Delhi High Court
Hemant Garg @ Bittoo vs State on 20 February, 2014
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 14.02.2014
Date of Decision: 20.02.2014
+ CRL.A. 305/2010
BHAWNA GARG ..... Appellant
Through: Mr. K. Singhal, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
+ CRL.A. 333/2010
NEELAM ..... Appellant
Through: Mr. Sunil Kumar, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
+ CRL.A. 396/2010
USHA ..... Appellant
Through: Mr. M.A. Niyazi with Ms. Anamik Ghai
Niyazi and Mr. Manish Kumar, Advs.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
+ CRL.A. 590/2010
HEMANT GARG @ BITTOO ..... Appellant
Through: Mr. K. Singhal, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
Crl A. Nos.305/2010; 333/2010; 396/2010; 590/2010; 1205/2010 & 1279/2010 Page 1 of 56
+ CRL.A. 1205/2010
SHAHID ..... Appellant
Through: Mr. K. Singhal, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
+ CRL.A. 1279/2010
SARLA ..... Appellant
Through: Mr. K. Singhal, Adv.
versus
STATE ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J.
On 23.11.2002, the complainant Hari Ram came to police post
Jharoda and made a complaint that his daughter aged 17 years had left
the house on 10.09.2002 to give coaching in Gali No. 44 of Sant Nagar,
but had not returned home. He further stated that he had been trying to
locate her with relatives and persons known to him, but could find no
trace of his daughter. He also stated that since the matter was related to
his daughter, he had been trying to locate her of his own. The
complainant further stated that on 21.11.2002, his daughter called up her
maternal uncle Brijesh Kumar on telephone and informed him that a boy
named Bittoo had taken her with him by inducing her and now he along
with another boy Shahid and other persons wanted to force her to do bad
things and are beating her. She further informed him that she was in the
flats near bus stop of route No. 212 in Nand Nagri. The complainant
also stated that in search of her daughter, they went to Nand Nagri and
came to know that she was in MS Building, Sahibabad. Reaching there,
they showed her photograph to the Chowkidar and enquired from him
about her. The Chowkidar informed them that he had seen his daughter
in H-2 flats. The Chowkidar also expressed doubts regarding character
of the persons living in that flat which at that time was closed. Later,
those persons called them up and assured to send his daughter back. He
also stated that on 23.11.2002, they had lodged a report in this regard at
Police Station Timar Pur, but in order to avoid the bad name in the
society had reported only the missing report of his daughter. He further
stated that on that day, they had caught hold of a boy named Shahid,
who was trying to escape after vacating the flat. Shahid promised to take
them to his daughter, but his daughter had not returned. The
complainant suspected that Bittoo, Shahid and their associates had
concealed his daughter. Shahid was produced by him before the police
officer, who recorded the complaint. On the aforesaid complaint, FIR
under Section 365/34 of IPC was registered at the Police Station and the
investigation was handed over to SI Mahavir Singh.
During the course of investigation, Flat No. H-2 in SS Group
Housing, Shalimar Garden, Sahibabad, U.P. was searched and two
salwar suits and one dupata of the prosecutrix was found in that flat.
2. The case of the prosecution is that on 9.2.2003, the prosecutrix
was recovered from House No.1/151, Ramesh Nagar. In her statement
under Section 164 Cr.P.C, the prosecutrix alleged that Kajal @ Shalu
who had been their tenant and used to visit their house, called her from
the tuition centre where she had gone to give coaching and took her to
Gurudwara, Ashok Vihar where she had called her husband Hemant
Garg @ Bittoo. Kajal left, leaving her at Gurudwara on the pretext that
she would be coming back shortly. Thereafter, her husband Hemant
came there in an Indica car, which was being driven by one Momin.
Hemant‟s second wife Bhawna and Sarla, mother-in-law of Hemant was
also present in the car. Hemant asked her to sit in the car. Presuming
that Kajal was inside, she boarded the car. However, Kajal was not in
the car, whereupon she asked them to stop the car, but they did not do
so. The car was taken to Ghantaghar bus terminus etc. and in the night
they reached Tri Nagar where those persons were residing as tenants.
She further stated that in the house, Bittoo asked others to keep a check
on her, lest she runs away. She further stated that next day, the appellant
- Usha came to Tri Nagar house. After some time, she was made to
wear jeans and Usha took her to Rajdhani Enclave, Rani Bagh in her
car. One person named Ashiq came to the said house whereupon she
was sent out. After some time, she was brought back to Tri Nagar. Next
day, she was again taken to Rajdhani Enclave, Rani Bagh where Ashiq
misbehaved with her and when she told other persons about
misbehavior, she was beaten by them and told that she had been brought
there for that very purpose and if she resisted, she would be beaten and
left at G.B. Road (red-light area of Delhi), after taking money for her.
She further alleged that for 4-5 days she was taken to the aforesaid
house and forced to do „bad acts‟. Ashiq and a number of other persons
committed „bad acts‟ with her against her wish. Thereafter, vacating the
Tri Nagar house, those persons shifted the prosecutrix to Sector-15 of
Rohini. She also alleged that Shahid, father of Bittoo knew that she was
being forced to do such acts, but he did nothing in the matter.
Thereafter, those persons shifted to a house in Shalimar Garden. There
also, she was forced to do „bad acts‟. One day, the appellants - Hemant
and Sarla took her to Nand Nagri to the house of her sister. In the night,
she was sent to another place in Nand Nagri along with a passport
dealer. When she narrated the matter to the dealer, he made her call her
maternal uncle. However, in the night, she was sent to Sunder Nagri.
She also alleged that as she tried to escape from there, she was caught
and taken to Shalimar Garden where she was beaten. In the night, she
was sent to Shahranpur in the company of Bhavna, Sarla etc. There they
came to know that Shahid had been arrested by the police. She was then
taken to a house in Ghaziabad where they lived there for about one and
a half month. Then she was brought to the house of their another relative
in Shahdara. After 7-10 days, they came back to Ramesh Nagar where
they lived for 2-3 weeks. They again returned to Shahdara where they
lived for one and a half weeks and then came back to Ramesh Nagar on
9.2.2003, when the police recovered her.
3. The appellant - Hemant is alleged to have been arrested on
15.4.2003 after he had been declared proclaimed offender. On being
pointed out by appellant - Hemant, appellant - Usha was arrested from
Dilshad Garden on 16.4.2003 whereas the appellant - Neelam was
arrested from Janta Flat, Dilshad Garden on 19.6.2003. The appellant -
Bhavna was arrested on 14.10.2004 from Super Bazar, Model Town.
Appellant - Sarla was arrested on 22.3.2005 from the red light of Uttam
Nagar. Ashiq, who was acquitted by the trial court, was arrested on
30.05.2005 from Burari crossing.
4. On 3.7.2004, the appellant - Shahid was charged with offence
punishable under Sections 120B/368/376/109/506 of IPC on the
allegations that he along with his co-accused had entered into a criminal
conspiracy and in pursuance of the said criminal conspiracy wrongfully
confined or concealed the prosecutrix in a house in Sector-15, Rohini
knowing that she had been kidnapped or abducted and he had also
instigated Ashiq and other persons to have forcible intercourse with her,
besides threatening to kill her. Appellant - Hemant @ Bittoo and
Neelam were also charged under Section 120B/366A/368/323/506-
I/372/376/109 of IPC on the allegation that they along with their co-
accused had entered into a criminal conspiracy and in pursuance of the
said conspiracy they had induced the prosecutrix aged 17 years, to go
from Gali no.44, Sant Nagar knowing that she might be or knowing that
it was likely that she would be forced or induced to illicit intercourse,
with Ashiq and others and had taken her to different places, wrongfully
confining and concealing or knowing that she had been kidnapped or
abducted and they had also beaten her, criminally intimidated her and
had either told to hire or sold her to their co-accused Usha with the
intention that she would be employed or used for the purpose of
prostitution or illicit intercourse with Ashiq and others. They were also
charged for instigating Ashiq to have forcible intercourse with the
prosecutrix.
