Delhi High Court
Rajender Singh vs State on 16 January, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Date of Decision : January 16, 2009
+ CRL. APPEAL No.443/2006
RAJENDER SINGH ..... Appellant
Through: Mr.Bharat Bhushan, Advocate.
Versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate.
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MS.JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J. (Oral)
1. On 3.12.2002 at about 12.05 A.M. DD Entry No.29, Ex.PW-3/A,
was recorded by PW-3 Const. Sanjay Kumar to the effect that a
wireless message has been received informing that a lady is sitting
at the Dogra Taxi Stand near Gurudwara Rakab Ganj and her
luggage is missing.
2. This swung the police into action. SI Mohan Singh PW-19,
accompanied by Const. Veerpal Singh PW-11, reached the spot.
Simultaneously, other police officers ASI James Kujur PW-12,
Inspector Surender-jeet Kaur PW-14, HC Virender Singh PW-9 and
Lady Const. Asrita PW-8, who had received the information also
reached the spot.
3. A lady in a distressed condition (the prosecutrix) was found
standing on the spot. SI Mohan Singh PW-19, recorded her
statement, Ex.PW-2/DA, and made an endorsement Ex.PW-19/B
thereon, and at 1.40 A.M. handed over the same to Const. Veerpal
Singh PW-11, for registration of a FIR. Veerpal Singh took Ex.PW-
2/DA to the police station and handed over the same to HC Ashwani
Kumar PW-1, who recorded the FIR No.336/2002 Ex.PW-1/A at 1.50
A.M. on 3.12.2002.
4. In her statement Ex.PW-2/DA, the prosecutrix stated that she
was a resident of Ghaziabad and used to regularly visit Gurudwara
Bangla Sahib for offering prayers. That on 2.12.2002 she had
reached Gurudwara Bangla Sahib at 6.00 P.M. and as usual offered
prayers. She stated that around 10.30 P.M. while she was standing
at the bus stand waiting to board a bus to New Delhi Railway
Station, a white coloured Maruti Esteem car bearing registration no.
HR-01-L-4952 took three rounds of the bus stand. That on the fourth
round the said car stopped in front of her and the driver of the said
car named Rajender Singh s/o Kushal Singh r/o village Chaltha PS
Lohaghat, District Pithoragarh, Uttar Pradesh (the accused), offered
her a lift. That she refused to sit in the car. The accused forcibly
dragged her inside the car and locked all the doors of the car. That
when she tried to raise an alarm he slapped her twice and gave her
two fist blows. That thereafter he threw her on the rear seat of the
car and drove the car to look for a lonely place. That when she was
shouting for help he took out a bottle containing yellow coloured
liquid and threatened that if she would make noise he will throw
acid on her face. That he kept driving the car for a long time and
after some time stopped the car near a footpath and came to the
rear seat. That after removing her clothes he committed rape on
her. She stated that thereafter she wore her clothes, came out of
the car and screamed for help at which some people gathered and
apprehended the accused and soon thereafter the police reached
the spot.
5. Since in her statement Ex.PW-2/DA, made to PW-19, the
prosecutrix informed that the appellant was the accused, the police
apprehended the accused who was present on the spot.
6. PW-19 prepared the site plan, Ex.PW-19/A, recording therein
the place at point marked 'A' where the prosecutrix stated to have
been raped by the accused. The car in which the offence of rape
was stated to have been committed by the appellant was seized
vide seizure memo Ex.PW-4/B. Hair was lifted from the rear seat of
the car and portion of the rear seat containing dirty stains were
seized vide seizure memo Ex.PW-11/A. That thereafter the
prosecutrix was taken to Lady Hardigne hospital where her medical
examination was conducted and her vaginal swabs as also the
clothes which she was wearing at the time of the alleged
commission of the offence of rape were seized vide seizure memo
Ex.PW-8/A. The accused was taken to Ram Manohar Lohia hospital
for medical examination and his semen sample was seized vide
seizure memo Ex.PW-19/D. The underwear and the blood sample of
the accused were seized vide seizure memo Ex.PW-9/A.
7. The MLCs of the accused, Ex.PW-15/A and Ex.PW-17/A, dated
3.12.2002 and 4.12.2002 respectively, record that no external
injury was found on the person of the accused and that there is no
reason to suspect that the accused was not capable of performing
sexual act. The MLC of the prosecutrix, Ex.PW-16/A records that no
external injury was found on the person of the prosecutrix.
