JOGINDER Vs. STATE

JUDGEMENT

(1.) By the present appeals the Appellants Joginder, Rajkumar and Brijesh Kumar lay a challenge to the judgment dated 29 th July, 2010 convicting them for offences punishable under Section 376(2)(g) IPC and order dated 3 rd August, 2010 sentencing them for Rigorous Imprisonment for a period of ten years and a fine of rupees fifty thousand each and in default of payment of fine to further undergo Simple Imprisonment for a period of 2 years.

(2.) The prosecution case in a nutshell is that the prosecutrix got recorded a statement on 3 rd July, 2000 that she was a student of 9 th Class in Sarvodaya Kanya Vidyalaya, Village Nithari and had developed friendship with one 'S' s/o Sh. Satpal Singh for the last 2/3 months. They used to meet each other. On 3 rd July, 2000 at about 11:30 a.m. 'S' met her on the way and made her sit on his bicycle. He took her to Karala Balaji Temple and thereafter forcibly to a vacant house in Sector 22 and committed rape on her against her consent. When she wept, on hearing her sound, three persons aged about 25, 30 and 45 years came there. They asked her the reason of her crying on which she told that 'S' committed rape on her forcibly. On this, all those three persons also committed rape on her against her consent. She stated that she could point out the place where 'S' and other three persons raped her. They released her at about 3:00 p.m. and also threatened her not to inform the police or else they would kill her. She reached home and on the way one person aged about 45 years accompanied her to her house and on her father asking him as to why he daughter is weeping, he stated that the police was coming.

(3.) On this statement of the prosecutrix, FIR No. 593/2000 under Sections 363/376/506/34 IPC was registered. The prosecutrix was medically examined and on 4 th July, 2000, on her pointing out 'S' and the three others i.e. the Appellants herein were arrested from Sector 22. On pointing out of the prosecutrix, Ramchander and Baljeet were also arrested who have finally been acquitted by the learned Trial Court and there is no State appeal against the said acquittal. The Appellants and 'S' were sent for medical examination and the exhibits were seized. Case property was deposited with MHC(M). The bicycle used in the incident was also seized. However, before the charge-sheet could be filed, the prosecutrix died on 13 th August, 2000 as she committed suicide on 12 th August, 2000. On completion of the investigation, a charge-sheet was filed under Section 363/376(2)(g)/506/120B/34 IPC. Since 'S' was found to be a juvenile, his charge-sheet was separated and sent before the Juvenile Justice Board. Charges against the Appellants were framed under Section 376(2)(g) IPC whereas against Baljeet and Ramchander charges were framed under Section 109 read with Section 376 IPC. With regard to the suicide of the prosecutrix, FIR No. 300/2001 was registered separately on 12 th August, 2000. Statement of the father of the prosecutrix was recorded who stated that the prosecutrix was not eating well those days. After taking dinner, they all went to the roof to sleep and the prosecutrix went downstairs to sleep. According to the father of the prosecutrix, the Principal of the school of the prosecutrix had called him and stated that her name had been struck off as she had not attended school for more than 15 days, their school has got a bad name due to the incident, so he should obtain a transfer certificate of the prosecutrix and get her admitted somewhere else. When the father of the prosecutrix asked his daughter in the CAT Ambulance, the prosecutrix stated that she committed suicide due to the shame as she was raped in the last month and her name was also struck off from the school. The father also stated whenever the prosecutrix or any member of the family used to pass in front of the house of 'S' the mother of the 'S' Urmila (since expired) and Sister 'P' used to taunt them by saying that they were not in favour of seeing the face of such a girl and she should die by putting herself on fire. He further stated that to go anywhere they had to pass from in front of the house of 'S'. Thus, according to the father, his daughter committed suicide due to taunting of mother and sister of 'S' The prosecutrix had also left a suicide note.