ABDUL MOHSIN ALBAHOUTH Vs. STATE OF DELHI

JUDGEMENT

(1.) This is a petition under Section 439 of the Criminal Procedure Code, 1973, for release of the petitioners on bail.

(2.) The petitioners are three in number. They are accused of having committed offences under Sections 304/376/34 of the Indian Penal Code. Ms. Sara Claiborne (an American national) a girl of 19 years of age was found dead in a room occupied by the petitioners on 18th May, 1985, in Hotel Hyatt Regency. She was declared dead by the hotel doctor at about 12.50 p.m. on that day. Post mortem on the body of Sara was conducted on 29th May, 1985. First Information Report (F.I.R.) was lodged on 30th May, 1985 and a case under Section 304/34 of the Indian Penal Code was registered and the petitioners were arrested. Petitioners were sent to judicial custody on 5th June, 1985. After the report was received from the Central Forensic Science Laboratory (C.F.S.L.) saying that human semen was detected on the garments of the deceased and also found in the vagina, a case for an offence under Section 376 of the Indian Penal Code was also added and registered against the petitioners. It is said that the offence of rape would fall under clause (g) of subsection (2) of Section 376 (gang rape).

(3.) The F.I.R. was lodged by Ms. Laurie Capulo also an American national. It will be appropriate to refer to this document some what in detail. Laurie stated that on 27th May, 1985 she and Sara (the deceased) had gone to the American Community Support Association Club on the American Embassy compound at about 8.30 p.m. where they had several drinks. While Laurie had rum and coke Sara had wine and whiskey-cokes. There these girls met Arthur Edwards who was assigned to the Embassy in the bar. After drinks and watching movies these three went to Disco (Ghungaroo) in the Maurya Sheraton Hotel at about midnight. There these persons met the petitioners. There they had beer. Sara had about four glasses of beer. The petitioners bought shots of tequila for Laurie and Edwards. (It is stated that a shot is one and a half U.S. fluid ounces). The petitioners thereafter bought a bottle of champagne. Sara had about two glasses of champagne. Then these three, i.e., Laurie, Sara Edwards were invited by the petitioners to their room in the Hotel Hyatt Regency. Sara seemed to want to go and would go only if Edwards and Laurie went. They all six, therefore, went to the Hotel Hyatt Regency by one taxi. In the hotel lounge of Hyatt Regency they ordered drinks. Sara and Laurie had rum and cokes. After receiving drinks all six of them went to the room (where the party was going to be). Laurie did not take her drink while others finished their drinks. After about half an hour the petitioners produced a substance which Laurie recognised as hashish and partially filled bag of brown powder which the petitioners are stated to have called brown sugarTT. The petitioners mixed the hashish with tobacco and the brown powder after which they rolled the mixture into cigarettes. By this time Edwards had loft. One cigarette was given to Sara and one to Laurise. Laurie adds that at that point of time the petitioners were aware that both she and Sara had consumed alcohol in the form of rum, beer and champagne. Laurie had three or four puffs from her cigarette. In addition to cigarette given to Sara she was also given some of the brown powder to inhale through her nose. According to Laurie-this is what is called in U.S. as sorting. Laurie became unconscious shortly after three or four puffs of the cigarette and passed out on the bed. She woke up next morning at about 8 a.m. She saw one of the petitioners asleep on the other bed. The other two petitioners were also asleep; one in the chair and the other on the floor next to where Sara was lying. As far as Laurie could recollect Sara had no clothes on except for a shirt which was pulled up to her neckline. Laurie tried to wake up Sara by shaking her, putting her face and sprinkling water on her face. Sara gave no response. Laurie assumed that she was asleep under the influence of drugs. Thereafter, she woke up one of the petitioners described as curly haired Arab in the F.I.R., who was lying on the other bed and Laurie asked him to take her home. Then she went to the toilet. When she came out two of the petitioners took her home by taxi.. She did not know whether the third petitioner was awake. Thereafter, arriving at home Laurie went to bed and slept for the remainder of the day.