Mukesh Kumar vs State
2011 Latest Caselaw 3500 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%
                       Judgment Delivered on : July 25th 2011

+                      CRL.APPEAL NO.546/2009

       MUKESH KUMAR                                ......Appellant
                                   Through :Ms.Jyotsana Gupta &
                                   Mr.Surinder Kumar, Advs
                              Versus
       STATE                                       ......Respondent
                                   Through:Mr. M. P. Singh, APP for
                                   State.

                                    AND

+                      CRL.APPEAL NO.756/2009

       RAJESH                                            ......Appellant
                                   Through:Ms.Rakhi Dubey, Adv
                              Versus
       STATE                                           ......Respondent
                                   Through: Mr. M. P. Singh, APP for
                                   State.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?                         Yes.
     2. To be referred to the Reporter or not?    Yes.
     3. Whether the judgment should be reported in the
        Digest?                                    Yes.

SURESH KAIT, J. (Oral)

1. Since, both the aforementioned appeals are

preferred by appellants against their conviction by a common

judgment, therefore, both the appeals are taken up for

disposal together.

2. Vide order dated 06.01.2007 charges were framed

against the appellants as under:-

"I, Narottam Kaushal, ASJ, Rohini Delhi do hereby charge you: (1) Rajesh s/o Jagmender (2)Mukesh s/o Dhoop Singh as under:-

That on 17.07.2006 at about 07:00PM at Balbir Vihar, Electricity Office, Aman Vihar, within the jurisdiction of P.S. Sultanpuri, you both in furtherance of your common intention you both accused persons wrongfully confined prosecutrix Kiran d/o Rajesh in the room and thereby committed offence punishable under Section 342/34 Indian Penal Code and within my cognizance.

That on the aforesaid date, time and place you accused Mukesh alongwith your co accused Rajesh in furtherance of your common intention committed gang rape on prosecutrix Kiran (who is handicapped person) without her consent, you accused Mukesh and facilitated committed of rape by bolting the door from outside and thereby committed offence punishable under Section 376(2)

(g) Indian Penal Code and within my cognizance."

3. The appellants pleaded not guilty and claimed trial.

4. The statement of the prosecutrix „K‟ was recorded

(without oath) since the prosecutrix was aged about 13 years

of age on 12.03.2007. The Court put certain questions as

under:-

"The child is physically handicapped seemingly mentally slow. To ascertain her capacity to depose, she has been put certain questions by the court. She has answered as under:

I have four sisters and a younger brother. My younger sisters Shivani and Priyanka go to school. Myself and my other sisters do not go to school. My younger brother Sagar is a toddler. Q. Do you know what is the difference between the truth and lie?

Ans. No answer.

I am of the opinion that witness would not be in a position to understand the sanctity of oath. She is therefore, being examined without Oath:"

5. The prosecutrix ‟K‟ examined as PW-1 and deposed

as under:-

"My mother goes for work and I remain alone with my sister at the house. I am crippled by both feet. On the day of occurrence, my mother was away for duty. In the evening my Chacha Mukesh (accused present in the Court) came to our house with Rajesh, who is also son of my Dada (accused present in Court). They had come in the evening. My Chacha had brought Samosas. We all ate the Samoas and thereafter my Chacha left the room. He bolted the room. Accused Rajesh then removed my clothes and put his urinary organ in my urinary organ. I felt pain and raised alarm. My Dada and three four other persons reached the spot. Subsequently, my mother also reached there."

6. Learned counsel for appellants submits that as per

the charge framed, firstly; both the appellants in furtherance

of their common intention wrongfully confined the prosecutrix

in a room and committed rape.

7. As per second part of the charge, appellant Mukesh

alongwith co accused Rajesh, in furtherance of their common

intention of gang raping on prosecutrix „K‟, who is

handicapped. Further submits that, as per the aforesaid

charge, the appellant Mukesh facilitated the commission of

rape by bolting the door from outside and thereby committed

rape.

8. Learned counsel for appellants has pointed out that

as deposed by the prosecutrix, her mother was away for duty

on the day occurrence. In the evening, her Chacha Mukesh

came to their house with appellant Rajesh who is also son of

her Dada. They had come in the evening. Her Chacha had

brought Samosas. They all ate samosas and thereafter her

Chacha Mukesh left the room. He bolted the room and

co-accused Rakesh then removed her clothes and put his

urinary organ into her urinary organ.

9. Learned counsel for appellants submitted that as

per the charge, appellant Mukesh has facilitated in commission

of rape by bolting the door from the outside, which is

corroborated by the deposition of the prosecutrix.

