Shiv Shanker vs State
2015 Latest Caselaw 4764 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment :07th July, 2015

+    CRL.A. 785/2012
     SHIV SHANKER
                                                              ..... Appellant
                          Through           Mr.Neeraj Bhardwaj, Advocate.
                          versus
     STATE
                                                            ..... Respondent
                          Through           Ms.Kusum Dhalla, APP for the
                                            State.

                                    With

+    CRL.A. 944/2013
     GEETA
                                                                ..... Appellant
                          Through           Mr.Jatin Rajput and Mr Anupam
                                            Dubey, Advocates.
                   versus
     STATE (NCT OF DELHI)
                                                            ..... Respondent
                          Through           Ms.Kusum Dhalla, APP for the
                                            State

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. These are two appeals filed by Shiv Shankar and Geeta

impugning the judgment and order on sentence dated 12.12.2011 and

21.12.2011 respectively wherein the appellant Shiv Shankar had been

convicted for the offence under Sections 376/366/34 of the IPC and had

been sentenced to undergo a maximum incarceration of RI 7 years

besides fine for each of the two offences. Appellant Geeta had been

convicted for the offence under Section 376/366 read with Section 109

of the IPC and had also been sentenced to a period of 7 years RI besides

fine for each of the two offences. The sentences were to run

concurrently. Benefit of Section 428 of the Cr.PC had been granted to

the appellants.

2. The version of the prosecution was that the prosecutrix (PW-6)

had come to Delhi from Jharkhand on her cousin Dashrath having

promised her a job. On the fateful day i.e. on 27.03.2009, she met with

appellant Geeta who assured her for a job. Geeta introduced her to

appellant Shiv Shankar. On the same night, appellant Shiv Shankar

established physical relations with PW-6 against her will. He thereafter

took the prosecutrix to the red light area at G.B. Road with the intention

to sell her. The prosecutrix realized her predicament. She reported the

matter to the police. Present FIR was accordingly registered.

3. The prosecution in support of its case has examined 10 witnesses

of whom the star witness was the prosecutrix herself who was examined

as PW-6. It was on her version that the present FIR was registered.

Apart from her version, the statement of the doctor (PW-2) has also

been relied upon by the prosecution to advance their case. It is pointed

out that the MLC of the victim (Ex.PW-2/A) shows that her hymen was

torn. To determine the age of the prosecutrix, the medical opinion of the

concerned medical officers i.e. PW-8 & PW-9 were obtained who had

opined that the victim was more than 15 years but less than 16 years of

age as on the date of the incident. The Investigation Officer was

examined as PW-10. PW-4 & PW-5 were the constables who were

present at the time when the prosecutrix had reported the matter to PW-

10.

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

Cr.PC, both of them had pleaded innocence and had stated that they

have been falsely implicated in the present case.

5. On behalf of appellant Shiv Shankar it is pointed by Mr.Neeraj

Bhardwaj, Advocate that the appellant has undergone almost four years

of incarceration; he has been falsely implicated; attention has been

drawn to the version of the prosecutrix which had formed the basis of

the FIR i.e. her statement under Section 161 of the Cr.PC, her version

recorded before the Metropolitan Magistrate under Section 164 of the

Cr.PC as also her version on oath in Court. It is pointed out that there

are inherent contradictions and discrepancies in these three versions

which wash away the credibility of PW-6 and she being the only

witness, if her testimony is discarded, there would be nothing left with

the prosecution. It is pointed out that the MLC had also noted no injury

upon the victim and even presuming that there was any physical relation

established between the appellant Shiv Shankar and the victim, it would

be a case of consent. Appellant Shiv Shankar is entitled to a benefit of

doubt.

6. On behalf of appellant Geeta, Mr. Jatin Rajput, learned amicus

curiae has argued that no role has been attributed to her except the

submission of the prosecutrix that Geeta had assured the prosecutrix to

secure a job for her. Geeta has been falsely implicated.

7. Learned Public Prosecutor has refuted these submissions and

submits that no fault can be found in the judgment of the trial Court.

