State Of Nct Of Delhi vs Amit Kumar @ Mohan
2010 Latest Caselaw 4015 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Crl.M.A 1539/2009 & CRL.LP No.38/2009

%                        Date of Decision: 31.08.2010

State of NCT of Delhi                             .... Petitioners
                    Through    Mr.Vikas Pahwa, Additional Standing
                               Counsel and Mr. Piyush Singh, Advocate


                                 Versus


Amit Kumar @ Mohan                               .... Respondent
               Through         Ms. Trishna Mohan, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

1.   Whether reporters of Local papers may be              YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                NO
3.   Whether the judgment should be reported               NO
     in the Digest?

ANIL KUMAR, J.

*

Crl.M.A No.1539/2009

This is an application seeking condonation of 82 days delay in

filing the leave petition.

For the reasons stated in the application delay is condoned.

CRL.LP No.38/2009

1. The petitioner/state has sought leave to appeal against the

judgment dated 21st August, 2008 convicting the respondent under

Section 354 of Indian Penal Code and the order dated 21st August, 2008

sentencing him to undergo two years' rigorous imprisonment for the

offence under Section 354 IPC, however absolving him of the charge

under Section 376 of IPC in FIR No. 378/2006 u/s 376 and 377 IPC

P.S. Nangloi.

2. Brief facts to comprehend the case are that the prosecutrix is a

minor and used to live with her parents, brother and sisters in the area

of Nangloi. On 5th August, 2006, at about 8:00 p.m. while she was

playing with the children in the street, wife of the accused had called

the prosecutrix inside the house and had asked her to go up and play.

It was alleged that when she went up stairs, the accused was taking

bath and he asked her to go and bring oil from his wife.

3. The further case of the prosecution is that when the accused was

given the bottle of the oil, he removed the underwear of the prosecutrix

and though the prosecutrix started weeping the accused applied oil to

his finger and inserted his oiled finger in the private part of the

prosecutrix and then made her lie on the ground and inserted his penis

in her private part and thus committed rape on her. Before committing

the acts of inserting his oiled finger and inserting his penis in the

private part of the girl, he had shut her mouth.

4. According to the prosecution, the prosecutrix started weeping and

crying when the oiled finger of the respondent was inserted. The

persons from public had come on hearing her cries and gathered there

and the accused was beaten up. Parents of the prosecutrix, namely,

Santosh Kumar, father and Kanti Devi, mother, on hearing about the

incident, came to the house of the accused and found many persons

thrashing the accused where after police was informed. ASI Mahender

Singh, PW 11, Constable Lalit Kumar, PW-10 and Lady Constable

Beena, PW-9 removed the accused and the prosecutrix to the Sanjay

Gandhi Memorial Hospital where both were medico legally examined

and the statement of prosecutrix was recorded by the police. The case

was registered on 6th August, 2006 at 2:45 a.m. vide FIR No. 782/2006,

Ex. PW-2/A on the basis of Rukka sent by the ASI Urmil Sharma from

the Hospital, through constable Lalit Kumar, PW-10

5. The police had recovered a bottle containing mustard oil vide

seizure memo Ex. PW-10/B. After the prosecutrix was discharged from

the hospital, on 18/8/06 her statement, Ex. PW-12/B was recorded

under Section-164 of Crl. Procedure Code by the Metropolitan

Magistrate, PW-12.

6. The respondent was charged for an offence under Section-376 of

Indian Penal Code, however, the accused pleaded not guilty. During the

trial, statement of prosecutrix and her parents, mother and father were

recorded as PW-6, PW-4 and PW-5 respectively and the statement of Dr.

Upma, PW-1 and Dr. Vijay Kumar, PW-3 were recorded. Other

witnesses of the police were also recorded and the Metropolitan

Magistrate before whom the statement of prosecutrix under Section 164

of the Crl. Procedure Code was recorded as Ex. PW-12/B.

7. The respondent/accused, when examined under Section 313 of

the Crl. Procedure Code had denied the circumstances alleged against

him. The plea put forth by the accused was that on 5th August, 2006,

he had gone to a factory in the area of Shakurpur to do the job of

tailoring and came back by train at about 8:20 p.m. at Nangloi Station.

