Mukesh vs State (N.C.T. Of Delhi)
2011 Latest Caselaw 1045 Del

            IN THE HIGH COURT OF DELHI: NEW DELHI

+               CRL. A. No. 274/2009

%               Judgment decided on: 22nd February, 2011

MUKESH                                           .....APPELLANT

                          Through:   Ms. Ritu      Mishra,    Amicus
                                     Curiae

                          Versus

STATE (N.C.T. OF DELHI)
                                                ....RESPONDENT

                          Through: Mr. M.P. Singh, APP

                                   AND
CRL. A. No. 603/2009

NARENDER @ GANTU                                 .....APPELLANT

                          Through:   Ms. Purnima Sethi, Legal Aid
                                     Counsel
                          Versus

STATE (N.C.T. OF DELHI)
                                                ....RESPONDENT

                          Through: Mr. M.P. Singh, APP


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

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

        2. To be referred to Reporter or not?         No

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


A.K. PATHAK, J. (Oral)

1. By the judgment dated 24th February, 2009, Additional

Sessions Judge, Delhi has convicted the appellants under

Sections 341/34 and Section 376(2)(g) IPC. Appellants have

been sentenced to undergo rigorous imprisonment for 10 years

each along with fine of `3,000/- each and in default of payment

of fine to undergo simple imprisonment for 3 months under

Section 376(2)(g) IPC; sentenced to undergo simple

imprisonment for one month each for the offence under Sections

341/34 IPC. Both the sentences have been directed to run

concurrently. Benefit of Section 428 Cr.P.C. has also been given

to the appellants.

2. It is this judgment which is under challenge in these

Appeals. Accordingly, both the abovementioned appeals are

being disposed of together.

3. FIR No. 399/2003 under Sections 341/34 and 376(2)(g)

IPC was registered at Police Station Narela on the statement of

prosecutrix. In the FIR, prosecutrix stated that she had been

working in a factory situated at Bhorgarh. On 24th October,

2003 at about 6:30 PM she was returning home from the

factory; when she reached near the boundary wall of DDA flats,

two boys intercepted her, caught hold of her and dragged her to

a nearby jungle, laid her in the bushes and raped her one after

the other. While raping her they had gagged her mouth. She

was also threatened that in case she raised alarm, she would be

stabbed by a knife. In the meanwhile, one person came there to

ease himself. On seeing him she raised alarm at which 2/3

rehriwalas came there and caught hold of Mukesh. Other boy,

whose name was later on revealed as Narender, succeeded in

escaping after snatching ` 740/- from her. After apprehending

Mukesh, rehriwalas took prosecutrix as well as Mukesh to a

nearby village, where villagers gave beatings to Mukesh.

4. After registration of FIR, prosecutrix was medically

examined in Maharshi Balmiki Hospital, Pooth Khurd, Delhi

vide MLC No. 759/03 (Ex. PW5/A). Following injuries were

found on her person:-

(a) superficial abrasion over right elbow 1x1 cm.

        (b)     abrasion right side lower back 1x1 cm.
        (c)     abrasion below shoulder right side 1x1 cm.
        (d)     a cut mark of more than 1.5 cms. was found

on the left side of labia majora of the patient.

Slides prepared from vaginal smear as well as petticoat of

the prosecutrix was sealed by the doctor and handed over to the

police officials.

5. Mukesh was also medically examined in Maharshi Balmiki

Hospital, Pooth Khurd, Delhi. Doctor opined that there was

nothing to suggest that he was incapable of performing sexual

intercourse. Smell of alcohol was noticed in his breath. His

blood sample was taken and sealed by the doctor besides his

underwear and handed over to the concerned police official.

Subsequently, Narender was apprehended. He was also

medically examined in the same hospital. Doctor opined that

there was nothing to suggest that he was not capable of

performing sexual intercourse. His blood sample and pubic hair

were taken, sealed and handed over to the concerned police

official by the doctor. Both Mukesh and Narender did not

cooperate in giving their semen samples. As per report of CFL

(Ex. PW2/A), stains of semen were found on the petticoat of the

prosecutrix which were of 'B' group. Blood samples of

appellants were identified as that of 'B' group and 'O' group.