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

9. PW-6 is the star witness of the prosecution. She has on oath

deposed that she had come to Delhi from Jharkhand about two months

ago as her brother Dashrath had promised her a job in Delhi. She was

working in an office where she was maltreated by her employer. She ran

away from there. On the way, she met one lady by the name of Geeta.

Geeta introduced her to Shiv Shankar. They had promised her that they

could arrange a job for her. On their assurance, she accompanied them.

Both the accused took her to a room where she stayed the night. The

accused Shiv Shankar committed rape upon her during the night. In her

cross-examination, she stated that 'galat kaam' was attributable to Shiv

Shankar.

10. Learned counsel for appellant Geeta rightly points out that after

the promise of a job by Geeta, no other role has been attributed to Geeta.

That apart this Court notes that this role which has been attributed to

Geeta was found mentioned for the first time in the statement of the

prosecutrix on oath in Court. In her version under Section 161 of the

Cr.PC, she had stated that she had come to Delhi on the asking of her

brother as she had been promised a job in Delhi. She was working with

an employer who was maltreating her. On 27.03.2009, she met with a

lady namely Geeta who had promised her a job. Geeta introduced her to

Shiv Shankar. Thereupon Shiv Shankar took her to his room where in

the night he committed rape upon her. In this version, the prosecutrix

does not state that it was Geeta who had accompanied Shiv Shankar at

the time when she was taken to the room. In the statement of the

prosecutrix under Section 164 of the Cr.PC, there is no mention of Geeta

at all. In fact, in this statement she has stated that when she had left the

job with her employer in Delhi, she met one person (Shiv Shankar) who

had taken her to his room and he had committed rape upon her. Thus,

the role attributable to Geeta, even as per the version of the prosecution,

is only the role of promising her a secured job. In the FIR (first

statement of the victim), there was no mention by the prosecutrix that

Geeta had taken her along with co-accused to the room where rape had

been committed upon her. This finds mention only for the first time in

her version on oath in Court, which is a natural improvement qua the

role of Geeta. Thus no role much less any special role has been ascribed

to Geeta, Geeta is entitled to the benefit of doubt. This Court is of the

view that her conviction by the trial Judge was uncalled for. Geeta is

entitled to an acquittal. She is accordingly acquitted of all the offences

for which charges have been framed against her.

11. The version of the prosecutrix under Sections 161, 164 of the

Cr.PC read with her version on oath in Court does not find any

improvement qua the role of Shiv Shankar. All along, Shiv Shankar was

the person, who had taken her to his room and committed rape upon her.

He had thereafter taken her to the red light area where the victim

apprehended that she was going to be sold in a brothel. She immediately

reported the matter to the police. This version of the prosecturix has

remained unassailable and unimpeachable. She has stuck to her stand.

12. Furthermore this version of PW-6 is corroborated by the version

of PW-10 (SHO of PS Kamla Market) to whom she had first reported

the matter after she had been taken to the G.B. road area. PW-4 & PW-

5, the constables who were present along with PW-10 have also

affirmed this version.

13. The medical evidence of the victim i.e. her MLC Ex.PW-2/A also

shows that her hymen had been broken. Even if injuries were not

reported on her person, it would not detract her otherwise cogent and

credible version which has been supported by this part of the medical

evidence which had noted her hymen to be broken.

14. There is also no reason as to why appellant Shiv Shankar would

have been falsely implicated. In fact on a specific query put to the

learned defence counsel, on this score he had also no answer.

15. The prosecution has been able to establish its case to the hilt qua

appellant Shiv Shankar. The version of the prosecutrix coupled with the

statements of PW-10, PW-4 & PW-5 as also her medical evidence

establishes that appellant Shiv Shankar is guilty of the offences for

which he has been convicted.

16. The victim even presuming that she was an adult had not

consented to this relationship. She had reported the matter to the police

at the first instance. The appellant has been granted the minimum

sentence which is 7 years for the offence punishable under Section 376

of the IPC. Leniency in sentence is also not called for.

17. Appeal of appellant Shiv Shankar is accordingly dismissed.

18. Both the appeals are disposed of in the above terms.

19. A copy of this order be sent to the Jail Superintendent for

intimation and compliance.

INDERMEET KAUR, J

JULY 07th 2015 A/m