Subhash & Anr. vs State
2013 Latest Caselaw 542 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                RESERVED ON : 28th January, 2013
                                DECIDED ON : February 05, 2013


+                               CRL.A.No.323/1999


       SUBHASH & ANR.                         ..... Appellants
                   Through : Mr.K.B.Andley, Sr.Advocate with
                            Mr.M.L.Yadav and Mr.Prayanki
                             Kr.Sharma, Advocates.


                          Versus


       STATE                                       ..... Respondent
                          Through : Mr.M.N.Dudeja, APP for the State.


        CORAM:
        MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. The appellants-Subhash and Shri Chand @ Siriya impugn

their conviction and sentence in Sessions Case No.1/1997 arising out of

FIR No.404/1996 by which they were convicted for committing offence

punishable under Section 376 (2) (g) IPC and sentenced to undergo RI for

ten years with fine `5,000/- each.

2. Allegations against the appellants were that they along with

Surjeet committed rape upon 'X' (assumed name) on 15.09.1996 at 07:30

P.M. in a vacant DDA flat near Sabzi Mandi. 'X' with her parents went to

the police station around 11:30 P.M. and lodged complaint (Ex.PW-1/A)

alleging that when she was returning after purchasing vegetables from the

vegetable market, Surjeet, Siriya and Subhash raped her against her

wishes. She was medically examined. The Investigating Officer prepared

rukka and lodged First Information Report. During the course of

investigation, all the culprits were arrested. Statement of the prosecutrix

was recorded under Section 164 Cr.P.C. Exhibits were sent for

examination to Forensic Science Laboratory and reports were collected.

On completion of the investigation, charge sheet was submitted. The

appellants were duly charged and brought to trial. Prosecution examined

11 witnesses to prove the charge. In the 313 Cr.P.C. statement, the

appellant-Subhash pleaded false implication and stated that about 15days

prior to the alleged occurrence, his two pigs were caught by the

prosecutrix's father. A quarrel took place between them. On 15.09.1996

when he was sleeping in his house, the police took him to the police

station and falsely implicated in this case. He examined three witnesses in

defence. Appellant Shri Chand @ Siriya stated that about 10/15 days

back a quarrel took place between his son and father of the prosecutrix but

the matter was pacified with the intervention of the mohalla people. On

appreciating the evidence and considering the rival contentions of the

parties, by the impugned judgment, the appellants were held responsible

for committing offence under Section 376 (g) IPC and sentenced as

mentioned previously.

3. Learned counsel for the appellants while challenging the

impugned judgment urged that the Trial Court did not appreciate the

evidence in its true and proper perspective and relied upon the testimony

of the prosecutrix and her parents without ensuring their credibility. The

place of incident was situated in a busy commercial area and it is

unbelievable that the three accused would commit rape upon the

prosecutrix there. Had the prosecutrix been raped by three assailants as

alleged, she must have suffered vital injuries on her person. However, in

the MLC ((Ex.PW-5/A)) no injuries were found on her vital organs. The

complaint lodged by the prosecutrix's parents was motivated due to

quarrel which took place about 15 days prior to the incident over lifting of

pigs. The prosecutrix has made substantial improvements in the court.

She is a tutored witness. There is variation in the version given in the

statement under Section 164 Cr.P.C. No independent public witness was

associated at any stage of inquiry. The FSL report does not establish

appellant's involvement. PW-5 (Dr.Usha) specifically recorded that the

prosecutrix was conscious and had no fresh injury. 'X' did not disclose

names of the culprits to the doctor.

4. Learned Additional Public Prosecutor supported the

judgment and urged that it did not call for interference. The judgment is

based upon the cogent testimony of the prosecutrix and it has been

corroborated by medical evidence. The FIR was lodged promptly. At the

time of medical examination of the prosecutrix, the hymen was found

ruptured.

