Kannu @ Tilak vs State
2009 Latest Caselaw 5314 Del

                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Criminal Appeal No.10/2008

                                Reserved on      : 16.12.2009
                                Date of decision : 21.12.2009

      KANNU @TILAK                     ..... Appellant
               Through: Mr. Rajesh Mahajan, Advocate/
                       Amicus Curiae

                     Versus

      STATE                                   ..... Respondent
                     Through:   Mr.Manoj Ohri, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?

      2. To be referred to the Reporter or not?            Yes

      3. Whether the judgment should be reported
         in the Digest?                                     Yes


INDERMEET KAUR, J.

1. DD No.15 A was recorded at P.S. Ambedkar Nagar on

23.01.2004 at 8.05 P.M. This document is Ex.PW-2/A. It revealed

that Trivender Kumar PW 2 the uncle of Rita PW-1 had lodged a

complaint that Rita who had gone to attend her school had not

returned back and a missing report be lodged.

2. Ex.PW-2/A was marked to S.I. Jeet Singh PW-8 for enquiry;

he searched for Rita but she could not be traced. On 24.01.2004

PW-2 handed over a written complaint Ex.PW-2/DB at the Police

Station, wherein it had been alleged that some unknown persons

had kidnapped Rita and she be traced; on Ex. PW-2/DB endorsement

Ex. PW-8/A was made and present FIR was registered u/s 363 of the

IPC. Investigation of the case was then transferred to ASI Bala

Mohan, PW-11.

3. On 25.1.2004, PW-2 produced PW-1 in the Police Station and

her recovery was evidenced by Memo Ex.PW-2/DC. She was

medically examined at AIIMS vide MLC Ex.PW-6/A which is in the

handwriting of Dr.Asima proved through the version of Dr.Savitri

Sowmaya. The MLC has recorded the age of PW1 as 14 years; her

hymen was torn posteriorly; no injury, cut mark or bleeding were

however noted.

4. Statement of PW-1 was first recorded under Section 161 of

Cr.P.C.; thereafter Sh.Deepak Garg, the MM had recorded her

statement u/s 164 Cr.P.C. vide proceedings Ex. PW-7/A dated

10.01.2004.

5. Accused was arrested on 10.02.2004 vide arrest memo

Ex.PW-11/A. He was medically examined by Dr.Parthasarthi

Parmanik PW-3 vide MLC Ex.PW-3/A; there was nothing to suggest

that the person examined was not capable to performing sexual

inter course.

6. Appellant along with three other co-accused had been

charged for offences under Sections 363,366 & 376 of the IPC. Vide

impugned judgment dated 30.11.2007 all other accused persons

except the appellant stood acquitted. Appellant had been convicted

under Sections 363 & 376 of the IPC.

7. Vide order of sentence dated 06.12.2007, he had been

sentenced to undergo R.I. for 10 years & to pay a fine of Rs.2,000/-

and in default of payment of fine to undergo S.I. for three months

for the offence punishable under Section 376 IPC; for the offence

punishable under Section 363 of the IPC he had been sentenced to

undergo R.I. for 3 years and to pay a fine of Rs.1,000/- and in

default of payment of fine to undergo S.I. for one month. Both the

sentences were to run concurrently; benefit of Section 428 of the

Cr.P.C. had been given to the appellant.

8. It is this judgment, which is the subject matter of the present

appeal.

9. On behalf of the appellant it is submitted that:-

(i) there are inherent contradictions in the various versions of

the prosecutrix i.e. her three statements; the first recorded under

Section 161 of the Cr.P.C., the second recorded under Section 164

of the Cr.P.C. and her third version recorded on oath in the Court. It

is pointed out that all these three versions are contrary to one and

other and these being material contradictions, go to the root of the

matter; benefit of doubt had been given to the co-accused and

applying the same analogy the appellant is also entitled to an

acquittal. Attention has been drawn to the version of the

prosecutrix recorded under Section 161 of the Cr.P.C. where the role

attributed to the appellant was that he had at point of knife

threatened her; he had forcibly entered her room and at night

committed rape upon her and beaten her; his father Sujan Singh

and his son and a police official had take her to Delhi in their

vehicle. Attention has been drawn to the second version of the

prosecutrix recorded u/s 164 of the Cr.P.C., it is pointed out that in

this version PW-1 had stated that Kannu, Prithvi and father of Kannu

had came and told Kannu to do whatever he wanted whereupon he

had at the point of knife committed rape upon her. Attention has

also been drawn to the version of the prosecutrix recorded in Court.

It is submitted that in this version PW-1 had stated that Kannu had

come in the evening while she was sleeping, he pushed her and

committed rape upon her; at 2.30 A.M. at night Prithvi, Sujan Singh

father of the accused and Nannu i.e. brother of the accused brought

her to Delhi and on the way Prithvi has asked her, if she would like

to smoke Bidi; it is pointed out that all these three versions are

contradictory to one another and no reliance can be placed upon

such a confused witness.

(ii) Prosecutrix was admittedly known to the appellant;

appellant was tenant of PW-2 and this is the admitted case of

prosecution; this has also been elicited in the version of PW-12

Seema who is the sister-in-law of PW-2, she has also deposed that

Kannu was their tenant; this is a case of consent by the prosecutrix,

she being almost of the age of discretion; accused has been falsely

implicated.

10. Case of the prosecution is hinged largely on the testimony of

the PW-1 who is the star witness of the prosecution. The

contradictions pointed out by learned defence counsel are not

material; they are at best an elaboration of her earlier versions.