6. Charges under Sections 341/506/34 IPC and 376(2)(g) IPC

were framed against the appellants on 31 st March, 2004 to

which they pleaded not guilty and claimed trial.

7. Prosecution examined 11 witnesses in all to prove its story.

Prosecutrix has been examined as PW1. Dr. Saroj Aggarwal

stepped in the witness box as PW3 to prove the MLC of the

prosecutrix (Ex.PW 3/A). Dr. Jay Kumar and Dr. A.K. Gupta,

who had examined Mukesh and Narender respectively, stepped

in the witness box as PW4 and PW5 respectively. W/SI

Harjinder Rana, who is Investigating Officer in this case, was

examined as PW11. All other witnesses are formal in nature

being police officials, who had been joined with the investigation

at one or the other stage.

8. After prosecution closed its evidence, statements of

appellants under Section 313 Cr.P.C. were recorded separately

on 5th July, 2008 wherein entire incriminating material, which

had come on record, was put to them. Both the appellants have

denied their complicity in the crime and claimed themselves to

be innocent. Appellant Narender examined his wife Geeta in his

defense as DW1. However, Mukesh did not examine any witness

in his defense.

9. Trial Court has found testimony of prosecutrix (PW1)

trustworthy, reliable and credible. It has been further noted

that injuries found on the person of prosecutrix had lend

credence to her statement that she was forcibly taken by the

appellants to a deserted place and laid in the bushes before

committing rape upon her. Traces of semen on the petticoat

and vaginal swab of prosecutrix were also taken as corroborative

piece of evidence. As per the Trial Court, statement of PW1 was

sufficient to convict the appellants for committing gang rape

upon the prosecutrix. I have carefully perused the testimony of

the prosecutrix and other evidence on record and I am of the

view that Trial Court was right in reaching to the conclusion

that it is the appellants who had committed gang rape upon the

prosecutrix by taking turns, thus, had committed the offence

punishable under Section 376(2)(g) IPC.

10. PW1 has fully corroborated the prosecution story. Her

statement is in line with the allegations contained in the FIR.

While deposing in the witness box, she has categorically stated

that while she was returning from the factory where she had

been working, appellants caught hold of her from her both arms;

they took her to a nearby jungle which was having some bushes;

they laid her on the bushes. Thereafter, Narender and Mukesh

committed rape upon her one after the other. She has stated

that accused Narender sat on her chest and gagged her mouth

while other accused Mukesh committed rape upon her. She has

deposed that he had put his urinating portion into her vagina.

Thereafter, accused Narender committed rape upon her in the

same manner. After committing rape, Mukesh caught hold of

her and started moving from that place. In the meanwhile, one

person came there for easing himself. On seeing him, she tried

to escape from the clutches of Mukesh. She also raised alarm.

One vegetable vendor apprehended Mukesh. Narender

succeeded in escaping from the spot. On her narrating the

incident to the vegetable vendors, they gave beatings to Mukesh.

Someone informed the police. Police arrived there and Mukesh

was handed over to the police officials. She and Mukesh were

taken to Police Station. Her statement was recorded. She was

medically examined. Her this statement has remained

unshattered despite the fact that she had been cross-examined

by the counsel of the appellants at length. There is no reason to

disbelieve her testimony. Injuries found on her person lend

credence to her version. The injuries, which were found on her

person, are possible if a person is laid down on the bushes. Not

only this, injury was also found on her private parts. As per

MLC, a cut mark of 1.5 cms. was found on the right side of

labia majora. Immediately after the incident, vaginal swab and

petticoat of the prosecutrix were taken in possession by the

doctor. Semen stains were found on the petticoat of the

prosecutrix. Traces of semen were also noticed on the vaginal

swab. Thus, scientific evidence also lends credence to the

statement of the prosecutrix that she was raped on the fateful

day. Prosecutrix has identified the appellants as the persons,

who had committed rape upon her. There is no reason as to

why she would have falsely implicated them in this case, more

so, when there was no previous enmity between them, inasmuch

as, they were strangers to her. It is not the case of the

appellants that they were known to the prosecutrix in any

manner or that prosecutrix was having any kind of grudge

against them.

