Sarla vs State
2014 Latest Caselaw 712 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on :30.01.2014
                                  Judgment delivered on 06.02.2014.
+      CRL.A. 64/2006
       SARLA
                                                         ..... Appellant
                         Through       Mr. Sumit Verma, Adv.

                         versus
       STATE
                                                         ..... Respondent
                         Through       Mr. Navin K. Jha, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

The appellant before this Court is Sarla. She has been convicted

under Sections 363, 366-A and Section 376 read with Section 120-B of

the IPC. She had been charged under Section 376 (g) of the IPC but had

been acquitted of the said charge. For the offence under Section 366 of

the IPC, she had been sentenced to undergo RI for a period of 2 years

and to pay a fine of Rs.500/- and in default of payment of fine, to

undergo SI for 15 days. For the offence under Section 366-A of the IPC,

she had been sentenced to undergo RI for a period of 2- ½ years and to

pay a fine of Rs.500/- and in default of payment of fine, to undergo SI

for 15 days. For the offence under Section 376 read with Section 120-B

of the IPC, she was sentenced to undergo RI for a period of 7 years and

to pay a fine of Rs.500/- and in default of payment of fine, to undergo SI

for 15 days.

The husband of the appellant Dhan Bahadur was also an accused

in the present FIR; however, since he was absconding and could not be

traced, he had been declared a proclaimed offender on 24.04.2004.

Accordingly, the appellant was tried alone.

The version of the prosecution is that on 30.07.2003 on receipt of

DD No. 6-A, SI Vikram Singh (PW-9) along with constable Hakik

Singh (PW-8) had gone to the spot i.e. village Bharat Garh where the

prosecutrix 'K' (PW-3) met them. Her statement (Ex.PW-3/A) was

recorded. It was to the effect that she had come from West Bengal along

with her mother and sisters to search for work in Delhi. Her mother had

returned back. PW-3 was working in a factory at Okhla and was living

with her sister and brother in Gali No.7, Govindpuri. Sarla, the appellant

who was a resident of Ali Village was also working there. On

29.07.2003 at about 10:00 am Sarla came to their house and asked PW-3

to accompany her on the pretext that she would look for a job for her in

a nearby factory. PW-3 accompanied Sarla to her house. This was at

about 03:00 pm in the afternoon. In the evening, PW-3 told Sarla that

she wanted to return home on which Sarla told PW-3 that she could go

home the next morning. At about 09:00 pm, Sarla served food; husband

of Sarla, Dhan Bahadur was also present there. At 10:00 pm, Sarla, PW-

3 and the younger son of Sarla went to sleep on the floor; Dhan Bahadur

along with his daughter who was aged 6-7 years lay on the cot. The

eldest son of Sarla aged 20 years had slept on the roof. Further

deposition of PW-3 being that Sarla and her husband were talking in

Nepali language and after that they both smoked cigarettes. Later on

Sarla came and slept with PW-3 on the floor. After half an hour, Dhan

Bahadur came to the floor and held PW'3 hand; when she objected, he

gagged her mouth; she shouted but Sarla did not respond. PW-3

attempted to flee but Dhan Bahadur caught hold of her and forcibly

made her sit on the floor; he also sat on the floor. The younger son of

Sarla also woke up but Dhan Bahadur scolded him and made him to

sleep. Dhan Bahadur threatened PW-3 with a knife. Sarla also told PW-

3 that her husband is a dangerous person and she should do what he

says. Dhan Bahadur then committed rape upon her. After one hour, this

act was repeated again. In the morning, PW-3 was able to come out of

the room; she started crying; people gathered; matter was reported to the

police. Her statement (Ex.PW-3/A) was recorded. FIR was registered on

this statement.

The victim was medically examined at the AIIMS hospital by Dr

Suman Meena (PW-7). Her MLC had noted her hymen to be torn and

there was a fresh tear. No external injuries were noted. In this MLC, the

history as informed by PW-3 was that she was taken away by Sarla to

her house where she was sexually assaulted by Dhan Bahadur, the

husband of Sarla.

The statement of the prosecutrix under Section 164 of the Cr.PC

was recorded by the Magistrate (Ex.PW-2/B) on 05.08.2003. She had

given a detailed statement; the demeanor of the witness had been noted

by the learned Magistrate; in the middle of the statement, PW-3 had

started crying and for that reason, her statement had to be deferred.

