DHARMENDER @ BINDU Vs. STATE

JUDGEMENT

(1.) These appeals are directed against the impugned judgment dated 27.05.2008 and the consequent order on sentence dated 29.05.2008 whereby the Appellants Dharmender @ Bindu and Kailash have been convicted and sentenced for the offences punishable under Section 363 IPC read with Section 34 IPC and Section 376 (2) (g) IPC. For the offence under Section 363/34 IPC, both the Appellants have been sentenced to undergo RI for the period of five years and also to pay fine of 1000/-each, in default of payment of fine, to undergo SI for further period of 15 days each respectively. For the offence under Section 376 (2) (g), the Appellants have been sentenced to undergo RI for the period of 10 years each and also to pay a fine of 2000/-each, in default of payment of fine, to undergo SI for the period of one month each.

(2.) Briefly put, case of the prosecution is that in the morning of 10.01.2005, the prosecutrix (real name withheld) was playing in the park. From there, she was enticed away by the Appellant Dharmender @ Bindu, who offered to buy her new clothes. The Appellants took her to a block of public toilet, which was dilapidated and under disuse. The Appellant Dharmender took the prosecutrix into one of the latrines and subjected her to rape whereas the Appellant Kailash stood guard outside that latrine. As a result of rape, the prosecutrix suffered bleeding from her vagina. She went home and narrated the incident to her mother (PW-1). Father of the prosecutrix was not present at the relevant time so they waited for him to come and thereafter in the night of 10.01.2005 at about 9.00 p.m. mother of the prosecutrix along with her went to the police station and reported the matter. Her complaint was initially recorded as DD No. 40A dated 10.01.2005 P.S. Sultan Puri (Mark 'X') which was forwarded to S.I. Tej Bahadur(PW-11) through Constable Joginder (PW-8). S.I. Tej Bahadur at that time was not in the police station as he had gone for investigation of case FIR No. 63/2005, P.S. Sultan Puri under Section 376 IPC. When S.I. Tej Bahadur returned back to the police station late in the night, Constable Joginder handed over copy of DD No. 40A and produced the prosecutrix as well as her mother before him. S.I. Tej Bahadur took the prosecutrix along with her mother to Sanjay Gandhi Memorial Hospital for medical examination. He collected the MLC of the prosecutrix as also the sealed packets containing her under garments as well as the vaginal swab of the prosecutrix. He also recorded the statement of Babita(PW-1), mother of the prosecutrix Ex.PW-1/A and obtained her signature on the same. He appended his endorsement Ex.PW-11/A on the statement of the complainant Babita and sent it to the police station through Constable Joginder for the registration of the case. During investigation, the Appellants were arrested. The under garments of the prosecutrix as well as the slide of vaginal swab were sent to FSL for chemical examination and the report of FSL was collected. The Appellants were also medically examined to confirm whether or not they were physically capable of indulging in sexual intercourse. On completion of the investigation, both the Appellants were challaned and sent for trial.

(3.) The learned Additional Sessions Judge charged the Appellant Dharmender for the offences under Section 363/34 IPC and Section 376 IPC whereas the Appellant Kailash was charged for the offences under Section 363 IPC and Section 211/376 IPC. Subsequently, on 30.11.2006 alternative charge for the offence of gang rape punishable under Section 376(2)(g) IPC was framed against both the Appellants. The Appellants pleaded not guilty to the charges framed against them and claimed to be tried.