Surinder Kumar Babbar vs State Govt. Of Nct Of Delhi
2015 Latest Caselaw 4862 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on :06.07.2015.
                                       Judgment delivered on :10.07.2015
+      CRL.A. 284/2013
SURINDER KUMAR BABBAR                                          ..... Appellant
                             Through        Mr. K.K. Manan, Mr. Nipun
                                            Bhardwaj, Mr. Ankush Narang
                                            and Mr. Kartik Gandotra, Advs.
                             Versus


STATE GOVT. OF NCT OF DELHI                             ..... Respondent
                             Through        Ms. Kusum Dhalla, APP for the
                                            State.
+      CRL.A. 382/2013
YOGESH KUMAR                                            ..... Appellant
                             Through        Mr. Rakesh Wadhwa and Mr.
                                            Amit Alok, Advs.
                             versus
STATE                                                   ..... Respondent
                             Through        Ms. Kusum Dhalla, APP for the
                                            State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 There are two appellants before this Court Surinder Kumar

Babbar and Yogesh Kumar. They have both been convicted and

sentenced vide judgment and order on sentence dated 23.01.2013 and

29.01.2013 respectively wherein the first appellant has been convicted

for the offence punishable under Sections 376/366/509/506 of the IPC;

the second appellant has been convicted for the offence punishable

under Sections 376/366/506 all of which are read along with Section

109 of the IPC. The appellant Surinder has been sentenced to undergo a

maximum period of 10 years for the gravest offence which was

punishable under Section 376 of the IPC along with fine for each of his

separate convictions. The maximum sentenced awarded to appellant

Yogesh Kumar was RI 7 years along with separate fines for the separate

offences. The impugned judgment had however noted that the sentences

were to run one after the other although benefit of Section 428 of the

Cr.PC had been granted to the convicts.

2 The prosecutrix (PW-6) had made a complaint on 12.11.2010 in

Police Station Najafgarh which was to the effect that 15 days prior to

when she was returning home from her tuition classes, the two

appellants picked her upon their motorcycle. The motorcycle was driven

by Yogesh Kumar. She was taken to a shop at Khera Mod. Appellant

Surinder committed rape upon her and co-accused had filmed this act of

rape. The victim was continuously threatened that in case she disclosed

this incident to anyone, her nude CD would be shown to her relations

and friends; she was told that appellant Surinder's maternal uncle was

employed in the police department and nothing would happen to them.

The victim was terrified. She did not recite the incident to her parents.

3 The statement of the victim was recorded both under Section 161

and Section 164 of the Cr.PC and her latter statement recorded by the

learned MM (PW-20) was proved as Ex.PW-20/A.

4 In the evening her father (PW-10) noted injury marks on her body

and took her to a local doctor. PW-6 did not go to school for the next 5-

6 days. About 10-15 days after this incident when PW-6 was found

crying by her mother (PW-2) and on her persuasion she disclosed the

incident to her mother, who in turn related it to PW-10. Thereafter,

complaint Ex.PW-6/A was lodged. Apart from the statement of PW-6,

the statement of PW-10 (father) and PW-2 (mother) was recorded. The

victim was stated to be 15 years of age on the date of the incident. Her

date of birth was proved from her school certificate evidencing as

29.11.1995. The witnesses relating to this evidence were examined as

PW-12, PW-15, PW-16 (Sub-Registrar from Najafgarh Zone) as also

PW-22. The version of the prosecution is that the victim was a minor on

the date of the offence. The medical examination of the victim was

conducted on 12.11.2010 by Dr. Alok Kumar, a Sr. Resident from DDU

Hospital (PW-4) who had proved the prosecutrix's MLC as Ex.PW-4/A.

The victim was referred to the Gynae department where she was

examined By Dr. Nakul Avasthy (PW-7); her medical examination

revealed that her hymen was absent. This report was proved as Ex.PW-

7/A. The scientific evidence adduced by the prosecution included the

CFSL report (Ex.PW-18/G); human semen was detected on the

underwear of the victim as also that of the appellant Surinder.

5 The statement of the accused persons was recorded separately

under Section 313 of the Cr.PC; both of them pleaded innocence. The

defence set up by Surinder was that he has been falsely implicated in the

present case as the victim was pressurizing him to marry her but he was

not inclined to do so. The defence of innocence was also adopted by the

second appellant.