5. The appellant - Usha was charged under Section
120B/373/376/109 of IPC on the allegation that she along with her co-
accused had entered into a criminal conspiracy and pursuant to the said
conspiracy, she had paid or forced or obtained possession of the
prosecutrix with the intention that she would be employed or used for
the purpose of prostitution or illegal intercourse or for any unlawful and
immoral purposes or knowing it to be likely that she would be employed
or used for any such purposes and had brought her in her house situated
in Rajdhani Enclave, Rani Bagh, besides instigating Ashiq and others to
commit rape upon her. They were also alleged to have beaten the
prosecutrix.
On 3.11.2004, appellant - Bhavna was charged under Section
120B/366A/368/328/506/376/109 of IPC on the allegation of entering
into a criminal conspiracy with her co-accused and pursuant to the said
conspiracy, inducing the prosecutrix to go from Gali no.44, Sant Nagar
with the intent that she would be forced or seduced to illicit intercourse
with Ashiq and others. She was also charged for wrongfully confining
or concealing the prosecutrix knowing that she had been kidnapped or
abducted, besides beatings and criminally intimidating her. She was also
charged for selling the prosecutrix to her co-accused Usha with the
intent that she would be employed or used for the purpose of
prostitution or illicit intercourse with Ashiq and others. She was further
charged for instigating Ashiq and others to have forcible sexual
intercourse with her.
On 16.05.2005, appellant - Sarla was charged under Section
120B/366A/368/323/506-I/376/109 of IPC on the allegation that she had
entered into a criminal conspiracy with her co-accused and in
furtherance of the said conspiracy had induced the prosecutrix to go
from Gali no.44, Sant Nagar with the intent that she would be forced or
seduced to illicit intercourse with co-accused Ashiq and others. She was
also charged for wrongfully confining or concealing the prosecutrix,
knowing that she had been kidnapped or abducted; besides beating and
criminally intimidating her. She was further charged with selling the
prosecutrix to Usha with the intention that she would be employed or
used for the purpose of prostitution or illegal intercourse with Ashiq and
others.
6. Since all the appellants pleaded not guilty to the charges framed
against them, as many as 39 witnesses were examined by the
prosecution.
During the course of trial, prosecutrix was examined three times;
firstly after Shahid was charge-sheeted; secondly after Bittoo, Bhavna
and Usha were charge-sheeted and lastly after Sarla was charge-sheeted.
7. In her deposition dated 20.09.2005 and 19.10.2005, the
prosecutrix, inter alia, stated that on 10.09.2002, Kajal reached the place
where she was taking tuitions in Gali no.44 and asked her to accompany
her to Gurudwara. She accordingly accompanied her to the aforesaid
Gurudwara. Kajal left her outside Gurudwara and went away. After
some time, Hemant, Sarla, Bhavna and their driver Momin came in an
Indica car. Hemant came out of the car, stating that Kajal was sitting in
the car. She then sat in the car but found that Kajal was not present
there. When the car was started, she asked them to stop it but they did
not heed to her request and kept roaming at different places. Thereafter,
they took her to a room in Tri Nagar which Hemant and Shahid had
taken on rent. She was taken to a room where a man was already sitting.
Bhavna left her in that room with the man who was already present there
and came out. She was then raped in that room. The man who raped her
came out and paid money to Sarla and went away. When she
complained to Hemant, Shahid and Bhavna, they locked her inside the
room. She was told by Hemant, Bhavna and Shahid that she had been
brought there for prostitution. Next day, appellant - Usha came to that
house whereupon she (prosecutrix) was asked to put jeans. Thereafter,
Usha left in her own car, whereas she was taken to Rajdhani Enclave in
another car in the company of Hemant, Bhavna and Sarla. One person
named Ashiq, who was present in that house, misbehaved with her. At
that time, Bittoo, Bhavna, Sarla and Usha also sitting in another room of
that house. When she complained to them about misbehavior by Ashiq,
they said nothing but took her back to Tri Nagar house. Next day, she
was again brought to that house where Ashiq committed rape upon her.
When she complained to Bittoo, Bhavna, Sarla and Usha, they told her
that she would have to do that work otherwise they would leave her to
G.B. Road since they were concerned only with money. The prosecutrix
further stated that Usha, Bhavna, Sarla and Bittoo used to take her to
different places for doing sex and they were taking money from the
persons who were committing wrong acts upon her. According to the
prosecutrix on 21.11.2002, she was taken to Nand Nagri and was sent
with a person dealing in passports. The appellants - Hemant, Neelam
and Sarla were present in the Nand Nagri house. The passport dealer
took her to some other place in Nand Nagri. Then she narrated the facts
to that person, she rang up to her maternal uncle and she then informed
her maternal uncle. Thereafter, she was left in Sundar Nagari in the
house of Neelam. When she tried to run away from that house, Bittoo,
sarla and Bhavna met her and took her to a house in Shalimar Garden
which Shahid and Hemant had taken on rent. She was beaten in that
house and then taken to Hapur in a car in the company of Sarla, Bhavna,
etc.
The prosecutrix further stated that on 25.04.2002, when they were
returning back, Sarla received a telephone call informing her about
arrest of Shahid, whereupon she was beaten and abused in the car. She
was then taken to Ghaziabad to the house of a relative of Sarla, where
they stayed for about one and a half month. Then she was taken to house
of another relative of Sarla at Shahdara, where they stayed for 10-15
days. From Shahdara house, she was taken to Ramesh Nagar, to the
house of relative of Sarla, where they stayed for about 7-10 days. They
again went back to the house of their another relative at Shahdara, but
next day she was taken to Ramesh Nagar where she was rescued by the
police.
8. PW2 Hari Ram is the father of the prosecutrix. He, inter alia,
stated that on 10.09.2002, the prosecutrix, who was born on 2.8.1985
had gone to Gali No.44, Sant Nagar to give tuitions in a tuition centre,
but did not return till evening. On 21.11.2002, on receipt of a call by her
maternal uncle, they went to Nand Nagri in her search and came to
know that she was present at S.S. Building, Sahibabad in Flat No. H-2.
They reached there and inquired from the chowkidar. The flat was found
locked at that time. On 23.11.2002, they again went to the aforesaid flat
at Sahibabad and made inquiries from chowkidar after showing the
photographs of his daughter to him. They came to know that his
daughter had been visiting that flat. He also showed photographs of
Bittoo, which he had with him, to the chowkidar, who told him that he,
had been visiting that flat along with his daughter. He further stated that
on 23.11.2002 itself he received a telephone call that his daughter was
being released, but actually she was not released. According to the
witness on 25.11.2002 they again reached house no.H-2, Sahibabad and
found the appellant - Shahid present there. They brought him to Police
Post Jharoda where his statement Ex.PW2/A was recorded by the police.
On the same day, he along with the police and Shahid went to the
aforesaid flat and found two ladies suits of his daughter there. The suits
were seized by the police and Shahid was arrested. The witness
identified the suits of her daughter Ex.P1 to P5.
9. PW3 - Brijesh Kumar, who is the maternal uncle of the
prosecutrix stated that on 21.11.2002 he received a telephone call from
the prosecutrix who told him that she was present at the bus stand of 212
Nand Nagri and that she was in the custody of Shahid and Bittoo. She
was waiting and she asked him to release her from the clutches of
Shahid and Bittoo. According to the witness, he could not talk more to
the prosecutrix since the phone got disconnected. He then informed his
sister about it and came to know that the prosecutrix was missing since
10.09.2002. They reached Nand Nagri and searched at the bus stop of
bus no.212 and other places. Someone told them that Shahid and Bittoo
were residing in SS Flats, Sahibabad whereupon they came back to their
house. Next day, they again went to SS Building, Sahibabad, where the
flat was found locked. They showed the photographs of the prosecutrix
to the neighbours who told them that they had seen her in the said flat.
On 22.11.2002, they received a telephone from Shahid informing that
they were releasing the prosecutrix. She, however, did not return back.
Therefore, a missing report was lodged at Police Station Timarpur on
23.11.2002. He further stated that on 25.11.2002, they again went to
Sahibabad and found Shahid locking the said flat. They brought him to
police post Jharodha and produced him before the police. They again
went to Sahibabad flat with the police and two suits of the prosecutrix
were found there, which were seized by the police.