11. Version of PW-1 on oath is that the appellant and his mother

had come to her school; she had been informed that her mother i.e.

mother of PW-1 had died. PW-1 came out of the school; Kannu gave

her a handkerchief to wipe her tears; this handkerchief was laced

with a drug which when she put on her eyes it made her giddy and

she became unconscious; when she regain consciousness she found

herself in a remote village at Rajasthan; Kannu committed rape

upon her against her wishes; this was in the evening when she was

sleeping. At 2.30 a.m. she had been brought back to Delhi in a car

accompanied by Prithvi Singh, Shamsher Singh, the father and the

brother of Kannu.

12. PW-1 had been subjected to a lengthy cross-examination

running into almost 12 pages but her version has not been shaken

or distorted; she had stuck to her stand; she had all along deposed

that it was Kannu who had committed rape upon her at the village

in Rajasthan where she had been taken after having been enticed

by both Kannu and his mother.

13. In law the conviction of an accused on the basis of the

testimony of the prosecutrix alone is permissible, i.e. in a case

where the evidence of the prosecutrix inspires confidence and

appears to be natural and truthful. This has been re-iterated by the

Courts in a plethora of judgments. Corroboration of the testimony of

the prosecutrix as a condition for judicial reliance is not a

requirement of law but is a guidance of prudence under the given

facts and circumstances. Minor contradictions and discrepancies

should not be a ground for throwing out an otherwise reliable

prosecution case.

14. Prosecutrix was recovered two days later i.e. on 25.01.2004;

she had surfaced after she had been brought to Delhi by Kannu and

his relatives. Her medical examination was done vide MLC Ex. PW-

6/A, vide which her hymen was found to be torn. The history of the

patient as given by the victim and as depicted in the MLC also fully

supports the case of the prosecution that she had been abducted

from her school and after sedation raped in the night.

15. In the statement of the accused recorded under Section 313

of the Cr.P.C. the appellant had stated that he has been falsely

implicated in the present case; he is innocent; on the said date i.e.

on 23.01.2004 he was on duty at gate no.10 at the Airport. Six

witnesses have been examined in defence, but none of them have

deposed to this version as has been sought to be set up by the

appellant. The witnesses of the prosecution have also not been

cross-examined on this score; no suggestion has been given to any

of the said witnesses that the appellant was on duty at gate no.10

at Airport on the relevant date. In fact a suggestion to the contrary

has been given to PW-11 wherein learned defence Counsel has

suggested that the prosecutrix had in fact run away/eloped with the

son of one Pandit; this defence did not find mention in the cross-

examination of the earlier witnesses; these contrary stands taken by

the appellant itself reflects upon the falsities of the case sought to

be set up by him.

16. Inspector Bala Mohan PW-11 was the Investigating Officer. In

the course of his inquiry, it was revealed that on the date of

incident, PW-1 was absent from her school. Inquiry had also

revealed that the appellant who used to work with his father at

Palam Airport had not visited his place of work for the last 5 to 6

days from the date of the incident.

17. Age of the prosecutrix was opined to be less than 14 years as

on the date of the offence. This has been reflected in the version of

Smt.Raj Tuteja. PW-4 the vice principal of the Government Girls

Secondary School, Ambedkar Nagar. PW-4 had produced the

admission record including the date of birth of PW-1 evidencing her

date of birth as 27.12.1992; said certificate is Ex.PW-4/B; on the

date of offence that is on 23.01.2004, the prosecutrix would be a

less than 14 years of age; admittedly a minor; consent in such an

eventuality is immaterial.

18. The offence of kidnapping, the penalty of which is contained in

Section 363 of the IPC entails a kidnapping of any person from India

or from lawful guardianship. Ingredients of the said offence have

been met. Rape has been defined under Section 375 of the IPC;

ocular testimony of PW 1 coupled with the medical evidence Ex.PW-

3/A has established the offence of rape as well. The conviction of

the appellant calls for no interference. The shifting stands taken by

the accused have also taken him nowhere.

19. On the quantam of sentence the learned counsel for the

appellant has placed reliance upon Iqbal Vs. State of Kerala, JT 2007

(12) SC 311 and State of Punjab vs. Rakesh Kumar, JT 2008 (9) SC

424, to substantiate his argument that where the victim even

though a minor had admitted that she had gone with the accused on

her own and had sexual intercourse with him of her own free will

and consent, it was a fit case for reducing the imprisonment from

the minimum of 7 years to a period of 3 years. It is submitted that

ratio of the said judgments permits the Court to reduce the

sentence from the statutory minimum in deserving cases as is the

present one; appellant already having suffered incarceration of

almost about more than 5 years he be sentenced to the period

already undergone.

20. Nominal roll of the appellant has shown that as on 29.07.2008

i.e. the date when he was granted bail he had suffered incarceration

of about 4 years and 9 months. The judgments relied upon by

learned Counsel for the petitioner were cases in which the

sentences were reduced to a sentence for the period already

undergone where admittedly the prosecutrix had gone of her own

volition and voluntarily and although she was a minor yet the

attendant circumstances had been taken into account. Said

judgments would have no applications of the facts of the instant

case.

21. In this case the version of PW-1 is that it was by a force and

against her consent that the act of rape had been committed upon

her person. While imposing the sentence upon appellant the trial

court had keep in mind that the appellant is a young man and not a

previous convict. Parties were also known to each other; appellant

was of an immature age and young; evidence indicated that no

marks of violence were found on the body of the prosecutrix;

offence relates to year 2004; by the passage of time parties would

have buried their hatchet on account of this circumstance.

22. Ends of justice would be well met if the sentence of R.I. ten

years be reduced to R.I. seven years. No modification is made in the

other sentences imposed. Bail bond and surety bond of the

appellant stands cancelled. He be taken into judicial custody;

appeal is partly allowed and disposed of in the above terms.

INDERMEET KAUR, J.

December 21 , 2009 HL