PREMWATI KHICHCHU Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The appellant-Premwati by the impugned judgment dated 12th December, 2001 has been convicted under Section 109 read with Section 376 and Section 366A of the Indian Penal Code, 1860 (hereinafter referred to as IPC, for short) and by the order dated 13th December, 2001 has been sentenced to rigorous imprisonment of 7 years for the offence under Section 109 read with Section 376 IPC with a fine of Rs.1,000/- and in default to suffer simple imprisonment of 3 months. The appellant has been sentenced to rigorous imprisonment of 5 years and a fine of Rs.1,000/- and in default thereof to suffer simple imprisonment for 3 months for the offence under Section 366A of IPC.

(2.) Learned trial court has held that the appellant had abetted the commission of offence of rape on the prosecutrix by one Mr. Shiv Kumar in furtherance of their common intention during the period 7th to 30th August, 2000 in the house of the appellant. The trial Court has also held that the appellant had connived with Mr. Shiv Kumar to induce the prosecutrix, a minor girl, with the intent or knowing that it was likely that she would be forced into an illicit intercourse with another person. The said Mr. Shiv kumar could not be arrested and has been declared a proclaimed offender. The appellant was acquitted from the charge of gang rape under Section 376(2)(g) readwith Section 34 IPC, charge of kidnapping, concealment/abduction of a kidnapped person under Sections 363 and 368 and charge under section 506 Part II readwith 34 IPC.

(3.) To prove and establish the prosecution case, 11 witnesses were examined. There is no eye witness but the prosecutrix was examined as PW-2.The first question is whether the statement of prosecutrix is trustworthy, whether it inspires confidence and justifies conviction of the appellant. The prosecutrix is a minor girl, who was aged around 13 years when she was examined in the court on 30th April, 2001. She belongs to a very poor and a humble background. She was working in a bangle factory and was also employed as a domestic help in a house and used to reside in the said house at night. Her mother Salma, who is also known as Yasmin, sometime before 7th August, 2000 had got re-married to one Alam. The prosecutrix was the eldest amongst her brothers and sisters. All of them, except the prosecutrix were residing with Salma even after she got married to Alam. The prosecutrix in her statement has stated that about 7/8 months back she had gone to the house of her aunt (khala) Shabnam to enquire about the new residence of her mother. Her Uncle, Shabnam's husband gave her details of the new residence of the prosecutrix's mother. Thereafter, she went searching for her mother's new house. On the way, she saw Alam and changed her route and went into another street. She met Premwati at the entrance of her house and enquired if she was aware of the new premises of Salma (Yasmin). Premwati replied in negative and on prosecutrix's request, she gave her a glass of water. The prosecutrix sat with Premwati and told her that she was searching for the house of her mother and father. On a suggestion made by Premwati, the prosecutrix agreed to stay with her. It may be relevant to reproduce here what happened thereafter in the words of the prosecutrix herself, in the statement recorded in the trial court:-