In the statement of the accused recorded under Section 313 of the

Cr.PC, she pleaded innocence stating that she in fact does not know PW-

3; her submission being that a wife would not allow her husband to

commit rape on another person in her presence; this was an unbelievable

story; this is a clear a case of false implication.

No evidence was led in defence.

On behalf of the appellant, arguments have been addressed by the

learned amicus-curiae in detail. First submission of the learned counsel

for the appellant is that the appellant has rightly been acquitted of the

charge under Section 376 (2)(g) of the IPC as a woman could not have

been convicted under this Section and for which submission, he seeks

support from a judgment of the Apex Court reported as (2006) 6 SCC

263 Priya Patel Vs. State of M.P. and Another ; submission being that

the offence of rape could only be committed by a man and not by a

woman. The trial Court having acquitted the appellant under Section

376 (2)(g) of the IPC has followed the correct legal position but the

conviction of the appellant under Section 376 read with 120-B of the

IPC is clearly an illegality as the offence under Section 120-B is a

substantive offence and no separate charge having been framed against

the appellant for the aforenoted offence, the question of her conviction

under the said provision of law without a formal charge cannot be

sustained. Submission being that this has caused a grave injustice to the

appellant. Conviction is liable to be set aside on this ground alone.

Second submission of the learned counsel for the appellant is that there

was no age proof of the victim. To convict a person for the offence

under Sections 363 & 366-A of the IPC, it was incumbent upon the

prosecution to lead positive evidence to show that the victim was a

minor on the date of the offence; no such positive evidence was led.

Merely because PW-3 stated her age to be 15-16 years would not be

sufficient evidence; attention has been drawn to the cross-examination

of PW-3 wherein she had stated that she did not remember her date of

birth and neither the year in which she was born. Submission being that

this answer of PW-3 would be sufficient to hold that the prosecutrix

could well be even 19-20 years on the date of the incident. There was

also no reason as to why no ossification test of PW-3 has been

conducted by the prosecution. On this ground also, the trial Court

having convicted the appellant under Sections 363 & 366A of the IPC

has committed an illegality. On merits, learned counsel for the appellant

points out that the substantive charge under Section 376 is even as per

the prosecution worded against Dhan Bahadur who has been declared a

proclaimed offender; even presuming the worst situation qua the

appellant and the charge against the co-accused under Section 376 of the

IPC if proved, keeping in view the aforenoted two submissions of the

learned counsel for the appellant, the conviction of the appellant is

clearly bad in law.

Arguments have been refuted by the learned public prosecutor. It

is pointed out that on no count, does the impugned judgment suffer from

any infirmity. On merits, it is pointed out that the version of PW-3

which has gone unchallenged and unrebutted in her cross-examination

fully corroborated by the medical evidence (Ex.PW-7/A) shows that

rape was committed upon her. Attention has been drawn to the statement

of the prosecutrix recorded under Section 164 of the Cr.PC; her version

in her MLC as also her statement on oath in Court; submission being

that at all stages, the prosecutrix has given her age as 15-16 years. There

being no rebuttal on this point, it necessarily has to be accepted. On the

first argument of the learned counsel for the appellant, learned public

prosecutor points out that unless and until a prejudice has been suffered

by the appellant for an error in framing of the charge, non-framing of a

formal charge under Section 120-B of the IPC would not come to the aid

of the appellant to hold that the conviction of the appellant under the

aforenoted provision of law is an illegality. To support his argument,

reliance has been placed upon (2011) 8 SCC 300 Rafiq Ahmad @ Rafi

Vs. State of Uttar Pradesh. Attention has also been drawn to Section 215

of the Cr.PC. It is pointed out that a mere omission in framing of charge

will not vitiate the trial; if an accused is charged for a graver offence but

the same has not been established on merits or for a technical reason the

accused can still be convicted and punished for a lesser offence provided

that the lesser offence is of a cognate nature and its ingredients are

independently proved beyond reasonable doubt; in this case also, no

prejudice has been suffered by the appellant; she being an accomplice

along with her husband in this act which had been committed upon the

victim; could in no manner argue that non-framing of charge under

Section 120-B of the IPC has resulted in failure of justice.

Arguments have been heard. Record has been perused.

Accused Sarla had been charged with the following offences: This

was vide order dated 31.03.2004.