10. PW5 - Avilash Kumar is the caretaker of Flat no.H2, SS Builders,
Shalimar Garden, Sahibabad. He stated that the appellant - Hemant was
the tenant in the aforesaid house since 19.11.2002. According to the
witness, being the caretaker of the house, he had let it out on rent to
Hemant.
11. PW7 Constable Bala Shahib and PW11 SI Mahavir have deposed
with respect to recovery of the clothes of the prosecutrix from the house
number H-2, Sahibabad. PW11 - SI Mahavir Singh stated that on
9.2.2003, he along with Constable Rambir went to House No.1/151,
Ramesh Nagar, on receipt of secret information that the prosecutrix
could be available there. The prosecutrix was found present there and
was brought from there. PW8 - Ramesh Chand is an official from the
Office of Sub Registrar, Civil Lines, who produced the copy of the
record of birth of a female child to Usha, wife of Hari Ram on 2.8.1985.
12. PW34 - Dr. Rekha Jain examined the prosecutrix in Hindu Rao
Hospital and on examination found that her hymen was torn. PW36 Dr.
Archana Sinha, Metropolitan Magistrate stated that on 2.7.2003, the
appellant - Neelam who was produced before her in jail refused to
participate in TIP vide proceedings Ex.PW36/B.
13. In their statement under Section 313 Cr.P.C, all the appellants
denied the allegations against them and claimed to be innocent and
claimed trial.
14. Vide impugned judgement dated 3.3.2010, the appellants Shahid,
Hemant @ Bittoo, Usha, Neelam, Bhawna and Sarla were convicted
under Section 120B read with Section 366A of IPC. The appellants
Hemant @ Bittoo, Bhawna and Sarla were also convicted under Section
366A read with Section 120B of IPC. The appellants Neelam, Shahid,
Bhawna and Sarla were further convicted under Section 368 read with
Section 120B of IPC. The accused Usha, Bhawna, Hemant @ Bittoo
and Sarla were further convicted under Section 109 read with Section
376 of IPC. Appellants Hemant @ Bittoo, Neelam, Bhawna and Sarla
were also convicted under Section 506 Part I of IPC. Vide order on
sentence the appellants Shahid, Hemant @ Bittoo, Usha, Neelam,
Bhawna and Sarla were sentenced to undergo SI for five (5) years each
and to pay fine of Rs.5,000/- each or in default of payment to pay fine to
undergo SI for five (5) months each in respect of offence under Section
120B read with Section 366A of IPC. The appellants Hemant @ Bittoo,
Bhawna and Sarla were sentenced to undergo SI for five (5) years each
in respect of offence under Section 366A read with Section 120B of IPC
and to pay fine of Rs.5,000/- each or in default of payment to pay fine,
were directed to undergo SI for five (5) months each. Appellants
Neelam, Shahid, Bhawna and Sarla were sentenced to undergo SI for
three (3) years each in respect of offence under Section 368 read with
Section 120B of IPC and to pay fine of Rs.4,000/- each or in default of
payment to pay fine, were directed to undergo SI for four (4) months
each. Appellants Usha, Bhawna, Hemant @ Bittoo and Sarla were
sentenced to undergo SI for seven (7) years each in respect of offence
under Section 109 read with Section 376 of IPC and to pay fine of
Rs.10,000/- each or in default of payment to pay fine, were directed to
undergo SI for ten (10) months each. Appellants Hemant @ Bittoo,
Neelam, Bhawna and Sarla were sentenced to SI for a period of one (1)
year under Section 506 Part I of IPC.
15. The following are the ingredients of Section 366A of IPC:
i. that the accused induced a girl;
ii. that the person induced was a girl under the age of eighteen years;
iii. that the accused has induced her with intent that she may be or
knowing that it is likely that she will be forced or seduced to illicit
intercourse;
iv. such intercourse must be with a person other than the accused;
v. that the inducement caused the girl to go from any place or to do
any act.
16. The expression "inducement" means an act or process of enticing,
persuading or influencing another person to take a certain course of
action. The expression "seduce", as per Oxford Dictionary inter alia
means (1) to tempt, or entice a person to do something wrong (2) entice
a woman into sexual activity.
The facts & circumstances of the case show that the prosecutrix
was persuaded to leave the house of her parents and accompany the
appellants Hemant @ Bittoo, Bhawna and Sarla to the house in Tri
Nagar and thereafter she was induced to accompany them and the
appellant Usha to Rajdhani Enclave and several other places with intent
or at least knowing that she was likely to be seduced to illicit
intercourse, at the aforesaid places, with several persons, by offering and
paying money to her for the purpose. But for offer and/or payment of
money to her, the prosecutrix would never have surrendered her body to
the persons who had illicit intercourse with her.
17. It has come in the deposition of the father of the prosecutrix that
she was born on 2.8.1985. The deposition of the father of the
complainant finds corroboration from the municipal certificate
Ex.PW8/A. This would mean that on 10.9.2002, the prosecutrix was
less than eighteen (18) years old though more than seventeen (17) years
old.
18. The next question which arises is as to whether the prosecutrix
was induced to go from any place or to do any act with intent that she
might be or knowing that she was likely to be forced or seduced to illicit
intercourse. It has come in the deposition of the prosecutrix that she had
gone to give coaching on 10.9.2002 and from the coaching centre she
had gone to Gurudwara Ashok Vihar, where the appellants Hemant @
Bittoo, his wife Bhawna and his mother-in-law Sarla met her in a car.
As noted earlier, the prosecutrix was examined three times, firstly when
only Shahid was chargesheeted, secondly when Bhawna, Hemant @
Bittoo, Usha and Neelam were chargesheeted and thirdly when Sarla
and Ashiq (who has been acquitted) were chargesheeted. In all her
statements she maintained that Kajal had taken her to Gurudwara Ashok
Vihar on the aforesaid date. In her deposition dated 22.9.2004, the
prosecutrix had also stated that Kajal had instigated her against her
family saying that they would marry her off in a bad family. The
aforesaid averment was not repeated by her when she was examined on
14.12.2004 and 19.10.2005. Excluding the deposition with regard to
Kajal instigating the prosecutrix, the fact remains that the prosecutrix
did not abandon the guardianship of her parents of her own, without any
aid or influence from any person. This is not a case where a girl leaves
the house of her parents on account of her becoming friendly to a boy
and joins the company of that boy, of her own. This is also not a case of
a girl abandoning the guardianship of her parents on account of being
annoyed or dissatisfied with them. It was Kajal who facilitated her
going to Gurudwara by accompanying her to that place in an
autorickshaw. The very fact that the appellants Hemant @ Bittoo,
Bhawna and Sarla were already present at the Gurudwara when the
prosecutrix reached there along with Kajal leaves no reasonable doubt
that they were acting in concert with Kajal and that is why they were
already present at Gurudwara in a vehicle. The relationship between
Kajal and Hemant is yet another circumstance which indicates the
meeting of mind between the aforesaid appellants and Kajal. It has
come in evidence that Kajal had disappeared from Gurudwara, asking
the prosecutrix to wait there and thereafter, the appellants Hemant @
Bittoo, Bhawna and Sarla came there in a car being driven by their
driver Momin. The sudden disappearance of Kajal on reaching
Gurudwara is also indicative of the connivance between her and the
aforesaid appellants. Therefore, I have no hesitation in holding that on
the aforesaid date the prosecutrix had gone to Gurudwara pursuant to a
criminal conspiracy which the appellants Hemant @ Bittoo, Bhawna
and Sarla had hatched with Kajal.
