Ganesh & Anr. vs State Of Nct Of Delhi
2010 Latest Caselaw 3890 Del

                  HIGH COURT OF DELHI: NEW DELHI
+                    CRL. APPEAL NO. 958/2009


GANESH & ANR.                                         ..... Appellants
                           Through:   Mr. Rajender Kumar and Mr.
                                      Ranbir Singh Kundu, Advs.

                           Versus

STATE OF NCT OF DELHI                                  .....Respondent
                  Through:            Mr. M.P. Singh, APP for the
                                      State along with ASI Bangali
                                      Babu, P.S. Lajpat Nagar.

%              Judgment reserved on: 16th August, 2010
               Judgment delivered on: 20th August, 2010

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers             No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?                No

       3. Whether the judgment should be                    No
          reported in the Digest?

A.K. PATHAK, J.

1. Appellants Ganesh and Ajay Chauhan have been convicted

under Section 376 IPC and sentenced to undergo rigorous

imprisonment for a period of seven years and to pay fine of

Rs.10,000/- each and in default of payment of fine to undergo

simple imprisonment for six months. It may be noted here that

co-accused Puneet has also been convicted under Section 363 IPC

as well as under Section 376 IPC; whereas accused Indeever has

been convicted under Section 363 IPC by the same judgment.

However, it appears that they have not challenged their

conviction.

2. In brief, prosecution case as emerges from the record is that

the prosecutrix aged about fourteen years went to Lajpat Nagar

Market on 11th March, 2002 at about 4 pm where accused Puneet,

who was known to the prosecutrix, met her and asked her to come

to his home at about 6 pm. Prosecutrix went to meet Puneet at

his house at about 6 pm and found him drinking liquor. When

prosecutrix told him that she wanted to go back he told her that

he would drop her at her house. Thereafter, Puneet took her to a

hotel in Lajpat Nagar after enticing her. He also called his friend

Ajay Chauhan there. Both Puneet and Ajay Chauhan forcibly had

sex with her. Thereafter, Puneet took her to some other place. He

was under the influence of liquor at that time. On the way,

Indeever met them. Puneet requested him to drop them at

Faridabad. Indeever agreed and gave them lift on his scooter.

However, on the way, his scooter broke down. Thereafter, they

hired a three wheeler scooter and reached Faridabad where Police

officials apprehended them. They were released by the Police on

12th March, 2002. Due to fear, prosecutrix could not disclose

anything to the Police officials. After they were released by the

Police, Puneet took her to Lajpat Nagar and again consumed

liquor. When prosecutrix told him that she wanted to go home he

did not allow her to leave. In the meanwhile, Appellant Ganesh,

who was friend of Puneet, arrived there. He took them to his

friend's house whose name was Sanjay. There Puneet and

Ganesh again forcibly had sex with her. They allowed her to leave

only on 13th March, 2002. Due to fear she did not go to her

house. Instead she went to her aunt's house. In the evening she

went to a park where her brother met her and took her to home.

3. On 13th March, 2002 at about 9 pm Ms. Neelam, mother of

the prosecutrix arrived at Police Station Lajpat Nagar along with

accused Puneet. She made a statement that her daughter aged

about 14 years was missing from the house since 6 pm of 11th

March, 2002. In fact, she had gone to a park near her house and

had not returned. She made efforts to search her daughter but

could not find her. On 12th March, 2002 she came to know that

her daughter, along with Puneet and Indeever, was arrested by the

Police officials of Sector 37, Police Station Faridabad and

thereafter, they were released. Despite this, her daughter had not

returned home. She suspected that Puneet and Indeever had

taken her daughter after enticing her. Since Puneet was not

disclosing whereabouts of her daughter, she was producing him

before the police officials.

4. On the basis of above statement, of Ms. Neelam, FIR No.

167/2002 under Section 363 IPC was registered While

Investigating Officer was making inquiry from accused Puneet,

regarding whereabouts of the prosecutrix, complainant Neelam

returned back to her home. However, after about one hour she

again came to the Police Station along with the prosecutrix.

Immediately thereafter, statement under Section 161 Cr.P.C. of

the prosecutrix was recorded by the Investigating Officer wherein

she narrated the incident in the manner as has been described in

the para 2 hereinabove.

