Dharamwati vs State
2014 Latest Caselaw 2615 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :19.5.2014
                                   Judgment delivered on :22.5.2014

+     CRL.A.93/2002           &   CRL.M.A.   Nos.364/2002,     9572/2009,
3509/2014

DHARAMWATI                                                 ......Appellant
                     Through:      Mr. Ramesh Gupta, Sr. Advocate with
                                   Mr. Bharat Sharma, Adv.
                     Versus

STATE                                             .......Respondent
                     Through:      Mr.Varun Goswami, APP.

+      CRL.A.94/2002 & CRL.M.A. No.3511/2014

SUKHBIR SINGH                                       ......Appellant
                     Through:      Mr. Ramesh Gupta, Sr. Advocate with
                                   Mr. Bharat Sharma, Adv.
                     Versus

STATE                                             .......Respondent
                     Through:      Mr.Varun Goswami, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. Both husband and wife i.e. Sukhbir and Dharamwati have been

convicted for the offence under Sections 366/376/342 read with Section

120-B of the IPC. Appellant Sukhbir has been held guilty of the offence

under Section 120-B of the IPC read with Sections 366, 376 & 342 of

the IPC; his wife Dharamwati has also been convicted under Section

120-B of the IPC read with Section 376, 366 & 342 of the IPC. Accused

Sukhbir has been sentenced to undergo RI for a period of 7 years and to

pay a fine of Rs.5,000/- and in default of payment of fine, to undergo SI

for 6 months for the offence under Section 120-B of the IPC read with

Sections 366, 376 & 342 of the IPC. Accused Dharamwati has been

sentenced to undergo RI for a period of 3 years and to pay a fine of

Rs.5,000/- and in default of payment of fine, to undergo SI for 6 months

for the offence under Section 120-B of the IPC read with Sections 366,

376 & 342 of the IPC. The sentences were to run concurrently. Benefit

of Section 428 of the Cr.PC had been granted.

2. Nominal rolls of the appellants have been requisitioned which

show that as on the date when appellant Sukhbir was granted bail, he has

suffered incarceration of 7 months and 12 days whereas his wife

Dharamwati as per the jail record was never lodged in jail in this case.

3. Version of the prosecution is based on the testimony of the

prosecutrix 'ID' examined as PW-1. Her complaint was that on

16.10.1999 at about 08:15 pm she had been invited by both the

appellants for an outing; after taking permission from her husband, she

accompanied the appellants. Accused Sukhbir was driving the car; he

stopped the car to jungle. His wife Dharamwati left the car on the

pretext of bringing some water. In the meanwhile, Sukhbir forcibly

committed rape upon the victim at the rear seat of the car. She was taken

to the house of the appellants. She managed to flee. On the way, she met

a person Rattan Singh (PW-5). Her husband Balbir Singh (PW-2) was

informed. Police complaint was lodged.

4. The prosecution in support of its case has examined 15 witnesses

of whom the star witness was PW-1, the prosecutrix. Her husband has

been examined as PW-2. The son of PW-1 and PW-2 namely Deepak

was examined as PW-3. The person who had helped the victim to escape

namely Rattan Singh was examined as PW-5. His wife Maya Devi was

examined as PW-6. Besides the oral testimonies, the MLC of the victim

Ex.PB by Doctor Alka; no injury was noted upon her person; the vaginal

smear of the victim was taken. The MLC of appellant Sukhbir was

proved as Ex.PA. No injury was noted upon his person. His blood

sample was taken by the Investigating Officer. Salwar of the victim was

also seized and sent to FSL. The FSL report Ex.PX had detected human

semen on her salwar, the blood group on the salwar being 'B'.

5. In defence, appellant Sukhbir had adduced evidence to

substantiate his submission that his blood group is 'O' positive and even

presuming that there was a 'B' group blood detected on the salwar of the

victim, there was nothing to connect the accused with the said blood

grouping. The trial Judge had however not relied upon this evidence.