19. The next question which arises for consideration is whether any
inducement was offered to the prosecutrix while taking her from the
coaching centre to Gurudwara. In my view, though the prosecutrix does
not say so, the facts & circumstances of the case as stated hereinafter,
clearly show that she was induced by the appellants Hemant @ Bittoo,
Bhawna and Sarla, acting in conspiracy with Kajal by tempting or
alluring her that she would get money if she strays on the path of illicit
intercourse for consideration. It has come in the deposition of the
prosecutrix that she had illicit intercourse with a male in the Tri Nagar
house where she was taken on 10.9.2002. Though in her statement
under Section 164 Cr.P.C., the prosecutrix did not refer to the said
episode, the omission, to my mind, would not be material considering
that the prosecutrix was in the company of the appellants for about five
(5) months before she was recovered by the police and she had illicit
intercourse with so many persons at various places during the aforesaid
period and, therefore, it may not have been possible for her to recall and
narrate all such episodes at the time she was examined before the
Magistrate. In any case, nothing really turns on whether the prosecutrix
had intercourse with a male or not at the Tri Nagar house, since even
thereafter she was taken for and had illicit intercourse with a number of
persons on several occasions.
20. It has come in the deposition of the prosecutrix that on the next
day she was taken by the appellants Hemant @ Bittoo, Bhawna and
Sarla to Rajdhani Enclave, Rani Bagh in a vehicle. The prosecutrix had
illicit intercourse with a person who was introduced to her as Ashiq, in
the house at Rajdhani Enclave. It is true that during the course of trial,
the prosecutrix did not identify Ashiq who was prosecuted along with
the appellants, but that, in my opinion, would not be relevant because
this was not the deposition of the prosecutrix that she did not have illicit
intercourse with anyone in Rajdhani Enclave house. Her deposition in
the court was that Ashiq who had been prosecuted in this case was not
the person who had illicit intercourse with her in Rajdhani Enclave.
What emerges from the deposition of the prosecutrix is that some person
other than the person named Ashiq, who was prosecuted in this case,
had illicit intercourse with her in the house, when she was taken by the
appellants Hemant @ Bittoo, Bhawna and Sarla. In fact, the illicit
intercourse in Rajdhani Enclave house on the first day the prosecutrix
was taken to that house was not the sole incident of this nature.
According to the prosecutrix she was taken to the aforesaid house a
number of times and had illicit intercourse with several persons.
The prosecutrix has clearly stated that even thereafter she was
taken to various places on different days by the appellants Hemant @
Bittoo, Bhawna and Sarla and she had illicit intercourse with various
persons. It is quite evident from the act of the appellants Hemant @
Bittoo, Bhawna and Sarla in taking the prosecutrix to Rajdhani Enclave
house and several other places where she had illicit intercourse with
several persons that the prosecutrix was induced, firstly through Kajal,
to accompany her to Gurudwara, Ashok Vihar and then she was induced
by the appellants Hemant, Bhawna and Sarla, to accompany them to the
house in Tri Nagar as well as to the house in Rajdhani Enclave and
several other places, with intent and knowing that she was likely to be
seduced to illicit intercourse. Though the prosecutrix does not say that
she was offered or given money for having illicit intercourse with
several persons, such offer and payments can be easily inferred from the
circumstances of the case.
21. The facts & circumstances of the case, in my view do not indicate
that the prosecutrix was forced to have illicit intercourse with any
person. She did not have any kind of friendship with the persons with
whom she had illicit intercourse. Therefore, offer and payment of
money to her could be the only possible reason for her to leave her
house, join the appellants Hemant @ Bittoo, Bhawna and Sarla in their
car and thereafter accompany them firstly to the house in Tri Nagar and
then to the house in Rajdhani Enclave and several other places.
According to the prosecutrix she boarded the car at Gurudwara on
the representation or under an impression that Kajal was inside the car.
However, despite noticing that Kajal was not in the car she made no
effort to raise an alarm though, according to her the car was on the road
for quite some time before they reached the house in Tri Nagar. On
reaching Tri Nagar house, no alarm was raised by the prosecutrix. Had
she not willingly accompanied the other occupants of the car, she would
have raised alarm on reaching Tri Nagar house, instead of meekly
accompanying the aforesaid appellants upstairs the house in Tri Nagar,
which is situated in a thickly populated area. The prosecutrix knew that
if she raised alarm, people would gather there and would not allow her
to be taken upstairs. Despite that no alarm was raised by her. It has
come in evidence that the landlord of the house was residing on the
ground floor. Had the prosecutrix not been willing to accompany the
aforesaid appellants to the upper floor of the house she would have
raised alarm and in that event, she would have been rescued by the
landlord and other persons residing in the neighbourhood.
Next day the prosecutrix came out of the Tri Nagar house in
broad day light and boarded the car in which she was taken to Rajdhani
Enclave. Again, she did not protest before sitting in the car and, in fact,
this is not her case that she was forced in any manner to board the said
car. This is also not the case of the prosecutrix that on the way from Tri
Nagar to Rajdhani Enclave an alarm was raised by her so as to attract
the attention of other users of the road. This is not the case of the
prosecutrix that any arm was shown to her in the vehicle or before she
was made to board the vehicle. Though it has come in the deposition of
the prosecutrix that the appellant Sarla had threatened her that in case
she revealed anything to anyone Shahid would kill her family members
and take away her sisters. It has also come in the deposition of the
prosecutrix that in Rajdhani Enclave, the appellants Hemant @ Bittoo
had threatened her that if she did not comply with their directions he
would leave her at G.B. Road and get money for that. However, the
aforesaid parts of the deposition of the prosecutrix do not inspire
confidence and cannot be believed. There could be no ground for her to
believe that Shahid would kill her and kidnap his sisters. This is more
so when Shahid was not some hardened criminal and was not armed
with a weapon. There could be no reason for the prosecutrix to get
frightened on account of the threat alleged to have been given by the
appellant Hemant, since he was not in a position to implement the said
threat. Moreover, the subsequent conduct of the prosecutrix in
accompanying the aforesaid appellants Hemant @ Bittoo, Bhawna and
Sarla to various places and having illicit intercourse with several
persons also rules out any such threat having been extended to her. This
is not the case of the prosecutrix that she had complained to any of the
persons with whom she had illicit intercourse that she was not a
consenting party for such an act and was submitting only on account of
the threat being extended to her by appellants Hemant @ Bittoo,
Bhawna and Sarla. Had the prosecutrix not been a consenting party not
only would she have complained to the persons with whom she had
illicit intercourse, she would also have raised alarm at several places
where she was taken for the said purpose.
When the prosecutrix was taken to Rajdhani Enclave on several
dates no alarm was raised by her either while getting in the house or
while coming out of the house. Had she not been a consenting party,
she would not have gone to that house several times and would not have
agreed to have illicit intercourse with several persons, particularly when
she does not claim that any of the appellants was armed with a weapon.
In any case, she would certainly have told the persons who were brought
to Rajdhani Enclave house for the purpose of having illicit intercourse
with her that she was not a willing party and was being threatened to
have illicit intercourse with them.
Similarly when the prosecutrix was taken to several other places
on different dates she would have raised alarm while getting out of the
house in which she was living, while getting inside the places where she
had illicit intercourse, while coming out of the places where she had
illicit intercourse or while getting back to the house where she was
living.
It has come in the deposition of the prosecutrix that the appellants
had sent her to Nand Nagri on the two wheeler scooter of a passport
agent and at her request, the passport agent had taken her to a PCO from
where she called her maternal uncle. Admittedly, no alarm was raised
by the prosecutrix while travelling on the scooter of that agent. The fact
that the agent took her to a PCO and facilitated her making a telephone
call to her maternal uncle would show that the aforesaid agent was not
acting in connivance with the appellants. Therefore, the prosecutrix
could easily have asked him to take her to her house or to a police
station on the way. No such attempt, however, was made by her. There
is no evidence of the prosecutrix having requested the aforesaid agent to
inform the police about her plight. Admittedly, even at PCO no alarm
was raised by the prosecutrix. More importantly, while at the PCO, the
prosecutrix had an opportunity to call the police and report her plight to
them. However, no such attempt was made by her despite availability
of a telephone to her. If she did not know the telephone number of the
police control room, she could have asked the PCO owner about it.
However, no such course of action was adopted by her.
