Krishan vs State
2014 Latest Caselaw 808 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on: 07.02.2014
                                        Judgment delivered on: 12.02.2014

+      CRL.A. 967/2001

       KRISHAN                                           .... Appellant
                             Through:        Mr.Siddhartha Aggarwal and
                                             Mr.Adit S. Pujari, Advocates.
                             versus

       STATE                                            ..... Respondent
                             Through:        Ms.Fizani Hussain, APP.
+      CRL.A. 986/2001

       GOPI                                        .... Appellant
                             Through:        Mr.Siddhartha Aggarwal and
                                             Mr.Adit S. Pujari, Advocates.

                             versus

       STATE                                            ..... Respondent
                             Through:        Ms.Fizani Hussain, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellants before this Court are Gopi and Krishan. They had

been convicted under Section 376(2) for the offence of gang rape and

Section 506 Part-I read with Section 34 IPC vide judgment dated

01.5.2001. Vide order of sentence dated 04.5.2001 Gopi had been

sentenced RI for 11 years for the offence under Section 376(2)(g) IPC

and a fine of Rs.2000/- in default of payment of fine to undergo SI for

six months; for the offence under section 506 Part-I he had been

sentenced to undergo RI for two years. Accused Krishan had been

sentenced to undergo RI for 10 years and to pay fine of Rs.2000/- in

default of payment of fine to undergo SI for six months for the offence

under Section 376 (2)(g) IPC and for the offence under Section 506

Part-I he had been sentenced to undergo RI for two years. Benefit of

Section 428 Cr.P.C. had been granted to them.

2 Version of the prosecution unfolded in the version of Smt. "D"

examined as PW-3. Incident is dated 02.9.1993; time of incident was

about 10:00 - 10:30 p.m. The first information about this incident was

received by SI Hari Chand (PW-10) posted at the police control room on

03.9.1993 at 100 number. This information was conveyed in the local

police station to H.C. Rattan Lal (PW-4), the then duty officer, at the

police station who had recorded this information at 7:10 a.m. which was

recorded in DD No.26-A (Ex.PW-4/A). Investigation was marked to SI

Hari Singh (PW-13) who along with constable Krishan Kumar (PW-6)

reached the spot i.e. the jhuggi behind the Saint Mark School, GH- 5 &

7 Block, Paschim Vihar. PW-3 met them there. Her statement Ex. PW-

3/A was recorded. In this version, she had disclosed that on the

previous night at about 10:00 p.m. while she was sleeping in her own

jhuggi along with her children accused Gopi at the point of a knife

threatened her that he would kill her child unless she accompany him to

his jhuggi; she was forced to accompany him to the nearby jhuggi of

Krishan where Krishan and Ram Niwas were present. All the

aforenoted three persons committed rape upon her. She was asked to

make tea in the morning; since she got a chance she slip out the jhuggi

and reported the matter. It was in this statement that the endorsement

Ex PW-13/A was made by the investigating officer and the rukka was

dispatched through PW-6 pursuant to which at 8.30 a.m. the present FIR

No. 493/1993 under Section 376,506,323 read with Section 34 IPC was

registered by SI Amar Singh (PW-2) and proved as Ex. PW-2/A.

3 At the scene of crime, the investigating officer seized a vegetable

cutting knife which was lying at the spot and which PW-3 had stated

that was used by Gopi to threaten her. Its sketch Ex.PW-3/C was

prepared which was taken into possession vide memo Ex. PW-3/B. Site

plan Ex.PW-13/B was prepared. The torn clothes of the prosecutrix

which included her jampher, her maxi and a salwar were taken into

possession vide memo Ex. PW-1/A in the presence of a neighbor Smt.

Savitri Devi (PW-1). The prosecutrix was medically examined at the

DDU hospital by Dr. Jitender Singh vide MLC Ex. PW-9/A on

03.9.1993. No external injury was noted. There was swelling on the

right chick and abrasions on both the breasts; her other parameters were

found normal.

4 The accused Gopi and Krishan who had been arrested from the

spot i.e. from the jhuggi of Krishan; they were medically examined on

03.9.1993 vide their MLCs proved as Ex. PW-9/B and Ex.PW-9/C.

The under garments of both the accused were also seized vide memo Ex.

PW-6/B.