6. Before this Court on an oral submission made by the learned

senior counsel for the appellants, the blood grouping of appellant

Sukhbir had been directed to be carried out by the Investigating Officer.

The report has been placed on record reaffirming the position that the

blood group of Sukhbir is 'O' positive.

7. The evidence collected by the trial Judge had led to the conviction

of the appellants and sentenced as aforenoted.

8. On behalf of the appellants, arguments have been addressed in

detail. It is pointed out that this is a clear case of false implication as

both the accused and the family of the victim were well known to each

other; even as per the version of PW-1, she had accompanied the

accused persons after taking permission from her husband; this was at

08:15 pm; it would be difficult to believe that till midnight when the

victim had not returned to her house, no effort was made by the husband

of PW-1 to trace her out. Further submission of the learned senior

counsel for the appellants being that the testimony of PW-5 and PW-6 is

totally in contrast with the version of PW-1; PW-1 had stated that after

she had been confined in the house of the appellants, she had managed

to escape to the house of PW-5 who had gone in the night to call her

husband i.e. PW-2 but since there was a dog there, he could not inform

him. Version of PW-5 and PW-6 being different on this score; version

of PW-5 and PW-6 being that they had gone only on the next morning

i.e. on 17.10.1999 to inform PW-2. It is pointed out that the MLC also

does not support the case of the prosecution; if the victim was resisting

while she was being raped why no injury had noted upon her person.

This is a clear case of false implication because of a dispute over a

buffalo and a scooter transaction between the parties; all these factors

clearly show that the prosecution has failed to prove its case beyond

reasonable doubt; benefit of doubt must accrue in favour of the

appellants.

9. Arguments have been refuted. It is pointed out that on no count,

does the impugned judgment suffer from any infirmity. It is stated that

the testimony of the prosecutrix even by itself is sufficient to nail the

accused; in this case, her version has been trustworthy and credible and

the trial Court has rightly relied upon her version. Minor discrepancies

in the version of PW-5 and PW-6 have necessarily to be ignored.

10. Arguments have been heard. Record has been perused.

11. PW-1 was the star witness of the prosecution. She had deposed

that she along with her husband (PW-2) had been working for the last 10

years at the Bansal Farm House. On 16.10.1999, she had come back

from farm house at 05:00 pm. Her husband (PW-2) and son Deepak

(PW-3) remained in the farm house. At about 06:00 PM, both the

accused persons Sukhbir and his wife Dharamwati had come to her

house asking her to join them for outing. PW-1's son (PW-3) informed

her that her husband (PW-2) had granted permission for going out with

the accused; she accordingly accompanied them and sat in their car.

Both the ladies i.e. Dharamwati and victim sat on the rear seat whereas

Sukhbir was driving the car. They went to her farm house where her

husband (PW-2) was present; PW-2 given permission to PW-1 to

accompany the accused persons. She went with them in the car. Accused

Sukhbir drove the car towards the jungle where he stopped. Dharamwati

on the pretext of bringing the water went out of the car. Sukhbir opend

the rear door of the car. PW-1 wanted to get out of the car; he caught her

legs and thereafter forcibly in the rear seat of the vehicle, he committed

rape upon her. PW-1 called for Dharamwati. When Dharamwati came to

the spot, Sukhbir asked her to bring an axe. Dharamwati took out the

axe from rear seat of the car. Accused persons took her to their house

where she was restrained; they told her that they would drop her back in

the morning; Dharamwati and victim were sitting in one room and

Sukhbir was in the other room. After sometime, the son of Sukhbir went

out and he left the door ajar; this was at 11:00 pm; PW-1 managed to

escape; Sukhbir followed her; PW-1 had entered a lane; he was driving

his car and he put on the tape recorder at a loud volume; he forcibly

tried to pull PW-1 back in the car by catching her hair and gagging her

mouth; he however did not succeed. People gathered there; PW-1

managed to escape and went to the house of Rattan Singh (PW-5); she

spent night at his house. PW-5 went to the house of PW-1 to inform her

husband but since there was a dog, he could not enter the farm house. In

the morning, her husband (PW-2) came to her rescue at 05:00 am. Police

was then called. Her salwar was taken into possession.