It has also come in evidence that she was taken out of Delhi in the
company of Sarla, Bhawna, etc. The prosecutrix remained in their
company for quite some time. No alarm was raised by the prosecutrix
when she accompanied Sarla, Bhawna, etc. outside Delhi in a car. The
court can take judicial notice of the fact that police officials are always
present at interstate borders. Therefore, the prosecutrix must have
noticed the police officials while crossing Delhi border and entering UP
border. Had she not been a willing person she would certainly have
raised alarm at seeing the police officials, while passing through border
for travelling to outside Delhi. According to the prosecutrix, on
25.4.2002, when they were returning back Sarla received information
about arrest of Shahid whereupon she was taken to a house in
Ghaziabad, UP. Again, no alarm was raised by the prosecutrix nor did
she make an attempt to flee from the company of the aforesaid
appellants. From Ghaziabad the prosecutrix was taken to Shahdara
where she stayed for 10-15 days and from Shahdara she was taken to
Ramesh Nagar where she stayed for 7-10 days. She was again brought
to Shahdara and then again to Ramesh Nagar. During all these journeys
no attempt was made by the prosecutrix either to raise alarm or to flee
from the company of the appellants.
In view of the above discussion, I am satisfied that the prosecutrix
was not under any kind of pressure, nor was she subjected to any kind of
threat or intimidation before she accompanied the aforesaid appellants to
several places and she had illicit intercourse with several persons at
different places. The aforesaid facts & circumstances, in my view,
indicate only one probability, that she was sharing the money which the
persons with whom she had illicit intercourse would be paying and that
is why she willingly accompanied the aforesaid appellants to several
places where she had illicit intercourse. However, as far as the
appellants Hemant @ Bittoo, Bhawna and Sarla are concerned, the
aforesaid facts & circumstances leave no reasonable doubt that they
were party to a criminal conspiracy to induce the prosecutrix firstly to
come to Gurudwara Ashok Vihar and then to accompany them to Tri
Nagar, Rajdhani Enclave and several other places intending as well as
knowing that she was likely to be induced to illicit intercourse at the
aforesaid places.
Therefore, no fault can be found with the conviction of the
appellants Hemant @ Bittoo, Bhawna and Sarla under Section 120B
read with Section 366A of IPC.
22. Coming to the appellant Usha, it has come in the deposition of the
prosecutrix that she came to Tri Nagar house on 12.9.2002 and from
there, the prosecutrix, in the company of the appellants Hemant @
Bittoo, Bhawna and Sarla, accompanied her in a separate car to the
house which Usha had taken on rent in Rajdhani Enclave. The
prosecutrix had illicit intercourse with several persons in the aforesaid
house of the appellant Usha. It has also come in the deposition of the
prosecutrix that Usha, Hemant @ Bittoo, Bhawna and Sarla used to take
her to different places for doing illicit intercourse and they were taking
money from the persons who were committing such acts with her. It is
evident from the act of the appellant Usha in taking the prosecutrix to
Rajdhani Enclave house and several other places and taking money from
the persons who had illicit intercourse with the prosecutrix that she was
a party to the criminal conspiracy pursuant to which the prosecutrix was
induced to go to Rajdhani Enclave and several other places for the
purpose of illicit intercourse. It is settled legal proposition that every
person party to a criminal conspiracy need not join the conspiracy at the
stage of its inception and a person, party to the conspiracy may join it at
a later date. Therefore, even if I proceed on the basis that Usha was not
a party to the criminal conspiracy to the prosecutrix going to Ashok
Vihar Gurudwara and then to the house in Tri Nagar she was certainly a
party to the criminal conspiracy pursuant to which she was taken to
Rajdhani Enclave and several other places for the purpose of having
illicit intercourse with several persons. Therefore, the appellant Usha
has been rightly convicted under Section 120B read with Section 366A
of IPC.
23. In my view, the conviction of the appellants under Section 120B
read with Section 368 of IPC is not justified. A person can be convicted
under Section 368 of IPC only if he knowing that any person has been
kidnapped or has been abducted, wrongfully conceals or confines such
person. However, there is absolutely no evidence of the prosecutrix
being concealed or confined. She was openly going to several places
where she had illicit intercourse with several persons and coming back
to the place where she was living in the company of the appellants.
There is no credible evidence of her having been wrongfully confined at
any place. Therefore, the appellants are liable to be acquitted of the
charge under Section 120B read with Section 368 of IPC.
24. In my view the conviction of the appellants Usha, Bhawna,
Hemant @ Bittoo and Sarla under Section 109 read with Section 376 of
IPC is also not made out from the facts & circumstances of the case. As
discussed earlier, the facts & circumstances of the case clearly indicate
that the prosecutrix was a consenting party to have illicit intercourse
with several persons. There is no credible evidence of the prosecutrix
having been put in fear of death or hurt. She was more than sixteen (16)
years old at the time she left the house of her parents in the company of
Kajal. The amended provisions of Section 375 of the Indian Penal Code
do not apply to this case, since the alleged offence took place before the
said Section came to be amended w.e.f. 3.2.2013. Therefore, the
appellants Hemant @ Bittoo, Bhawna and Sarla are liable to be
acquitted of the charge under Section 109 read with Section 376 of IPC.
25. Since the deposition of the prosecutrix alleging threat to kill her
family, take away her sisters and sell her at G.B. Road for consideration
do not inspire confidence, the charge under Section 506 of IPC cannot
be sustained and accordingly the appellants Usha, Hemant @ Bittoo,
Bhawna and Sarla are liable to be acquitted of the said charge.
26. The learned counsel for the appellants pointed out the following
contradictions/discrepancies in the deposition of the prosecutrix:
a. In her deposition the prosecutrix stated that on reaching
Gurudwara, Kajal went somewhere and in the mean while Hemant @
Bittoo, Bhawna & Sarla and driver came there, whereas in her statement
under Section 164 of Cr.P.C., she stated that they were already present
when she reached Gurudwara.
b. In her statement under Section 164 of Cr.P.C. as well as in her
statement recorded on 14.12.2004, she stated that from Gurudwara she
was taken to Ghantaghar, whereas in the other statements recorded in
the court she did not refer to Ghantaghar.
c. In the statement under Section 164 of Cr.P.C. she did not depose
regarding the alleged rape on 10.9.2002 in Tri Nagar house whereas she
claimed such rape when she was examined in the court.
d. In the statement under Section 164 Cr.P.C. she did not refer to
molestation by Ashiq on the first day she was taken to Rajdhani Enclave
whereas she alleged molestation by Ashiq on the first day, when she was
examined in the court.
e. In her deposition she stated that when she was taken to Rajdhani
Enclave for the second time, she was forced to have illicit intercourse
with Ashiq, whereas in her statement under Section 164 of Cr.P.C. she
stated that for the next 4-5 days she was forced to do wrong acts with
Ashiq and many other persons against her consent.
f. According to prosecutrix she had not taken clothes other than the
grey suit she was wearing when she went with Kajal whereas according
to her father she had already arranged to get extra clothing, i.e., one pair
of jeans and one red colour shirt as well as watch and gold rings, prior to
the day she left the house.
The aforesaid discrepancies, in my view, are minor and
inconsequential and therefore much importance cannot be attached to
them. There is no material discrepancy as regards core part of the case
of the prosecution, i.e., (a) Kajal taking the prosecutrix to Gurudwara
with her (b) the appellants Hemant @ Bittoo, Bhawna and Sarla meeting
the prosecutrix at Gurudwara and getting in the car (c) the prosecutrix
being taken to Tri Nagar house by the aforesaid appellants (d) the
prosecutrix being taken to Rajdhani Enclave by the appellants Usha,
Hemant @ Bittoo, Bhawna and Sarla on 12.9.2002, and several other
days (e) the prosecutrix being taken to various places by Usha, Hemant
@ Bittoo, Bhawna and Sarla for illicit intercourse and taking money
from the persons who had illicit intercourse with her and (f) the
prosecutrix being sent with a passport agent to Nand Nagri on his two
wheeler scooter and she making a telephone call to her maternal uncle
on the way to a place in Nand Nagri.
