Kasif vs State
2015 Latest Caselaw 6402 Del

R-8
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 20.7.2015
                                    Judgment delivered on : 30.7.2015
+      CRL.A. 564/2013

       KASIF                                         ..... Petitioner

                      Through       Mr.S.B.Dandapani, Amicus Curiae.

                           versus

       STATE                                         ..... Respondent

                      Through       Mr.O.P.Saxena, APP for the State along
                                    with SI Vijay Singh.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

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

of sentence dated 14.02.2013 and 16.02.2013 respectively wherein the

appellant stood convicted under Section 366/376(2)(g) read with

Section 34 of the IPC. For the offence punishable under Section

376(2)(g) of the IPC he had been sentenced to undergo RI for 10 years

and to pay fine of Rs7000/- in default of payment of fine to undergo SI

for 2 years; under Section 366/34 of the IPC he had been sentenced to

undergo RI for 10 years and to pay a fine of Rs.5000/- in default of

payment of fine to undergo SI for 2 years. Sentences were to run

concurrently.

2. The version of the prosecution was unfolded in the statement of

the sister of the prosecutrix (PW-14). She had lodged a complaint on

07.10.2010 stating that her sister who was living with her was missing

since 06.10.2010. On the same day i.e. 07.10.2010 the prosecutrix was

traced. She was examined and her statement under Section 164 Cr.P.C.

was recorded. She had deposed that she had left her home at about 7.00

a.m. on the fateful day. She boarded a bus for Seelampur. She got

down from the bus at the bus station; she was taken to Jama Masjid by

an unknown person. At Jama Masjid she lost her way. The appellant

Kasif along with three other persons had taken her in a maruti car

promising to drop her at her brother's house. She sat in the car; she was

taken to a house where rape was committed upon her by the appellant

and the three other persons.

3. The brother of the victim Sadiq was examined as PW-16. The

MLC (Ex.PW-4/A) of the PW-1 was conducted by Dr.Sangita;

abrasions were found over her right shoulder. She was also examined

by Dr.Solomi (PW-5) and was referred for a pregnancy test. PW-21

proved the signatures of Dr.Shifali who was the Gynecologist who had

examined the victim. The pointing out memo (Ex.PW-7/A) of the place

where the offence had occurred was proved through the version of

Constable Sudesh (PW-7). The photographs of the place of occurrence

were also taken and proved in the version of Constable Inderjeet (PW-

11). The negatives were proved as Ex.PW-11/A and positives were

proved as Ex.PW-11/B to Ex.PW-11/D. Investigation was first

conducted by Inspector Rakesh Kumar (PW-19); it was thereafter

handed over to WSI Dhoratiya (PW-23) through whom the challan was

filed.

4. Apart from the present appellant accused Tohid was also arrested.

Since he was a juvenile he was tried by the Juvenile Justice Board. On

06.5.2011 on a secret information having been received about the

whereabouts of the present appellant he was arrested and taken into

custody on 07.5.2011 vide arrest memo Ex.PW-6/B.

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

Cr.P.C. he pleaded innocence and stated that he has been falsely

impleaded in the instant case because of enmity brewing between the

appellant and the brother of the victim.

6. The trial Judge, however, did not find favour with the defence

sought to be set up by the accused. On the basis of the oral and

documentary evidence adduced by the prosecution, the appellant stood

convicted and sentenced as aforenoted.

7. On behalf of the appellant arguments have been addressed in

detail by the learned Amicus Curiae. Attention has been drawn to the

versions of PW-1, PW-14 and PW-16. Submission being that versions

of these witnesses are full of contradictions and none of them can be

relied upon. Version of the victim, being full of contradictions, is

suspect. The conviction of the appellant is unfounded. He is entitled to

an acquittal.

8. Needless to state that the State has opposed these submissions.

9. There is no doubt to the settled legal proposition that the

statement of a prosecutrix if cogent and credible is sufficient to nail an

accused and a credible victim of rape does not even require

corroboration. However, the prosecution has to stand on its own legs.