""I, Deepa Sharma, Addl. Sessions Judge, New Delhi do hereby charge you accused Sarla W/o Dhan Bahadur as under:

That you on 29.7.2003 at about 10 a.m. 7 p.m. from the House at gali No.7, Govind Puri, New Delhi you kidnapped Kumari Kajol (a minor aged about 15 years) from the lawful guardianship and thereby committed an offence punishable u/s363 of the Indian Penal Code and within my cognizance.

That you on the aforesaid date time and place you induced Kumari Kajol (a minor girl aged about 15 years) with intent that she may be compelled (or knowing it to be likely that she will be compelled) and may be forced or seduced to illicit intercourse with your husband Dhan Bahadur and thereby committed an offence punishable under Section 366-A IPC and within my cognizance.

That during the night of 29.7.03 your husband Dhan Bahadur committed rape on Kumari Kajol in your presence and thereby you have committed an offence punishable under section 376(g) IPC and within my cognizance.

And I hereby direct you that you shall be tried by me on the aforesaid charge.

(DEEPA SHARMA)/ 31.3.2004 Addl. Sessions Judge, New Delhi

The aforesaid charge has been read over and explained to the accused to which he is questioned as under:

Q. Have you heard the charge?

A. Yes.

        Question.         Do you plead guilty or claim to be tried?
       Ans.              I plead not guilty and claim trial.
R O & A.C.                                                     ASJ:NEW DELHI
                                                                   31.3.2004"

After the trial, the conviction of the appellant was ordered under

Sections 363/366-A and Section 376 (g) read with Section 120-B of the

IPC.

Certain portions of the testimony of PW-3 (prosecutrix) would

also be relevant to answer this argument. On oath in Court in her

examination-in-chief, PW-3 has stated that Sarla had taken her to her

house promising her a job; at night she had gone to sleep with her on the

floor along with her child. The husband of Sarla Dhan Bahadur was

sleeping on the cot. He came down from the cot near to the victim; the

victim got perplexed and told the appellant (referred to as 'aunty') to

save her but the appellant did not respond. After rape had been

committed upon her by husband Dhan Bahadur, the prosecutrix

attempted to flee but Sarla bolted the doors from inside and did not

allow her to escape. For the second time, her husband Dhan Bahadur

committed rape upon her; Sarla told her that her husband is a dangerous

man and she should abide by what he states. All this appears in the

examination-in-chief of PW-3.

It is an admitted fact that no formal charge under Section 120-B

of the IPC has been framed. It is also undisputed that Section 120-B of

the IPC is a substantive offence and under the procedure, separate

charge for conspiracy may be framed.

Section 120-B of the IPC reads herein as under:-

"120B. Punishment of criminal conspiracy.--

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[ imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"

This Section had been introduced by the Indian Criminal Law

Amendment Act, 1913 (8 of 1913) along with Section 120-A. This is an

independent offence and though other offences are committed in

pursuance of a conspiracy the liability of the conspirators for the

conspiracy itself cannot disappear. As the definition of 'conspiracy'

itself suggests, there have to be two or more persons who must be

parties to an agreement to commit an illegal act or do something which

is not legal by illegal means. It is also well established that no overt act

is necessary to establish the offence of conspiracy.

Section 215 of the Cr.PC speaks of effect of errors in formulation

of charge. It reads herein as under:-

"215. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Illustrations

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860 ), with" having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word" fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The

Court may inter from such facts that the omission to set out the manner of the cheating was, in the case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882 . In fact, the murdered person' s name was Haidar Baksh and the date of the murder was the 20th January, 1882 . A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh: The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 1882 , and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1882 . When charged for the murder of Haider Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material."

Illustrations attached to this Section clearly shows that the error in

charge will not in any manner affect the offence unless the accused has

been mislead by such an error or omission or there has been a failure of

justice.

Legal position is well settled. Unless the irregularity or omission

in the charge has misled the accused or caused a prejudice to him in his

defence and thereby there has been a resultant failure of justice, it will

not vitiate the trial. Where the omission has not misled the accused or

not occasioned in a failure of justice, the error in the charge will not

vitiate the final conviction.

The Supreme Court in Rafiq Ahamd (supra) had the opportunity

to examine the facts of a case where the accused had been formally

charged under Sections 396 & 201 of the IPC. He had been convicted

under Sections 302 & 201 of the IPC. The contention before the

Supreme Court was that Section 302 was a more graver offence than

Section 396 and no formal charge having been framed under Section

302 of the IPC and the accused not having been put to notice of the said

offence, the conviction under Section 302 of the IPC was bad in law.