8. The seized materials were sent to the Forensic Science
Laboratory for scientific examination. Vide FSL reports Ex.PW-19/E,
PW-19/F and PW-19/G it was opined that the sample of the blood of
the accused contained alcohol; the hair found on the rear seat of
the car and the hair taken from the person of the prosecutrix were
similar in most of their morphological and microscopical
characteristics and that the underwear of the accused and vaginal
swabs and clothes of the prosecutrix contained semen of human
having blood group 'B'.
9. On the same date i.e. 3.12.2002 the statement under Section
164 Cr.P.C., Ex.PW-4/D, of the prosecutrix was recorded before a
Metropolitan Magistrate wherein also, she indicted the accused.
10. Armed with the aforesaid material the challan was filed
accusing the appellant of having raped the prosecutrix. Charges
were framed against the appellant for having committed offences
punishable under Sections 323/342/365/366/376/506 IPC.
11. At the trial, apart from examining afore-noted police officers
who proved the receipt of initial information, the police visiting the
site of occurrence, the registration of FIR, recording of statement of
the prosecutrix during investigation, seizure memos, preparation of
the plan of the site, the prosecutrix, the doctors who conducted the
medical examination of the prosecutrix and the appellant namely
Dr.Shivani Singh, Dr.Pradeep Saxena and Dr.S.Saxena, the owner of
the car Mr.S.S.Sandhu, a volunteer from NGO Ms.Alaknanda Das and
an official from FSL were examined as PW-4, PW-16, PW-15, PW-17,
PW-5, PW-7 and PW-18 respectively. The prosecutrix in her
testimony as PW-4 again indicted the appellant. The owner of the
car Mr.S.S.Sandhu in his testimony as PW-5 deposed that the
appellant was employed by him as a driver.
12. In his examination under Section 313 Cr.P.C. the appellant
denied the allegations made against him by the prosecutrix and
stated that he does not know the prosecutrix and that while he was
sleeping in the rear portion of his car the police officers suddenly
came, apprehended him, and accused him of committing rape of
the prosecutrix.
13. At the trial, the defence of the appellant was predicated upon
the stated inconsistencies in the version stated by the prosecutrix
about the happening of the incident at various stages. (The alleged
inconsistencies in the versions of the prosecutrix shall be dealt by
us shortly herein after).
14. Believing the testimony of the prosecutrix and in view of the
FSL reports Ex.PW-19/E, PW-19/F and PW-19/G; holding that the
alleged inconsistencies pointed out by the defence in the version of
the prosecutrix are minor discrepancies and hence are of no
consequence, vide judgment dated 03.03.2006, the learned Trial
Judge has convicted the appellant and vide order dated 06.03.2006
has sentenced him to undergo imprisonment for life and pay a fine
of Rs.1000/-, in default to undergo SI for 3 months for offence
punishable under Section 376 IPC; RI for five years and pay a fine of
Rs.500/-, in default to undergo SI for 2 months for offence
punishable under Section 366 IPC; RI for three years and pay a fine
of Rs.500/-, in default SI for two months for offence punishable
under Section 365 IPC; SI for one year for offence punishable under
Section 506 IPC; SI for six months for offence punishable under
Section 323 IPC; SI for six months for offence punishable under
Section 342 IPC. All the sentences awarded to the appellant were
directed to run concurrently.
15. At the hearing before us today, the learned counsel appearing
for the appellant drew our attention to various alleged
inconsistencies in the versions stated by the prosecutrix about the
happening of the commission of the offence at various stages and
has contended that the said inconsistencies entitle the appellant to
get benefit of doubt and thus he be acquitted of the charges framed
against him. The alleged inconsistencies pointed out by the learned
counsel appearing for the appellant are being capitulated as under:-
S.No Statement of Statement of Statement of Statement of Other Circumst-
prosecutrix under prosecutrix under prosecutrix in prosecutrix in ances
Section 161 CrPC Section 164 CrPC exam-in-chief cross
examination
1. Records that the ---- ---- Testifies that ---
prosecutrix is wife her husband
of Late is alive and is
Sh.Narender living in
Prakash Tehran since
last 5 - 6
years
2. Testifies that the Does not state that Does not state ---- ----
appellant had the appellant had that the
taken three taken three rounds appellant had
rounds of the bus of the bus stand taken three
stand before before stopping the rounds of the bus
stopping the car car in front of her. stand before
in front of her. stopping the car
in front of her.