10. Learned counsel has drawn the attention of this

Court to the statement of appellant Mukesh (Criminal Appeal

No.546/2009) recorded under Section 313 Criminal Procedure

Code, which inter alia, reads as under:-

"Statement of accused Mukesh s/o Shri Dhoop Singh R/o P-1, Jhuggi Sultan Puri, Delhi. U/s 313Cr. P.C.

Without Oath.

Question. It is in evidence against you that on 19.07.2006(though mentioned wrongly in place of 17.07.2006) at about 7 pm you alongwith co accused Rajesh had eaten samosas with prosecutrix „K‟ and thereafter wrongfully confined the prosecutrix PW-1 Kiran in a room in her house situated at Balbir Vihar, Near Electricity office, Anand Vihar. What have you to say?

Ans. It is wrong.

Question : It is in evidence against you that your co accused closed the room when prosecutrix and you were inside the room and you raped her inside the room and she cried and you came out of the room and then you and accused Rajesh were caught hold by her mother and other public persons. What have you to say?

Ans. It is wrong."

11. Learned counsel for appellant Rajesh has also

drawn the attention of this Court to the statement of appellant

(in Criminal Appeal No.756/2009) recorded under Section 313

Cr. P.C, which reads as under:-

"Statement of accused Rajesh s/o Jagmendra Singh r/o House No.34, Hazari Chowk, Village Mundka, PS. Nangloi, Delhi U/s 313 Cr. P. C.

Without Oath Question: It is in evidence against you that on 19.07.2006(though mentioned wrongly in place of 17.07.2006) at about 7 pm you alongwith co accused Mukesh had eaten samosas with prosecutrix „K‟ and thereafter wrongfully confined the prosecutrix PW-1 Kiran in a room in her house situated at Balbir Vihar, Near Electricity office, Anand Vihar. What have you to say?

Ans. It is wrong.

Question : It is in evidence against you closed the room when prosecutrix and your co-accused Mukesh was inside the room intentionally for facilitating the commission of rape and committed by accused Mukesh and thereafter Mukesh raped prosecutrix inside the room and she cried and the accused Mukesh came out of the room when you and accused Mukesh were caught hold by her mother and other public persons. What have you to say?

Ans. It is wrong."

12. As per the statement u/s 313 Cr. P.C. of appellant

Rajesh, the incriminating evidence put to appellant Rajesh that

he closed the door of the room where the prosecutrix and

co-accused Mukesh were inside, intentionally for facilitating

the commission of rape, and thereafter Mukesh raped

prosecutrix inside the room.

13. As per the statement of appellant Mukesh, recorded

u/s 313 Cr. P. C. that your co-accused closed the room, when

prosecutrix and he were inside the room and he raped her

inside the room.

14. Learned counsel for appellants submitted that the

incriminating evidence against the appellants have not been

put to them in their statements recorded u/s 313 Cr. P. C.

15. Further submits that if the incriminating evidence

are not put to the accused persons, then the benefit of doubt

should be given to the accused persons and they are entitled

for acquittal.

16. To support her this arguments, has relied upon the

judgment of Supreme Court in the case of Ranvir Yadav Vs.

State of Bihar : (2009) 6 SCC 595 wherein the Supreme

Court in para No.9 has observed that :-

"The purpose of Section 313 of the Code is set out in its opening words- `for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.' In Hate Singh, Bhagat Singh v. State of Madhya Pradesh : AIR 1953 SC 468 it has been laid down that the statements of accused persons recorded under Section 313 of the Code `are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt.

Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. The word `generally' in Sub- section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give."

17. Same view was taken in the case of Shaikh

Maqsood v/s State of Maharashtra : (2009) 6 SCC 586.

18. Further, she submits that the sanctity of the

statement under Section 313 Cr. P. C. remains unaltered even

after the insertion of Section 315 Cr. P. C. in the code and any

statement under Section 313 Cr. P .C has to be considered in

the same way as if Section 315 is not there. Further submits

that, objective of the examination under this section is to give

the accused an opportunity to explain the case made against

him. This statement can be taken into consideration in judging

his innocence or guilt. Where there is an onus on the accused

to discharge, it depends on the facts and circumstances of the

case if such statement discharges the onus.

19. Further submits that conviction based on the

accused‟s failure to explain what he was never asked to

explain, is bad in law. The whole object of enacting Section

313 of the Code was that the attention of the accused should

be drawn to the specific points in the charge and in the

evidence on which the prosecution claims that the case is

made out against the accused so that he may be able to give

such explanation as he desires to give.

20. In the case of Ranvir Yadav (supra) the Supreme

Court came to the conclusion that the Section 313 Cr. P. C of

the Code is not a empty formality. There is a purpose behind

examination u/s 313 of the Code. Unfortunately, that has not

been done. The Supreme Court found the lapse in that case

and in that situation, the appeal of the appellant was allowed

and they were acquitted in that case.