This position was negated by the Supreme Court. The appeal had

been dismissed. The Court had noted that the Code is a code of

procedure and like all procedural laws is designed to further the ends of

justice and not to frustrate them by the introduction of endless

technicalities. The object of the Code is to ensure that an accused gets a

full and fair trial along with certain well-established and well-

understood canons of law that accord with the notions of natural justice.

Before a conviction can be set aside, it must necessarily be

established that the accused has suffered a prejudice or a failure of

justice. The accused must show that he has suffered some disability or

detriment in the protections available to him under the Indian criminal

jurisprudence. Each case has to be examined in its own facts and

circumstances. In fact Section 464 of the Cr.PC clearly states that the

appellate or revisional Court can convict an accused for an offence for

which no charge was framed unless failure of justice would occasion, if

such a conviction is sustained.

It is on the aforestated principle that this Court shall now revert to

the facts of this case.

The charge specifically states that the appellant had induced the

prosecutrix with the intention and knowledge that she is going to be

compelled for illicit intercourse with her husband Dhan Bahadur and

thereby guilty of the offence under Section 366-A of the IPC. This was

the second charge. The charge under Section 376 (g) speaks of the

husband Dhan Bahadur having committed rape upon the prosecutrix in

presence of the appellant.

The purpose for framing charge is to put an accused to notice that

he or she has to answer the aforenoted allegations which have been

leveled against him or her. The evidence of PW-3 as noted supra is also

material. She has clearly and categorically recited that the appellant had

induced her in taking her away; this was on false pretext of giving her a

job; at the time when the prosecutrix was sleeping on the floor along

with the appellant and her child, her husband had come down on the

floor; he gagged her mouth and committed rape upon her. The appellant

was lying close and the prosecutrix PW-3 had shouted for help but the

appellant in complicity with her husband has remained quiet. On her

attempt to flee, the prosecutrix was restrained and withheld by the

appellant by bolting the door from inside. At this point of time, co-

accused Dhan Bahadur had committed rape upon her for the second

time.

These facts as have emerged in the case show that the appellant

was fully aware that she was accomplice with her husband in this act

which has been committed by Dhan Bahadur upon the victim. Viewed in

this scenario, it cannot be said that the appellant was not aware of the

charge that she was facing or any failure of justice has been occasioned

as she was not able to answer the charge of conspiracy. No prejudice has

been caused to her by her conviction under Section 376 read with

Section 120-B of the IPC. The word 'prejudice' has to be in fact

examined, as noted supra, with reference to the rights or protections

available to the accused. Even in her statement recorded under Section

313 of the Cr.PC. the entire incriminating evidence had been put to the

appellant including the specific questions No. 9, 10, 11 & 13 wherein all

these pieces of evidence had been accosted to her. The only defence

projected by the appellant was that since she was unable to produce her

husband Dhan Bahadur, she has been falsely implicated.

In this background, the first argument propounded by the learned

counsel for the appellant that the omission to frame charge under

Section 120-B of the IPC has resulted in vitiation of the trial is an

argument without any merit. It is accordingly rejected.

The second argument of the learned counsel for the appellant is

based on the submission that merely because the prosecutrix had given

her age as 15-16 years would not necessarily mean that she was a minor;

she has been cross-examined on this point wherever she has been

specifically stated that she did not know either her date of birth or her

year of birth. Submission being reiterated that it was incumbent in these

circumstances for the prosecution to have led positive evidence to

establish that the victim was a minor.

The prosecution as noted supra has charged the appellant for the

offence under Sections 363 & 366-A apart from the offences under

Section 376 (g). Section 363 and 366-A of the IPC clearly postulate that

for a conviction under this Section, the victim must be minor. Under

Sections 363 & 366-A, the victim should be less than 18 years of age.

The statement of the prosecutrix under Section 161 of the Cr.PC was

recorded for the first time on 30.07.2003 followed by her statement

under Section 164 of the Cr.PC which was recorded on 05.08.2003. In

both these statements she has stated her age as 14-15 years. In her

statement under Section 164 of the Cr.PC which is a judicial proceeding

conducted by a Magistrate she stated her age 14-15 years which was the

answer of the victim on a specific query put by the Presiding Officer.