He deposed that when he was present at his house along with his wife,

father of the prosecutrix, PW-5 came with 7-8 persons and started

beating him. The father Santosh had come with his son at factory, on

the same day during the noon time and had promised to return 7,500/-

which he had borrowed from the accused three or four months back. He

further stated that the father of the prosecutrix and he, used to travel

by the same train to go to Shakurpur. In the evening, instead of

repaying the amount, he was beaten up by Santosh, PW-5 and his 7-8

companions. According to him, his wife started weeping finding her

husband being beaten by Santosh and other persons. In the

meanwhile, police came and took accused to the police station and

thereafter, he was implicated falsely in the case.

8. The Trial Court after perusing the evidence of the parties noted

that though the case of the prosecution is that the occurrence took

place at 8:00 p.m., however, in the history provided to the doctor at the

time, the prosecutrix was medico legally examined as PW-1/A, the time

of sexual assault has been given as 5:00 p.m.

9. It was also noticed that the prosecutrix in her examination-in-

chief stated that the accused inserted his finger, smeared with oil into

her private part and thereafter made her to lie on the ground, shut her

mouth and then did commit rape on her but in her cross-examination,

she stated that she started bleeding even when the accused inserted his

finger and when she raised hue and cry, the persons from the public

gathered there and the accused was beaten up.

10. Considering the medical report of the accused, Ex. PW-1/A, it

was also noticed that there was no injury on the private part of the

accused nor any semen or blood was detected on any of the clothes sent

for analysis. The Trial Court did not put much weightage to the fact

that when the prosecutrix was medico legally examined, the time of the

incident was given as 5:00 p.m. as it was not disclosed or established as

to who had provided the history to the doctor, PW-1 recording the time

as 5:00 p.m. Considering the evidence, the Trial Court, however,

inferred that the occurrence had taken place at about 8:00 p.m. and not

at about 5:00 p.m.

11. The version of the prosecutrix, PW-6 is that she had gone to the

wife of the accused who had asked her to go upstairs where the accused

was taking bath. Accused asked her to get the oil which she got from

the wife of the accused and gave it to him. Thereafter, the accused

applied oil on his finger, removed her underwear because of which she

started weeping and he inserted his finger into her vagina. It is further

deposed by her that though she was weeping and bleeding, the accused

made her lie on the ground and then shut her mouth and committed

rape. The prosecutrix further deposed that the accused wiped out the

blood with a towel and threw the towel in the room and thereafter she

became unconscious. After she regained consciousness she came down

and started crying, as a result whereof the public gathered and the

accused was beaten. The children, who were playing in the street, went

to her father, PW-5 where after, the father, PW-5 and mother, PW-4

came and the police was informed.

12. According to the prosecutrix, her blood stained underwear was

removed by the doctor, PW-1 as she had been wearing the same. The

Trial court has considered the material contradictions in her statement

which makes the hypothesis of rape being committed improbable and

not proved. The prosecutrix had stated that accused was taking bath

under a tap in front of the bathroom and not inside the bathroom and

that the accused called her five minutes after he had finished taking

bath. However, in her earlier statements, she had not stated that when

she went upstairs, the accused was taking bath and thus, it was

inferred that the prosecutrix had improved upon her statement because

of which the Trial Court considered her statement with circumspection.

The findings of the Trial Court are also based on the statement of the

prosecutrix that when the finger was inserted in her private part, she

started bleeding and weeping and thus created hue and cry because of

which people gathered and the accused was beaten. According to the

Trial Court, once the accused had already inserted the finger which led

to bleeding and weeping of the prosecutrix which had attracted the

public and they gathered and started beating the accused, there was no

possibility of committing rape on her. It has also been held that on the

basis of medical evidence it cannot be held that the rape was committed

on her. The respondent has, however, been convicted under section 354

of IPC which conviction and sentence has not been challenged by the

respondent/accused.