6 In defence, two witnesses were examined. DW-1 was a witness

who had an adjoining shop, deposed that on the fateful day i.e. on

27.10.2010, he was in his shop and he had not seen appellant Surinder

bring any person to the adjoining shop. DW-2 was the Nodal Officer

from Tala Telecom Services. He had brought the record of three mobile

numbers i.e. 9278635722, 9210666765 and 9213449905 proved

collectively as Ex.DW-2/B to Ex.DW-2/H. The defence being that out

of these three mobiles, one belonged to Naresh Kumar, the father of the

victim and the other two belonged to Ram Kumar, the father of

appellant Surinder, from which continuous calls were exchanged

between the appellant and the victim evidencing that both of them used

to talk to one another and this was a voluntary act on the part of the

victim who wanted to join the company of the appellant; he was not

pressurizing her; she was an adult and fully conscious of what she was

doing; she wished to marry Surinder but this proposal was not

acceptable to Surinder which had led PW-6 to malign him in this false

case and that is also the reason why there is an unjustifiable delay of 15

days in lodging the present FIR.

7 On behalf of the prosecution, the learned Public Prosecutor points

out that the victim was a minor and this has been established by

unassailable evidence. She was being troubled by Surinder and appellant

Yogesh was in active connivance with his friend in this act. The

testimony of PW-6 on all quarters is un-impeachable. Her version has

been corroborated by the version of her parents i.e. PW-2 and PW-10 as

also the medical and scientific evidence. The conviction calls for no

interference.

8 On behalf of appellant Surinder, arguments have been addressed

by senior counsel Mr. K.K. Manan. On behalf of the second appellant

Yogesh, arguments have been addressed by counsel Mr. Rakesh

Wadhwa. The foremost submission of the learned counsel for the

appellant is that the testimony of PW-6 suffers from inherent

contradictions and no reliance can be placed upon her version. Attention

has been drawn to her statements under Sections 161 and 164 of the

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

no explanation as to why the date of the incident has not been disclosed

by the victim till date. The delay in lodging the FIR which, was after a

period of 15 days, is also wholly unjustifiable. It is difficult to believe

that the victim (as per her own version) was depressed and crying in this

intervening period of 15 days and was not accosted by her parents

earlier; she had also stopped going to school for the following 5-6 days;

this is a clear case of concoction where a deliberate attempt has been

made to falsely implicate the accused, Surinder as he was not ready to

marry the victim. Reliance has been placed upon (2007) 2 SCC 170

Ramdas and Others Vs. State of Maharashtra and 2012 (1) JCC 688

Ram Saran and Anr. Vs. State NCT of Delhi to support a submission that

where the information about commission of an offence suffers from an

inordinate delay, such a version is unacceptable. Reliance has also been

placed upon 2012 (3) JCC 1147 State Vs. Vicky and Others as also a

judgment of this Court reported as Virender Vs. The State of NCT of

Delhi in Crl. Appeal No.121/2008 to substantiate the argument that

contradictions in the version of the prosecutrix i.e. in her statement

recorded under Sections 161 and 164 of the Cr.PC and her version on

oath in Court have gaps and therefore cannot be relied upon to base the

conviction of the appellants. Submission being that such a testimony

would be unreliable. On the aspect of age, learned senior counsel for

appellant Surinder has placed reliance upon a judgment of the Apex

Court reported as State of Madhya Pradesh Vs. Anoop Singh in Crl.

Appeal No. 442/2010 to argue that the date of birth relied upon by the

prosecution is necessarily to be ignored as in terms of Rule 7 (3) of

Juvenile Justice (Care and Protection of Children) Rules, 2007, the first

and foremost piece of evidence is the matriculation or equivalent

certificate which should be made available, in the absence of which the

date of birth from the school first attended has to be obtained. The

evidence relied upon by the prosecution does not relate to date of birth

given by the first school attended by the victim. Attention has also been

drawn to the version of PW-6 wherein she has admitted that her brother

was elder to her by 1½ years; she had passed her 10th standard at the age

of 13½ ; submission being that it is difficult to believe that a person can

pass the 10th standard at the age of 13 plus. The evidence on this score is

fabricated. The victim was an adult. It has lastly been submitted that

there is no reason as to why Sarita and Aashima, close friends of the

victim and who had all along accompanied her have not been examined.

Dr. Dass who was the first local doctor who had examined the victim on

27.10.2010 has also not been arrayed as a witness. On all counts, the

version of the prosecution suffers from infirmities.

