Amit have been convicted for

the offences punishable under Section 376 (2) (g) IPC; Section

324/34 IPC; Sections 392/397/34 IPC and Section 506/34 IPC.

Appellant Rahul is also convicted for the offence punishable

under Section 27 of the Arms Act.

2. Co-accused Mohan Lal who was charged for the

offence punishable under Section 411 IPC and Ashok Kumar

who was charged for the offence punishable under Section 212

IPC have been acquitted.

3. Pertaining to co-accused Mohan Lal,

notwithstanding the fact that a mobile phone belonging to the

victim was recovered from his conscious possession, benefit

has been given to him of not having knowledge that the

mobile phone was stolen property. Qua Ashok Kumar from

whose house Rahul was arrested and a pant belonging to

Rahul was recovered, has been given the benefit of not

knowing that Rahul was an offender at law.

4. The trial of two juvenile co-accused named Suraj

and Neeraj was referred to the Juvenile Justice Board as the

two were minor. The two juveniles pleaded guilty and

appropriate orders have been passed against them by the

Juvenile Justice Board.

5. In the instant appeals we are concerned with the

fate of Rahul and Amit.

6. Rahul has been convicted as the main offender in

view of the testimony of the prosecutrix Kumari ‟P‟ as also the

fact that spermatozoa was detected in her vaginal swab by

Dr.P.C.Dixit PW-11 as per his report Ex.PW-11/A and that DNA

fingerprints of the blood sample of Rahul matched the DNA

fingerprints from the source of Ex.C i.e. the sanitary pad used

by Kumari „P‟ soon after she was sexually assaulted. Though

of a weak incriminating nature, a knife Ex.P-1 got recovered by

Rahul pursuant to his disclosure statement has been opined to

be the weapon of offence with which an incised injury was

caused on the left hand (palm) of Kumari „P‟.

7. Qua appellant Amit the sole incriminating evidence

is the testimony of Kumari „P‟ as per whom the appellant was a

co-partner with Rahul in the commission of the crime.

8. Vide order on sentence dated 17.1.2005 the

appellants have been sentenced to undergo imprisonment for

life and pay fine in sum of Rs.10,000/- and in default of

payment of fine to undergo simple imprisonment for 1 year

pertaining to the offence punishable under Section 376 (2)(g)

IPC and to undergo RI for a period of 7 years and pay fine in

sum of Rs.5,000/-, in default to undergo simple imprisonment

for 6 months for the offence punishable under Section

392/397/34 IPC. For the offence punishable under Section

506/34 IPC they have been punished to undergo RI for a period

of 2 years and pay fine in sum of Rs.2,000/- and in default to

undergo SI for 2 months. Same is the punishment inflicted for

the offence punishable under Section 324/34 IPC. For the

offence punishable under Section 27 of the Arms Act, Rahul

has been sentenced to undergo RI for 7 years and pay a fine in

sum of Rs.1,000/-, in default to undergo 1 month simple

imprisonment. All the sentences have been directed to run

concurrently. We understand the same to mean that except

for the sentence of life imprisonment, other sentences shall

run concurrently.

9. Case sent for trial and sought to be proved by the

prosecution was that Kumari „P‟ a student of 4th year at the

Maulana Azad Medical College had collected the admit card for

the ensuing exams which were to be held on 18.11.2002 and

around afternoon time on 15.11.2002 was walking towards

Shaheed Bhagat Singh Bus Terminal to take a public transport

to go to her house and on the way had reached Khooni

Darwaja. Rahul and Amit accosted her. Having a knife in his

hand, Rahul commanded her to keep silent and enter inside

the structure called Khooni Darwaja. Out of fear Kumari „P‟

obeyed their command as her initial hesitation was met with a

threat by Rahul placing the knife on her neck. As she entered

inside Khooni Darwaja 2 juvenile co-accused Neeraj and Suraj

were found by her inside Khooni Darwaja. At the asking of

Rahul, Neeraj and Suraj searched her bag and took out her

mobile phone and Rs.100/- inside a purse kept by her in her

bag. The stolen property i.e. the mobile phone, and the purse

containing Rs.100/- was handed over to Amit and thereafter

she was compelled to climb up the stair inside Khooni Darwaja

and at the landing of the stairs at the top she was molested

and raped by Rahul. While subjecting her to rape, Rahul

continued to threaten her with the knife. She was inflicted a

wound with the knife on her left hand. After satisfying his lust,

Rahul wiped semen from her private parts using his shirt and

thereafter Rahul and the two juveniles left.

