Girish vs State (Nct Of Delhi)
2013 Latest Caselaw 1841 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 10th April, 2013
                               DECIDED ON : 25th April, 2013
+      CRL.A. 157/2004
       GIRISH                                         ..... Appellant
                     Through :       Mr.Ravi Qazi, Advocate.
                     versus
       STATE (NCT OF DELHI)                            ..... Respondent
                     Through :       Ms.Fizani Husain, APP.
AND

+      CRL.A. 168/2004

       POORAN CHAND                                   ..... Appellant
                     Through :       Mr.Shekh Israr Ahmed, Advocate.
                     versus
       STATE                                           ..... Respondent
                     Through:        Ms.Fizani Husain, APP.
       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Pooran Chand, Girish and Titu @ George were arrested and

sent for trial in case FIR No.607/1992 registered at Police Station

Ambedkar Nagar on the allegations that on 28.11.1992 at about 07.00

P.M. near Madangir market, they abducted 'X' (assumed name) aged

twenty years, put her in a car and wrongfully confined her in it. She was

taken to a deserted place near Pushp Vihar and at about 11.30 P.M.

Pooran Chand committed rape upon her. All the three accused persons

were charge-sheeted under Sections 342/354/376(2)(g)/120-B IPC. Vide

order dated 30.07.1996, they all were charged for committing offences

under Sections 366/342/34 IPC. Pooran Chand was charged additionally

under Section 354 IPC also. The prosecutrix 'X' appeared to testify.

After her examination, vide order dated 22.11.2001, charge was amended

and Pooran Chand was charged for committing offence under Section 376

IPC. It is relevant to note that Titu @ George expired during trial. The

proceedings stood abated qua him. The prosecution examined 13

witnesses to substantiate the charges. In their 313 statements Pooran

Chand and Girish pleaded false implication. On appreciating the evidence

and considering the rival contentions of the parties, the Trial Court, by the

impugned judgment held Pooran Chand guilty under Sections

342/366/376 IPC. Girish was convicted under Section 366/342 IPC.

Pooran was sentenced to undergo RI for seven years with fine `2,000/-

under Section 376 IPC; RI for three years with fine `1,000/- under Section

366 IPC and RI for six months under Section 342 IPC. Girish was

sentenced to undergo RI for three years with fine `1,000/- under Section

366 IPC and RI for six months under Section 342 IPC. The sentences

were to operate concurrently.

2. PW-12 Sh.J.P.S. Malik recorded 'X's statement (Ex.PW-

12/A) under Section 164 Cr.P.C. In the said statement, 'X' did not

implicate any accused for committing rape upon her. She assigned

specific role to the assailants and alleged that Pooran Chand, Girish and

their 4-5 associates abducted her in a car. Thereafter, she was taken to a

deserted place. There Pooran Chand 'teased' her. Taking into

consideration this version of the prosecutrix before the ACMM, the

learned Additional Sessions Judge opted to frame charge under Section

354 IPC. State did not challenge order on charge. When the prosecutrix

appeared in the Court, in her statement, she categorically implicated

Pooran Chand for committing rape upon her in the bushes at the deserted

place. It led to amendment of the charge. She was recalled for

examination. She reiterated that after her abduction in a car, Pooran

Chand committed rape upon her in the bushes. A TSR driver happened to

cross that place. When he confronted the assailants, she got an

opportunity to flee the spot. She spent night in a nearby Jhuggi. The Trial

Court relied upon the 'X's version and convicted Pooran Chand for rape.

3. It is true that conviction in a case of rape can be based solely

on the testimony of the prosecutrix but that can be done in a case where

the court is convinced about the truthfulness of the prosecutrix and there

exists no circumstances which casts a shadow of doubt over her veracity.

