Vishnu vs The State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 4411 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: July 20, 2010
                         Judgment delivered on: September 20, 2010

+      CRIMINAL APPEAL NO.153/2008

       VISHNU                                   ....APPELLANT
           Through:    Ms. Rakhi Dubey, Amicus Curiae DHCLSC

                       Versus

       THE STATE(GOVT. OF N.C.T. OF DELHI) .....RESPONDENT
           Through: Pawan K. Bahl, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

09.07.2007, convicting the appellant for the offences punishable under

Section 376(2)(g) IPC and Section 506 IPC as also against the

consequent order on sentence dated 10.07.2007 vide which the

appellant has been sentenced to undergo rigorous imprisonment for

ten years and to pay fine of Rs. 2000/-, in default of which to undergo

further RI for 6 months for the offence under Section376 IPC and for

the offence under Section 506 IPC, the appellant has been sentenced

to undergo RI for six months and pay fine of Rs. 500/-, in default to

undergo RI for one month, with both the sentences to run concurrently.

2. Briefly stated, case of the prosecution is that on 26.10.2003 at

8.45 am, information was received at police station Khajoori Khas that

one man had informed the PCR that on 25.10.2003 at around 10 am,

two boys had committed rape on his daughter aged 17-18 years. This

information was recorded as DD No. 3A (Ex.PW5/A) and was entrusted

to SI Shripal (PW11), who reached at the place of occurrence, E-1/530,

Sonia Vihar, 4th Pushta opposite DAPT point. There, ASI Shripal met the

prosecutrix and her parents and on enquiry, he found that rape was

committed upon the prosecutrix. He informed senior officials. ASI

Madhavi Bisht of CAW cell reached at the spot and took over the

investigation of the case.

3. ASI Madhavi Bisht (PW5) met the prosecutrix at the spot and

recorded her statement Ex.PW2/A. In her statement, the prosecutrix

stated that on 25.10.2003 at around 10/10.30 am, she had gone to the

nearby jungle alongwith a girl Radha to ease herself when two boys

aged around 25-26 years came there and started saying "ek baar, ek

baar", but she did not understand what they were saying. Thereafter,

one of the boys caught hold of her and when she raised alarm, the

other boy took her chunni and stuffed it in her mouth. She bit the

finger of that boy, but the other accused pressed her throat and she

fell down. Both the boys raped her. She further stated that while

leaving, the boys threatened her that if she told about the incident to

the police, they would kill her. She returned to her home and told her

parents about the incident, but they did not lodge a complaint due to

fear. The prosecutrix stated that on 26.10.2003, she and her mother

had again gone to the jungle to ease themselves when she saw the

accused persons and they again threatened her. She pointed out the

accused persons to her mother but they ran away. Thereafter, she and

her mother returned to their house and told her father about the

incident, who called the police. The Investigating Officer ASI Madhavi

Bisht appended her endorsement on the said statement and sent it to

the police station and on the basis of this rukka, formal FIR was

registered.

4. The Investigating officer inspected the spot and prepared the

rough site plan Ex.PW5/C. She also recorded the statements of the

parents of the prosecutrix as well of her neighbor Radha under Section

161 Cr.PC and found out that the accused persons lived nearby, at 3rd

Pushta, Sonia Vihar. Thereafter, she alongwith the prosecutrix, her

parents and Radha went to 3rd Pushta, Sonia Vihar, from where the

appellant was apprehended at the instance of the prosecutrix. The

appellant was arrested and his personal search was conducted. The

Investigating Officer interrogated the appellant and he made disclosure

statement Ex.PW5/D. The Investigating Officer also got conducted the

medical examination of the prosecutrix and the appellant and collected

their MLCs Ex.PW4/A and Ex.PW5/G respectively. She seized case

property from the hospital and deposited the same in the malkhana.

She also arrested the co-accused Sanjay on the next day at the

instance of the appellant. The case property was sent to CFSL and

report of CFSL Ex.PW6/A was obtained. On completion of investigation,

challan was filed in court.

5. On completion of the formalities of investigation, the appellant as

well as co-accused Sanjay were charged under Section 376(2)(g) and

506/34 IPC. The appellant pleaded innocence and claimed to be tried.

6. In order to bring home the guilt of the appellant, the prosecution

examined 19 witnesses in all. However, material witnesses examined

by the prosecution are the prosecutrix (PW2), PW19 Radha, PW1 Shri

Ram Sagar, father of the prosecutrix, PW8 Sumitra, mother of the

prosecutrix, besides Dr. Anjali (PW4). It would be appropriate to have a

look upon the gist of their testimony.