10. Since the defence has used it for the benefit of the

appellants, it may be noted that as per Kumari „P‟ after

wearing her clothes she reached the bus stand at Firozshah

Kotla where HC Bhikam Singh PW-4 and Const.Attar Singh, on

beat duty, saw her very tense and perturbed. On being

questioned by them whether all was fine she told them about

her ordeal. At their request, she accompanied them to the

place where the crime was committed. They did so hoping to

apprehend the accused. Whereas Kumari „P‟ stood on the

ground of the stairs of Khooni Darwaja, the two police officers

climbed up and when they returned, Kumari „P‟ had left. No

such information was reported by the two police officers at the

police station and only on 16.11.2002 i.e. the next day HC

Bhikam Singh recorded said fact in his statement Ex.PW-4/A

made to SI Rajesh Shukla PW-30.

11. Reverting to what Kumari „P‟ did after she returned

to Khooni Darwaja with the two police officers and left the

spot, she went to her college and therefrom to the hostel and

since she was bleeding she put a sanitary pad and narrated

her woes to her friends Kumari „S‟ PW-5 and another friend

Kumari „S‟. Her friends consoled her and took her to the

casualty where she refused to be medically examined, stating

that being a matter of her reputation she would like to consult

her parents. She reached her house at 5:30 PM and informed

her parents, who after confabulations decided to take recourse

to law. They brought her to LNJP hospital at 9:30 PM where

she was examined by Dr.Chinda Jassal PW-9 who prepared her

MLC Ex.PW-9/A noting therein a small sharp cut on the left

hand near palmer surface of thumb and bruises on the right

side of her face. A small 1/2 x 1/2 cm tear was present on

posterior fourchette and it was bleeding. Hymen was found to

be torn and bleeding. He sealed the sanitary pad which the

patient was wearing and prepared two slides of vaginal smear

and sealed the same. Seal of hospital was put on the two

parcels. Kumari „P‟ and her parents changed their mind to

pursue the matter and Kumari „P‟ wrote on the MLC that she

does not wish an FIR to be registered and thereafter she and

her parents left.

12. Const.Shamsher PW-28 who was on duty at LNJP

hospital informed the local police station at 12:45 in the night

that a girl named „P‟ daughter of „Sh.P.R.S. R/o -----„ who had

been raped had come to the hospital and requested that an

investigating officer be sent. Said information was noted vide

DD No.17A, Ex.PW-30/A, by the duty constable at the police

station at 12:45 in the night. The date recorded therein is

16.11.2002 for the obvious reason, past midnight the next day

commences.

13. Since Kumari „P‟ and her parents left LNJP hospital

soon after the MLC was recorded by informing the doctor that

they do not wish to pursue the matter it is apparent that when

the investigating officer deputed reached the hospital he met

nobody.

14. It is apparent that further events did not charter the

normal course. No FIR was registered at the police station

pertaining to the offence.

15. However, SI Rajesh Shukla PW-30 summoned HC

Bhikam Singh PW-4 on 16.11.2002 and recorded the statement

Ex.PW-4/A of HC Bhikam Singh who informed him the facts as

told to him by Kumari „P‟ and further events till Kumari „P‟

vanished when he and Const.Attar Singh went up the stairs at

Khooni Darwaja. Since the facts disclosed in the statement

Ex.PW-4/A showed the commission of a cognizable offence as

also the name and the residence of the victim, SI Rajesh

Shukla got an FIR registered the same day for the offence of

rape.

16. No headway could be made over the next few days

till 21.11.2002, for the reason Kumari „P‟ and her parents

continued to vacillate. As and when the investigating officer

went to their house, the parents of Kumari „P‟ told him that

their daughter was not available.

17. But, SI Rajesh Shukla acted wisely, in that, on

16.11.2002 itself i.e. the next day of the crime being the day

when he learnt about the crime, he went to LNJP Hospital and

as recorded in the seizure memo Ex.PW-10/A took possession

of two sealed parcels, one containing the slides of the vaginal

swab of Kumari „P‟ and the other her sanitary pad. He

immediately deposited the parcels in the malkhana, with the

seals intact.

18. On 21.11.2002 Kumari „P‟ and her parents finally

decided that Kumari „P‟ should suffer the shame, if any, but

the accused should be prosecuted. On said date her

statement was recorded by SI Rajesh Shukla wherein she

disclosed the details of what happened to her on 15.11.2002.