27. The learned counsel for the appellants placed strong reliance upon
the fact that the father of the prosecutrix did not lodge any complaint
with the police prior to 23.11.2002, and lodged only a missing report
instead of report of kidnapping despite having come to know through his
brother-in-law that she was in the clutches of Shahid and Bittoo. It has
come in the deposition of PW2 Hari Ram that he did not report the
matter earlier since family honour was involved. As noted earlier, this
was not a case of someone forcibly taking the prosecutrix with him/her.
This is a case where the prosecutrix was induced to accompany the
appellants by alluring her with money, in case she accompanied the
appellants and indulge into illicit intercourse. It has also come in the
deposition of PW2 that the prosecutrix had already arranged to smuggle
her jeans and T-shirt along with some jewellery out of the house even
prior to 10.9.2002. In these circumstances, particularly on account of
the prosecutrix having taken her clothes, jewellery and some cash from
the house, her father had no difficulty in understanding that this was not
a case of forcible kidnapping of his daughter. It is not uncommon, in
our tradition bound society, for the father of a young girl to hesitate in
reporting a matter of this nature to the police, when he is convinced that
no one had forced her daughter to leave the house. It was only when the
prosecutrix complained to her maternal uncle that he decided to go to
the police station and report the incident. Even at that time either
because he had received a telephone call informing him that his
daughter would soon be sent home or because of his anxiety to protect
the honour and dignity of his daughter, it was not unnatural for him not
to disclose all the facts to the police. The purpose of the complaint
would have been satisfied had the prosecutrix returned home as per the
assurance given to him on telephone. He, however, had no option but to
lodge an FIR when on visiting Sahibabad, he came to know from the
chowkidar that persons of suspicious character were frequenting the flat
in which his daughter had been see and he was able to catch hold of
Shahid.
28. The reasons for the courts normally insisting upon prompt lodging
of FIR is that the delay in reporting the matter to the police may
sometimes result in embellishment and exaggeration, which is a creature
of an afterthought. There is a danger of a coloured version of the
incident creeping in, if there is unreasonable delay in reporting the
incident to the police. Therefore, as a rule of prudence, the court insist
that wherever there is unreasonable delay in lodging an FIR it needs to
be satisfactorily explained by the prosecution.
However, as far as the cases involving sexual assault are
concerned, they stand on an altogether different footing. Since the issue
of honour of the family is involved in reporting such matters to the
police, the members of the family sometimes take their own time in
deciding whether to take the matter further or not. Therefore, delays in
reporting such matters to the police, are sometimes bound to occur in
our tradition-bound society. Ordinarily a traditional Indian family
would not like a stigma to be attached to the victim and, therefore, a lot
of thought process goes into taking a final decision whether to report
such case to the police or not. The following view taken by the Hon‟ble
Supreme Court in State of Himachal Pradesh Vs. Prem Singh AIR 2009
SC 1010, is pertinent in this regard:
"So far as the delay in lodging the FIR is concerned,
the delay in a case of sexual assault, cannot be
equated with the case involving other offences. There
are several factors which weigh in the mind of the
prosecutrix and her family members before coming to
the police station to lodge a complaint. In a tradition
bound society prevalent in India, more particularly,
rural areas, it would be quite unsafe to throw out the
prosecution case merely on the ground that there is
some delay in lodging the FIR."
29. The case set out by the prosecution clearly indicates that Kajal
who is the wife of the appellant Hemant was an accomplice of the
appellant, she being a party to the criminal conspiracy pursuant to which
the prosecutrix left the guardianship of her parents in her company on
10.9.2002, but, the failure of the investigating agency to prosecute her
does not benefit the appellants in any manner since the charges against
them have to be examined independently of the aforesaid lapse of the
investigating agency.
30. It was pointed out by the learned counsel for the appellants that a
number of material witnesses such as chowkidar at Shalimar Garden
house, passport agent and the owners of the houses in Tri Nagar,
Shalimar Garden, Rani Bagh and Sunder Nagri, the owner of STD booth
and the owner of tuition centre have not been examined. As regards the
house in Shalimar Garden, the person who had let out the premises and
who is related to the owner of the house has been examined by the
prosecution and documentary evidence of this house being let out to
Hemant has already been collected. This can hardly be disputed that the
investigating agency ought to have examined the owners of Tri Nagar
house and Rani Bagh house if the address came to known to the
Investigating Officer. However, the deposition of the prosecutrix does
not indicate that she knew the addresses of the Tri Nagar house or the
other houses. Therefore, it might not have been possible for the
Investigating Officer to examine the owners of the said houses.
Moreover, when the Investigating Officer was cross-examined, he was
not asked as to why he had not examined the owners of the said houses.
Therefore, no adverse inference can be drawn against the prosecution on
account of the failure of the investigating agency to examine the owners
of the aforesaid house. The Investigating Officer did not examine the
owner of Ramesh Nagar house, despite the fact that the prosecutrix was
recovered from there. But there is no evidence of the prosecutrix having
been subject to illicit intercourse in that house.
In any case it is settled legal proposition that defect in the
investigation on account of, connivance of the Investigating Officer with
the accused or his incompetence or negligence does not accrue to the
benefit of the accused provided the evidence which the prosecution has
brought on record, establishes their guilt beyond reasonable doubt.
As held by the Hon‟ble Suprme Court in Karnel Singh vs. State of
M.P. JT 1995 (6) SC 437, it is not proper to acquit the person due to
defective investigation, if the case otherwise stands established, since
doing so would be falling in to the hands of the erring Investigating
Officer. As noted by the Supreme Court in Ram Bihari Yadav vs. State
of Bihar and others, JT 1998 (3) SC 290, the story of the prosecution is
to be examined de hors the contaminated conduct of the Investigating
Officer lest the mischief which may also be deliberate one is
perpetuated. The criminal justice should not be made casualty because
of the wrong doing of a police officer.
The Apex Court in Dhanaj Singh @ Shera & Ors. v. State of
Punjab (2004) 3 SCC 654, held, "in the case of a defective investigation
the Court has to be circumspect in evaluating the evidence. But it would
not be right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of the
investigating officer if the investigation is designedly defective."
The Apex Court in the case of Paras Yadav v. State of Bihar AIR
1999 SC 644, enunciated the principle, in conformity with the previous
judgments, that if the lapse or omission is committed by the
investigating agency, negligently or otherwise, the prosecution evidence
is required to be examined de hors such omissions to find out whether
the said evidence is reliable or not. The contaminated conduct of
officials should not stand in the way of evaluating the evidence by the
courts, otherwise the designed mischief would be perpetuated and
justice would be denied to the complainant party.
In State of Karnataka Vs. K. Yarappa Reddy 2000 SCC (Crl.) 61,
the Apex Court inter alia held as under:
"19. ....It can be a guiding principle that as investigation is
not the solitary area for judicial scrutiny in a criminal trial, the
conclusion of the Court in the case cannot be allowed to depend
solely on the probity of investigation. It is well- nigh settled
that even if the investigation is illegal or even suspicious the
rest of the evidence must be scrutinized independently of the
impact of it. Otherwise the criminal trial will plummet to the
level of the investigating officers ruling the roost. The court
must have predominance and pre-eminence in criminal trials
over the action taken by the investigation officers. Criminal
Justice should not be made a casualty for the wrongs committed
by the investigating officers in the case. In other words, if the
court is convinced that the testimony of a witness to the
occurrence is true the court is free to act on it albeit the
investigating officer's suspicious role in the case."
31. It was also contended by the learned counsel for the appellants
that no effort was made by the investigating agency to get the
appellants, other than appellant Neelam, identified in a judicial TIP. In
my view, no such effort was necessary since the prosecutrix having been
in the company of the appellants for a long period and even knowing
their names, there is no way she could have committed any mistake in
identifying them in the course of trial.
The following view taken by this Court in Rijaul Karim versus
State (GNCT of Delhi), Crl. Apeal no.32/2013, decided on 27.01.2014 is
pertinent in this regard:
"12. The legal position with respect to
identification of an accused was summarized by
the Hon'ble Supreme Court in Dana Yadav @
Dahu and Ors. Vs. State of Bihar (2002) 7 SCC
295 inter alia as under:
"(c) Evidence of identification of an accused in
court by a witness is substantive evidence whereas
that of identification in test identification parade
is, though a primary evidence but not substantive
one, and the same can be used only to corroborate
identification of accused by a witness in court.
