Delhi High Court

Sandeep @ Sonu & Ors vs State Govt. Of Nct Of Delhi on 19 August, 2015

Author: Indermeet Kaur

$~R-44 & 44A

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on : 13.8.2015
                                     Judgment delivered on : 19.8.2015


+      CRL.A. 1419/2013 & Crl.M.B.No.3292/2015

       SANDEEP @ SONU & ORS.                          ..... Appellants

                            Through       Ms.Ushma Malik, Amicus Curiae

                            versus

       STATE GOVT. OF NCT OF DELHI                    ..... Respondent

                            Through       Mr.Kusum Dhalla, APP

+      CRL.A. 1232/2014 & Crl.M.B.No.10432/2014

       RAVINDER @ CHAND SINGH                         ..... Appellant

                            Through       Mr.Chetan Lokur, Amicus Curiae

                            versus

       STATE GOVT. OF NCT OF DELHI                    ..... Respondent

                            Through       Mr.Kusum Dhalla, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1. This appeal is directed against the impugned judgment and order

of sentence dated 29.7.2013 and 07.9.2013 wherein the appellants

before this Court (Sandeep @ Sonu, Dhanwant and Ravinder @ Chand

Singh) were convicted under Section 376(2)(g) of the IPC and each of

them had been sentenced to undergo RI for a period of 10 years and to

pay a fine of Rs.5000/- in default of payment of fine to undergo SI for 1

month. Benefit of Section 428 of the Cr.P.C had been granted to them.

Nominal roll of appellant Sandeep reflects that as on 22.4.2015 he has

undergone incarceration of 4 years 2 months and 5 days besides

remissions earned of 4 months meaning thereby as on date he has

completed about 5 years. Nominal roll of appellant Ravinder reflects

that as on 15.11.2014 he has undergone 3 years 6 months and 28 days

besides remissions earned of 3 months 17 days meaning thereby as on

date he has undergone 4 years and 9 months.

2. The version of the prosecution is that DD No.28A was registered

on 16.02.2011 at police station Mehrauli qua the act of gang rape having

been committed upon a lady. Statement of the victim "S" (PW-3) was

recorded under Section 161 Cr.P.C. which had formed the basis of the

FIR. She was medically examined. In view of the allegations levelled

against the accused persons who were arrested just a few hours after the

incident, the accused were charge sheeted and on the basis of the

evidence led before the Trial Judge both oral and documentary the

accused persons were convicted and sentenced as aforesaid.

3. On behalf of the appellants arguments have been addressed by the

learned Amicus Curiae. It has been pointed out on behalf of the

appellants separately, that the identity of the appellants has not been

established. Admittedly the accused persons were strangers to the

victim. No TIP had been conducted. There is no explanation for the

same. The statement of the victim under Section 164 Cr.P.C. has also

not been recorded for which there is no explanation. The arrest of the

accused is doubtful. The witnesses qua arrest have all given different

versions and from where each of the three appellants were arrested is

conflicting. Benefit of doubt has to be given to the appellants. They are

accordingly entitled to an acquittal.

4. Needless to state that these arguments have been refuted. Learned

APP for the State pointed out that PW-3 was not cross-examined but her

version has to be read under the provisions of Section 33 of the Indian

Evidence Act. Her testimony was corroborated by the report of the FSL

wherein semen was detected on the salwar of the victim. There was no

reason for the victim to have falsely implicated the appellants. In this

background impugned judgment calls for no interference

5. The star witness of the prosecution was the prosecutrix herself.

She was examined PW-3. She was examined on two occasions but

thereafter unfortunately because of her demise she could not be cross-

examined. Her testimony was read under Section 33 of the Evidence

Act and rightly so. Section 33 of the Indian Evidence Act reads as

under:

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed

to be a proceeding between the prosecutor and the accused within the meaning of this section.

6. This witness had been examined in chief but unfortunately could

not be cross-examined before her demise. Her testimony is admissible

under Section 33 of the Indian Evidence Act. However, the probative

value of the testimony of the witness casts a greater duty on the court to

examine her testimony with a greater circumspection and a close

scrutiny. The rule of caution must be applied to such a testimony.

Testimony of PW-3 shall be examined in this background.

7. PW-3 on the date of incident was 14 years old. She was living in

her brother‟s house. She deposed that she was living separately from

her husband. She had some dispute with her brother and on 16.02.2011

because of this tension she left the house at 1.00 a.m. (midnight) for her

Mama‟s house at Ghaziabad. She reached the bus stand of Lado Sarai

near T.B.Hospital on foot, and there two persons met her and they

caught hold of her and took her forcibly inside the Park near

T.B.Hospital and there, those two boys gave beatings to her and

committed rape upon her. In the meantime third person also came there

and he also committed rape upon her. They beat her and threatened her

not to disclose the incident to anyone otherwise she would be killed.

They thereafter abandoned her. She reached the Delhi Jal Board Office.