5. I have considered the submissions of the parties and have

examined the Trial Court record. The incident took place on 15.09.1996

at about 08:00 P.M. The prosecutrix aged 15 years lodged report with the

police at about 11:30 P.M. and was medically examined. Thereafter,

rukka was prepared at 04:30 A.M. on the night intervening 15/16.09.1996

and the FIR was lodged. There was no undue delay in reporting the

incident to the police. Prompt lodging of the report with the police rules

out fabrication. In her statement (Ex.PW1/A) given to the police soon

after the occurrence, 'X' gave detailed account of the incident and named

the perpetrators of the crime. She gave vivid description as to how and

under what circumstances all the three culprits ravished her one after the

other in a vacant DDA flat. While appearing as PW-1 in the court, the

prosecutrix 'X' proved her version given to the police without any

variation. She deposed that on the day of incident at about 07:45 P.M.

when she was returning to her house after purchasing vegetables and

reached near the gate of DDA flats, the accused Subhash along with Siriya

and Surjeet met her. They all were known to her and resided in the

locality. Subhash called her and she went to them. Thereafter, they all

forcibly took her in a room of a vacant DDA flat on the ground floor.

Surjeet broke the string of her salwar and committed rape on her. She

cried but nobody heard her voice. Thereafter, the accused Subhash

committed rape on her without her consent. The accused Siriya

committed rape in the last upon her without her consent. Thereafter, all

the three assailants left her on the road. She went to her house alone and

disclosed the incident to her parents who took her to police station,

Kalayan, where her statement (Ex.PW1/A) was recorded. In the cross-

examination, she stated that her parents took her to police station at about

10:45 or 11:00 P.M. and her statement (Ex.PW-1/A) was recorded

immediately. She was medically examined on the same night at about

01:45 A.M. She had shown the place of occurrence to the police at 12:30

A.M. She further elaborated that when she was sexually assaulted, she

had started bleeding. Her salwar and kameez were stained with blood and

she handed over her blood stained clothes in the hospital. She fairly

admitted that when she was left on the road, she did not raise any alarm.

She explained that it would not have served any purpose. The room was

at a distance of 30-40 paces from the main gate of the flats. It took only

5-10 minutes for the accused persons to rape her. She further asserted that

when she was sexually assaulted, she had raised alarm but nobody heard

it. She folded her hands before the accused to spare her. She denied the

suggestion that her parents had demanded money from Siriya's father to

compromise the case. She denied that any quarrel took place between her

brother/father with the accused persons. It appears that despite lengthy

cross-examination, the appellant could not elicit any material or vital

discrepancies to disbelieve her version. Her conduct is natural and

reasonable. Soon after reaching the house, she narrated the incident to

her mother and disclosed the names of the culprits. No ulterior motive

was assigned to the minor child to make false statement.

6. 'X' was examined by the doctors on 16.09.1996 at 03:30

A.M. at SDN hospital, Shahadra. In the MLC (Ex.PW-5/A) it is

mentioned that the prosecutrix was sexually assaulted by three persons by

taking her to DDA flat around 07:30 P.M. in the evening of 15.09.1996.

Number of injuries were noticed on her body. Her hymen was found

ruptured. Pw-5 (Dr.Usha) deposed that on local examination following

injuries were found on the 'X' body:-

(i) Abrasion at medial and upper most part of both thighs, size 3.5X 2 CM each (two in number)

(ii) Two abrasions over labea majera (one over each labea majera) size 3 X 1.5 CM each.

             XXX                   XXX                     XXX

     (iii)      Blood stained salwar and shirt sealed.

             XXX                   XXX                     XXX


     (iv)       Fresh hymen tear present. Fresh bleeding from hymen

present. Blook in trace amount locally hemen tear at 6 O'clock position.