3. States that the States that the States that the States that ----
appellant opened appellant opened appellant opened the appellant
the front side door the front side door of the front side first moved
of the car and the car and dragged door of the car from driver
dragged her her inside the car and dragged her seat to front
inside the car inside the car side seat of
the car and
then dragged
her inside
4. ---- ---- ---- States that MLC of the
she received prosecutrix
scratches on records that no
her elbows external injury
was found on
person of
prosecutrix
5. The appellant The appellant gave The appellant ---- MLC of the
gave beatings to beatings to the gave beatings to prosecutrix
the prosecutrix prosecutrix the prosecutrix records that no
external injury
was found on
person of
prosecutrix
6. States that States that the States that ----- ----
appellant gave 2 appellant threatened appellant gave 2
slaps and 2 fist to kill her and kept slaps and 2 fist
blows to her when his hand on her blows to her
she screamed for mouth when she when she
help after he screamed for help screamed for
dragged her after he dragged her help after he
inside the car. inside the car. dragged her
inside the car.
7. States nothing States that appellant States nothing ---- -----
about the said told her to view India about the said
fact Gate on which she fact
told him to let her go
out of the car and
then he slapped her
twice
8. States that States that she was States that States that ----
appellant threw sitting on the back appellant asked appellant
her on the back seat of the car but her to lay down threw her on
seat of the car does not say as to on the back seat the back seat
how she reached of the car of the car
there
9. States that States nothing about States that States that No such bottle
appellant the said bottle appellant cannot say was recovered
threatened her by threatened her whether said by the police
a bottle by a bottle bottle was
containing yellow containing yellow recovered but
coloured liquid coloured liquid later says
said bottle
was
recovered by
police
10. States that States that appellant ---- ----- -----
appellant came to came to back seat of
back seat of the the car after getting
car from inside out of the car
the car
11. States that when States nothing about States nothing ---- ----
appellant was the said fact about the said
removing her fact
clothes she tried
to stop him by
saying that he
was like her child
on which he hit
her twice
12. States that she ---- States that she ----- ----
got out of the car got out of the car
after wearing her without wearing
clothes her clothes
13. States nothing States nothing about States that ---- ----
about the said the said fact appellant after
fact committing rape
said that she is
his mother
14. ---- ---- ----- States that No police
her hand bag official talks
containing about the
one steel recovery of the
mug, a hand bag from
packet of the car
biscuits and a
prayer book
was
recovered
from the car.
16. Every variation, departure or a discrepancy by a witness vis-à-
vis a previous statement recorded before the police does not
amount to a contradiction. Where a person discloses the same
version at two points of time, it is natural for slight variations to be
made. A contradiction means to state an incident, at two different
points of time, with such variations on material particulars that it
becomes impossible to reconcile the second statement with the
first. In the case of an alleged rape, the mental condition of the
victim immediately after the incident has to be kept in mind. The
victim of a rape undergoes trauma not only afterwards but even
when being raped. It is natural for such a victim to omit certain
vital facts pertaining to the incident and hence merely because a
particular fact is disclosed subsequently would not mean that the
victim is a liar. In the instant case the report of the FSL pertaining
to the seizures effected vide Ex.PW-4/B, Ex.PW-8/A and Ex.PW-11/A
establish that the appellant had sex with the prosecutrix on the rear
seat of the car from where the hair of the prosecutrix as also semen
was recovered. The semen matches the blood group of the
appellant.
17. At this stage, learned counsel urges that the evidence
probablizes: sex by consent. Counsel urges that the version of the
prosecutrix that after forcibly dragging her in the car, the appellant
threw her on to the rear seat of the car; drove around, looking for a
lonely spot and after some time parking the car near a pavement;
coming out of the car and forcing himself on the prosecutrix when
she was lying on the rear seat is unbelievable because if this had
happened, obviously, the appellant would be driving the car from
the driver's seat till it was stopped near the pavement giving ample
opportunity to the prosecutrix to shout and scream and attract the
attention of the people in the vicinity. Counsel urges that as per the
prosecutrix she was lifted from the bus stand near Gurudwara
Bangla Sahib at 10.30 PM and that around said time many people
are on the streets around Gurudwara Bangla Sahib.