9 Arguments have been heard. Record has been perused.

10 PW-6, the prosecutrix is the star witness of the prosecution. She

had in detail described the incident in the manner in which it had

occurred. On oath, she has deposed that in July, 2010, at the time when

she was studying in the Government Girls Senior Secondary School,

accused Surinder used to follow her on his motorcycle. He wanted to be

friends with her but she refused the offer. In August, 2010, she was

again followed by Surinder who used to trouble her. PW-6 was

accompanied by her friends Sarita and Aashima. After about 15 days,

Surinder came on a motorcycle, PW-6 was alone at that time, he

snatched her phone and slapped her. Thereafter, 15 days prior to the date

of registration of the FIR, when PW-6 was returning home with her

friend Aashima, accused Surinder and Yogesh came on a motorcycle

and stopped her way. Surinder got down from the motorcycle and when

Aashima objected, he threatened her. PW-6 asked Aashima to go ahead.

Thereupon, Surinder forcibly lifted the victim on the motorcycle which

was being driven by Yogesh. He took her to a shop where he slapped

her three times, closed the door and committed rape upon her. The

music had been put on full volume. During the occurrence of this

incident, Yogesh also slapped her and he filmed the incident of rape

which was being committed upon her by Surinder. He also clicked

photographs of the same. Then Yogesh also beat her with a wooden

stick and both of the accused persons threatened PW6. She did not

disclose the incident to anyone as she was under pressure that her

obscene CD recorded by Yogesh would be revealed to her family and

friends. However, in the evening her father saw some injury marks on

her body and he took her to a local doctor. About 10-15 days after this

incident, PW-6 was found crying by her mother (PW-2) and upon her

persuasion, PW-6 narrated the incident to her who in turn informed her

father (PW-10).

11 The vehement submission of the learned counsel for the appellant

is that there are deep contradictions in the version of PW-6 on oath qua

her version recorded under Section 161 of the Cr.PC as also her

statement recorded under Section 164 of the Cr.PC. This submission is

unfounded and in fact the learned defence counsel has not been able to

bring out any such material contradiction which can detract from the

otherwise cogent and coherent testimony of the prosecutrix. Even in her

lengthy cross-examination, she stuck to her stand. Whether the Sim-card

was removed for the purposes of noting down the mobile number or not

or whether the prosecutrix did not categorically state that she did not

want to be friends with Surinder or whether Yogesh had beaten her with

a wooden stick or not, would not be material as, needless to state, that it

is the witness which has to be read in its entirety to determine its

strength. The wholesome reading of the version of PW-6 coupled with

her cross-examination as also her versions recorded before the Police

and the learned Metropolitan Magistrate clearly establish that these

insignificant discrepancies which have been pointed out by the learned

defence counsel are not material to the gist of the main offence i.e. the

offence of the unwilling act of rape having being committed by Surinder

upon the victim and which was filmed by his friend Yogesh.

12 In this context, the Apex Court in 1996 (20) ACR 220 (SC) State

of Punjab Vs. Gurmit Singh and Others had laid down certain guidelines

for evaluating the testimony of a rape victim. These observations read

herein as under:-

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating" statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence

and is found to be reliable."

13 The defence set up by the learned counsel for the appellant is the

heavy reliance upon Ex.DW-2/A to Ex. DW-2/H to evidence that phone

calls were exchanged between Surinder and the victim; this was

reflective of their friendship. In this context, PW-6 has admitted that at

the time of the incident, she was using the mobile number 9210666765.

This number, as per record, belongs to the father of the victim. PW-2,

the mother of the prosecutrix has also admitted that her daughter used to

carry the phone of her husband which was mobile number 9278635722.

The record of the third mobile number 9213449905 is also a part of the

Court record. This belongs to the father of the accused. A perusal of

Ex.DW-2/A to Ex. DW-2/H reflects that between 06.09.2010 up to

09.11.2010 calls were exchanged on these mobile numbers and the

learned defence counsel has drawn attention of the Court to the duration

which in some cases was as long as 10-15 minutes. Most of these calls

show that they had been made from mobile number 9213449905 (being

used by the accused) to the victim and although PW-2 had admitted that

outgoing calls were barred on the phone of her husband, those would

only relate to mobile number 9278635722 and not to the second mobile

number (9210666765) which was also being used by the victim. A

perusal of this documentary evidence (Ex.DW-2/A to Ex. DW-2/H)

reflects that in almost all calls were received by the victim; some calls

were even as short as a duration of 50 seconds, meaning thereby, that

the phone calls were made and then dropped. These were all consecutive

calls made one after the other leading this Court to believe that it was

probably the accused who was troubling the victim and was repeatedly

making calls on her number but she was not responding to them.