X X
X
(e) Failure to hold test identification parade does
not make the evidence of identification in court
inadmissible rather the same is very much
admissible in law, but ordinarily identification of
an accused by a witness for the first time in court
should not form basis of conviction, the same
being from its very nature inherently of a weak
character unless it is corroborated by his previous
identification in the test identification parade or
any other evidence. The previous identification in
the test identification parade is a check value to
the evidence of identification in court of an
accused by a witness and the same is a rule of
prudence and not law.
(f) In exceptional circumstances only, as discussed
above, evidence of identification for the first time
in court, without the same being corroborated by
previous identification in the test identification
parade or any other evidence, can form the basis
of conviction.
(g) Ordinarily, if an accused is not named in the
first information report, his identification by
witnesses in court, should not be relied upon,
especially when they did not disclose name of the
accused before the police, but to this general rule
there may be exceptions as enumerated above."
13. The power to identify also varies in terms of
power of observation and memory of the
identifying person. Another relevant circumstance
in this regard is as to for how much time the
witness had seen the accused. If, for instance, he
had only a glimpse of the accused, he may not be
in a position to firmly recall his identity, but if he
had interacted the accused for a substantial time
and had ample opportunity to observe him, he may
face no difficulty in identifying him at a later date.
32. The learned counsel for the appellant Usha has relied upon
Ramesh Vs. The State of Maharashtra AIR 1962 Supreme Court 1908;
Premwati Vs. State of NCT of Delhi & Anr. 2010 (4) JCC 2491; State
(Delhi Admn.) Vs. Jagdish & Anr. 1988 (3) Crimes (Delhi DB) and
Madan Raj Bhandari Vs. State of Rajasthan 1969 (2) SCC 385.
In Ramesh Vs. The State of Maharashtra (supra) an accused
named Patilba introduced the prosecutrix to some customers and she
started indulging in promiscuous intercourse for money. On January 13,
1960, the appellant Ramesh went to the resident of Patilba and asked
him to bring the prosecutrix and another women engaged in the
prostitution to Gulzar Theatre and accordingly Patilba and the two
women went to the Theatre. At the instance of the appellant, the two
women were taken by one Devidas to Bohori Kathada. The police
raided a room at Bohori Kathada and found accused Nos.1 to 5 and
Devidas consuming liquour in a room. The women were found in the
inner apartment. It was found that the prosecutrix had not attained the
age of eighteen (18) years. Nine (9) persons including the appellant
Ramesh who was accused No.3 in the case were charged under Section
366 & 366A of IPC. The appellant was convicted, holding that he had
induced the prosecutrix to go from her resident to Gulzar Theatre and
from Theatre to Bohori Kathada with intent that she might be or
knowing that it was likely that she would be forced or seduced to illicit
intercourse. The High Court maintained the conviction of the appellant
on the ground that he had instigated Patilba and Devidas to bring the girl
to the threatre and thereafter to the room in question. Allowing the
appeal, the Apex Court noted that the prosecutrix was brought up by
Patilba and even though she was married for a long time before the date
of the offence she was accustomed to indulge in promiscuous
intercourse with customers for money. It was also noted that the
prosecutrix had admitted that she used to entertain one or two customers
every day and was habituated to the life of a prostitute. It was further
noted that on the day in question the prosecutrix and her companion
Chandrakala had gone to Gulzar Theatre accompanied by Patilba and in
the Theatre they were seeking customers but were disappointed on
finding a police van parked near the entrance of the Theatre. It was in
these circumstances that the Apex Court held that there was no evidence
on record that Patilba induced the prosecutrix to go to Theatre or from
Theatre to Bohori Kathada. During the course of the judgement, the
Apex Court observed that a person who merely accompanies a woman
going out to ply her profession of a prostitute, even if she has not
attained the age of eighteen (18) years does not commits an offence
under Section 366A of the IPC and it cannot be said that thereby, he
induced her to go to any place or to do any act with the intent or
knowledge that she will be forced or seduced to illicit intercourse.
During the course of the judgement, the Apex Court further observed
that the word „seduce‟ had been used in the Section in the wider sense of
inducing a woman to submit to illicit intercourse at any time or on any
occasion. It was further noted by the Apex Court that the case before it
was not a case in which a girl who had strayed from the path of virtue
when she was in the custody of her guardian and had with a view to
carry on her affair accompanied her seducer or another person. Such a
case, the Apex Court felt may certainly fall within the terms of Section
366 or 366A whichever applies but where a woman follows the
profession of a prostitute, she is accustomed to offer herself
promiscuously for money to customers and in following that profession
she is encouraged or assisted by someone, no offence under Section
366A is committed by such person, for it cannot be said that the person
who assists a girl accustomed to indulge in promiscuous intercourse for
money in carrying on her profession that she will be forced or seduced
to illicit intercourse.
However, in the case before this Court, there is absolutely no
indication that the prosecutrix was accustomed to promiscuous sexual
intercourse or was already engaged in the profession of a prostitute
when she left the guardianship of her father on 10.9.2002, in the
company of Kajal, first wife of the appellant Hemant. In the case before
this Court, the prosecutrix was influenced to stray from the path of
virtue, when she was still in the custody of her guardian and this was
done pursuant to a criminal conspiracy to which the appellants Hemant,
Sarla and Bhawna as well as Kajal, first wife of appellant Hemant, were
parties. Therefore, this judgement does not help the appellant in any
manner.
In Madan Raj Bhandari (supra), the Apex Court inter alia held
that as a general rule a charge of abetment fails when the substantive
offence is not established against the principal though there may be
exceptions. However, considering the view being taken by me that the
prosecutrix was not subjected to rape, this judgement becomes
irrelevant.
In Premwati Vs. State of NCT of Delhi & Anr., the appellant
before this Court was charged under Sections 363/34, 368, 506 Part II
read with Section 34 and Section 376(2)(g)/34 of IPC but was convicted
under Section 109 read with Sections 376 & 366A of IPC without
framing any charge under the said Sections. Allowing the appeal, this
Court noted that the charges framed against the appellant did not suggest
allegations of inducement by the appellant of the prosecutrix which
made the prosecutrix to go from any place or to do any act. It was also
noted that the appellant was not confronted with specific allegations of
inducement in the statement recorded under Section 313 of Cr.P.C.
However, in the case before this Court, the appellants were duly charged
under Section 120B of IPC read with Section 366A thereof and the
relevant incriminating evidence was duly put to them under Section 313
Cr.P.C. This judgement, therefore, is of no help to them.
In State (Delhi Admn.) Vs. Jagdish & Anr. (supra), this Court
inter alia held that to bring the guilt under Section 366A of IPC, the
prosecution has to prove - (1) that a minor girl was induced by the
accused; (2) that she was induced to go and (3) that she was induced
with intent that she might or knowing that it was likely that she would
be forced or subjected to illicit intercourse with any person.
In the case before this Court, all these ingredients stand duly
established. Therefore, this judgement also does not avail to the benefit
of the appellants.
33. The learned counsel for the appellants Bhawna, Shahid, Sarla &
Hemant @ Bittoo has relied upon Radhu Vs. State of M.P. (2007) 12
SCC 57; Rajesh Patel Vs. State of Jharkhand (2013) 3 SCC 791; and
Alamelu and Anr. Vs. State represented by Inspector of Police (2011) 2
SCC 385.
In Radhu Vs. State of M.P. (supra) when the prosecutrix was
going to purchase groceries, she was invited by one Gyarsibai who was
related to her to come inside. The case of the prosecution was that when
the prosecutrix came inside, she was confined in a room and in the night
she was sexually assaulted by the son of Gyarsibai. When the
prosecutrix was examined in the court, the version given by her was
substantially different from the version given at the time of registration
of the case. In the facts & circumstances of the case, noticing a number
of discrepancies and improbabilities, the Apex Court was of the view
that the testimony of the prosecutrix did not inspire confidence and
acquitted the accused persons. The decision being based on the facts of
the case, has no applicability to the case before this Court and it contains
no such legal proposition which, in the facts & circumstances of the case
before this Court, would be of any assistance to the appellants.