She met a person who was present in the office. He made a call at 100

number. Police reached the spot. They apprehended one person in her

presence and two persons were apprehended from near Bhul Bhuliya

(Mehrauli). They were brought to the police station. She was taken to

AIIMS hospital for her medical examination.

8. As noted supra this witness was not cross-examined because of

her demise. It is this version which had weighed in the mind of the Trial

judge to convict the accused persons.

9. PW-15 (Prem Chand) was the person who was working as a

Beldar in the Office of the Delhi Jal Board from where the PCR call had

been made. This witness had deposed that one lady had come to his

office and had made a call to police at 100 number when he was on duty

at that point of time. His testimony was, however, in conflict with

PW-3 who stated that this call had been made by PW-15 whereas

PW-15 deposed that this call had been made by PW-3.

10. Be that as it may, this Court notes that this contradiction in the

version of PW-3 and PW-15 is not relevant.

11. The version of the prosecution is that the accused persons were

strangers to the victim. They were not known to her. Before examining

the testimony of the arresting officers it would be relevant to note the

site plan. This has been proved as PW-3/H. "X" is the point i.e. the

DDA park where the alleged offence had been committed. The Delhi

Jal Board Office from where the call to the PCR was made is after the

DDA park and a jungle. The site plan does not depict the entire distance

and this court is unable to know what exactly would be the distance of

the Delhi Jal Board Office from the DDA park. Unfortunately no cross-

examination on this score had also been effected of the Investigating

Officer WSI Pratibha Sharma examined as PW-17.

12. Version of the PW-3 in the light of the site plan discloses that

after the offence had been committed upon the victim the accused

persons had abandoned her and thereafter she went to the office of the

Delhi Jal Board and made a call to the police. Her further submission is

that after that police reached and apprehended one person out of the

three persons and remaining two persons were apprehended from near

the Bhul Bhuleya (Mehrauli). Mehrauli is on the other side of the Road.

Again this Court has lost sight of the fact that this has not been depicted

in the site plan as noted supra but has since been cross-examined on this

score.

13. PW-11 Jagdish Prashad had received this PCR call at 2.50 a.m.

His deposition is that when he reached there. He met PW-3 and she told

him that three persons had dragged her inside the park and committed

rape upon her. She further told them that the accused persons were still

in the park. The victim was taken in the PCR van to the park where one

boy was running. He was apprehended. He disclosed his name as

Ravinder. He disclosed that two co-accused namely Sonu and

Dhanwant would be found in Dhona near Mehrauli where they consume

„Sulfa‟. On reaching there, Dhanwant was arrested and thereafter the

local police had reached to the third accused Sandeep who was arrested

near the bus terminal Dhona.

14. PW-10 H.C.Zakir Hussain has given a different version. He had

on oath stated that he was on an emergency duty from 8.00 p.m. to 8.00

a.m. He received a DD no.28A. He reached the Delhi Jal Board office

where a PCR van was already present. PW-11 was also present.

Prosecutrix and one accused Ravinder were also present there. The

prosecutrix told them that other two persons were still hiding in the

park. Another PCR van reached there. The two persons inside the park

were arrested. As per the version of PW-10 after the arrest of Ravinder

who was already apprehended by the police PW-10 reached the spot and

the two other persons namely Sandeep @ Sonu and Dhanwant were

apprehended from inside the same park. This version of PW-10 is

contrary to the version of PW-11 who had stated that after the arrest of

Ravinder other two accused persons were arrested on search and

Dhanwant was found in a street at Dhona, a place where they used to

consume „sulfa‟and on further search Sandeep @ Sonu was arrested

from near the bus terminal.

15. The investigating Officer PW-17 has given a different version.

As per her version after DD no.28A was marked to her she reached the

police station. This DD was earlier marked to PW-10. PW-3 was

present in the police station. She was medically examined. Exhibits

collected were seized and sealed by PW-17. Site plan was prepared by

her. She arrested the accused vide separate memos on 16.11.2011 at

about 9.30 a.m. to 10 a.m. vide memos Ex. PW-3/B, Ex.PW-3/C and

Ex.PW-3/D. They were medically examined. In her cross-examination,

she denied the suggestion that the accused had been falsely implicated.

16. Another interesting feature is the version of constable Pramod

(PW-4). He had also joined the investigation. His version was that the

accused Ravinder and Dhanwant were in the custody of the

Investigating Officer when they joined investigation. They were not

arrested in his presence. He retracted from his version and stated that

the accused Ravinder, Dhanwant and Sandeep were arrested in his

presence and he had signed their arrest memos.

17. DD no.28A had been recorded by PW-2 H.C.Devender Kumar.

This was on the intervening night of 15-16.2.2011. Time in the DD is

2.46 a.m. FIR was registered by H.C. Manohar Lal (PW-1) on the

following morning i.e. 16.02.2011 at the local police station at Mehrauli

under Section 376(2)(g) of the IPC and the time mentioned in the FIR is

8.15 a.m.

18. The record shows that the accused persons had not been put to a

TIP. They were strangers to the victim.