11. Learned Amicus Curiae and counsel from legal aid have

vehemently contended that the testimony of PW1 has remained

uncorroborated from any independent witness. As per the

prosecution, on seeing a person, who had come at the spot for

easing himself, prosecutrix raised alarm. Thereafter, vegetable

vendors/rehriwalas apprehended Mukesh. None of these

persons have been joined with the investigation nor were

produced in the witness box to corroborate the version of

prosecutrix. I do not find any force in this contention. In a

metropolis like Delhi apathy of public persons to join the

investigation is not unknown. Public persons are reluctant to

join the investigation in order to avoid harassment at the hands

of the accused as also from taking rounds of court. Non-joining

of independent public witnesses by itself is not sufficient enough

to discard the testimony of the complainant/injured witness. I

also do not find any force in the contention of learned Amicus

Curiae that in the absence of the semen of the appellants and

detailed report on their pubic hair, the appellants cannot be

connected with the offence of rape.

12. It is well settled that conviction can be based on the sole

testimony of prosecutrix without corroboration from any

independent witness if the testimony of prosecutrix is found to

be trustworthy and reliable. Prosecutrix is a victim of rape, who

cannot be put on par with an accomplice. There is no rule of

law that says that testimony of the prosecutrix cannot be

accepted unless it is corroborated. In State of U.P. v. Pappu @

Yunus and Anr. AIR 2005 SC 1248, Supreme Court held that a

prosecutrix complaining of having been a victim of the offence of

rape is not an accomplice after the crime. There is no rule of law

that her testimony cannot be acted without corroboration in

material particulars. She stands at a higher pedestal than an

injured witness. In the latter case, there is injury on the physical

form, while in the former it is both physical as well as

psychological and emotional. In State of Punjab v. Gurmit

Singh and Ors. AIR 1996 SC 1393, Supreme Court held that

the Courts should examine the broader probabilities of a case

and not get swayed by minor contradictions or insignificant

discrepancies in the statement of the prosecutrix, which are not

of a fatal nature, to throw out an otherwise reliable prosecution

case. Evidence of the victim of sexual assault is enough for

conviction and it does not require any corroboration unless

there are compelling reasons for seeking corroboration.

13. Ms. Purnima Sethi, Legal Aid Counsel contends that

lenient view may be taken on the quantum of sentence.

Narender is the only bread-earner in the family and his widowed

mother, wife, two children and unmarried sister are totally

dependent upon him. Narender is not involved in any other

case. He is in incarceration for about 7½ years. Ms. Ritu

Mishra, Amicus Curiae contends that the mother of appellant

Mukesh is about 70 years old and is solely dependent on him. It

is contended that both the appellants be released on the

sentence already undergone by them. Keeping in mind the

nature and gravity of offence, I am of the view that appellants

are not entitled to any leniency in the sentence. They have

committed gang rape upon a helpless woman turn-by-turn.

Section 376(2)(g) IPC mandates that an accused of gang rape

shall be punished with rigorous imprisonment for a term which

shall not be less than 10 years but which may be for life.

Proviso to this section, however, vests power in the court to

reduce the sentence of imprisonment for a term of less than 10

years but only if adequate and special reasons are brought forth.

In this case, I do not find it to be a fit case to award sentence

less than what has been mandated under Section 376(2)(g) IPC.

14. No other argument has been advanced nor any other plea

been raised by the counsel for the appellants.

15. For the foregoing reasons, both the Appeals are dismissed

being devoid of merits.

16. Fee of Ms. Ritu Mishra, Amicus Curiae is quantified as

`7,500/- to be paid by the Government of NCT of Delhi.

A.K. PATHAK, J.

FEBRUARY 22, 2011 rb