21. Learned counsel for appellants prayed that in the

present case also the appellants should be given the benefit of

doubt, as the incriminating evidence has not been put to the

appellants.

22. Learned APP for the State while opposing the same

submitted that appellants were caught at the spot; hymen of

the prosecutrix was found torn as per the MLC report and a

serious offence of rape has been committed on a handicapped

minor girl; prosecutrix identified the appellant Rajesh in the

Court and therefore, this Court should not acquit the

appellants on technical grounds.

23. Learned counsel for appellants have argued that

the incriminating evidence against the appellants have not

been put to them, while recording their statements u/s 313 Cr.

P. C. This case has not been agitated on merits by either of

the counsels for appellants, therefore, this Court is also not

discussing the deposition and other evidences on record.

24. Repeatedly, learned APP for the State has been

asked to submit on the legal issue of Section 313 Cr. P. C

raised by the Ld. Counsels, but he did not give any plausible

answer and continued to rely upon other evidence.

25. I have perused the charge and the statement of the

prosecutrix and the statement of the appellants recorded

under Section 313 Cr. P. C. There is total contradiction in the

charge; statement of the prosecutrix and the questions put to

the appellants under Section 313 Cr. P. C. As per the

prosecution case, rape was committed by appellant Rajesh and

appellant Mukesh bolted the door and facilitated Rajesh in

committing rape. And the same is deposed by the prosecutrix

in her deposition. Whereas, the incriminating evidence put to

them while recording the statement u/s 313 of the Cr. P. C., is

that the appellant Mukesh committed the rape inside the room

and appellant Rajesh bolted the room from outside and

facilitated in committing the rape.

26. I note these questions put u/s 313 Cr. P. C. are

contrary to the charge framed and deposition of the

prosecutrix „K‟. The object of examination u/s 313 Cr. P. C. is

to give the accused an opportunity to explain the case made

against him. This statement can be taken into consideration in

judging his innocence or guilt; where there is an onus on the

accused to discharge, it depends on the facts and

circumstances of the case, if such statement discharges the

onus. The question must be framed in such a way as to enable

the accused to know what he has to explain, what are the

circumstances which are against him for which an explanation

is needed. The object of the section 313 Cr. P. C. is to afford

the accused a fair and proper opportunity for explaining

circumstance which appear against him and that the question

must be fair and couched in a form which an ignorant or

illiterate person will be able to appreciate and explain. In the

instant case, the trial judge has totally failed to put

incriminating evidence to the appellants, on the contrary, he

has put question which are contrary to the charge against the

appellants and the evidences against them.

27. The trial Judge has not dealt this case with due

diligence, which he ought to be. The present case of rape

being committed with a minor and handicapped girl, who

belongs to a lower strata of the society. He should have been

more careful, in dealing with such a case.

28. At this juncture, there are three options;

i) to revert back the case to trial Judge for fresh

recording of statement u/s 313 of Cr. P. C, while setting-aside

the judgment on conviction and order on sentence;

ii) to do the above exercise in the High Court itself;&

iii) to acquit the appellants on this ground alone.

29. I note, as per „Nominal Roll‟ dated 22.07.2011, total

period undergone as on 22.07.2011 is 05 years and 05 days

and remission earned is 09 months 21 days. Therefore, the

total period undergone is 05 years 09 months and 21 days.

30. Since, the appellants have already undergone for a

total period almost 06 years, I do not deem it appropriate to

adopt aforementioned (i) and (ii) options.

31. Therefore, in these circumstances, putting the

curtain down and relying upon the aforesaid two judgments of

the Supreme Court, I acquit both the appellants in the case

u/s 376 (2) (g) Indian Penal Code.

32. I find no infirmity in the judgment and order passed

by the trial Judge against the appellants qua the offence under

Sections 342/34 Indian Penal Code wherein the punishment

awarded is one year. Both the appellants have already

undergone nearly 06 years in custody. Learned counsels for

the appellants do not dispute the same and they have not

argued on the conviction under Sections 342/34 Indian Penal

Code, 1860.

33. Therefore, the conviction of both the appellants

u/s 342/34 Indian Penal Code is maintained.

34. In view of the above, both the appellants shall be

released from Jail forthwith, if no other case is pending against

them.

35. The Registry is directed to send a copy of this judgment

to the Jail Superintendent, Tihar Jail, New Delhi.

36. Accordingly, Criminal Appeal No.546/2009 Criminal

Appeal No.756/2009 are partially allowed.

37. No orders as to costs.

SURESH KAIT, J

July 25th 2011 Mk