19. The evidence collected by the prosecution shows that after the

offence had been committed upon PW-3, she had been abandoned and

left by the accused. She walked a couple of metres to the Delhi Jal

Board Office. The exact distance is not depicted in the site plan from

where the PCR call was made at 2.46 a.m. in the morning. The PCR

van reached the spot. PW-11 who was on duty in the PCR had received

this information. He reached the spot where PW-3 had met him. This

was at about 2.50 a.m. PW-3 had stated that the accused persons would

still be found in the park. As per the version of PW-11, Ravinder was

apprehended from the park. The investigation had initially been

marked to PW-10 when he reached the spot PW-11 was already present

and Ravinder already stood apprehended. The time given by PW-10 is

2.46 a.m.

20. Thus as per the testimony of PW-11 and PW-10 Ravinder already

stood apprehended between 2.45 a.m. to 3.00 a.m. in the morning. The

incident as per PW-3 had occurred around 1.00 a.m. when she had left

her brother‟s house where she was apprehended by the three persons.

Arrest memos of the accused persons Ex.PW-3/B, Ex.PW-3/C and Ex.

PW-3/D show that accused Ravinder had been arrested from the DDA

park at 10.00 a.m. Ex. PW-3/D is the arrest memo of accused Sandeep

which shows his arrest at 9.45 a.m. on 16.02.2011 also from the DDA

park. Arrest of Sandeep is prior in time to the arrest of Ravinder which

is contrary to the ocular testimony of PW-10 (H.C. Zakir Hussain),

PW-11 (H.C. Jagdish Prashad) and PW-17 (WSI Pratibha Sharma). As

per their versions accused Ravinder had been arrested first. After his

arrest accused Sandeep @ Sonu and Dhanwant had been arrested. PW-

11 has stated that Sandeep @ sonu was arrested from bus terminal near

Dhona. The arrest memo shows his arrest from the DDA park for which

there is no explanation.

21. No TIP of the accused had also been conducted. Testimony of

PW-3 also shows that after the accused had committed the offence they

fled away. The incident had occurred at 1.00 a.m. She had gone to

Delhi Jal Board Office to make a PCR call which was at 2.46 a.m. After

the PCR van reached the spot as per the prosecution, from the DDA park

accused Ravinder was apprehended. It is difficult to believe that the

accused Ravinder after committing the offence sat in the park waiting

for the police to come and nab him.

22. That apart this Court notes that there are varying versions given

by the Investigating Officer and the members of the raiding party qua

the arrest; their oral versions are in conflict with the arrest memos qua

the place from where the accused were arrested and the time of arrest is

not clear.

23. It could well be a case where the Investigating Officer, in her

attempt to solve an FIR had implicated the accused persons; a defence

raised by them right from the very inception. This Court also notes that

the testimony of PW-3 has to be read with a greater circumspection in

view of the fact that she was not cross-examined.

24. In Tinku Ram vs. State Criminal Appeal No. 841 of 2011

decided on 14.9.2011, a Bench of this Court in the context of the

application of the provisions of Section 33 of the Evidence Act had

held as under:

"The question which arises is what then is the correct position regarding the deposition of PW-7. We are conscious that Section 138 of the Evidence Act, 1872 mandates that to constitute evidence, the testimony of each witness has to be subjected to cross examination. The provision seemingly admits of no exception; yet courts have recognized them in exceptional situations. "Sarkar on Evidence" at page 2170, states that:

The evidence of a witness who could not be subjected to cross- examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of case. [Food Inspector v. James N.T: 1998 Cri LJ 3494, 3497 (Ker)]. If the examination is substantially

complete and the witness is prevented by death, sickness or other causes (mentioned in s 33) from finishing his testimony, it ought not to be rejected entirely. But if not so far advanced as to be substantially complete, it must be rejected [Diwan v. R, A 1933 L 561].

23. In these circumstances, the statement of the prosecutrix has not been corroborated by any other witness regarding attempt to commit rape. Although there is no rule that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. In the instant case, the prosecutrix had died after the examination-in-chief and no cross examination has been conducted In these circumstances, it is not proved that the appellant had attempted to commit rape upon the prosecutrix. Therefore, conviction for the offence punishable under Sections 376/511 I.P.C. cannot be sustained."

25. The discussion in the context of her version which when coupled

with the version of PW-4, PW-10, PW-11, and PW-17, persuaded this

Court to hold that the identity of the accused does not find established.

As per the arrest memos, the accused were arrested one after the other

after the incident from the DDA park (evident from the arrest memos);

yet the oral version of the witnesses mentions otherwise. PW-10 had

given different places of arrest of the three accused persons. As per the

prosecution, accused Ravinder was arrested prior in time to the arrest of

accused Sandeep but the time disclosed in the arrest memo shows that

Sandeep was arrested prior to Ravinder.

26. In this background this Court is not inclined to uphold the

judgment of the Trial Judge. Dents have been created in the version of