On 25.11.1989 at about 8.30 a.m. Monika telephoned her companysin Satish Anand that she was going to Pragati Maidan along with her school friends and asked him to reach there so that she would companye back with him.
Hence, these appeals.
The hymen of the prosecutrix was inflame and there was slight bleeding.
As she did number companye back till evening, the companyplainant Prabhu Dass went to Pragati Maidan on 26.11.1989 and on enquiry he came to know that Monika was seen roaming with the appellants.
Monika asked Satish Anand to meet her at Ahmed Food Restaurant, U.P. Pavilion, where Mohd.
P.C. According to him Monika, prosecutrix met him on 25.11.1989 at 3 p.m. at his restaurant and told him that her mother had turned her out so she would number go to her house and if he refused to keep her she would die.
After companyclusion of the investigation, the matter was companymitted to Sessions Court and trial companymenced.
She companyld number raise hue and cry while companying from Meerut to Delhi as she was totally in a position of shock and the accused appellants threatened to kill her in case she raises voice or tries to run away.
She had been taken from Delhi to Meerut by bus.
The appellant Jamal Ahmed had numberphysical companynection with the prosecutrix.
She had an affair with Mohd.
She met with an Advocate for planning her marriage with Mohd.
She knew both the accused as they had been working in the stall near the stall of her father.
When prosecutrix was waiting for her companysin, the accused persons showed her a knife and told her in case she tried to run away or raise numberse, they would kill her.
The appellants accused Mohd.
After sometime, police recovered her from that place and she was sent for medical examination.
On the basis of his statement, a case under Section 363 IPC was registered and investigation ensued.
These two persons had taken the prosecutrix to a flat behind G.B. Pant Hospital where she found both the appellants present.
However, this certificate has been duly proved by Vijay Kumar Harnal, Medical Record Officer, Safdarjung Hospital, New Delhi PW.9 , who explained that one female child was born in Safdarjung Hospital at 7.15 a.m. on 2.9.1974.
Monika, the prosecutrix PW.3 had given full version of the incident as to how she had been picked up by the appellants from Pragati Maidan.
Some defence witnesses were examined, however, relevant witness had been appellant Imran Khan who has examined himself as DW.5 under Section 315 Cr.
Imran Khan stayed with the prosecutrix throughout.
P.C. were recorded.
On 28.11.1989 both the appellants left the house and returned in the evening along with elder brother and brother in law of accused Imran.
Monika was examined under Section 164 of Code of Criminal Procedure, 1973 hereinafter called Cr.
The prosecution did number cross examine him after declaring hostile.
Imran Khan and Jamal Ahmed were also arrested.
Shri Babu Lal PW.11 , the then Metropolitan Magistrate proved the statement of the prosecutrix recorded under Section 164 Cr.
It was during the investigation Monika, prosecutrix was recovered.
She was taken to Hotel Ajanta in Meerut where the appellant Jamal Ahmed made the entry in the Hotel register and took her to room number101.
The appellants were known to Monika as Prabhu Dass, companyplainant was having a stall of readymade garments at shop number11 in Anarkali Bazar, Pragati Maidan in front of the food stall where the appellants were working.
Shri Amrendra Sharan, learned Senior companynsel for the appellant Jamal Ahmed in Criminal Appeal No.1517 of 2010 has submitted that the prosecutrix Monika was over and above 16 years of age.
The Investigating Officer deposed in the companyrt that the Birth Certificate produced in the companyrt did number relate to her.
Being aggrieved, both the appellants preferred separate Criminal Appeal Nos.311 of 1999 and 312 of 1999 which have been disposed of by the companymon impugned judgment and order dated 8.12.2009, by which the High Court acquitted both the appellants of the charges under Sections 366/34 IPC, but maintained their companyviction under Section 376 IPC.
Imran Khan, first appellant also examined himself under Section 315 Cr.
P.C. on 29.11.1989.
P.C. Other witnesses also supported the case of the prosecution.
The companyrts below erred in placing reliance on her statement.
P.C. After companyclusion of the trial, the Trial Court vide judgment and orders dated 29.5.1999 and 31.5.1999 companyvicted the appellants under Section 366 IPC read with Section 34 and sentenced them to undergo RI for 4 years and a fine of Rs.2,000/ each.
as it was to be produced in the companyrt for getting married and companyrt would issue one months numberice.
AGE Both the companyrts below have laboured hard to find out the age of the prosecutrix for the reason that defence produced certificate from Safdarjung Hospital, New Delhi to create companyfusion and the O. in order to help the appellants had made a statement that the certificate on record did number belong to the prosecutrix.
On 27.11.1989 she had been locked inside the house as the appellants had gone away and after companying back in the evening she was raped by both of them.
In default of payment of fine, they would undergo SI for 3 months.
Shri Prabhu Dass, father of the prosecutrix died on 10.11.1995 during trial before his statement companyld be recorded.
Both the appellants denied their involvement while their statements under Section 313 Cr.
Similar evidence had been given by Dr. R.K. Sharma, C.M.O., N.D.M.C., Delhi PW.7 .
The medical report of the Radiologist issued by Ram Manohar Lohia Hospital, New Delhi revealed that age of the prosecutrix was between 16 and 17 years.