She further disclosed that the boy who raped her had the

name „Rahul‟ tattooed on his right forearm.

19. On 21.11.2002 itself the photographs in the

dossiers of known criminals maintained at the police station,

being 8 in number, all of whom were known as Rahul, were

shown to Kumari „P‟ and she identified appellant Rahul as her

tormentor.

20. From the afore-noted vacillating conduct of Kumari

„P‟, learned counsel for the appellants have been quick to

spring an argument that what credibility would be there in the

version of Kumari „P‟. Counsel urge that if it is to be argued

that on account of perceived sense of shame and indignation

Kumari „P‟ did not lodge an FIR, it defies logic as to why soon

after the offence she confided everything in strangers i.e. HC

Bhikam Singh and Const.Attar Singh. Learned counsel seek to

cement and strengthen their argument by drawing attention to

the fact that as deposed to by HC Bhikam Singh, Kumari „P‟

accompanied them to the place where the crime was

committed, hoping that the accused or anyone of them may

be noticed and hence apprehended and her tormentors

brought to justice. Counsel urge that it is obvious that Kumari

„P‟ was avoiding to meet the police so that she could gain time

to think about a false story.

21. The argument sounds very attractive but is no more

than a fairy tale. A victim of rape is overcome by various

emotions as a result of not only her body being defiled but

even the soul being defiled. Fear, Shame, Helplessness,

Dejection and Anguish would be the negative feelings

simultaneously stirring in the mind. All these negative feelings

would pull the victim inwards and tend to make her a recluse.

Simultaneously Anger, Hatred, Desire for Retribution and

Desire for Punishing the accused would push her towards

positive acts qua the accused. All these negative and positive

feelings would be competing in the mind at the same time. At

one moment one feeling may outweigh the others and if the

same is a negative feeling drawing the victim inwards, her

actions would be to suffer the shame and the humiliation in

quiet. The very next moment the feeling of hatred or

retribution may surface and this would lead the victim towards

positive steps to report the crime so that the accused is

brought to justice. It is apparent that the conduct of a rape

victim would be an inchoate mix of apparently irreconcilable

opposites. But if viewed in the aforesaid perspective, nothing

is inchoate and nothing is irreconcilably opposite.

22. Knowing the address of appellant Rahul, through

the dossier maintained, appellant Rahul was tracked and was

arrested on 22.11.2002 from the house of Ashok wherefrom a

pant belonging to Rahul was seized. Rahul was interrogated

and his disclosure statement Ex.PW-22/A was recorded in

which he not only confessed to the crime but disclosed the

names of appellant Amit as also the two juveniles who were

with him on the day of the incident. Thereafter, appellant Amit

and the two juvenile co-accused were apprehended and Suraj

made the disclosure statement informing that the mobile

phone belonging to Kumari „P‟ had been handed over by him

to Mohan Lal. The mobile phone was recovered from the

possession of Mohan Lal. Rahul informed in his disclosure

statement that the knife used by him to threaten Kumari „P‟

had been concealed by him near a garbage collection centre at

Kotla. On 23.11.2002 he led the investigating officer to the

garbage collection centre and after digging the soil near the

same recovered and handed over the knife Ex.P-1, sketch

whereof shows that the knife is no ordinary knife. It is a knife

used by butchers to cut meat.

23. Immediately after he was apprehended, Rahul was

got medically examined at LNJP Hospital where Dr.Sanjay

Kumar PW-5 examined him on 22.11.2002 and prepared his

MLC Ex.PW-8/A noting two old dried abrasions with scab

injuries, one each on the left and the right knee. A linear

scratch with dried scab on the right cheek. It was noted that a

tattoo mark of the name Rahul was tattooed in English in the

right forearm of Rahul. He opined that Rahul was capable of

performing sexual intercourse and that the injuries on the

body of Rahul were 5 to 7 days old. He took the blood sample

of Rahul which he handed over to the investigating officer.

24. The sanitary pad of the prosecutrix was sent for

forensic examination and Mr.A.K.Srivastava PW-6 detected

semen on the sanitary pad as per his report Ex.PW-6/A. Her

vaginal swab slides were sent for forensic examination and

Dr.P.C.Dixit PW-11 detected spermatozoa in the slides as per

his report Ex.PW-11/A.