7. PW1 Shri Ram Sagar, father of the prosecutrix has stated that on

25.10.2003 at about 10:00 am, the prosecutrix had gone to the jungle

to ease herself. On her return, she told that in the jungle she came

across five persons and two out of them had forcibly raped her and

other three persons were silent spectators. On the next day i.e.

26.10.2003, he reported the matter to the police on telephone No.100.

He stated that pursuant to the telephone call, the police along with one

social worker came and took his daughter to GTB Hospital where she

was medically examined.

8. PW8 Sumitra is the mother of the prosecutrix. She in her

testimony claimed that about three years prior to her examination as a

witness, the prosecutrix had gone along with Radha (PW19) to the

jungle at about 10:00 am. On her return, prosecutrix told her that she

was subjected to rape by two boys, namely, Vishnu and Sanjay. She

claimed that on the next day, she went to the jungle along with her

daughter for easing themselves, where the prosecutrix pointed towards

two boys present there and told that they had subjected her to rape.

She further stated that said two boys threatened the prosecutrix even

on 26.10.2003. Police was informed about the incident by her husband

and her daughter was taken to hospital for medical examination by the

police. She claimed that police also made inquiries from PW19 Radha.

9. The prosecutrix (PW2) in her testimony reiterated the version

given by her in her complaint statement Ex.PW2/A. She was cross-

examined at length on behalf of the appellant but she stood her ground

and denied the suggestion that she has falsely implicated the

appellant.

10. Child witness Radha (PW19) has deposed that the appellant as

well as the prosecutrix at the relevant time were neighbours. She

stated that on the fateful day, she had accompanied the prosecutrix to

the jungle where two persons came and one of them gagged the

mouth of the prosecutrix and the other teased her. Thereafter, she ran

away from the spot and did not disclose this fact to anyone due to fear.

She identified the appellant Vishnu as the person who had gagged the

mouth of the prosecutrix. She claimed that when the police asked her

about those boys, she told the Investigating Officer that those boys

were living in their neighbourhood.

11. PW4 Dr. Anjali, Senior Resident Gynaecologist, Ganga Ram

Hospital is an important witness. She medically examined the

prosecutrix. She has proved the MLC of the prosecutrix prepared by

her as Ex.PW4/A. She stated that the prosecutrix was having

imperpigementa and fungal patches all around perinevus (butterfly

pattern); discharge seen at imtoriotus; no bleeding, abrasion small

indina at posterior fourchette; old hymen tear; laxity of vagina;

discharge non foul smell. She thereafter referred the patient to skin for

perineal selious.

12. The appellant Vishnu in his statement under Section 313 Cr.P.C.

claimed to be innocent and stated that he has been falsely implicated

in this case at the instance of the father of one of his friends Deepak.

Though the appellant initially expressed his desire to lead evidence in

defence but he did not adduce any evidence in defence.

13. The learned Additional Sessions Judge on consideration of the

evidence on record found the appellant guilty on both the counts and

he convicted and sentenced him accordingly.

14. Learned Ms. Rakhi Dubey, Amicus Curiae appearing for the

appellant submitted that the appellant is innocent and he has been

falsely implicated by the police at the instance of the father of the

appellant's friend Deepak. She has assailed the impugned judgment

firstly on the ground that if the prosecutrix is to be believed, she was

raped on 25.10.2003 at around 10:00-10:30 am but the FIR in this case

has been filed after a delay of almost a day on 26.10.2003, which

circumstance casts a doubt against the correctness of prosecution

story and raises a possibility of false implication of the appellant on an

afterthought.

15. I do not find any merit in this contention for the reason that if

there was an intention to falsely implicate the appellant, the

prosecutrix, in her complaint statement Ex.PW2/A would have named

him as one of the culprits. The fact that the prosecutrix has not named

the accused persons in the FIR is an indication that there was no

motive to falsely implicate the appellant or his co-accused and actually

their identity came to the fore during the investigation of the case. It is

pertinent to note that as per the testimony of PW2 i.e. the prosecutrix,

after raping her, the appellant and his co-accused threatened to kill her

in the event of her reporting the matter to the police. Therefore, a

possibility cannot be ruled out that initially the prosecutrix and her

parents were reluctant to report the matter to the police due to fear

and also to save the honour and reputation of the prosecutrix and the

family. Thus, much significance cannot be attached to the delay in

filing of the FIR.