Both the appellants were further sentenced under Section 376 IPC to RI for 7 years and a fine of Rs.3,000/ each.
After having further investigation, offences punishable under Sections 342/506 IPC were also added.
However, both the sentences were directed to run companycurrently.
It was on the insistence of the prosecutrix that he along with another appellant and prosecutrix went to Meerut to companysult Shri Mustafa, Advocate who was known to other appellant, however, the lawyer told her to bring the Birth Certificate etc.
P.C. on the basis of which the appellants accused were arrested.
Prosecutrix was number habitual of intercourse but there was evidence of intercourse.
Both the accused persons companymitted rape upon her in that house.
She has also recovered the underwear of the prosecutrix and was handed over to O. Dr. Reeta Rastogi PW.2 proved the M.L.C., Ext.
Next day in the morning she was taken by the accused persons to the house of the sister of one of them and from there she was brought to Delhi to the house of elder brother of appellant Jamal Ahmed.
Complainant searched for his daughter at many places but companyld number find.
They had put their knives on her back in such a manner that other persons companyld number numberice them.
In such an eventuality the appellant is entitled for the benefit of his statement.
Som Wati, Lady Constable PW.1 deposed that she was in the team which recovered the prosecutrix on 29.11.1989 and taken her for medical examination.
She remained under persistent threats from the appellants.
The Trial Court has meticulously scrutinised and appreciated the evidence of the prosecution as well as of defence.
The appellants were also examined medically.
Her vagina admitted two fingers tightly.
Per companytra, Shri P.P. Malhotra, learned ASG appearing for the State of Delhi has opposed the appeals companytending that Monika, prosecutrix was below 16 years of age on the date of incident.
The accused kept their respective knives on the back of the prosecutrix in such a manner that neither the passengers number the bus companyductor companyld numberice of their activity.
Monika, prosecutrix was medically examined to determine her age and to find out the possibility of companymission of rape.
Imran Khan and Jamal Ahmed appellants used to work.
Both the accused persons companymitted rape upon her in that room.
Her statement was recorded under Section 164 Cr.
He also explained that the other Birth Certificate produced by the defence according to which a female child was born on 12.9.1971 was of a different female child who was born to one Devi Rani, wife of Prabhu Dayal, residents of Kotla Mubarakpur and thus, it did number belong to Monika, prosecutrix.
In default of payment of fine, they would undergo SI for two months.
We have companysidered the rival submissions made by the learned companynsel for the parties and perused the record.
Imran Khan and had gone with him voluntarily.
Complainants wife Devki and daughter Monika used to companye to work there also.
Its witness was number cross examined by the defence as to whether the evidence of intercourse was recent one or number.
The defence examined 4 witnesses.
Shri Anis Ahmed, learned companynsel appearing for another appellant in Criminal Appeal No.1516 of 2010 has also assailed the impugned judgment on similar grounds.
The Birth Certificate issued under Section 17 of the Registration of Birth Death Act, 1969 reveals that a female child was born on 2.9.1974 by the wedlock of Prabhu Dass and Devki, residents of Sector 12/69, R.K. Puram, New Delhi and its registration number had been 4840.
Offences under Sections 366 and 376 IPC were added.
According to him, the female child was born with Registration No.4840 on 2.9.1974 and he further explained that the name of the parents and address of another female child born on 27.9.1971 bearing different registration number4502 had been totally different, i.e. Prabhu Dayal and Devi Rani, residents of Kotla Mubarakpur .
At the time of making entry in the Hotel register by accused Jamal Ahmed, accused Mohd.
It also reveals that number of live children including this child had been two.
Prosecution examined as many as 16 witnesses in support of its case.
Her mothers name was Devki, wife of Prabhu Dass and her address was R.K. Puram, New Delhi.
Both the accused persons forcibly took her to ISBT in a three wheeler and from there to Meerut by bus.
Satish Anand went to Pragati Maidan at the pointed place, but he companyld neither meet Monika number either of the appellants, but he came to know that Monika was roaming inside Pragati Maidan along with the appellants.
PW2/A of the prosecutrix and deposed that the same was prepared by her according to which there was numbersign of external injury.
However, the sentence under Section 376 IPC was reduced from 7 years to 5 years each and to pay a fine of Rs.10,000/ each failing which to undergo SI for 3 months.
She informed through telephone that she would stay in the house of her friend Amita for the night.
Dr. B.S. CHAUHAN, J. Both these criminal appeals have been preferred against the companymon impugned judgment and order dated 8.12.2009 of the High Court of Delhi passed in Criminal Appeal Nos.311 of 1999 and 312 of 1999, by which the High Court has affirmed the companyviction of the appellants under Section 376 of the Indian Penal Code, 1860 hereinafter called IPC , however, set aside their companyviction under Sections 366/34 IPC and further reduced the sentence from 7 years RI to 5 years RI with a fine of Rs.10,000/ each and in default to undergo further punishment for 3 months.
Facts and circumstances giving rise to these appeals are unfolded by the statement of Shri Prabhu Dass father of prosecutrix Monika dated 28.11.1989 made before the Police Station, Vinay Nagar, New Delhi to the effect that his daughter Monika, aged about 15 years, studying in standard 9th in Green Field School, Safdarjung Enclave, New Delhi had left her house on 24.11.1989 for going to school.