12. In her cross-examination, she admitted that she knew the accused

persons for the last 10-12 years; her husband and Sukhbir used to be on

visiting terms. She admitted that her husband had purchased one buffalo

from accused Sukhbir and the horn of that buffalo had broken; Sukhbir

left it at their house. The buffalo has been given by Sukhbir 2-3 days

prior to this incident; Sukhbir has not paid any money for the buffalo.

Her husband had paid Rs.15,500/- to Sukhbir for that buffalo; Sukhbir

had to pay the money to them in that account. She denied the suggestion

that her husband had to pay any money to Sukhbir on that count. She

also admitted that Sukhbir's scooter was mortgaged with them but that

scooter had not been registered in her husband's name till date. She

admitted that this scooter is with them since the last 8-9 years.

13. The husband of the victim Balbir Singh was examined as PW-2.

He has deposed that on 16.10.1994 between 07:00-08:00 pm, the

accused persons had come to his farm house. The accused were known

to him. They had stated that they are going to the temple and had sought

permission to allow his wife to accompany them. He had allowed them

to do so. Further deposition being that on the next date, one person came

and told him that his wife was staying in his house; he accordingly

accompanied that person to his house where she related the incident to

him.

14. In his cross-examination, he admitted that had paid Rs.15,000/-

for the purchase of a buffalo to Sukhbir; he also admitted that Sukhbir

had mortgaged a scooter with PW-2 for which Rs.2,000/- had been paid

by PW-2 to Sukhbir.

15. Deepak was the son of PW-1 and PW-2. He was examined as

PW-3. His deposition is to the effect that his mother had accompanied

the accused persons as they were going to the temple. In his cross-

examination, he admitted that they have a scooter but he does not know

from where it was brought.

16. Rattan Singh (PW-5) has however deposed differently from the

version of PW-1. He has deposed that on the fateful day i.e. on

17.10.1999, one lady knocked at his door at midnight; he opened the

door; she stayed at night in his house. Next morning, he informed her

husband Balbir Singh about this fact. This witness was partly hostile and

was permitted to be cross-examined by the learned public prosecutor.

He denied the suggestion that accused Sukhbir dragging PW-1 at which

time, PW-5 had allowed PW-1 to come and stay in his house. In his

cross-examination, he admitted that the farm house of PW-2 is at a

distance of one mile. He had gone on cycle to call PW-2. This was at

07:30 am in the morning.

17. The wife of PW-5 Maya Devi has been examined as PW-6. She

also toed the version of PW-5 deposing that her husband (PW-5) had

gone to inform PW-2 the next morning. Thus the oral depositions of

PW-1, PW-5 and PW-6 are in contrast. Whereas PW-1 had stated she

was confined in the house of the appellants and managed to escape at

11:00 pm whereupon accused Sukhbir had followed her in his car and

tried to pull her back in the car by catching her hairs and gagging her

mouth at which time PW-5 rescued her and thereafter PW-1 spent the

night in his house.

18. Version of PW-5 and PW-6 is in contrast with PW-1. PW-5 had

stated that it was midnight when PW-1 came to his house knocking his

door and he permitted her to stay in his house. Another contrast in the

version of PW-1 and PW-5 is that PW-1 had stated that PW-5 had gone

to call her husband in the night itself but he could not enter the farm

house because a dog was there. PW-5 however deposed that the distance

between his house and the farm house of PW-2 is only one mile away.