13. The improbability of the rape is inferred by the Trial Court based

on the fact that the wife of the accused was present in the house and

rather she had given the bottle of the oil which the prosecutrix had

given to the accused. Considering the site plan, Ex. PW-13/B, it has

been found improbable that the sexual intercourse would have been

committed by the accused in presence of his wife in the house where

even according to the prosecutrix the accused was taking bath not

inside the bath room but under the tap outside the bath room.

14. Reliance has also been placed on by the Trial Court regarding

failure of the prosecution to examine any of the person who had

collected there on hearing cries of the prosecutrix and who had beaten

the accused and as no explanation has been given for not recording the

statement of any person from the neighborhood who had reached the

spot. The Trial Court has also relied on the fact that even according to

the prosecutrix, the accused has not removed the pant at the time he

made her lie on the ground and allegedly committed the rape. Infact the

accused did not remove his pant in her presence on the basis of

testimony of the prosecutrix. The Trial Court has also noticed that it

has not been established that the pant which he was wearing had a zip

or the accused had opened the buttons of the trouser before allegedly

committing the rape.

15. The pant seized by the prosecution was half pant and on analysis

neither any stains of semen or blood were found on the pant. This has

been found to be improbable as after inserting finger in the private part

of the prosecutrix, she had started bleeding and if the rape was

committed afterwards then there would have been blood stains on the

pant of the accused. The version of the prosecutrix that the blood was

wiped out by the towel which was thrown in the room was not

established as neither any towel was recovered nor the prosecutrix had

stated in her earlier statement before the police and the Magistrate that

after inserting finger in her private part when she started bleeding, the

blood was wiped by a towel which was thrown in the room. Had the

version of wiping out the blood which had started oozing on account of

insertion of finger by the accused had been established, the absence of

blood stains of the prosecutrix on the pants of the accused could be

explained. If the theory of wiping out the blood which oozed from the

vagina has not been established, then it is improbable that the accused

committed rape without removing his pants and no blood stains could

have come on his half pants.

16. The material improvement which has been noticed by the Trial

Court is that before the police and the Magistrate, under Section 164

Crl. P.C. as Ex. PW-12/B, the prosecutrix had not stated that she had

become unconscious whereas in her testimony she stated that after

insertion of finger by the accused laced with oil when she started

bleeding she became unconscious. If she had become unconscious after

insertion of finger in her vagina when she started bleeding then how she

could know about the insertion of penis by the accused in her vagina.

17. Noticing the medical evidence, it has been noted on the basis of

Dr. Upma, PW-1 that the vagina of the prosecutrix had perineal tear

present and hymen was ruptured, however, the vaginal swab taken did

not have either the blood of the accused or his semen. Similarly, there

was no injury observed by doctor on the penis of the accused and there

was no mention about the presence or absence of smagma. In the

present facts and circumstances when on account of insertion of finger

by the accused when the prosecutrix started bleeding, absence of blood

of the prosecutrix on any of the garments of the accused and no injury

on the private part of the accused does negate the plea of insertion of

penis by the accused in the vagina of the prosecutrix. This is not the

case of the prosecution that just after the act, the accused washed

himself or washed his cloth as on account of weeping and crying the

accused was immediately caught by public and beaten up and

thereafter taken to the hospital for medico legal examination.

18. In the circumstances, the Trial Court has inferred that if the

prosecutrix had started bleeding after insertion of the oil laced finger

and the rape was committed later on and as according to the

prosecutrix the pant was not removed by the accused, his pant would

have got the stains of blood, which makes the allegation of rape being

committed by the accused not proved and that the Trail Court's findings

are neither unreasonable nor such a finding in our opinion is perverse

or unsustainable.

19. This cannot be disputed that unless the conclusion of the Trial

Court on the evidence of record are unreasonable, perverse or

unsustainable, the High Court would not interfere with the order of the

acquittal. Though the High Court has the power to assess the evidence

and reach its own conclusion which power is as extensive as in appeal

against the order of conviction, yet as a Rule of Prudence, the High

Court should always give proper consideration to matters such as (i)

the views of the Trial Judge as to the credibility of the witnesses; (ii) the

presumption of innocence in favor of the accused; a presumption which

certainly is not weakened by the fact that the accused has been

acquitted at his trial; (iii) the right of the accused to the benefit of any

doubt, and (iv) the slowness of an Appellate Court in disturbing a

finding of the fact arrived at by a Judge who had the advantage of

seeing the witnesses and noticing their demeanor.