5 On 06.9.1993 the statement of the prosecutrix under Section 164

Cr.P.C. was recorded by Ms.Raj Rani Mitra learned M.M. (PW-14)

proved as Ex.PW-14/A. The third accused Ram Niwas surrendered in

the court on 13.9.1993 and he was medically examined on 14.9.1993 by

Dr.Suresh Khurana (PW-7); he was also arrested.

6 On 08.10.1993 the seized articles which included the clothes of

the prosecutrix, under garments of the accused Gopi and Krishan as also

the vaginal swab of the prosecutrix sealed in pullands were sent to the

CFSL Chandigarh through constable Sri Bhagwan (PW-8). The CFSL

vide its report Ex. EX detected semen on three articles i.e. on the light

green coloured gown of the prosecutrix Ex.Bio/A3, blue coloured under

wear Ex.Bio/C (of Krishan) as also in the vial Ex.Bio/F.

7 This is the gist of the version of the prosecution.

8 Statement of the accused persons under Section 313 Cr. P.C. was

recorded; they pleaded innocence. Submissions being that they have

been falsely implicated.

9      No evidence was led in defence.

10     On the basis of the aforenoted evidence collected both oral and

documentary the accused persons had been convicted and sentenced as

aforenoted.

11 On behalf of appellants arguments have been addressed by

Mr.Siddhartha Aggarwal, Advocate. Attention has been drawn to the

statement of prosecutrix 'D' recorded on 03.9.1993; her statement

recorded under Section 164 Cr.P.C. (Ex.PW-14/A) recorded on

06.9.1993 and thereafter her deposition on oath in court. Submission

being that all these versions are different; they are, in fact,

irreconcilable. In her first statement Ex. PW3/A she has stated that

accused Gopi had come to her jhuggi; he was accompanied by co-

accused Krishan and Ram Niwas; she was coerced to go to the jhuggi of

Krishan where she had been threatened with a knife. It is pointed out

that in her statement under Section 164 Cr.P.C. her version has become

different. In this version she had stated that it was Gopi alone who had

come to her jhuggi when she was sleeping and at the point of a knife

threatened to kill her and her children; she had been forced to

accompany Gopi to the jhuggi of Krishan where Krishan and Ram

Niwas were also there. Attention has been drawn to her deposition on

oath in court wherein she has stated that Gopi had put his hand on her

mouth and gagged her from shouting and pressurized her to accompany

him to the jhuggi. It is stated that all these aforenoted versions are

irreconcilable. Further submission being that in her statement Ex.PW-

3/A she had stated that she did not know Ram Niwas and only Gopi was

known to her; however, in her deposition on oath she admitted that there

were interse dealings between Ram Niwas and her brother on purchase

of a jhuggi and Ram Niwas was known to her. Attention has also been

drawn to the site plan; submission being that there was several juggis on

the way and if Pw-3 really wanted to get out of the clutches of Gopi

nothing prevented her from shouting and screaming to save herself. The

entire route from her jhuggi to the jhuggi of Krishan had jhuggis lined

on either side. Further submission being that the report of the CFSL

cannot be read into evidence; it necessarily has to be ignored. Attention

has been drawn to the orders of the Court dated 30.10.2000 wherein as

the CFSL report had not been filed even after the completion of the

prosecution evidence and application filed by the public prosecutor to

bring the CFSL report on record has been allowed; permission to

summon Dr.Sanjeev had been granted but for one reason or the other the

expert was not summoned. On 08.3.2001 it had noted that the report

had been filed but same is not admitted by the counsel for the accused

and it was reiterated that it was necessary to examine Dr.Sanjeev who

had been directed to appear on the following date i.e. 03.01.2001.

Thereafter without examining Dr.Sanjeev the CFSL report was taken on

record and the evidence was closed; submission being that where there

was a specific request by the defence counsel to examine the CFSL

expert but not calling the CFSL expert and taking the report of the CFSL

on record without giving a chance to the accused to cross-examine the

said witness on this count suffers from an infirmity. Such a report was

not admissible under Section 293 of the Cr.P.C. It is also not a case of

the prosecution that this report was prepared by any of the category of

persons mentioned in Section 293(4) of the Cr.P.C. The defence of the

appellant is plausible; Gopi and the victim were sharing a consensual

relationship and they were intimate with each other for the last several

dates which is evident from the fact that even in the MLC of Gopi it was

recorded that on the first day i.e. 03.9.1993 he had stated that he knows

the prosecutrix since their village time and they are regularly sharing

intimate relationship since 15-20 years; she had come to his jhuggi

voluntarily on her own and stayed up to 5:00 a.m. Submission of the

defence being that the accused had been falsely implicated because of a

dispute between the brother of the victim and Ram Niwas on the

purchase of the jhuggi. On all counts benefit of doubt accrue in favour

of the appellants and they are entitled to a consequent acquittal.