16. The next contention of learned amicus curiae is that this is a case

of unfair investigation. Dilating on this argument, learned amicus

curiae submitted that admittedly the appellant and his co-accused

were not named in the statement of the prosecutrix Ex.PW2/A and as

per the testimony of the prosecutrix (PW2) and PW19 Radha, the

appellant was not arrested in their presence. If the aforesaid version is

true, then the question arises as to how the police managed to identify

and arrest the appellant on 26.10.2003.

17. It is true that the prosecutrix has not named the appellant or his

co-accused in her statement Ex.PW2/A. However, case of the

prosecution, as per the testimony of PW5 ASI Madhu Bisht, is that the

appellant was arrested by her on 26.10.2003 at the instance of the

prosecutrix and PW19 Radha. No doubt, the prosecutrix as well as

PW19 have testified in their cross-examination that the appellant was

not arrested in their presence but this, by itself, cannot be taken as a

circumstance to doubt the testimony of the prosecutrix which finds

corroboration from the testimony of PW19 Radha, who has identified

the appellant as one of the accused persons. One cannot ignore the

fact that the incident took place on 25.10.2003 and the prosecutrix i.e.

PW2 was cross-examined on 24.07.2006 i.e. after a lapse of almost

three years. Similarly, PW19 Radha was also examined almost three

years after the incident. Therefore, the aforesaid lapse in their

testimony regarding the arrest of the appellant by the police can be

attributed to the lapse of memory due to efflux of time.

18. Further, it is submitted by the leaned amicus curiae that the

testimony of the prosecutrix is not reliable because it is not

corroborated by the medical evidence. I do not find any merit in this

contention. Ex.PW4/A is the MLC of the prosecutrix. On perusal of the

MLC, it transpires that on medical examination the Doctor concerned

found scratch marks on the nose, right cheek and the upper lip of the

prosecutrix, which obviously is the sign of resistance given by the

prosecutrix when she was being subjected to rape and corroborates

her version. The version of the prosecutrix is also corroborated by

PW19 Radha who has categorically stated that when she had

accompanied the prosecutrix to jungle, they came across two persons,

one of whom gagged her mouth and other teased her and on this, due

to fear she ran away to her home and did not disclose this fact to

anyone. Testimony of the prosecutrix is also corroborated by the

ocular testimony of her parents namely Shri Ram Sagar and PW8

Sumitra who are categoric that on the fateful day when the prosecutrix

returned back from jungle, she told that she was subjected to rape by

two boys. In view of the aforesaid overwhelming evidence, I find no

reason to suspect the version of the prosecutrix. Otherwise also, it is

not the case of the prosecution that there was ill-will or enmity

between the parties which could have prompted the prosecutrix to

lodge a false complaint against the appellant. The defence of the

appellant that he has been falsely implicated at the instance of father

of his friend Deepak appears to be a make believe story. Thus, under

the circumstances, I find no infirmity in the impugned judgment

returning the finding of conviction of the appellant for the offence of

rape punishable under Section 376 IPC.

19. Lastly, learned amicus curiae has challenged the quantum of

sentence awarded to the appellant. Learned amicus curiae submits

that the appellant is a poor person. He was a young man of 19 years

at the time of commission of offence and this is an isolated act of

indiscretion on his part. She further submitted that as per the nominal

roll, the appellant has already undergone incarceration for the period

of almost seven years (actual) which punishment is more than

sufficient for the offence committed by him. Thus, learned amicus

curiae has prayed for reduction of sentence of the appellant to the

period already undergone.

20. The appellant has been convicted for the offence of gang rape

punishable under Section 376(2)(g) IPC. Ordinarily, for such offence

the minimum punishment is rigorous imprisonment for a term of not

less than 10 years, which may be for life and fine. However, proviso to

the aforesaid Section provides that the Court may for adequate and

special reasons to be mentioned in the judgment impose a sentence of

imprisonment upon the convict for a period less than 10 years.

21. The appellant is a poor person. He was a young man aged about

19 years at the time of commission of offence and the instant case is a

solitary act of indiscretion on the part of the appellant. He has already

suffered incarceration for a period almost seven years (actual) which

punishment is more than sufficient for the illegal act committed by

him. Accordingly, I accept the appeal partly, only on the point of

sentence. Taking into account overall facts and circumstances and the

nature of offence committed by the appellant, while maintaining the

conviction of the appellant and sentence of fine and sentence awarded

to the appellant for the offence under Section 506 IPC, the substantive

sentence under Section 376(2)(g) of IPC is reduced from RI for a period

of 10 years to RI for a period of 08 years, which shall run concurrently

with the sentence awarded for the offence under Section 506 IPC.

22. The appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE SEPTEMBER 20, 2010 pst