25. The blood sample of Rahul as also the vaginal

smear slides and the sanitary pad were sent to CDFD

Hyderabad where Sh.C.H.Venketeshwar Goud PW-14 isolated

DNA from the three exhibits i.e. blood sample of Rahul (Ex.A),

vaginal smear slides of Kumari „P‟ (Ex.B) and the sanitary pad

of the prosecutrix (Ex.C). He gave his report Ex.PW-14/A

listing the result of examination as under:-

"RESULT OF EXAMINATION

Autosomal STR analysis

DNA fingerprint of source of exhibit C (sanitary pad of the prosecutrix) is the mixed profile, which is of the victim and source of exhibit A (Mr.Rahul @ Budh Prakash).

On comparison, the DNA fingerprint of the source of exhibit C (sanitary pad of the prosecutrix) is comaprable with the DNA fingerprint of the source of exhibit A (blood sample Mr.Rahul @ Budh Prakash). Therefore, source of exhibit A (Mr.Rahul @ Budh Prakash) cannot be excluded from being responsible for the biological fluid (semen) present on the source of exhibit C (sanitary pad of the prosecutrix).

Y-chromosome STR analysis

1. The biological fluid (semen) present on the source of exhibit C (sanitary pad of the prosecutrix) is of a male origin.

2. Y-STR profile of source of exhibit C (sanitary pad of the prosecutrix) is matching with the Y-STR profile of the source of exhibit A (Mr.Rahul @ Budh Prakash).

3. Y-STR profiles of sources of exhibits A and C (Mr.Rahul @ Budh Prakash and sanitary pad of the prosecutrix) are from one and the same source.

CONCLUSION

The above STR analysis (Autosomal STRs and Y- chromosome STRs) are sufficient to conclude that the biological fluid (semen) present on the source of exhibit C (sanitary pad of the prosecutrix) is of the source of exhibit A (Mr.Rahul @ Budh Prakash)."

26. It is no doubt true that there is delay in registration

of the FIR and one would have expected HC Bhikam Singh to

have immediately reported his conversation with Kumari „P‟ at

the police station so that an FIR could be registered on

15.11.2002 itself. But noting the fact that HC Bhikam Singh

may not understand the nuances of law nothing much turns on

delay in registration of the FIR for the reason nothing has been

brought out on record to show that a witness or some

evidence was planted in the meanwhile. What prejudice has

been caused, if at all to the accused, has not been shown to

us.

27. While deposing in Court Kumari „P‟ stated that she

was a medical student at MAMC and after collecting her admit

card on 14.11.2002 for the ensuing exams commencing from

18.11.2002 she was proceeding on foot to Shahid Bhagat

Singh Terminal to take a bus home and when she crossed

Khuni Darwaza: A boy around 21 years, medium built suddenly

came in front of her with a knife in his hand and placed the

knife on her stomach. Another boy was standing behind him.

The boy who showed the knife to her abused her and said that

I should quietly move inside. (She pointed out accused Rahul

as the one with the knife in his hand and appellant Amit as the

other boy). She refused to obey their command and resisted

and attempted to shriek. Rahul put the knife at her neck and

threatened to stab her if she yelled. Thereafter, both the boys

pushed her inside Khuni Darwaza. Within the precincts of the

open space of Khuni Darwaza, in the verandah, two boys aged

12 - 13 years were standing whose names she later on learnt

were Neeraj and Suraj. In the verandah Rahul told Neeraj and

Suraj to search me. Neeraj searched her bag and took out her

mobile phone No.9810467122 and Suraj removed her purse

containing Rs.100/- and at the asking of Rahul they handed

over the mobile phone and the purse to Amit. Thereafter

these persons told her to go upstairs. She asked them why.

They said that they wanted to search her. She responded that

they could search her there only. Rahul touched a black cord

around his neck and swore in the name of a saint that except

for searching her no harm would be caused to her. He said

that somebody may notice them. She repeatedly refused and

pleaded to be allowed to go and therefore she was forcibly

compelled to go up. Neeraj caught her hand. Rahul walked

behind with a knife in his hand with Suraj accompanying him.

28. Thereafter she deposed the facts as to how at the

landing of the stairs upstairs she was first molested by Neeraj

who pressed her breast and she started crying and how Rahul

raped her by stripping her and continuously threatened her

with the knife which he had in his hand and how she received

an injury on her right hand. She deposed that after she was

raped Rahul wiped semen from her private parts with his shirt

and left. She deposed of walking in a dazed state to Firozshah

Kotla where HC Bhikam Singh and Ct.Attar Singh met her. She

deposed the facts noted by us in paras 10, 11, 12 and 13

above. She disclosed that when she was raped she read the

name „Rahul‟ tattooed on the right forearm of Rahul.