7. There is no conflict between the ocular and medical

evidence. Injuries found on the body of the prosecutrix, corroborate her

version that sexual intercourse was done by the appellant and his

associates against her wish. There was fresh bleeding from hymen. Fresh

hymen tear was present. It confirmed that the victim was sexually

assaulted forcibly. Statement of the prosecutrix was recorded under

Section 164 Cr.P.C on 17th September, 1996 (Ex.PW-1/A). There is no

deviation in the version given to the Metropolitan Magistrate soon after

the occurrence.

8. PW-2 (Raj Kumari) 'X' mother deposed that when she did

not return after purchasing vegetable, she went thrice in the market to

search her. At about 08:00 P.M. she saw her returning. She was not in a

position to walk. 'X' embraced her and started weeping. When she

inquired as to why she was weeping, she told that Subhash, Siriya and

Surjeet had committed rape on her. She brought 'X' to her house and

narrated the incident to her husband when he returned at about 08:30 P.M.

to the house. PW-3 (Mangal Singh), prosecutrix's father also deposed on

similar lines. The prosecutrix's conduct whereby she immediately

narrated the incident to her mother is relevant under Section 6 of the

Evidence Act and lends credence to her testimony.

9. Minor discrepancies and improvements highlighted by the

counsel do not go to the root of the case. The testimony of the prosecutrix

on core issue that the appellants and his associate committed rape on her

person has remained unchallenged and unshattered. There are no good

reasons to discard the cogent and trustworthy testimony of the prosecutrix.

10. In Bharwala Bhoginbhai Hirjibhai AIR 1983 SC 753, the

Supreme Court observed:-

"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly. planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society, and its profile.

11. In State v.Gurmit Singh AIR 1996 SC 1393, the Supreme

Court observed:-

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating" statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which

have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satiny its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and

it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty."

12. FSL report (Ex.PW11/J) also points out an accusing finger

against the culprits. Blood was detected on Ex.4a (Salwar), Ex.4b (one

lady's shirt). Human semen was detected on Ex.4a (Salwar), Ex.5a and

Ex.5b ( two micro slides). As per the FSL report (Ex.PW-11/K) blood

was of human origin and of 'B' group. Semen was also of 'B' group.

13. It is unbelievable that parents of the prosecutrix would level

false allegations of rape to bring her own daughter in disrepute merely

because an alleged quarrel took place with the appellant about 15 days

prior to the incident over a trivial issue. One of the arguments advanced

on behalf of the appellants was that no injuries were found on her person

and hence, the case of rape was not believable. I am not convinced. The

medical examination of the prosecutrix reveals number of injuries on her

person including female organ. In Santosh Kumar 2006 Cri LJ 4594 (SC)

where the gang rape was committed on a village girl aged 18 years, by all

the three accused one after another in the secluded place, she was also

threatened by the accused persons by beating her on the thigh and while

one was committing rape, the other persons were catching hold of her

hands and legs, the court held that it cannot be said that there must be

injury on the private parts also. It is not the appellants' case that the

sexual intercourse was done with the consent of the prosecutrix. 'X'

received multiple injuries/abrasions on various parts of the body and it

indicated that she offered resistance when she was subjected to sexual

intercourse.

14. In the light of the above discussion I find no illegality or

irregularity in the impugned judgment. The conviction is based upon fair

appraisal of evidence produced by the prosecution. Under Section 376 (2)

(g), minimum sentence to be awarded is 10 years. No adequate and

sufficient reasons have been given by the appellant to award lesser

sentence. On that account, no modification of the order on substantive

sentence is called for. However, fine `5,000/- is reduced to `1,000/- and

in default of payment of fine the appellant shall undergo SI for one month.

15. The appeal is disposed of in the above terms.

16. The appellant-Subhash and Shri Chand @ Siriya are directed

to surrender and serve the remainder of their sentence. For this purpose,

they shall appear before the Trial court on 11th February, 2013. The

Registry shall transmit the Trial Court records forthwith to ensure

compliance with the judgment.

(S.P.GARG) JUDGE February 05, 2013 sa