SHIVA @ CHANDRIKA Vs. STATE

JUDGEMENT

(1.) This appeal, at the instance of the accused Shiva @ Chandrika, calls into question judgment, dated 24th March, 2014, passed by the learned Additional Sessions Judge (hereinafter referred to as "the learned ASJ"), convicting the appellant under Sections 344/376/376D/323/506 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC"), as well as the consequent order, dated 29th March, 2014, whereby the learned ASJ has sentenced the appellant to (i) 3 years' rigorous imprisonment (RI) with fine of Rs. 5000/-, for the offence under Section 344, IPC, with default sentence of 1 month's imprisonment, (ii) 1 year's RI for the offence under Section 323, IPC, (iii) 10 years' RI for the offence under Section 376, IPC, with fine of Rs. 25,000/-, with default sentence of 6 months imprisonment, (iv) 20 years' RI for the offence under Section 376D, IPC, with fine of Rs. 25,000 and default sentence of 6 months' RI and (v) 2 years' RI for the offence under Section 506, IPC, with the further stipulation that the sentences (i), (ii), (iii) and (v) would run concurrently, whereafter the running of the sentence under (iv) would commence. Effectively, therefore, the appellant has been sentenced, by the learned ASJ, to 30 years' RI, apart from the stipulations regarding fine and default sentence.

(2.) The case of the prosecution, as set out in the chargesheet, dated 18th June, 2013, filed before the learned Additional Chief Metropolitan Magistrate (ACMM), may be summarised thus.

(3.) Consequent to, and in compliance of, the directions issued by the superior officers on 23rd March, 2013, Woman Sub Inspector (SI) Parmila (PW-7) made DD Entry No. 17A and proceeded to House No. 303, Bharthal Village, where she was informed by the prosecutrix (PW-1), that a "wrong act" had been committed with her, and that she had been injured as she was beaten. She expressed her desire to have herself medically examined, whereupon SI Parmila, accompanied by SI Lokesh Kumar (PW-4), reached the DDU Hospital, where the prosecutrix was examined vide MLC No. 7025/13. The statement of the prosecutrix was recorded under Section 161 of the Code of Criminal Procedure (Cr.P.C.), wherein she deposed that (i) her marriage had taken place thirteen years earlier, and she had three children, (ii) earlier, she used to work in Raebareli, (iii) the appellant, who used to work in the same premises, had an evil eye on her, (iv) on 15th June, 2012, while she was travelling from Kanpur to Raebareli, and went to the bathroom, the appellant, who was present there, threatened to kill her, and her husband and children, and covered her mouth with a handkerchief, (v) she did not recollect what happened thereafter; however, when she regained consciousness, she found herself in a room which, she later learnt, was in Delhi, (vi) the appellant did not allow her to leave the house, and used to administer intoxicating drugs to her, whereafter he used to commit wrong acts with her, (vii) he also established unnatural contact with her, (viii) he used to torture her, mentally and physically, (ix) while leaving the house, he used to lock her inside, and take the key with him, (x) on 22nd March, 2013, at 9:00 PM, the appellant, after reaching home, left the house and returned at about 11:00 PM with two of his friends, whom she did not know, (xi) the said two persons had covered their faces and were wearing black caps, (xii) one of the said persons was wearing a black trouser and a white check shirt, while the other was wearing a sky-blue shirt and a cream-coloured trouser, (xiii) after entering the room, they closed the door and switched off the lights, (xiv) the appellant raised the volume of the TV, whereafter he threw her on the bed, and held her hands, (xv) when she began to shout, the appellant covered her face with a cloth, after which he told his friends to commit "wrong act" with her, (xvi) thereafter, the said two friends of the appellant removed her clothes and, after wearing condoms, committed wrong act with her, and left, (xvii) after they had left, the appellant beat her severely, and committed "wrong act" with her, (xviii) the appellant threatened her that, in case she disclosed what had transpired and refer to any one, he would kill her, (xix) after that, at about 11:00 AM, she managed to somehow leave the house, and dialled "100" from a place near the Bijwasan Railway Station, and (xx) thereafter, the Police took her to the hospital for medical examination. She requested that legal action be taken against the appellant and his two friends, who committed wrong acts with her, against her will, and also tortured her mentally and physically. In view of the aforesaid statement of the prosecutrix, SI Parmila (PW-7) prepared a tehrir, as offences appear to have been committed, by the appellant, under Sections 323/342/328/366/376D/ 377/506/34, IPC. The tehrir was sent, with SI Lokesh Kumar (PW-4), to the Police Station, where FIR was registered. SI Parmila (PW-7) also had the prosecutrix medically examined, vide MLC No.7025/13, at the DDU Hospital. The sealed exhibits, provided by the doctors at the Hospital, were taken into custody by the Police. The appellant was, thereafter, arrested and his disclosure statement was recorded. The appellant's medical examination was also conducted at the DDU Hospital, vide MLC No. 6992/13. Exhibits, found at the scene of crime, were also taken into custody by the Police, and Site Plan was prepared. On 24th March, 2013, the appellant was produced before the learned ACMM, and one day's Police remand was obtained. The prosecutrix was sent to Nari Niketan. On 25th March, 2013, the appellant was remanded to judicial custody, and the statement of the prosecutrix, under Section 164, Cr.P.C., was recorded by Ms. Swati Katiyar, the learned MM (PW-8). The exhibits were sent, on 2nd April, 2013, for obtaining expert opinion, to the Forensic Science Laboratory (FSL), vide Road Certificate (R/C) No. 5/21/13. Considerable efforts were undertaken, to trace the two other accused persons, as per the version of the prosecution, but no information was received from anyone.