18. The submission made by learned counsel does not appeal to
us for the reason the incident has taken place on the intervening
night of second and third December 2002. It is winter time in Delhi
in the month of December. Not many people are on the street at
10.30 PM. As regards the victim not shouting for help, she has
categorically stated to the police and in the Court that the appellant
was carrying acid in a bottle and threatened to pour the same on
her if she raised a hue and cry.
19. The question that remains to be adjudicated is whether the
sentence of life imprisonment awarded to the appellant by the
learned Trial Judge for the offence under Section 376 IPC is just and
proper in the facts and circumstances of the case. It may be noted
that the appellant has already undergone the duration of detention
pertaining to the other offences and since all sentences have to run
concurrently, qua the other offences the issue of sentence has
become redundant.
20. The old age of the victim who appears to be nearly 60 years
of age when she was raped has weighed with the learned Trial
Judge for awarding the maximum punishment prescribed by law for
the offence of rape. The learned Trial Judge has noted that the
prosecutrix was old enough to be treated as a mother by the
appellant. In other words, the conduct of the appellant has been
held to be morally depraving akin to a son raping his mother.
21. Law regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of the
people is an essential function of the State. It has to be achieved
through instrumentality of criminal law. Undoubtedly, where there is
a cross cultural conflict, law must find answer to the new challenges
and the courts are required to mould the sentencing system to
meet the challenges. Protection of society and stamping out
criminal proclivity must be the object of law which has to be
achieved by imposing appropriate sentence. Therefore, in operating
the sentencing system, law should adopt the corrective machinery
or the deterrence, based on factual matrix. By deft modulation
sentencing process should be made stern when required and
tempered with mercy, where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the manner in
which it was planned and committed, the motive for commission of
the crime, the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts which
would enter into the area of consideration. After giving due
consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an
offence, the aggravating and mitigating factors and circumstances
in which a crime has been committed are to be delicately balanced
on the basis of really relevant circumstances, in a dispassionate
manner by the Court.
22. In the decision reported as Raju v State 109 (2004) DLT 953
the appellant therein was awarded RI for seven years for offence
punishable under Section 376 IPC and was lodged in prison for a
period of one year and six months. While holding that the
circumstances of the case do cast a shadow of doubt on the version
of the prosecution but not sufficient to give benefit of doubt, this
Court reduced the sentence to period of imprisonment already
undergone.
23. Having noted the approach to be adopted, let us examine the
present case. The appellant was a young man of 28 years (as
recorded in MLCs Ex.PW-15/A and Ex.PW-17/A) at the time of the
incident. He had clean antecedents. The offence committed by the
appellant was not a pre-meditated one. No injuries was caused by
the appellant on the person of the prosecutrix. It has to be noted
that the prosecutrix knew the appellant evidenced by the fact that
in her statement Ex.PW-2/DA recorded soon after she was raped she
not only named the appellant but even disclosed his parentage.
She named his village, the district in which the village was situated
and also the police station within jurisdiction whereof the village
was situated. The possibility of the prosecutrix voluntarily sitting
inside the car on being offered a lift cannot be ruled out. It appears
to be case where the prosecutrix boarded the car driven by the
appellant with consent and moved in the car with consent, of course
not consenting to have sex, but the accused who was intoxicated
misunderstood the same as an act of consent and thereafter doing
what he did. From the nominal roll received from the prison we
note that the appellant has suffered incarceration for a period of six
years and eight months. A considerable period of the youth of the
appellant has been withered away in prison. The antecedents of the
appellant are otherwise clean.
24. Considering the afore-noted circumstances, we are of the
view, that it would meet the ends of justice, while maintaining the
conviction, to sentence the appellant to undergo imprisonment for
the period already undergone by him and to pay the fine as
imposed by the learned Trial Judge and in the alternative to under-
go the imprisonment as directed by the learned Trial Judge.
25. The appeal is disposed of in terms of para 24 above.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
JANUARY 16, 2009
dk
