Sunil vs State( Nct Of Delhi)
2015 Latest Caselaw 9049 Del

$~R-92 & R-93

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on : 01.12.2015
                             Judgment delivered on : 04.12.2015

+      CRL.A. 962/2013 & CRL.M.(B) 8104/2015

       SUNIL                                         ..... Appellant

                             Through    Mr. Azhar Qayum, Advocate

                             versus

       STATE (NCT OF DELHI)                           ..... Respondent

                             Through    Mr. Kewal Singh Ahuja, APP for
                                        the State.

+      CRL.A. 963/2013

       SANJEEV KUMAR @ KALA                          ..... Appellant

                             Through    Mr. Jivesh Tiwari, Advocate

                             versus

       STATE (NCT OF DELHI)                           ..... Respondent

                             Through    Mr. Kewal Singh Ahuja, APP for
                                        the State.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are two appellants before this court namely Sunil and

Sanjeev Kumar @ Kala. Both of them are aggrieved by the impugned

judgment and order on sentence dated 22.01.2013 and 28.01.2013

wherein each of them had been convicted for the offence under Section

376(2)(g) of the IPC. They have also been separately convicted under

Sections 366/342 read with Section 34 of the IPC. The sentences

awarded to each of them is RI 10 years for their conviction under

Section 376(2)(g) of the IPC and to pay a fine of Rs.10,000/- in default

of payment of fine to undergo RI for 2 years. For their conviction under

Section 366 of the IPC they had been sentenced to undergo RI for a

period of 7 years and to pay a fine of Rs.5000/- in default of payment of

fine to undergo RI for 1 year. For their conviction under Section 342 of

the IPC they had been sentenced to undergo RI for a period of 10 years

and to pay a fine of Rs.1000/- in default of payment of fine to undergo

RI for a period of 3 months. Sentences were to run concurrently.

Benefit of Section 428 Cr.P.C. had also been granted to the appellants.

2 Nominal roll of the appellant has been requisitioned. It reflects

that as on date the appellants have undergone incarceration of 6 ½ years

including remissions earned by them. Their jail conduct has been

satisfactory.

3 The version of the prosecution has been unfolded in the testimony

of the prosecutrix "SK" examined as PW-4. Her version was that she

had come to live with her Tai in Delhi since last four months prior to the

incident. She had come to Delhi for getting her handicap card prepared

for the purpose of enabling her to obtain pension as a handicap person.

While she was going to ease herself out of the house of her Tai, a person

who was residing in the neighbourhood came from the back side and

gagged her mouth with the help of a cloth and took her in a room where

he was rearing pigs. Another person Meenu bolted the door from

outside. Appellant Sanjeev and Sunil who were inside the room

committed rape upon her. First Sanjeev committed rape upon her and

this was followed by Sunil. On hearing her shrieks her Bhabhi Rinki

(PW-1) and Tai Raj Rani (PW-2) opened the latch from outside and

came inside the room and rescued her. Police was informed.

Investigation was set into motion. The accused persons who were

named in the FIR had been arrested. The victim was medically

examined by Dr.Palavi Singh, Sr. Gynecologist and her MLC was

proved as Ex.PW-5/A. Her vaginal swabs and her clothes were seized

and were sent to the FSL for an examination. FSL reports were proved

through the Senior Scientific Officer Ms.Poonam Sharma (PW-9) as

Ex.PW-9/A and Ex.PW-9/B respectively.

4 In the statement of the accused persons recorded under Section

313 Cr.P.C. they pleaded innocence stating that they had been falsely

implicated.

5      No evidence was led in defense.

6      On behalf of the respective appellants arguments have been

addressed by the respective Amicus Curiae. It has firstly been argued

that the trial before the Trial Judge was not conducted in a fair manner

as the witnesses particularly PW-1 and PW-2 were not effectively cross-

examined. The defense of the appellants all along has been that they

have been falsely implicated in the present case because of enmity. This

defense has not been construed in the correct manner. No injury had

been suffered by the victim which supports the stand of the accused

persons that this is a false implication. Attention has been drawn to the

charge which had been framed against the accused persons where

reference to the place of occurrence at D-337, Gupta Colony, Prahlad

Vihar was made. Submission being that the version of the prosecution

is otherwise. On all counts the appellants are entitled to a benefit of

doubt and consequent acquittal. Learned Amicus Curiae in support of

his case has placed reliance upon 2008 CRI L.J. 2942 Suresh Govinda

Nagdeve & Anr. Vs. State of Maharashtra and AIR 2004 SC 771 Kuldip

Singh Vs. State of Delhi . The first judgment is on the aspect that if no

injury is suffered by the victim, the appellant is entitled to a benefit of

doubt. The second judgment has been relied upon to support his

submission that incriminating circumstances not put to the accused in

his statement under Section 313 Cr.P.C. are liable to be excluded from

consideration.

7 Needless to state that these arguments have been refuted.

8 A large part of the version of the prosecution is based upon the

version of PW-4. She is a cogent and coherent witness and had clearly

stated that she is a handicapped person. She had come to Delhi to get

her handicapped card prepared. She was living with her Tai in Delhi for

about 3-4 months. On the fateful day when she had gone to ease herself

at the bathroom located outside, one person in the neighbourhood came

from the back and gagged her mouth; he took her to a room where he

was rearing pigs. Another person namely Meenu bolted the door from

outside. Sanjeev and Sunil who were inside the room committed rape

upon her one by one.