5. Prosecutrix was medically examined at All India Institute of

Medical Sciences (AIIMS). No external injury was noticed on her

person. Hymen was absent. Vaginal smear was taken, sealed and

handed over to Investigating Officer. Underwear and jeans of the

prosecutrix were taken in possession and sealed. Accused Puneet

was also got medically examined at AIIMS. Doctor opined that

there was nothing to show that he was incapable of performing

sexual intercourse. His blood sample was taken. Subsequently,

Appellants and Indeever were also arrested, however, they were

not medically examined to find out as to whether they were potent

to perform sexual intercourse nor their blood or semen sample

was taken. Later on case property was sent to CFSL for chemical

analysis and its report was obtained.

6. After completion of investigation, Appellants along with co-

accused were sent up to face trial. Charge under Section 376 IPC

was framed against the Appellants on 9th October, 2002 to which

they pleaded not guilty and claimed trial. Separate charges were

also framed against Puneet and Indeever under different

provisions of the Indian Penal Code which has no relevance for

disposal of present Appeal, therefore, not referred.

7. Prosecution examined fifteen witnesses to substantiate its

story. Prosecutrix was examined as PW1. Her mother Neelam

was examined as PW9. Official of the Municipal Corporation of

Delhi, Central Zone, Lajpat Nagar, who produced the birth

certificate of the prosecutrix, was examined as PW2 to prove the

age of the prosecutrix. SI Anil Malik, Investigating Officer was

examined as PW12. Dr. Suman Meena was examined as PW10

and she had proved the MLC of the prosecutrix as Ex. PW10/A.

She admitted that she had not examined the prosecutrix nor had

prepared her MLC. All the other witnesses are formal in nature

being other Police officials who had participated in the

investigation at one stage or the other. After prosecution closed its

evidence, statements of Appellants under Section 313 Cr.P.C. were

recorded, in which all the incriminating material, which had come

on record, was put to them. Their case was that of simple denial.

The Appellants did not lead any evidence in their defence.

However, it may be noted that co-accused Puneet had examined SI

Kishan Lal as DW1 and Ahlmad of court of SDM, Faridabad as

DW2 to prove that he along with Indeever and prosecutrix was

arrested by the Faridabad Police and released from the court of

SDM, Faridabad on 12th March, 2002.

8. Learned Trial Court found the testimony of prosecutrix

trustworthy and reliable and sufficient enough to conclude that

Appellants had committed rape upon the prosecutrix. Thus,

Appellants were convicted under Section 376 IPC. Learned

counsel for the Appellants has vehemently contended that the

prosecutrix is not a truthful and reliable witness. She has taken

different stand during the investigation as also while deposing in

the court. There are material inherent inconsistencies in her

statement making her totally an unreliable witness. Trial Court

has committed a patent error in accepting her testimony which

had remained uncorroborated by any medical or scientific

evidence to convict the Appellants under Section 376 IPC.