This is also a cardinal rule of criminal jurisprudence.

10. The complaint was lodged by the sister of the victim. She was

examined as PW-14. She had initiated these proceedings. She had on

oath deposed that her sister was living with her. On 06.10.2010 in the

morning she went to Khaiber Pass market but did not return back. A

report Ex.PW-3/A was lodged at Police Post Majnu Ka Tilla on the

same day. On the next date i.e. on 07.10.2010 PW-14 informed the

police that she suspected a Nepali boy. Her statement Ex.PW-14/A was

recorded. On the same day her sister was traced. She was medically

examined.

11. The victim was examined as PW-1. Her statement under Section

164 Cr.P.C. (Ex.PW-1/A) was recorded on 11.10.2010. This was after

four days of her having been recovered. She had been recovered on

07.10.2010.

12. In her statement under Section 164 Cr.P.C.(Ex.PW-1/A) she had

given her age as 20 years. She stated that since the last two years she

was residing with her sister. On 06.10.2010 she willingly at 7.00 a.m.

left for Seelampur. She often used to urinate on the bed. This was the

reason for her leaving early in the morning. She had boarded the bus

for Seelampur but got down at the bus stop. At the bus stop she met a

person whom she did not know. He dropped her at Jama Masjid.

From Jama Masjid she wanted to go to Hauz Qazi where her brother

resides. At that point of time a white coloured car came in which four

persons were seated whom she did not know; one of whom dragged her

into the car. She was given a medicine to eat. She felt sleepy. When

she woke up she found herself in a room where, after removing her

clothes all the said persons committed rape upon her. At 5.00 p.m. they

left her near her brother's house. She narrated the story to her brother

and sister. Police complaint was accordingly lodged.

13. In her version on oath in Court PW-1 stated that about 7.00 a.m.

on the fateful day she boarded the bus for Seelampur. She met one

person at the bus stop who left her at Jama Masjid. She lost her way.

She was inquiring about the way when four men came in a maruti car

and stated that they would leave her at her brother's house. She sat in

the maruti car. Appellant Kasif who was amongst the four persons

induced her to marry him. The accused took her to a house and on the

way they purchased food and offered the same to her. She refused to

take the food. She was given a capsule due to which she became

giddy. The accused persons thereupon committed rape upon her. They

were being called as Kasif ,Tohid and Mazhar.

14. In her cross-examination she admitted that she did not know the

accused persons prior to the incident. She identified the

accused/appellant when she was taken to the police station. She had

seen the accused as he had asked her to marry her; he thereafter

committed rape upon her. The car was being driven by Tohid. She was

kept confined for about three hours. She did not know the address of

her brother. The accused persons had left her at Kucha Pandit where

her brother came to take her. She did not know the address of the place

where the incident had occurred but she was taken to that place by the

police and the appellant. She denied the suggestion that the accused had

been falsely implicated at the instance of her brother.

15. Vehement submission of the learned counsel for the appellant is

that there are glaring contradictions in the version of the prosecutrix in

her statement under Section 164 Cr.P.C. (Ex.PW-1/A) qua her version

on oath in Court.

16. In her statement under Section 164 Cr.P.C. she had stated that

when she was on the way to her brother's house at Hauz Qazi from Jama

Masjid four persons had come in a car and one of them had dragged her

into the car; they given her a medicine; thereafter they committed rape

upon her. On oath PW-1 had stated that she had sat in the car of the

accused (four in number) on her own as they promised to drop her at her

brother's place. On oath she had stated that out of the said accused

persons, the appellant Kasif had proposed to marry her. She had,

however, refused; rape was then committed upon her.

17. In Ex.PW-1/A she had stated that she had been left near her

brother's house at about 5.00 p.m. on the same day i.e. on 06.10.2010.

Thereafter she had gone to her brother's house and then narrated the

incident to her brother and sister and the matter was reported to the

police. On oath in Court she had stated that she did not know her

brother's address. Her brother had come to take her from where she had

been left by the accused.