In Rajesh Patel (supra), the case of the prosecution was that the
prosecutrix, who was working as a nurse, went to the house of the
appellant, on his request, to get back her book from him. On her
entering the house the door was closed, she was threatened to be killed
with a knife in case she raised alarm and the appellant committed rape
on her person. The Apex Court noted that the appellant and the
prosecutrix were classmates and had good acquaintance with each other.
It was also noticed that she raised no alarm. It was further noticed that
after about half an hour of the alleged rape when a common friend of the
prosecutrix and the appellant unlocked the room, no alarm was raised by
her. Neither the prosecutrix nor the common friend informed the police
with respect to the alleged offence, even after she was unlocked from
the house. In these circumstances, the Apex Court found the case of the
prosecution to be unnatural and improbable. During the course of the
judgement, the Apex Court also took note of the fact that there was
delay of eleven (11) days in filing the FIR and a number of material
witnesses had not been examined. The explanation given by the
prosecution for the delay in lodging FIR was found to be unsatisfactory
and unacceptable. It was in these circumstances that the benefit of
doubt was given to the appellant. Again the case being based on its own
facts is of no consequence in the present case.
In Alamelu & Anr. (supra), the case of the prosecution was that
accused No.1 expressed his love for the prosecutrix and wanted to marry
her. She, however, did not agree to his proposal. Thereafter the
prosecutrix was forcibly pushed in a car by accused Nos.1, 2, 4 & 5.
This was also the case of the prosecution that all the accused had taken
the victim to the temple where accused No.1 forcibly tied the
mangalsutra around her neck, despite resistance from her and thereafter
she was taken to a house, where she was repeatedly raped for three (3)
days. The Apex Court noticing the improbabilities of the case rejected
the case set up by the prosecution. It was noted that there was no
evidence to prove that the victim was forcibly taken in a car. Neither
the owner nor the driver of the car had been examined. The Apex Court
felt that in the facts & circumstances of the case the possibility of the
victim having run away from her parental house could not be ruled out.
During the course of the judgement, the Apex Court noted a number of
discrepancies including that though some known persons were present at
the temple, no alarm was raised by the prosecutrix, though, admittedly
they would have helped her had she told them that she was in trouble. It
was also noted that the prosecutrix did not make any complaint at the
residence of sister of accused No.1 where she was taken, by him. It was
further noticed that the relatives of the prosecutrix took no steps at the
time when mangalsutra was allegedly forcibly tied around her neck by
accused No.1 and no police help was sought for a car was available.
The facts of the case before this Court, however, are altogether different.
This judgement, therefore, has no application to the facts of the case
before this Court.
34. As far as appellant Shahid is concerned, the only evidence against
him is that - (a) he did not protest despite knowing that the prosecutrix
was being taken to various places for illicit intercourse; (b) he was
residing in Shalimar Garden house, which the appellant, Hemant had
taken on rent; and (c) he caught hold of the prosecutrix and brought her
back to Shalimar Garden house when she tried to escape from the house
in Sunder Nagri.
As regards Shahid catching hold of prosecutrix and bringing her
back to Shalimar Garden house, the deposition of the prosecutrix in this
regard does not inspire confidence. The prosecutrix did not claim that
she had tried to escape in darkness and nobody was on the road at the
time Shahid caught hold of her and brought her back to Shalimar
Garden house. If the prosecutrix wanted to run away from Sunder
Nagri, she would have raised alarm when Shahid allegedly caught hold
of her and brought her to a house in Shalimar Garden. The prosecutrix
would have been brought to Shalimar Garden house in a vehicle. If she
wanted to escape, she would have raised alarm in the vehicle and in that
case, someone on the road or the driver of the public vehicle would have
intervened and come to her rescue. Therefore, I am not inclined to
believe the claim of the prosecutrix in this regard.
As regards appellant Shahid not protesting despite knowing that
the prosecutrix was being taken to various places for illicit intercourse,
neither does it prove beyond reasonable doubt that he was a party to the
criminal conspiracy pursuant to which the prosecutrix left the house of
her parents on 10.9.2002, nor does it make out commission of any
substantive offence by him. Appellant Shahid was not present when the
prosecutrix reached Gurudwara Ashok Vihar. He was not present even
in Tri Nagar house when the prosecutrix was taken there by the
appellants Hemant @ Bittoo, Bhawna and Sarla. There is no evidence
of his having taken or even accompanying the prosecutrix anywhere for
the purpose of illicit intercourse. The house in Shalimar Garden was
taken on rent by Hemant as is evident from the rent memo Ex. PW5/B.
Appellant Shahid was residing in that house only on account of his
being father-in-law of the appellant Hemant. Therefore, nothing really
turns on his residing in the said house. In these circumstances, the
appellant Shahid needs to be given benefit of doubt and is acquitted.
35. Coming to the appellant Neelam, who is related the appellant
Sarla and Bhawna, the only evidence against her is that as per the last
testimony of the prosecutrix in the court on 19.10.2005, is that - (a) she
was present in Tri Nagar house when the prosecutrix was taken there on
10.9.2002; (b) she was present in Nand Nagri in the house of Rani and
Gopi, relative of Sarla when the prosecutrix was taken there on
21.11.2002; (c) the prosecutrix was beaten by her and one Pappu in the
house at Shalimar Garden for informing her maternal uncle and for
trying to run away from Sunder Nagri where she was taken for her
passport and speaking to her maternal uncle; and (d) the prosecutrix was
beaten by Neelam, when she was brought to Shalimar Garden house.
There is no evidence of the appellant Neelam having taken or
even accompanied the prosecutrix to any place where she was subject to
illicit intercourse. There is no evidence of the appellant Neelam having
accepted the money from any person, who had committed illicit
intercourse with the prosecutrix. The said appellant was not present at
Ashok Vihar Gurudwara when the prosecutrix reached there on
10.9.2002. Since the appellant Neelam admittedly is related to appellant
Sarla, Bhawna and Hemant, her presence in their Tri Nagar house on
10.9.2002, by itself would not indicate her being a party to a criminal
conspiracy, pursuant to which the prosecutrix left her house on that day.
Similarly the prosecutrix being found in the house at Sunder Nagri is of
no consequence since according to the prosecutrix, the said house
belonged to the father of Neelam. As regards the appellant Neelam
beating her on account of trying to run away and speaking to her
maternal uncle, as noted earlier, the story of the prosecutrix trying to run
away from Sunder Nagri does not inspire confidence. As regards her
speaking to her maternal uncle, there is no way the appellant would have
known of it by the date the prosecutrix claimed to have been beaten in
the Shalimar Garden house. Neither she would have shared this
information with the appellant nor would the passport agent have
disclosed it to them. In these circumstances, the benefit of doubt needs
to be extended to the appellant Neelam as well and she needs to be
acquitted.
36. For the reasons stated hereinabove, the appellants Shahid and
Neelam are given benefit of doubt and are hereby acquitted.
The conviction of the appellants Hemant @ Bittoo, Sarla, Bhawna
and Usha is confirmed under Section 120B read with Section 366A of
IPC and they are acquitted of the remaining charges.
The appellant Hemand @ Bittoo is sentenced to undergo
imprisonment for five (5) years and to pay fine of Rs.5,000/- or to
undergo SI for six (6) months in default. The appellants Usha, Sarla and
Bhawna are sentenced to undergo SI for three (3) years each and to pay
fine of Rs.5,000/- each or to undergo SI for three (3) months each in
default. The appellants are directed to surrender forthwith before the
trial court to undergo the remaining sentence awarded to them. The fine
unless already deposited can be deposited within four (4) weeks from
today. If realized, 75 per cent of the fine be paid as compensation to the
prosecutrix.
The appeals stand disposed of accordingly.
One copy of this order be sent to the concerned Jail
Superintendent.
LCR be sent back along with a copy of this order.
FEBRUARY 20, 2014 V.K. JAIN, J.
BG/rd/b'nesh