12 Arguments have been refuted by the learned APP for the State. It

is stated that on no count does the impugned judgment call for any

interference. Version of the prosecutrix examined as PW-3 has been

corroborated by the CFSL report; it is the gist of her deposition which

has to be noted. Minor contradictions even if they are there have

necessarily to be ignored. It is pointed out that it is a settled law that

sole testimony of the prosecutrix even if uncorroborated is sufficient to

nail the accused. The impugned judgment does not call for any

interference.

13 Record has been perused and arguments have been appreciated.

14 The incident had occurred at about 12:00 midnight in the

intervening night of 2-3.9.1993. Admittedly, the prosecutrix was

sleeping in her jhuggi; at the time she was sleeping with her three

children. In her first statement to the police Ex.PW-3/A (on the basis of

which rukka was taken) she had stated that her husband had gone to the

village; Gopi accompanied by Ram Niwas and Krishan had come to her

jhuggi and forced her by dragging her from her hand to the jhuggi of

Krishan. She was threatened there at the point of a knife. Each of the

accused had committed rape upon her twice. She was asked to make

tea in the morning at 5:00 a.m.; she managed to escape and went to

Pradhan Mehar Singh. This was her first statement. In her second

statement which was recorded under section 164 Cr.P.C; three days later

i.e. on 06.9.1993 (Ex.PW-14/A) her version has twisted. She has stated

that while she was sleeping in her jhuggi along with her three children

Gopi came their armed with a knife and threatened her at the point of

knife and she was told that if she shouted he will kill her as also her

children; when she woke up she saw that in the jhuggi Ram Niwas and

Krishan were also present; all of them committed rape upon her. She

managed to escape in the morning at 5.00 a.m. and narrated this version

to her neighbor. On oath in court which was her testimony recorded in

April 1997 i.e. 4 years after the date of incident she has sought to toe the

line of her version recorded under Section 164 Cr.P.C. which was

contrary to Ex.PW-3/A. In this version she has stated that Gopi had

come her jhuggi and threatened her with a knife; she was forced to

accompany him to jhuggi of Krishan where Krishan and Ram Niwas

committed rape upon her; she managed to escape from the jhuggi in the

morning and ran to the house of Roshan.

15 These aforenoted versions disclose material contradictions in her

testimony; whereas in her first statement Ex.PW-3/A she stated that all

three persons together had come to her jhuggi and she was forced to go

to the jhuggi of Krishan, where in the jhuggi of Krishan she was

threatened with a knife. In Ex.PW-14/A she stated that Gopi had come

alone and she had been threatened her at the point of knife. In this

version the knife was already with Gopi when he had come to her jhuggi

more over in this version Gopi was alone and was not accompanied by

the two co-accused, Krishan and Ram Niwas. In Ex.PW-3/A she had

stated that she managed to escape and went to the house of Mehar

Singh. In Ex.PW-14/D she stated that she had gone to the house of her

neighbor whereas in her version on oath in court she had given a still

different version; she stated that after managing to escape she went to

the house of Roshan. In Ex.PW-3/A, PW-3 has stated that she knew

Gopi as he hails from her village; Ram Niwas was also known to her. In

Ex.PW-14/A PW-3 has stated that Gopi is related to her; he is her uncle;

she does not know him very well. On oath in Court her version was

that only Gopi was known to her and the other two co-accused Krishan

and Ram Niwas were not known. She was not even aware of their

names. In another part of her cross-examination she changed her version

and admitted that Rami Niwas was known to her because her brother

had purchased a jhuggi from him.

16 The site plan Ex. PW-13/B is a relevant document. The jhuggi of

Pw-3 has been depicted at point B. The route from her jhuggi to the

jhuggi of Krishan has been marked; the jhuggi of krishan is at point A.

the site plan depicts jhuggis all along on either side of this route;

incident had occurred (as per PW-3) in the night of 2-3.9.1993; distance

from her jhuggi to jhuggi of Krishan is not short. She had to cross

almost seven jhuggies to reach the jhuggi of Krishan; had it been a case

of pressure and coercion nothing prevented her from shouting to escape

from the clutches of the accused. This was not done.