29. It is settled law that where the testimony of a

rape witness stands the scrutiny of credibility, there is no need

to look for any corroboration. Thus, to cut the controversy

short we need not note the testimony of the friends and the

father of Kumari „P‟ as also the doctor who examined her in the

night for the reason nothing has been shown to us in the cross-

examination of Kumari „P‟ which discredits her testimony.

30. Kumari „P‟ has given graphic details of what

happened on the unfortunate day. The MLC Ex.PW-9/A

prepared by Dr.Chinda Jassal who examined her at LNJP

Hospital at around 9:30 PM in the night clearly establishes that

Kumari „P‟ was raped. The injuries on the body of Rahul as

noted in Ex.PW-8/A i.e. Rahul‟s MLC have not been explained

by Rahul and the said injuries also suggest that Rahul had

knelt on a hard surface and had pressed his knees. This would

have happened if Rahul either exercised by shifting his weight

on his knees or indulged in sexual intercourse with a girl lying

below. The injury on the right cheek of Rahul has not been

explained by him.

31. Nothing has been shown to us wherefrom it can be

urged that the sanitary pad and the vaginal swab slides of

Kumari „P‟ which were sealed by Dr.Chinda Jassal and were

taken possession of by SI Rajesh Shukla on 16.11.2002 were

tampered with. As noted above Rahul was arrested on

22.11.2002 and the question of his semen being planted on

the two exhibits is thus ruled out. The report Ex.PW-14/A of

Shri C.H.Venketeshwar Goud seals the fate of Rahul as the

same shows that the DNA finger print isolated from the blood

sample of Rahul matched the fingerprints isolated from the

sanitary pad of Kumari „P‟.

32. We note that learned counsel for Rahul has urged

that as deposed to by Kumari „P‟ after she parted company

with HC Bhikam Singh and Ct.Attar Singh whom she took to

the place where the crime was committed she went to the

hostel and the feeling of being polluted compelled her to wash

her private parts; this coupled with the fact that she deposed

that after raping her, Rahul wiped the semen from her private

parts with his shirt would render it impossible that in the night

at around 9:30 when the sanitary pad was taken into

possession by Dr.Chinda Jassal and when he prepared two

slides of vaginal smear, any semen would have remained.

33. The argument hardly impresses us for the reason

the MLC Ex.PW-9/A of Kumari „P‟ shows full penetration. It is

apparent that semen seeped deep into the vaginal canal and

after sometime when Kumari „P‟ continued to remain in an

erect posture, some semen seeped out and hence being

detected in the slides of the vaginal smear and the sanitary

pad. We note that the two experts who detected semen on

the sanitary pad and the vaginal smear slides were not

subjected to any cross-examination on the issue whether

semen could be detected as claimed by them if the girl

concerned had washed her private parts.

34. That she informed HC Bhikam Singh, a fact deposed

to by HC Bhikam Singh and recorded in his statement Ex.PW-

4/A that the boy who raped her had the name „Rahul‟ tattooed

on his right forearm lends credence to the testimony of Kumari

„P‟.

35. Regarding appellant Rahul we need to note no

further qua his involvement in the crime of criminally

intimidating Kumari „P‟, using a knife to rob her and thereafter

raping her.

36. The only issue which we need to further decide qua

Rahul is whether he was a minor when the offence was

committed on 16.11.2002.

37. The record shows that the issue of Rahul being a

minor was raised before the committal proceedings

terminated. After Rahul was arrested, an application was filed

before the learned Metropolitan Magistrate to determine the

age of Rahul. Affidavit filed by his father when Rahul was

admitted in the school and entries in the school record were

produced in evidence. Rahul was subjected to an ossification

test. Noting contradictory dates emanating from the school

record and that the affidavit produced was executed three

years prior to when Rahul was admitted in school, the learned

Magistrate returned a finding vide order dated 18.1.2003 that

said entries were doubtful as different dates of birth were

emerging therefrom. Learned Magistrate further noted that

these entries were purportedly based on an affidavit filed by

the father of Rahul which was deposed to three years prior to

the date when Rahul was admitted in the school. Thus,

Rahul‟s age was determined with reference to an ossification

test conducted as per which Rahul was a major.

38. Order dated 18.1.2003 was not challenged and

obtained finality. Committal orders were passed and the

challan was sent to the Court of Sessions for trial.