14 However, even otherwise accepting this submission of the learned

defence counsel that the parties were known to each other and the fact

that they were speaking on the phone sometimes for almost as long as

10-15 minutes which may point to a friendship but even then the consent

of the victim would not really be material as the evidence collected qua

the age of the victim shows that she was a minor. This has been cogently

established by the testimonies of PW-12, PW-15, PW-16 and PW-22.

They had produced the official records from their respective

departments. This was in addition to the oral statements of the parents of

the victim as also of the victim stating that she was less than 16 years of

age on the date of the offence.

15 PW-22, Kulbhushan Singh, office superintendent of Mata Kasturi

Devi Public School, Najafgarh had brought the summoned record

pertaining to the admission of the prosecutrix in class Vth on 11.04.2003.

The copy of the admission form reflected her date of birth as

29.11.1995. The affidavit (Ex.PW-22/B) filed by the father of the victim

had been brought on record. Admittedly this affidavit had been filed

much prior to the date of the incident and thus cannot in any manner

support the submission of the learned defence counsel that this could be

a fabricated document; the family of the victim was unaware that such

an incident was likely to occur; this document having seen the light of

the day much prior to the date of the incident appears to be a fully

authenticated document. PW-12, the Vice Principal of the Government

Girls Senior Secondary School, Jharodha Kalan had brought the

admission register of her school dated 03.07.2003 up to 25.07.2011

reflecting the date of birth of the victim as 29.11.1995. As per this

record, the victim had taken a readmission in class 11 th on 13.08.2009.

The entries in the relevant register have been proved as Ex.PW-12/A to

Ex.PW-12/C. PW-15 had also produced the record of Jharodha Kalan

Government Senior Secondary School reiterating the fact that the

admission register Ex.PW-15/A showed the date of birth of the victim as

29.11.1995. PW-16 was the Assistant Public Health Inspector,

Najafgarh Zone and as per his record (with the MCD), the date of birth

of the victim was 29.11.1995. Nothing has come up in the cross-

examination of any of these witnesses to detract from their testimonies.

Moreover, all these aforenoted witnesses have produced the official

record from their respective departments. There was no reason to

disbelieve them.

16 The judgment relied upon by the learned defence counsel, in this

context, is inapplicable. In this judgment of Anoop Singh (supra), the

Apex Court has in fact reiterated that to determine the age of a victim of

rape {to which Rule 12 (3) of the Juvenile Justice (Care and Protection

of Children) Rules is applicable}, the matriculation or equivalent

certificate, if available should be first obtained to be followed by the

date of birth from the school first attended and thereafter the birth

certificate issued by the Panchayat or Municipal Corporation. It is only

if these parameters are not fulfilled, may a Medical Board be constituted

to determine the age of the victim through an ossification test. The

record, as discussed supra, fulfills the criteria in the first category and

the trial Judge had thus rightly declined the ossification test to be carried

out of the victim, of which an application had been filed by the accused

belatedly. Even against the dismissal of the application, no appeal or

revision had been filed; therefore, that order has also become final.

17 The medical evidence also advances the version of the

prosecution. Ex.PW-7/A had reflected that the hymen of the victim was

absent.

18 The evidence discussed supra thus establishes that the victim has

passed this test on the anvil of being a 'sterling witness'. The

submission of the learned defence counsel that the victim and Surinder

shared a friendship is answered in the negative. PW-6 has described the

fact that Surinder was keen to be friends with the victim and he started

this in July, 2010 followed by his efforts again in August. The incident

is dated 15 days prior to the registration of the FIR i.e. around

27.10.2010. The detailed evidence of the victim establishes that inspite

of efforts made by Surinder to be friends with her, she was not keen on

this friendship and was all along declining his requests and warding him

off; his persuasion continued and this was probably the reason as to why

so many calls were exchanged by him on the mobile numbers of the

victim. The calls after 27.10.2010 reflects that they were half minute

calls repeatedly made by the accused to the victim; there were certain

calls made by the victim also to the accused but this is corroborative of

her version that she did not disclose this incident for 15 days to her

mother as she was under continuous threats by Surinder and Yogesh that

the nude filming that they had done of the victim would be revealed to

her family and friends.