18. The version of the brother who had been examined as PW-16 is

also relevant. He had deposed that his sister (PW-1) was residing with

his elder sister (PW-14); she was reported missing on 06.10.2010. PW-

14 informed him. He reached the house of PW-14. They tried to trace

her but their sister could not be traced. On the next morning i.e. on

07.10.2010 he was informed that his sister was sitting near Kuncha

Pandit, Hauz Qazi and accordingly he went there and brought her back.

In his cross-examination, he stated that he was informed by the

chowkidar of the locality that his sister was sitting at the main road,

Kuncha Pandit. His sister's (PW-14) house is at the distance of half an

hour if one travels by metro. Police complaint was lodged in P.P.

Majnu Ka Tilla. Their sister was medically examined.

19. This version of PW-16 is contrary to the version of the PW-1.

PW-16 had stated that he had brought his sister back from the place

where she had been left by the accused. This was not the version of

PW-1. She had stated that she was left by the accused near her brother's

house at 5.00 p.m; thereafter she had returned to her brother's house on

her own. She further stated that then she narrated the incident to her

brother and her sister. Meaning thereby that on 06.10.2010 itself at

about 5 00 p.m. her sister and brother were aware of the woes of PW-1.

20. Complaint was lodged by PW-14 at P.P.Majnu Ka Tilla on

07.10.2010. This was at 1.15 p.m. in the afternoon. Ex.PW-3/B and

Ex.PW-12/A are clear on this time.

21. The victim had come back at 5.00 p.m. on 06.10.2010; why the

complaint was lodged at 1.30 p.m. on the following day i.e. 7.10.2010 is

not answered. That apart the contradictions in the version of the

prosecutrix in her statement under Section 164 Cr.P.C.(Ex.PW-1/A) qua

her statement on oath in Court are also glaring. In her version under

Section 164 Cr.P.C. she had stated that she had been dragged into the

car by four persons. On oath in Court she had stated that she had

consented to travel in the maruti car as the four persons in the car had

agreed to drop her at her brother's house. On oath she stated that Kasif

(appellant) had given her a proposal to marry. This did not find any

mention in her statement recorded under Section 164 Cr.P.C. It would

also be difficult to believe that a person who is unknown to another (as

is the case of the prosecution) and the appellant was proposing marriage

to a stranger i.e. to PW-1. This version is quite unbelievable. The

statement of PW-16 is also in contrast to the statement of PW-1 and

PW-14.

22. PW-16 had stated that on 07.10.2010 he found his sister at

Kuncha Pandit. He brought his sister back and took her to the P.P.

where a complaint was lodged. This is not the version of the victim.

She stated that she had gone to her brother's house on her own. She

had reached their at about 5.00 p.m. on 06.10.2010 where the incident

was disclosed by her to PW-16 and PW-14. As per PW-14 her sister

had been brought by PW-16 when the matter was reported to the police.

Ex.PW-3/A which was the complaint lodged by PW-14 on 07.10.2010

also recites that PW-1 is mentally weak and a Nepali boy was suspected

in this kidnapping of her sister.

23. This narration of PW-14 reflects upon the mental status of PW-1

who was also suffering from a history of epilepsy. This was recorded in

her MLC Ex.PW-21/A. She often used to urinate, in the bed; this was

the reason why she left her sister's house in the morning of 06.10.2010.

This was the version of PW-1 in Ex.PW-1/A. PW-1 was a 20 year old

girl. She did have a problem; both physical as also psychological.

24. Be that as it may, the scrutiny of her testimony has to be decided

dehors these facts. Her testimony when tested on the anvil of a

credible, cogent and coherent witness does not pass this test. PW-1 has

been vacillating. In Ex. PW-1/A qua her version on oath in Court. Her

testimony also does not match the version of either PW-16 and PW-14.

The different versions given by the aforenoted three persons of whom

PW-14 and PW-16 are the closest members of the family of PW-1 and

not being corroborative of one another does not inspire confidence.