19. Not only are these versions in conflict and in contrast throwing a

doubt on the veracity of PW-1, even otherwise, it would be difficult to

believe that a mature adult lady in her mid thirties and who was

admittedly known to the family of the accused since the last 10-12

years; parties being on visiting terms was raped at the back seat of a

maruti vehicle with the wife of appellant Sukhbir allowing her husband

to commit this gruesome act and although the victim had put a stiff

resistance, she had suffered no injury. Not only the victim put a

resistance at the time when she was being raped in the maruti car, her

deposition is that when she tried to escape, accused Sukhbir had

followed her in his car and tried to pull her back in the car by catching

her hair and gagging her mouth, at this point of time also, no injury was

suffered by her. This is evident from her MLC Ex.PB which shows that

there was no injury upon the victim. Her clothes were also not torn. In

fact there was no reflection of any struggle by the victim. Again the

version of the prosecutrix become doubtful when she states that after the

rape had been committed upon her, she was taken to the house of the

appellants where she along with co-accused Dharamwati was sitting in

one room and Sukhbir was sitting in another room; at about 11:00 PM

when the son of the appellants had gone out, he had left the door ajar; at

that point of time, she managed to escape. She had entered into a lane

where accused Sukhbir followed her in his car. At the time when he was

attempting to put her back into the car, people gathered there and she got

rescued by Rattan Singh (PW-5). As per this version, PW-5 was the

person unknown to her but she agreed to spend night in the house of

PW-5; PW-5 had admitted that the farm house of the husband of the

victim (PW-2) was just one mile away; she however did not ask Rattan

Singh to take her to her own farm house. Version of PW-1 is that Rattan

Singh had gone to call her husband in the night itself but he could not be

contacted because there was a dog in the farm house. PW-5 & PW-6, as

noted supra, have given a contrary version.

20. The FSL report (Ex.PX) shows that the salwar of the victim had

semen stains. This had a blood group of 'B'. The blood group of the

appellant is 'O' positive; this has been established by evidence before

this Court wherein this Court vide its order dated 15.05.2014 had

directed the Investigating Officer to take the blood sample of appellant

Sukhbir and to report this Court about the blood grouping of appellant

Sukhbir. This has been reported as 'O' positive.

21. The defence of the appellants all along has been that the accused

persons have been falsely implicated because of a dispute which had

arisen between their families over a buffalo and which had been sold by

Sukhbir to PW-2 whose horn had been broken. The buffalo had been

returned back to the appellants. He was asking the money for it but he

was not being paid any money. This was the one reason for the dispute.

The next reason of quarrel and discord between the parties was over a

scooter which had admittedly been mortgaged by the appellants with

PW-3 for a loan of Rs.2,000/-. This scooter (as per the deposition of

PW-1 & PW-2) was with PW-2 since the last 8-9 years but the papers

had still not been transferred in his name. This was the second reason of

the quarrel. This defence which has been urged before this Court

appeared in the cross-examination of the witnesses of the prosecution, in

the statement of the accused recorded under Section 313 of the Cr.PC

and also in the defence evidence led by the accused. This defence has

been successive at all stages of the trial.

22. There is no doubt to the proposition that the testimony of a sole

prosecutrix even by itself, if cogent and credible, is sufficient to nail the

accused. However before convicting any person on the testimony of a

sole prosecutrix, this Court must be confident that such a version is

cogent, credible and wholly trustworthy; this is clearly not so in the

instant case. This Court has serious doubts about the version of PW-1.

Not only is in contrast with the version of her husband (PW-2) but it is

also contrary to the versions of PW-5 & PW-6 who were the public

witnesses. The medical evidence and the FSL report also do not in any

manner advance the version of the prosecution. There is no

corroborative evidence.

23. In this background, giving benefit of doubt to both the appellants,

the impugned judgment is set aside. Appeals are allowed. Both the

accused persons are acquitted of the charges leveled against them. Their

bail bonds cancelled; surety discharged.

INDERMEET KAUR, J

MAY 22, 2014 A