Ramu vs State
2014 Latest Caselaw 1433 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Decision: 19.03.2014

+       CRL.A. 665/2010
        RAMU                                             ..... Appellant
                          Through: Mr Rajender Chhabra, Adv.

                          versus

        STATE                                          ..... Respondent
                          Through: Ms Ritu Gauba, APP for the State

CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                   JUDGEMENT

V.K. JAIN, J. (Oral)

The case of the prosecution, as set out in the charge-sheet is as

follows:

On 20.02.2008, SI Sahib Singh of Police Station Timar Pur along with

Constable Satbir was on patrol when the complainant got down from a bus

in injured condition, accompanied by another injured, namely PW5. The

statement of the complainant was recorded by the police officer who, inter

alia, alleged that in the night intervening 19/20.02.2008, he along with PW5

was sleeping in the bus No. DL 1PA 7801. At about mid night, 2-3 boys

entered the bus and insisted on doing unnatural act with him. They had

consumed liquor. When he resisted, one of the boys took out a knife and

gave a knife blow on his right hand. When his companion PW5 intervened,

he was beaten by those boys. Thereafter, they were threatened by them with

a knife and were taken towards jungle. He further alleged that the boy who

had given the knife blow to him was previously known to him, his name

being Deepak. He further alleged that Deepak along with his two

companions made him lie down on a bench in the jungle and then all the

three sodomized him. Thereafter, both, the complainant as well as PW5

were locked in the bus and threatened to be killed, in case they disclosed the

incident to anyone. He also claimed that he could identify the other two

boys, who had sodomized him.

2. After completing investigation, three persons, namely Deepak, Sonu

and Ramu were prosecuted under Section 365/377/342/506/324/325 and 367

of IPC read with Section 34 thereof and one of them was also charge-

sheeted under Section 27 of Arms Act.

3. All the three accused persons were charged under Section 450/34,

324/34, 365/34, 377/34 342/34 and 506/34 to which they pleaded not guilty

and claimed trial. As many as 12 witnesses were examined by the

prosecution. No witness, however, was examined in defence.

4. The complainant came in the witness box as PW-1 and inter alia

stated that when he was sleeping inside bus No DL1PA-7801, parked at

Timar Pur in the night intervening 19/20.02.2008, Sonu came in their bus

and requested to take rest inside their bus. PW5, however, refused to provide

rest to him in the bus. This resulted in altercation between Sonu and PW5.

Thereafter, Sonu went away. After about 15 minutes, Sonu, accompanied

by 3-4 associates came to the bus, opened the folding gate of the bus with

the help of the knife, entered the bus with his associates and caused injury

on his arm. The associates of Sonu also caused injuries to him. His friend

PW5 was beaten by dandas and lathis. The witness identified Sonu as well

as the accused Deepak @ Deepu and Ramu who were present in the Court at

that time, though he claimed that Deepak and Ramu were not present along

with Sonu on the date of the offence.

The witness further stated that at about 12.30 AM, on 20.02.2008,

when he and PW5 were going to lodge a report against Sonu and his

associates, on account of their having threatened them, Sonu and his six

associates met them on the way and took him and PW5 to jungle, where he

was confined near bushes and beaten with lathis, dandas and knife blows

were also given to him. He further alleged that PW5 was also beaten with an

iron pipe causing fracture on his left arm. He also alleged that Sonu and his

associates removed his garments and thereafter took him and PW5 to a

nearby park where Sonu performed unnatural act upon him against his wish

and consent. Thereafter, his associates also sodomized him one by one

against his wish and consent. The witness identified the accused Deepak by

pointing his finger at him. He further alleged that Sonu and his associates

then took him and PW5 to the bus and confined them there, threatening to

kill them in case they lodged a complaint with the police. He also stated that

in the morning when he and PW5 came down from the bus and met other

helpers and conductor, police was called and his statement was recorded.

This witness was cross-examined by the learned Additional PP and during

cross-examination, he admitted that accused Ramu had caused injuries to

him and PW5 at the time he had come for the first time along with Sonu and

his associates. He, however, denied the suggestion that Ramu had also come

with Sonu or that Ramu did unnatural offence upon him. During cross-

examination, he stated that three persons had committed sodomy on him, out

of whom only two were present in the Court.