9. Counsel has drawn my attention to various statements of

the prosecutrix recorded during the investigation as also her

deposition in the court and on perusal thereof, I am convinced

that prosecutrix is not a trustworthy and reliable witness. I find

that her statements recorded during the investigation as also in

the court are at variance on material points with regard to the role

of the Appellants. In her statement under Section 161 Cr.P.C.,

with which she was confronted during her statement recorded in

the court, the prosecutrix had stated that it is Puneet who had

taken her to a hotel at Lajpat Nagar on 11th March, 2002 after

enticing her. He called Ajay Chauhan in the hotel. Thereafter,

Puneet and Ajay Chauhan forcibly had sexual intercourse with

her. Thereafter, Puneet took her to Faridabad. On their way to

Faridabad, Indeever met them and gave lift to them on his scooter

at the request of Puneet. On the way, scooter broke down

thereafter, they hired one three wheeler scooter and reached

Faridabad where they were apprehended by the Police and

released on next day i.e. 12th March, 2002. Puneet brought her

back to Lajpat Nagar where Ganesh met them. He took her to his

friend's house namely Sanjay where Puneet and Ganesh had

forcible sex with her. Subsequently, she gave another story to the

doctor who medically examined her and which is recorded in the

MLC i.e. Ex.PW10/A. She stated that Puneet and Ajay Chauhan

took her to a hotel in Lajpat Nagar at about 9 pm. She introduced

the name of one Naveen also in her this statement. She further

stated that she had drinks with them and had sexual intercourse

willingly. Thereafter, Puneet and Naveen left the hotel room and

Puneet took her to Faridabad where they were apprehended by the

Faridabad Police and released on 12 th March, 2002. In the

evening they went to Sanjay's house where she was raped by

Ganesh and Puneet. Yet another story was propounded by her in

her statement under Section 164 Cr.P.C. recorded by the

Metropolitan Magistrate. This statement was recorded on 16 th

March, 2002. In this statement she has not named Ajay Chauhan

and Ganesh. Before Metropolitan Magistrate she had stated that

she went to Krishna Market for purchasing samosas where Puneet

met her. He took her to his house. Later on he forcibly took her

to a hotel and threatened her that in case she raised alarm, he

would kill her father and younger brother. He had sex with her

two-three times against her wishes. At about 12:30 am he took

her to Lalsai Market where Indeever met them. Puneet requested

Indeever to drop them at Faridabad. On the way, scooter broke

down and they hired three wheeler scooter and reached Faridabad

where they were apprehended by the Police. Uncle of Puneet and

mother and brother of Indeever came to the Police Station and

only thereafter, Puneet and Indeever were released. Thereafter,

Puneet took her to Lajpat Nagar. Due to fear she did not come to

her house and went to a park where her brother met her.

Though, she had named Appellants in her earlier statement under

Section 161, but in her statement under Section 164 Cr.P.C. she

did not name the Appellants. During trial her statement was

recorded on 12th November, 2002 wherein she turned turtle and

did not name any of the accused. She deposed that on the fateful

day she had a quarrel with her mother and went to her mausi's

house who was living in Faridabad. On way, Indeever and Puneet

met her as their two wheeler scooter had broken down. Puneet

and Indeever were apprehended by the Faridabad Police. She was

also arrested. In the morning they were released from Faridabad

Thana. Thereafter, all of them returned to Delhi and by that time

her mother had lodged the complaint with the Police. She was

cross-examined by the Public Prosecutor for the State but nothing

could be elicited from her which could go against the Appellants.

It appears that prosecution filed an application under Section 311

of the Code of Criminal Procedure for recalling the prosecutrix as

her clothes could not be put to her for identification on 12th

November, 2002 when her examination-in-chief and cross-

examination was concluded. This application was allowed and

prosecutrix was recalled and pursuant thereof, she appeared in

court on 24th September, 2004 and her statement was again

recorded. Though, she was called only for identification of case

property but her statement on other aspects was also recorded as

she stated that she was threatened by the accused persons on

12th November, 2002 when her statement was recorded in the

court, therefore, she did not support the prosecution. This time

she came up with another story. She deposed that she was taken

by Puneet and her friends namely Ganesh and Ajay Chauhan and

one more person whose name she did not remember to a hotel.

They offered her liquor with tablets and forcibly made her to drink

the same. After taking liquor, she lost her sense. All of them

raped her. In the night at about 1 pm they took her to Faridabad

where they all were apprehended. Next day they were let off by

the Police officials. She was again brought to a hotel at Lajpat

Nagar and raped. Since, by that time report had already been

lodged with the Police, accused Ajay Chauhan brought her back to

her house and handed her over to his brother. Her this statement

is also at variance with her statement recorded earlier by the

Police on 13th March, 2002. Be that as it may, since prosecutrix

has taken shifting stand, with regard to the role of Appellants, at

different stages her version qua them cannot be accepted as a

gospel truth. In view hereof, it would not be safe to convict the

Appellants on the sole testimony of the prosecutrix.

10. It is well settled that conviction of an accused on the basis of

the testimony of the prosecutrix alone is possible. In other words,

where the evidence of the prosecutrix inspires confidence and

appears to be natural and truthful same would be sufficient to

base the conviction. In such an eventuality corroboration of the

testimony of the prosecutrix as a condition for judicial reliance is

not a requirement of law. However, in this case with regard to the

role of Appellants, testimony of the prosecutrix is at material

variance vis-à-vis her earlier statements and it would not be safe

to convict the Appellants on her sole testimony without any

corroboration from the medical/scientific evidence.

11. There is nothing on record to suggest that semen or clothes

of the Appellants were sent to FSL for chemical analysis. Even the

MLC of the Appellants is not on record. No evidence was available

on record to suggest that the Appellants can be linked with the

offence of rape of prosecutrix by way of medical and scientific

evidence. The prosecution has failed to prove its case against the

appellants beyond the shadow of reasonable doubt that the

Appellants had raped the prosecutrix.

12. For the foregoing reasons, Appellants are acquitted.

Appellants be released forthwith, if not wanted in any other case.

A.K. PATHAK, J

August 20, 2010 ga