25. In this context the observations of the Apex Court in the judgment

of AIR 2012 SC 2281 Narender Kumar Vs. State are relevant and

reproduced herein as under:

It is no part of the duty of the defence to explain as to how and

why in a rape case the victim and other witness have falsely implicated

the accused. Prosecution case has to stand on its own legs and cannot

take support from the weakness of the case of defence. However great

the suspicion against the accused and however strong the moral belief

and conviction of the court, unless the offence of the accused is

established beyond reasonable doubt on the basis of legal evidence and

material on the record, he cannot be convicted for an offence. There is

an initial presumption of innocence of the accused and the prosecution

has to bring home the offence against the accused by reliable evidence.

The accused is entitled to the benefit of every reasonable doubt.

26. The medical evidence which is the MLC of the victim shows

minor abrasions and scratches on her body. No other injuries were

noted. She was medically examined on 07.10.2010 at 4.45 p.m. No

injuries were noted on her body. If four persons had committed the

forcible act of rape upon here some injuries would have been seen on

her body.

27. The appellant was arrested on 07.5.2011 vide memo Ex. PW-6/B.

This was pursuant to the disclosure statement of a co-accused Tohid.

Tohid had disclosed the role of the present appellant. Relevant would it

be to note that Tohid was a juvenile and he was tried by the Juvenile

Court. Ex. PW-6/B shows that the appellant was arrested after almost

about 6 months from the date of the incident. He was subjected to TIP

but he refused the TIP vide memo Ex.PW-10/B (10.05.2011) on the

ground that his photograph had been shown to the witness in the police

station. In this context the testimony of PW-1 is also relevant. In her

cross-examination PW-1 admitted that she was shown the accused and

she identified him by pointing out at him.

28. The place of occurrence as per the prosecution was the house of

Tohid. The pointing out memo was Ex. PW-7/A. As per PW-7 the place

of incident was pointed by the prosecutrix from where Tohid was

arrested and he had made his disclosure statement leading to the vital

link with the present appellant. PW-1 in her cross-examination stated

that she did not know the address of the place of occurrence but she was

taken to that place by the police. This part of the version of PW-1

clearly recites that the place of occurrence i.e. the house of Tohid was

not known to her. She was taken to that place by the police. This

destroys the version of the prosecution qua the document Ex.PW-7/A.

29. There are thus several loopholes in this case. They start with the

version of (PW-1) on oath which is in conflict qua her statement

(PW-1/A). Testimony of PW-1 is also in conflict with the version of

PW-14 and PW-16. Her MLC is also not corroborative of her version.

The entire gamut of the evidence collected by the prosecution persuades

this Court to hold that the version of the prosecution has been

successfully dented.

30. The defence of the accused all along was that he has been falsely

implicated because of enmity between PW-16 and the appellant. He has

been falsely roped in. This is his line of cross-examination right from

inception i.e. in the form of the suggestions given to PW-1 and PW-16

and which is also his line of his defence in his statement under Section

313 Cr.P.C. when he had stated that he has been falsely implicated.

31. Rule of criminal jurisprudence is clear. It is for the prosecution to

prove its case to the hilt; the loopholes in this version must benefit the

accused.

32. In the instant case, the testimony of the victim is full of

contradictions. Learned Amicus Curiae who had conducted the trial in

the Court below had also not done a good job. This was probably one of

the reasons why the conviction had followed. An Amicus curiae who

takes upon himself/herself the responsibility of defending an accused

and especially in heinous cases where murder and rape charges are

awarded must be conscious of the duty that they owe to their client. The

result could otherwise be prejudicial to the right of the accused and

would leave a wholesome scar on the conscience of the said Amicus

Curiae.

33. Benefit of doubt has been created in this case. Appeal is allowed.

Impugned judgment is set aside. Appellant be released forthwith, if not

required in any other case.

INDERMEET KAUR, J

JULY 30, 2015

ndn