5. PW5 is the other injured in this case. He inter alia stated that in the

night of 19/20.02.2008, he along with the complainant was sleeping in bus

No DL1PA 7801, which had been parked in a parking near petrol pump,

Timar Pur. At about 12.00 midnight, Sonu along with some boys came there

and gave beating to them. He further stated that when they were going to

police, those boys met them on the way and took them towards jungle where

both of them were again beaten. Complainant was made to lie on a seat on

the park and then Sonu forcibly sodomized him. He also stated that one

Deepu caught hold of the mouth of Complainant and the act of sodomy was

recorded by mobile phone camera. Thereafter, Deepak sodomized

Shamshar. He also alleged that Ramu forcibly put his penis into his mouth

and urinated in it. He further alleged that Ramu had given three sariya blows

on his head. He also alleged that on 16.03.2008, the accused Ramu and

Sonu were arrested at his instance. This witness was cross-examined by the

learned APP, but he denied having told the police that all the three accused

had committed sodomy with Shamesher. However, at one place in the cross-

examination, he stated that all the three accused persons in the Court had

committed sodomy with Complainant turn by turn though in the very next

sentence, he admitted that he had not seen the accused persons doing

sodomy since he was made to see in a different direction. He also admitted

in cross-examination that he was beaten by accused persons only and his

clothes were removed by the accused person, but, he was not sodomized by

any one of them.

6. PW-8 Dr. Rajinder Kumar examined PW-2 in hospital on 20.02.2008

vide MLC Ex.PW-8/A. He also examined the complainant vide MLC

Ex.PW-8/B.

PW-9 Dr. Sangita Kumari examined Deepak, Sonu and the appellant

Ramu vide MLC Exs. PW-9/A to 9/C.

7. In their statement under Section 313 Cr.P.C., the appellant denied the

allegations against him and claimed to be innocent. Vide impugned

judgment dated 18.03.2010, all the accused, including the appellant Ramu

were convicted under Section 450/324/506/342/377/34 IPC and vide

impugned Order on Sentence dated 31.03.2010, they were sentenced to

undergo RI for two years each and to pay fine of Rs 25,000/- each or to

undergo SI for six months in default under Section 377/34 of IPC. Identical

sentence was awarded to them under Section 450/34 of IPC. The convicts

were sentenced to undergo for the period already spent by them in custody

for the offences under Sections 324/342/506 read with Section 34 IPC.

Being aggrieved from his conviction and sentence awarded to them, the

appellant-Ramu are before this Court by way of this appeal.

8. As far as appellant - Ramu is concerned, according to the

complainant, no act of sodomy was committed by the said appellant with

him. He expressly identified Deepak and Sonu as the persons who had

sodomized him in the night of 19/20.02.2008. According to this witness,

three incidents had taken during the aforesaid night. The first incident took

place when Sonu came near their bus, sought to take rest inside the bus and

on PW8 refusing to accede to his request, an altercation took place between

Sonu and PW5 outside the bus, whereafter Sonu went away. The second

incident took place when Sonu returned after about 15 minutes along with

his associates near the bus, opened the bolted gate of the bus with the help of

a knife, entered the bus with his associates and caused injuries to him with a

knife. The associates of Sonu also caused injuries to him and PW5 at that

time. The third incident according to the complainant happened when while

going to police, they were intercepted and taken to a jungle where he was

sodomized by two persons i.e. Sonu and Deepak. During cross examination

by learned Additional PP, this witness admitted that the appellant - Ramu

had caused injuries to him and his friend PW5 when he had come along with

Sonu and his associates at the first time. Obviously, the witness was

referring to the incident when Sonu returned to the bus with his 3-4

associates, entered the bus with them and caused injury to complainant,

using the knife and thereafter both, the complainant as well as PW8 were

beaten. At the time there was an altercation on the issue of Sonu seeking to

rest inside the bus, Sonu was not accompanied by any associate and,

therefore, the witness, during cross examination by learned Additional PP

could not be referring to the altercation which took place at that time.

9. As far as PW5 is concerned, he maintained in his examination-in-

chief that the act of sodomy with the complainant was committed by Deepak

and Sonu. This witness also referred to the earlier incident in which Sonu

accompanied by his associates had come to the bus and given beatings to

him and the complainant. The witness also claimed that Ramu had given

three saria blows on his hand. The witness also claimed that the appellant -

Ramu had put his penis into his mouth. A perusal of the FSL report would

show that human semen was detected on the underwear of the appellant -

Ramu when it was examined in the laboratory. However, since the appellant

- Ramu was arrested only on 16.03.2008, about four weeks after the

aforesaid incident, no importance to the presence of the semen on his

underwear can be attached.

10. As regards oral deposition of PW5, I find that in his statement under

Section 161 Cr.PC he made no such claim. Nowhere did he allege that the

appellant - Ramu had inserted his male organ inside his mouth. Though at

one point in his cross examination, he stated that all the three accused had

sodomized the complainant turn by turn, the said part of the deposition

cannot be accepted in view of emphatic denial by the complainant as far as

appellant - Ramu is concerned. Moreover, PW5 also admitted in his cross

examination that the actual act of sodomy was not seen by him.