17 Ex.PW-9/C which is the MLC of Gopi was recorded on

03.9.1993. In the history given by the patient, he had stated that he

knows the prosecutrix from her village; they were having a sexual

relationship for the last 15-20 years. On the fateful day she had come to

the jhuggi of Krishan (where he was staying) on her own voluntarily and

stayed there up to 5:00 a.m..

18 Cross-examination of PW-1 has also been conducted on this line

of defence. It was suggested to the victim that there was several jhuggis

adjacent and surrounding the jhuggi of Krishan; she admitted that if a

noise is made in her jhuggi the people living in the adjacent jhuggi could

hear it. She admitted that she did not raise any alarm either on the way

or in the jhuggi of Krishan. She denied the suggestion that the accused

had been falsely implicated because of a dispute on the purchase of

jhuggi by her brother from Ram Niwas.

19 This evidence oral and documentary clearly establishes that there

are material discrepancies in the version of the prosecutrix. There is no

doubt to the proposition that the testimony of a prosecutrix if cogent

and coherent may be sufficient to nail the accused; however where there

are embellishments and exaggerations and which go the root of the

matter as in this case where PW-3 has given different and varying

versions as to whether Gopi had come to her jhuggi alone or whether he

had been accompanied by Ram Niwas and Krishan; whether he was

armed with a knife and had threatened her in her own jhuggi or whether

this threat was extended to her in the jhuggi of Krishan; why she did not

make noise when she went from her own jhuggi to the jhuggi of

Krishan; this route was clustered by jhuggis on either side and

admittedly if a noise was made it would have been heard by the persons

in the surrounding jhuggis; her admission that she had not shouted or

screamed either in her jhuggi or on the route from her jhuggi to the

jhuggi of Krishan; all throw doubt on the veracity of this version sought

to be set up by PW-3. Her varying version as to whom she contacted in

the first instance after she managed to escape from the jhuggi of

Krishan; whether it was Mehar Singh; whether it was a neighbor or

whether it was Roshan are also discrepant. This again throws doubt on

her credibility. Her further deposition on oath in court she stated that

she did not know Ram Niwas and Krishan but later on admitted that

Ram Niwas was known to her as her brother had purchased a jhuggi

from Ram Niwas and there has been a dispute between her brother and

Ram Niwas on this issue and the defence adopted by the learned defence

counsel right from the inception i.e. at the time of the cross-examination

of PW-3 and this line of defence being consistently followed even in the

statement of the appellants recorded under Section 313 Cr.P.C. all go to

show that a dent has been created in the version of the prosecution.

PW-3 was not a reliable witness.

20 Report of the CFSL which has been admitted under section 293 of

the Cr.P.C. is also an illegality. The order dated 08.3.2001 clearly

reflects that the accused had not admitted this report and that is why the

Dr. Sanjeev was being summoned time and again by the trial judge in

order that the defence counsel could cross-examine this witness on the

CFSL report. However the very next order sheet reflects that on

21.3.2001 the CFSL report was admitted in evidence without giving any

reason for not giving a chance to the defence counsel to cross-examine

the CFSL expert.

21 A single Judge of this Court in MNU/DE/0748/2000 Emma

Charlotee Eve Vs. Narcotic Control Bureau has held that where the

report of the chemical examiner is a disputed document and there is

nothing on record to show that the appellant had waived her right to

have the said report proved under Section 293 Cr.P.C., it could not be

used in the absence of a formal proof. A Division Bench of this Court

reported in MANU/DE/2515/2009 Vidya Sagar Anand Vs. State had

noted that the report under Section 293 of the Cr. P.C. may be admitted

without formal proof but the accused is entitled to question and

challenge it in the evidence.

22 As is evident in the instant case all efforts were being made to call

Dr. Sanjeev and several dates had been granted for the said purpose but

thereafter on the executive date without assigning any reason the court

chose to accept the report under Section 293 of the Cr.P.C. preventing

the accused from exercising his right to cross-examine the expert from

the CFSL. This report, in this background, could not be relied upon.

23 Prosecution has failed to establish its case beyond reasonable

doubt. Accused persons are entitled to a benefit of doubt. Giving benefit

of doubt to the appellants they are acquitted. Their bail bonds are

cancelled. Sureties discharged.

24. Appeal allowed. File be consigned to record room.

INDERMEET KAUR, J FEBRUARY 12, 2014 ndn