In the instant case, evidence of the prosecutrix appears to be not of that

quality. In her statement under Section 164 Cr.P.C. before the Magistrate,

she did not at all reveal that Pooran Chand established physical relations

forcibly with her. She did not assign any role to Girish, Titu @ George or

any other associate assisting Pooran Chand to rape her. For the first time

in her deposition in the Court she introduced a new version and implicated

Pooran Chand for committing rape upon her. She also deposed that his

associates caught hold of her hand and feet that time. She did not offer

explanation for vital improvements made by her in her court statement.

She did not assign any reason as to why these facts were not disclosed in

her 164 Cr.P.C. statement before the Magistrate. 'X' and her parents

remained mum on this aspect till she appeared in the court. Ex.PW-12/A

was recorded under Section 164 Cr.P.C. on 01.12.1992 soon after the

incident. For the first time in her deposition recorded on 28.08.2000, she

introduced a new version. Charge was amended on 22.11.2001. During

the intervening period, the prosecutrix or her family members did not

challenge the contents of her statement under Section 164 Cr.P.C. Facts

which were not found in her original statement under Section 164 Cr.P.C.

were revealed by her for the first time before the Court. In Raj Sandeep

@ Deepu Vs.State of NCT of Delhi AIR 2012 SC 3157 the Supreme

Court held as under:-

"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be

accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

4. The prosecutrix has failed to pass any of the tests mentioned

above. There is total variation in her version from what was stated in her

Statement under Section 164 Cr.P.C. and what was deposed before the

Court at the time of trial. PW-2 (Madan) did not support the prosecution

and turned hostile. PW-1 (Bal Mukund) at whose Jhuggi 'X' had taken

shelter during night merely deposed that 'X' appeared 'panicky' that time.

On inquiries, she revealed that some boys were chasing her. The

prosecutrix did not reveal to PW-1 (Bal Mukund) that any of the assailants

had committed rape upon her. Her conduct is unnatural and unreasonable

and relevant under Section 8 of the Evidence Act. On the next morning

she left the Jhuggi alone. She did not go to her parents' house and did not

lodge First Information Report with the police. It is alleged that she went

to the residence of her Tau (uncle), who informed her father. The

prosecution did not examine the said relative of the prosecutrix at whose

house, she had gone next day. The said relative also did not inform the

police. It is unclear if the prosecutrix narrated the incident to him. PW-3

(Devi Dayal), TSR driver, had confrontation with the assailants including

Pooran Chand and Girish that night. However, his testimony does not

indicate that the prosecutrix was ravished at that place. He did not see

prosecutrix 'X' in the bushes. She also did not seek his assistance and

allegedly fled the spot. PW-3 (Devi Dayal) was not able to testify that the

girl in the bushes was 'X' or that any of the assailants was with her that

time. PW-3 had altercation with four-five persons standing near the

Maruti van and Pooran Chand was amongst them. He also did not report

the incident to the police though he sustained minor injuries in the scuffle.

5. 'X' went missing on 28.11.1992 and 'Missing Persons

Report' was lodged at police post Dakshinpuri at 02.45 A.M. on the night

intervening 28/29-11-1992. The informer did not suspect anyone. On

29.11.1992 Shri Chattar Singh ('X's father) suspected that someone had

allured/enticed her daughter and kidnapped her. FIR under Section 363

IPC was lodged. PW-10 (Chattar Singh) did not depose that when the

prosecutrix met her, she implicated the accused Pooran Chand for

committing rape upon her. Pooran Chand and Girish were known to both

the prosecutrix and her father. They were not named when prosecutrix

was medically examined. 'X's MLC (Ex.PW-4/B) does not confirm rape

upon her. No injuries were found on her body. The examining doctor did

not give the opinion that it was a case of 'sexual assault'. The FSL report

(Ex.P-X) records that human semen was detected on Salwar (Ex.1a) and

underwear (Ex.2) and it was of 'A' group. It did not match with the blood

group of the accused Pooran Chand. It is unclear that the 'A' was blood

group of accused Pooran Chand. In the impugned judgment it is

mentioned that the blood group of accused Pooran Chand was B+. The

FSL report did not co-relate the version alleged. The prosecutrix, thus,

failed to instill the required confidence of the court in order to confirm

conviction under Section 376 IPC. To hold the accused guilty for the

commission of an offence of rape, the solitary evidence of the prosecutrix

is sufficient provided the same inspires confidence and appears to be

absolutely trustworthy, unblemished and should be of sterling quality.