11. However, the facts and circumstances of the case clearly indicate that

the act of sodomy with the complainant was committed in furtherance of a

common intention which the appellant - Ramu shared with his co-accused

Deepak and Sonu. It has come in evidence that all the three persons were

together when they were met PW1 and PW2 and took them inside the

jungle/ park where the complainant was sodomized. It has also come in the

deposition of PW5 that two accused persons would stay with him when the

third accused would do the act of sodomy with the complainant. According

to him, he was asked by two accused persons present with him, always to

look into different direction when the third was doing the act of sodomy.

The aforesaid act on the part of the accused persons, which would include

the appellant - Ramu leaves no reasonable doubt that the complainant was

sodomized in furtherance of a common intention which all the three accused

shared with each other. Had that not been the position, there would be no

reason for the two persons to stay with PW5, when the third person

sodomized the complainant nor would they have asked PW5 to look in a

different direction at the time when the third one was engaged in the act of

sodomy. Therefore, the appellant - Ramu is also vicariously liable for the

act of sodomy committed with the complainant and has rightly been

convicted under Section 377 of IPC read with Section 34 thereof.

12. All the three accused came together to the bus where PW1 and PW5

were present, after Sonu had left on altercation with PW5 and then all the

three gave beatings to PW1 and PW5, a knife was used for threatening them

and causing injuries to PW1. The above referred facts and circumstances

clearly show that the injuries to PW1 using a knife was given in furtherance

of common intention which all the three accused including the appellant -

Ramu shared with each other. The injuries were caused not only to the

complainant, but also to PW5, at the aforesaid time. The MLC Ex.PW8/B of

the complainant would show that he had the following injuries on his person

when he was examined in Aruna Asaf Ali Hospital:

(i) Bruise, reddish blue in colour over back of LF thigh Horizontal three in number 6 cm x 1-2 cm wide 4 cm x 2 cm wide

(ii) Bruise over LF thigh 6 inch above knee (dorsal) Reddish blue

(iii) Superficial abrasion over popliteal fossa (LF side

(iv) Bruise over upper 1/3rd of RF thigh dorsally reddish blue over size of 4 cm, irregular shape

(v) Tenderness over upper 1/3rd of RF leg, movements (N)

(vi) Bruise over LF scapular region

(vii) Superficial abrasion medical side of RF scapula

(viii) Abrasion over RF nipple

(ix) Tenderness over RF shoulder Movements normal

(x) Tenderness & swelling (LF) temporal area.

        (xi)     Bruise mark over RF arm three in numbers
        (xii)    Tenderness over RF wrist.

(xiii) Clean incised wound over RF forearm upper 1/3rd 5 cm x 1 cm x0.5 cm. No active bleeding

(xiv) Bruise reddish blue over gluteal region.

A perusal of MLC of PW5 Ex.PW8/A would show that he had the

following injuries on his person when he was examined in the hospital:

        (i)      Tenderness & swelling over forearm

        (ii)     Abrasion over LF forearm above wrist above 5 cm

        (iii)    Tenderness and swelling around RF elbow.

        (iv)     Abrasion over RF alae of nose.



         (v)      Abrasion over RF lower back.

13. Considering the deposition of PW1 and PW5, which finds ample

corroboration with their respective MLCs, the appellant - Ramu has rightly

been convicted under Section 324 and 506 IPC read with Section 34 thereof.

Since PW1 and PW5 were confined inside the bus, after they were brought

back from the jungle, conviction under Section 342 of IPC read with Section

34 thereof is also justified. However, the charge under section 450 of IPC

does not stand proved against the appellant - Ramu since a bus is not a

building, tent or a vessel, used for dwelling, nor a bus the place of worship

or a place for the custody of property. However, since the appellant - Ramu

and his co-accused had trespassed in the bus, they committed offence of

trespass as defined under section 441 of the Indian Penal Code which is

punishable under Section 447 of the said Code. Therefore, while acquitting

the appellant - Ramu of the charge under Section 450 of IPC, he is

convicted under Section 447 thereof, which is a minor offence qua the

offence punishable under Section 450 of the Code.

14. As far as sentence awarded to the appellant - Ramu under Section

324/506/342/377 of IPC read with Section 34 thereof is concerned, there is

no scope either for reducing the substantive sentence awarded to him or to

reduce the quantum of fine imposed on him. It is, however, directed that in

default of payment of fine, the appellant shall undergo SI for two months as

against six months awarded by the learned trial court. Under Section 447 of

IPC, the appellant is sentenced to undergo SI for two months. All the

sentences shall run concurrently.

The appeal stands disposed of in terms of this order.

One copy of this order be sent to the Jail Superintendent for

information and necessary action.

Trial court record be returned with a copy of this order.

MARCH 19, 2014                                               V.K. JAIN, J.
BG/rd