19 This version of PW-6 (as noted supra) thus explains the delay in

registration of the FIR. Although the FIR being a first information

record must be filed as early as possible and this is to obviate the

possibility or probability of any suspicion that may be cast upon the

version of the complainant, but in this case, the victim has cogently

explained the reason why she did not disclose this incident prior in time.

20 The Supreme Court in this context in 2011 Crl. L.J. 2330 Ashok

Surajilal Ulke Vs. State of Maharashtra while dealing with an offence

of rape had noted herein as under:-

"We have considered the arguments of the learned Counsel. We are of the opinion that in a case of rape the fact that the FIR had been lodged after a little delay is of very little significance. There can be no doubt that an allegation of rape, and that too of a young child 15 years of age, is a matter of shame for the entire family and in many such cases the parents or even the prosecutrix are reluctant to go to the police to lodge a report and it is only when a situation particularly

unpleasant arises for the prosecutrix that an FIR is lodged." 21 Each case has to be viewed in its own factual matrix. The duration

of delay in this case thus loses its significance as the prosecutrix has

satisfactorily been able to explain this delay. The credibility of the

witnesses of the prosecution remains untarnished.

22 There is yet another aspect in the matter. There was no reason

whatsoever for the victim to have implicated the accused. Even

presuming that the defence of the accused, that the victim was

threatening him to marry her and he wanted to ward her off on this and

this being the reason why he has been falsely implicated, this defence

admittedly did not find mention in the cross-examination of the

witnesses of the prosecution. It emanated only for the first time in the

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

apart, even if this was the case, there was also no reason as to why the

co-accused Yogesh would have been implicated in case he had not

committed the crime.

23 The submission of the learned defence counsel for accused

Yogesh, that no recovery has been effected from him and his mobile

phone did not contain any material relating to the statement of the victim

that her nude photographs were taken on his mobile and filming of an

untoward incident was done, is answered by the fact that Yogesh was

not arrested till after about six months from the date of the incident. He

had surrendered in Court on 09.03.2011 and this was after the Court had

taken coercive steps against him i.e. by issuing Non Bailable Warrants.

In this intervening period, there was ample time with Yogesyh to have

get rid of the mobile record.

24 Non-examination of Sarita and Aashima, the friends of the victim

is answered by the statement of the victim corroborated by the

Investigating Officer that the complete addresses of Sarita and Aashima

were not known to the victim and that is why they could not be traced.

The submission of the learned defence counsel that the local doctor (Dr.

Dass) who had first examined the victim was also not examined is

answered by the fact that PW-10 (the father of the victim) had disclosed

the name of Dr. Dass only in the cross-examination and this did not find

mention in his statement made to the Police.

25 On all counts, the prosecution has been above to prove its case.

Appellant Surinder rightly convicted under Sections 376/366 of the IPC.

His friend Yogesh was the abettor of the offence and Section 109 of the

IPC which deals with an abetment, clearly states that an abettor is liable

for the same punishment which is inflicted upon the principal offender if

the act of abetment has been proved.

26 This Court notes that besides the fact that Surinder was

accompanied by Yogesh on the fateful day, even prior thereto, the

victim had stated that Surinder used to be in company of Yogesh. On

27.10.2010 while accused Yogesh was driving the motorcycle, Surinder

was the pillion rider and they both had forcibly made her sit on the

motorcycle from where she was taken to a room and rape was

committed upon her by Surinder. Yogesh was also present there. He had

filmed the incident on his mobile, and had also taken pictures on the

same. As per the victim, Yogesh had also beaten her with wooden stick

and had threatened her. The active participation of Yogesh is evident in

the crime.

27 The conviction of the appellants thus calls for no interference.

28 The sentence of Surinder is reduced from RI 10 years to RI 7

years which is the minimum sentence for a conviction under Section 376

of the IPC. The sentence of co-accused Yogesh remains unaltered.

29 The trial Judge while sentencing the accused persons had directed

that all the sentences were to run consecutively i.e. one after the other.

This is modified. The sentences of both the appellants will run

concurrently.

30     Appeals disposed of in the above terms.



                                              INDERMEET KAUR, J
JULY 10, 2015
A