But, in the case in hand, the evidence of the prosecutrix, showing several

lacunae projected above, would go to show that her evidence does not fall

in that category and cannot be relied upon to hold Pooran Chand guilty

under Section 376 IPC.

6. 'X' went missing on 28.11.1992 and her father lodged DD

No.6-A at 02.40 A.M.(night). His statement was recorded on 29.11.1992

and he suspected someone to have kidnapped 'X'. First Information

Report under Section 363 IPC was registered. 'X' made statement to the

police and disclosed that she was abducted by Pooran Chand, Girish and

their associates in a car. In her statement under Section 164 Cr.P.C., she

informed that when she was coming back to her house after purchasing

vegetables on 28.11.1992 at about 07.00 P.M. Pooran Chand, Girish and

his four-five associates met her on the way and forcibly put her in a

Maruti car and took towards Pushp Vihar. She was taken here and there

till 11.30 P.M. Thereafter, she was taken to a deserted place where Pooran

Chand 'teased' her. In her statement before the Court, she proved the

version given to the police and Magistrate without any major variation on

this aspect. She deposed that she was abducted at about 07.00 or 07.30

P.M. and put forcibly in a Maruti car. She identified Pooran Chand and

Girish to be the assailants. Despite lengthy cross-examination, no

material discrepancies or inconsistencies in this regard. PW-1 (Bal

Mukund), an independent witness, having no acquaintance with the

assailants corroborated 'X's version and deposed that he saw a girl i.e.

prosecutrix standing outside his jhuggi at 11.00 or 12.00 night. She

appeared to be panicky. On enquiry, she revealed that some boys were

chasing her. 'X' remained in jhuggi throughout the night. On the next

morning, she left to go to her house. The accused did not cross-examine

the witness and his version remained unchallenged. PW-3 (Devi Dayal),

another independent public witness, also supported the prosecution. He

had confrontation with the assailants. He deposed that when he was

dropping a passenger at Khanpur Depot on the night intervening

28/29.11.1992 in TSR No.DL-1R-7593 Pushp Vihar, he saw a blue colour

Maruti van standing at a deserted place. Four-five persons were standing

near the Maruti van. When he inquired as to what was the problem, he

heard cries of a girl from the bushes nearby. He shouted at those four-five

persons who gave him beatings. He identified Girish and Pooran Chand

to be amongst the assailants with whom he had confrontation. The

testimony of this independent witness inspires confidence as he had no

prior animosity with the accused to falsely implicate and name them. He

was not even known to the prosecutrix to favour her. The injuries

inflicted upon him establish his presence at the spot. The accused did not

offer reasonable explanation as to what they were doing on a deserted

place at odd hours. They did not explain as to who was the girl who had

run out of the bushes and taken shelter in the jhuggi of PW-1. It appears

that PW-10 (Chattar Singh) had fixed marriage of the prosecutrix and the

assailants were not happy with that. It seems that to prevent her marriage

'X' was abducted in a Maruti van. The findings of the Trial Court on this

aspect are well reasoned and need no interference.

7. In the light of the above discussion, conviction and sentence

of the appellants under Section 366/342/34 IPC is maintained. However,

benefit of doubt is given to the appellant-Pooran Chand and his conviction

and sentence under Section 376 is set aside.

8. The appeal is disposed of in the above terms

9. The appellants are directed to surrender and serve the

remainder of their sentence, if any. For this purpose, they shall appear

before the Trial court on 02.05.2013. The Trial court shall verify if the

sentence awarded under Section 366/342 IPC has been undergone by the

appellants.

10. The Registry shall transmit the Trial Court records forthwith

to ensure compliance with the judgment.

(S.P.GARG) JUDGE 25th April, 2013 sa