She has given her age in this statement as 14-15 years. Her MLC

(Ex.PW-7/A) recorded on 30.07.2003 also shows that her age was 15

years. On oath in Court when she had come into the witness box which

was in August, 2004 (after one year) she has categorically stated that her

age is 15-16 years. Merely because on a question where she was unable

to give her date of birth or year of birth does not take away the fact that

she wass between 15-16 years. In fact the testimony of the prosecutrix is

truthful. On all occasions, she has given margin of one year stating her

age to be between 14-15 and one year later in count to be between 15-16

years; she has not given a specific year. She was a rustic village girl;

she had come from West Bengal looking for a job; she was alone in the

foreign land as her mother had gone back after leaving PW-3 in Delhi

hoping that she would be able to earn some money. In this background,

it is but natural that such a witness would not know her exact date or

year of birth. The appellant at the time of charge was fully aware that

she has been charged for having kidnapped a minor girl with the intent

that she would be subjected to illegal sexual intercourse. The entire

version of PW-3 shows that no cross-examination has been effected by

the learned defence counsel on this line; there is no suggestion

whatsoever suggesting to the prosecutrix that she is not a minor. In fact

the appellant had been charged for having committed offence of

kidnapping a minor. It was for him to suggest to the prosecutrix (when

she had come into the witness box) that she was not a minor. No

suggestion having been given to PW-3 on this score. No suggestion has

been given to Investigating Officer either or for that matter to any other

witness of the prosecution, it does not now lie in the mouth of the

appellant to argue that the prosecutrix was not a minor. This argument

of the learned counsel for the appellant that the prosecutrix could well

have been major is an imaginative thinking and the version of the

prosecution that PW-3 was in fact a minor not having been challenged

or cross-countered has necessarily to be accepted. This argument of the

learned counsel for the appellant is also without any merit.

Learned counsel for the appellant has fairly stated that on merits

of the case, the testimony of PW-3 that the act of sexual intercourse had

been committed by Dhan Bahadur upon her in presence of the appellant

has remained unchallenged. In fact the entire version of PW-3 where she

has narrated the gory incident of Dhan Bahadur having committed rape

upon her twice on the fateful day i.e. 29.07.2003 and the appellant lying

in the room and not responding to the shouts of PW-3 and later on

bolting the door from inside preventing PW-3 from escaping which had

led to rape having been committed upon her for the second time by

Dhan Bahadur; the appellant also threatening the victim that she should

follow the dictum of her husband, all goes to show the complicity of the

appellant in the aforenoted crime. Her defence that no woman would

allow her husband to commit such an act in her presence is an argument

bereft of force as there are individuals of varying kinds; with different

temperaments; what are the levels of normalcy and socially acceptable

behavior for one individual may not be relevant for another.

Undoubtedly there was no reason for the Prosecutrix to have falsely

implicated the appellant. Neither has this been argued and nor is this

evident from the record. PW-3 has spoken the truth.

The medical record i.e. MLC of the victim shows her hymen was

torn and there was a fresh tear on the hymen. The incident was reported

to the police on the very next day when the victim was able to run out of

the clutches of the appellant and her husband. She was medically

examined in the afternoon of 30.07.2003. The oral testimony of PW-3

coupled with the medical examination fully corroborates the version of

the prosecution. The fact that she was a minor also stands established.

The conviction of the appellant does not call for any interference.

Record shows that on the date the appellant was granted bail

which was on 04.05.2006, she had suffered incarceration of 2 years and

8 months. Under Section 376 of the IPC, the sentence of 7 years is

minimum sentence; for adequate and special reasons the sentence lesser

than the minimum may be granted; this depends on the facts of each

case; however the words 'special' and 'adequate' reasons have been

held by judicial pronouncements to be read conjunctively and not

disjunctively; both special and adequate reasons have to be made out for

giving a punishment lesser than the minimum. The Supreme Court in

the case of Kamal Kishore vs. State of H.P. (2000) 4 SCC 502 had noted

that where the occurrence was 10 years old and the accused and victim

might have settled in life could not be treated as a special reason for

reducing the minimum statutory period prescribed. Moreover, the

words 'adequate' and 'special' cannot be read disjunctively; they have

to be read in conjunction. No special or adequate reasons have been

pleaded and not could this Court decipher any from the record of the

case.

In this view of the matter, the sentence also calls for no

interference. The appeal is without any merit; Dismissed.

Bail bond of the appellant is cancelled. Surety is discharged.

INDERMEET KAUR, J

FEBRUARY 06, 2014