SHRI NIWAS Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Delhi in Sessions Case No.41/1993, arising out of FIR No.446/92.

(2.) Appellant Shri Niwas faced trial along with three other accused for commission of offences punishable under Sections 302 and 376 read with Section 34 of the Indian Penal Code, 1860 (IPC for short) for allegedly committing rape and causing homicidal death of one Smt.Shefali (hereinafter referred to as the deceased). The learned Additional Sessions Judge, disbelieving the case of the prosecution as against the remaining three co-accused has acquitted them of the charges framed against them, but found the appellant guilty and convicted him under Sections 376 and 302 read with Section 34 of the IPC. He has been sentenced to undergo imprisonment for life and pay a fine of Rs.5,000/- with a stipulation that in case of default in payment of fine, he shall undergo further rigorous imprisonment for one year for offence under Section 302 read with Section 34 IPC. He has also been sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.2,000/- with further stipulation that in default of payment of fine, he shall undergo rigorous imprisonment for six months for offence under Section 376 read with Section 34 IPC. Both the sentences are to run concurrently. The said convictions and sentences are questioned in the present appeal.

(3.) The case of the Prosecution may be stated thus: At about 5.30 a.m. on 16 August 1992, when the deceased, who was living with her husband and an infant daughter in a Jhuggi situated in Bhumiheen Camp, Kalkaji, New Delhi, had gone to ease herself, four persons forcibly took her in a park; committed rape on her and, thereafter, set her on fire. On the date of the incident the husband of the deceased is stated to have gone to the house of his sister in Chittranjan Park, New Delhi along with the child. On receipt of information about the occurrence, a DD entry was recorded by ASI Siri Chand, PW- 16, who went to the spot and found the deceased lying in a burnt condition. He removed her to Safdarjung Hospital in a PCR van. Head Constable Rati Ram, Constables Harish Kumar, Madan Lal and a lady constable of the area accompanied him. It is the case of the prosecution that on way to the hospital, the deceased told them that four persons had committed rape on her and had burnt her. On receiving the information about the incident, Inspector Suresh Kaushik, (PW-24), Incharge of the police post, Govindpuri, also reached the hospital and informed the SDM about the incident. The SDM, namely, Shri B.K. Sehgal, PW-23, reached the hospital. The Investigating Officer moved an application before the Doctor for recording of statement of the deceased. The Doctor declared the deceased to be fit for making statement. The SDM, who reached the hospital around 9 A.M. got the statement of the deceased (Ext.PW 1/A) recorded by the Investigating Officer Suresh Kaushik, PW-24, in his presence as he himself could not record it in his hand because of some rheumatic problem. The deceased gave her statement in Bengali language which was translated into Hindi by her sister-in-law, Manju Biswas, PW-1, in the presence of the SDM. In the statement the deceased stated that out of the four persons, one person had small pox marks on his face and that the man with small pox marks had poured kerosene oil on her. The statement was signed by the deceased, the SDM and the sister of the deceased. On the basis of the said statement, an FIR was registered. The Investigating Officer went to the spot and got the scene of the occurrence photographed. As per the description given by the deceased, the Investigating Officer apprehended the appellant along with two other persons on 16 August 1992 and produced them in the hospital before the deceased. The deceased identified the appellant being the person who had picked her up; committed rape on her along with three other persons and had put her on fire after pouring kerosene oil. The identification memo (Ext. PW 1/B) to that effect was prepared in the presence of her sister-in-law and her husband (deceased's brother-in-law). Since the deceased was not in a position to sign, her thumb impression was obtained on the memo. The deceased died on the night of 16 August 1992. Inquest proceedings were completed and the dead body was sent for post mortem. The appellant was arrested on 17 August 1992. On interrogation, he is stated to have made disclosure statement. Thereafter the other three accused persons were also arrested. On interrogation they are also stated to have made disclosure statements.