9 PW-4 was subjected to a lengthy cross-examination. She stated

that there was no toilet/latrine in the house of her Tai and she had to go

outside. She admitted that there was no light on the way. She had seen

the accused persons as she was living in the neighbourhood since the

last four months. She specifically named the assailants. She had raised

alarm and her Tai (PW-2) and Bhabhi (PW-1) reached the spot.

Relevant would it be to note that a suggestion has been given to PW-4

that the appellants had been falsely implicated because of the enmity

between the family of PW-1, PW-2 and the appellants.

10 Version of PW-1 who is the Bhabhi of the victim has also been

noted. She has fully corroborated the version of PW-4 stating that on

the fateful day i.e. on 25.01.2010 her sister-in-law had gone to ease

herself at the latrine near their house at about 10.00 p.m. On hearing the

cries she went outside and her mother-in-law also joined her. The

victim was lying on the floor and the appellant were also present in the

room. The victim informed PW-1 that rape had been committed upon

her by Sanjeev and Sunil. This witness was cross-examined but no

suggestion has been given to her on the lines of the defense sought to be

raised through the cross-examination of PW-4.

11 PW-2 (Tai of the victim) has also been examined. She had

corroborated the version of PW-4. She stated that on hearing the shrieks

of the victim she along with her daughter-in-law (PW-1) went to the

spot. PW-4 was lying naked on the floor of the room. The victim had

named the accused persons as her assailants. This witness was also

subjected to a cross-examination but no defense on the lines now

proposed in the cross-examination of PW-4 was put to her either.

12 The defense sought to be emanated through the cross-examination

of PW-4 appears to be a dishonest defense because it firstly did not find

mention in the cross-examination of PW-1 and PW-2 and secondly for

the reason that even in the statement of the accused persons recorded

under Section 313 Cr.P.C. this defense did not emanate. Had it been an

honest defense it would have been consistent.

13 The testimony of PW-4 is fully coherent and cogent. Her

statement was not recorded under Section 164 Cr.P.C. but it was her

version which had become the basis of the FIR and which had set the

investigation into motion and it was fully corroborated by PW-4 on oath

in Court.

14 The law on the aspect of a rape victim is that if such a statement is

credible it can become the sole basis of conviction and this is no longer

res integra. If such a version is convincing and inspires credibility

there is no reason as to why the Court should not rely upon it. It does

not require corroboration.

15 In the instant case, the testimony of PW-4 is also corroborated by

her medical evidence which had surfaced through her MLC

(Ex.PW-5/A). The medical record of the victim revealed that she was

medically examined in the midnight at 12.55 a.m. Lacerations were

seen on both sides of her labia mejora and her hymen was ruptured.

The history of sexual assault had also been noted in the MLC. This

MLC further reflects that the victim had been brought to the Maharshi

Balmiki Hospital by the PCR and the statement of H.C.Jaiveer (PW-11)

evidences that at about 11.20 p.m. wireless message had been received

in the local police station that a girl had been raped which was reduced

into DD No.45A (Ex.PW-11/A). This medical evidence advances the

version of the prosecution.

16 The scientific evidence which is the report of the FSL has been

proved as Ex.PW-9/A. It evidenced human semen on the vaginal swabs

of the victim taken from the posterior vaginal area as also her vaginal

washings. Human semen was also detected on the salwar of the victim.

This piece of evidence also advances the version of the prosecution.

17 The defense of the appellants as already noted supra not being

consistent could not be termed as an honest defense. The submission of

the learned defense counsel that PW-1 and PW-2 were not effectively

cross-examined is also negatived as both PW-1 and PW-2 were cross-

examined and the victim in fact was put to a lengthy cross-examination.

She was examined as PW-4. The judgment of Suresh Givinda Nagdeve

& Anr. (supra) relied upon by the learned counsel for the appellants in

this background would not be applicable to the factual matrix of this

case. The second judgment relied upon by the learned counsel for the

appellant is also inapplicable for the reason that what incriminating

circumstance has not been put to the appellant in his statement recorded

under Section 313 Cr.P.C. has neither been stated nor argued.

18 The last submission of the learned counsel for the appellants is

based on their conviction under Section 366 of the IPC. Submission

being that the ingredients of aforenoted section are not fulfilled as even

as per the version of the prosecution she had been taken to the room

where rape had been committed upon her by another person (Meenu)

and thereafter the alleged unholy act had been committed by the

appellants.

19 This submission of the learned counsel for the appellants is

without any merit.

20 Section 366 of the IPC pre-supposes a kidnapping or abduction of

a woman for the purposes of an illicit act of inter-course. The version of

the victim is that when she had gone to ease herself at the latrine outside

the house of her Tai, her mouth was gagged by a person from behind her

and thereafter she was taken to a room which was latched from outside

by Meenu, where rape had been committed upon her by the appellants.

It is not a case where the appellants alone were involved; the other two

persons (role described supra) could not be arrested as they had

managed to escape from the clutches of law. Nevertheless this was the

act committed by the accused in complicity with the others and the aid

of Section 34 of the IPC was thus rightly invoked for the conviction of

the appellants which had followed under Sections 366/34 of the IPC.

This conviction also calls for no interference.

21 The appellants have been granted the minimum sentence which

the sentence for 10 years for the offence of gang rape under Section 376

(2)(g) of the IPC. The sentence being minimum calls for no

interference. Appeals are without any merit. Dismissed.

INDERMEET KAUR, J

DECEMBER 04, 2015 ndn