39. The plea of learned counsel for the appellant Rahul

that he can raise the issue at any stage in view of the decision

of the Supreme Court reported as 2009 (6) SCALE 695 Hari

Ram vs. State of Rajasthan has to be rejected for the reason as

held by the Division Bench of the Patna High Court in the

decision reported as 2009 Cri.L.J. 858 State of Bihar vs. Neeraj

Kumar, if the issue of being juvenile is raised at an earlier

stage and an adverse finding not challenged, the same issue

cannot be raised de-novo at the appellate stage.

40. Qua appellant Amit, the testimony of the

prosecutrix establishes his participation with Rahul from the

time Rahul criminally intimidated the prosecutrix with a knife

in Rahul‟s hand and both compelled her to enter inside Khuni

Darwaza and thereafter robbing her. The last participative act

of Amit is when Rahul, the two accused juvenile and Amit

compelled the prosecutrix to go upstairs. It is relevant to note

that as deposed by the prosecutrix, Rahul was telling her to go

up because he feared that somebody may see them at the

ground level. He wanted her to go up so that they can conduct

a body search to see whether she was having any other

valuable. Amit never went upstairs. Thus, Amit parted

company before the prosecutrix was raped. There is another

facet to the issue. The deposition of prosecutrix that when she

was being compelled to go up and she refused and at that

point of time Rahul touched a black cord around his neck and

swore in the name of a saint that except for searching her no

harm would be caused to her brings out that Rahul rightly

gauged the mind of the prosecutrix and the fear in her mind,

that if she went up she would be raped, and to allay the fear

Rahul dramatized by touching the black cord around his neck.

We do understand that people in India wear black cords called

Taaviz around their neck which they obtain from holy men.

Rahul was wearing a Taaviz. It is around this time, as per the

deposition of the prosecutrix, Amit parted company, meaning

thereby, that sensing trouble and commission of an offence to

which Amit had never agreed to participate with Rahul, Amit

walked away. In any case, this being probable cannot be ruled

out.

41. Thus, it cannot be said with certainty that Amit

shared any common intention with Rahul and in furtherance

thereof facilitated the prosecutrix being raped by Rahul. The

submission of learned counsel for the State that in all

probability Amit stood guard at the ground floor level to

facilitate Rahul to satisfy his lust has to be rejected for the

reason there is no evidence that Amit stood guard when the

prosecutrix was forcibly taken upstairs.

42. Thus, Amit cannot be convicted for the offence of

gang rape.

43. A perusal of the testimony of the prosecutrix shows

that the crime of robbery was committed by all the accused,

but only Rahul used a knife. Thus, only Rahul can be convicted

for the offence punishable under Section 397 IPC. Amit has

committed the offence of robbery punishable under Section

392 IPC. Amit has also committed the offence punishable

under Section 506 IPC.

44. A technical correction qua the offence of rape

committed by Rahul has to be done. Acquitting him of the

charge of gang rape we convict him for the offence of rape

simplicitor i.e. the offence punishable under Section 376 IPC.

45. On the issue of sentence on Rahul, it is true that

Rahul had barely crossed the age of majority and was around

19 years of age when he committed the offence. No doubt, his

age is a mitigating factor, but the brutal manner in which the

prosecutrix was traumatized, how during rape the knife was

continuously used to threaten her and the entire sequence of

events as disclosed by her show the extreme trauma inflicted

upon her by Rahul who not only acted as a beast but even

acted savage. Thus, we see no scope to reduce the sentence

imposed upon Rahul.

46. To summarize, Crl.Appeal No.561/2009 filed by

Rahul is dismissed.

47. Crl.Appeal No.364/2005 filed by Amit is partially

allowed. His conviction for the offence punishable under

Section 376(2)(g) IPC is set aside. His conviction for the

offence punishable under Section 324 IPC is also set aside for

the reason as deposed to by the prosecutrix the simple hurt on

her right hand was inflicted soon before she was raped

upstairs and by that time Amit had left. His conviction for the

offence punishable under Section 397 IPC is also set aside.

Maintaining his conviction for the offence punishable under

Section 392 IPC and Section 506 IPC we set aside his

conviction for the other offences as also the sentences

relatable thereto. Further noting that Amit has remained in jail

since the time of his arrest i.e. 23.11.2002 i.e. around 7 years

and 3 months we alter the sentence imposed upon Amit by

directing that he shall be sentenced to undergo imprisonment

for the period already undergone without payment of any fine.

48. Copy of this order be sent to the Superintendent,

Central Jail, Tihar for being made available to Rahul and to

release Amit if he is not required in custody in any other case.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 05, 2010 mm / dkb