20. On the analysis of facts and circumstances and the evidence of

the prosecution, this Court does not differ with the conclusions of the

Trial Court acquitting the respondent of the charge under section 376 of

IPC but convicting him and sentencing him under Section 354 of Indian

Penal Code nor finds the inference as unreasonable, perverse or

unsustainable. The respondent has not challenged his conviction under

section 354 of the Indian Penal Code. Since the view taken by the Trial

Court does not suffer from any unreasonableness, perversity nor is it

unsustainable on any ground, any other view even if possible by this

Court is not to be substituted with the view of the Trial Court in the

facts and circumstances.

21. The learned counsel for the petitioner has relied on (2009) 6 SCC

635, Satyapal Vs State of Haryana and (2005) 13 SCC 766, State of HP

Vs Asha Ram. In Satyapal (supra) the testimony of prosecurix was

corroborated by the testimony of her aunt who had categorically stated

that the accused had removed her salwar and underwear and had shut

her mouth and the accused was performing sexual intercourse with the

prosecutrix. In the present case the dispute is whether the accused only

inserted the oil smeared finger in the vagina of the prosecutrix or also

inserted his penis in her vagina. The finding of insertion of finger

resulting into bleeding of the prosecutrix and rupture of her hymen has

not been challenged by the accused and he has already been convicted

and sentenced for that. However, considering other circumstances that

the wife of the accused was present in the house, the accused was not

inside the bathroom but was outside the bathroom; despite prosecutrix

bleeding on account of rupture of her hymen and blood oozing out and

the fact that the accused did not remove his half trouser, no blood

stains of prosecutrix blood were found on his garments and private part

though accused did not get the chance to wash or change his cloth and

no injury of any type was found on his private parts and the accused

was immediately apprehended by the public on hearing the cries of the

prosecutrix and was beaten up and none of the public persons who had

collected and apprehended the accused were examined and no

explanation given by the prosecution for their non examination. In Asha

Ram (supra) the allegation was of the father raping his own daughter

who was cross examined at length and whose testimony remained un-

impeached in contradistinction to the present case where the trial Court

recorded improvements made by the prosecutrix and prosecution and

those improvements have remained unsubstantiated.

22. It is no more res integra that the ratio of any decision must be

understood in the background of the facts of that case. What is of the

essence in a decision is its ratio and not every observation found

therein nor what logically follows from the various observations made in

it. It must be remembered that a decision is only an authority for what

it actually decides. It is well settled that a little difference in facts or

additional facts may make a lot of difference in the precedential value of

a decision. The ratio of one case cannot be mechanically applied to

another case without having regard to the fact situation and

circumstances in two cases. The Supreme Court in Bharat Petroleum

Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778)

had held that a decision cannot be relied on without considering the

factual situation. In the judgment the Supreme Court had observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too

taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq Vs State, (1980) 4 SCC 262 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

23. The arguments were heard in detail on 30th August, 2010. After

considerable arguments by Mr. Vikas Pahwa on that day the matter was

adjourned at his request to consider the ratio of the judgments cited by

him being applicable to the present case. On 31st August, 2010 the

learned counsel agreed that the ratio of the judgments cited by him do

not apply squarely on account of various difference between the present

case and the facts and circumstances of the cases cited by him.

24. No other grounds have been raised by the petitioner seeking leave

against the judgment of the Trial Court dated 21st August, 2008 in

Sessions Case No. 15/2 (RBT) titled as State Vs. Amit Kumar convicting

and sentencing the accused respondent under Section 354 of IPC but

absolving and acquitting him of the charge under section 376 of IPC.

25. For the foregoing reasons, we do not find any ground to interfere

with the decision of the Trial Court acquitting the respondent from the

charge under Section 376 of IPC but convicting and sentencing him

under section 354 of IPC. Therefore, the leave to appeal is declined and

the petition is dismissed.

ANIL KUMAR, J.

SURESH KAIT, J.

AUGUST    31st,   2010
rs