Delhi High Court
Chetan vs State on 16 July, 2015
Author: R. K. Gauba
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01.07.2015
Pronounced on: 16.07.2015
+ CRL.A. 28/2000
CHETAN ..... Appellant
Through: Mr. M.L. Yadav, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP for the
State.
+ CRL.A. 227/2000
TASLEEM ..... Appellant
Through: Mr. M.L. Yadav, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP for the
State.
+ CRL.A. 533/2002
ASHOK ..... Appellant
Through: Mr. Biswajit Kumar Patra, Adv.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K. GAUBA
R. K. GAUBA, J:
%
1. The three appellants were held guilty, as charged, for the offence of
gang rape punishable under Section 376(2)(g) of the Indian Penal Code
(IPC) statedly committed against the prosecutrix (PW-6) during 09:00
P.M. to 10:30 P.M. on 03.09.1997 in bus bearing registration no. DBP-
1735 on Outer Road, Mayur Vihar Phase-III, Near CRPF Camp within the
jurisdiction of Police Station Kalyan Puri ("the Police Station"), by
judgment dated 20.12.1999 of learned Addl. Sessions Judge, in Sessions
case no. 7/98, primarily on the basis of testimony of the first informant
(prosecutrix). By order dated 20.12.1999, they were sentenced to
imprisonment for life with fine of `10,000/- each, in default to further
undergo rigorous imprisonment for two years each, the fine if realized to
be paid to the victim (as compensation).
2. Through these appeals, the convicts challenge the judgment of the
learned trial court pleading innocence and false implication arguing mainly
that the word of PW-6 is not worthy of reliance and is not corroborated.
The State, on the other hand, defends the impugned judgment urging the
appeals to be dismissed.
3. It may be mentioned at this stage that in the narrative of the
prosecution case, involvement of another person, Ram Kumar son of Jai
Chand, resident of D-211, Munirka Village, Delhi had also come up. The
said Ram Kumar, as indeed appellant Chetan (Criminal Appeal no.
28/2000), accused no. 3 (A-3) in the trial court record, could not be
initially arrested. The investigation had been completed after arrest on
23.09.1997 of the other two viz. appellant Tasleem (Criminal Appeal no.
227/2000) and Ashok (Criminal Appeal no. 533/2002), accused no. 1 (A-
1) and accused no. 2 (A-2) respectively in the trial court record, and
charge-sheet submitted in their respect on 22.01.1998. A-3 was arrested
on 31.12.1997 whereupon the matter was further investigated and
supplementary charge-sheet in his respect submitted on 20.01.1998. Ram
Kumar, however, could not be arrested and after requisite processes had
been issued, he was eventually declared a Proclaimed Offender (PO).
4. The prosecutrix (PW-6), a woman aged about 25 years on the
relevant date, is a native of Nepal. The evidence on record reflects that she
was married even when she was a minor. She hardly ever lived with her
husband in Nepal, her husband having entered into a second marriage. She
had shifted residence to Delhi in search of a job and came to be employed
as a domestic servant in the house of a businessman in a locality of South
Delhi.
5. During trial, and at the time of hearing on the appeals, submissions
have been made that the prosecuturix had tried to conceal her marital
status. Reference in this regard was made particularly to certain
observations made by Dr. Sunita Vashisht (PW-5), Senior Resident of
Gynecology Department, SDN Hospital, Shahdara ("the hospital") in the
context of medical examination conducted on 04.09.1997 against MLC
(Ex.PW-2/A). Indeed, in the MLC, the name of the husband is not
indicated. The description of the prosecutrix in the said document reflects
name of the father. But then, it cannot be ignored that in her very first
statement (Ex.PW-6/A) which formed the basis of endorsement (Ex.PW-
17/A) recorded by ASI Udaibir Singh (PW-17), the Investigating Officer
(IO), leading to the registration of FIR (Ex.PW-3/A), the prosecutrix had
disclosed not only the name of her father but also that of her husband.
6. The material on record reflects, and there is no rebuttal, that the
appellant Chetan (A-3), resident of Mehrauli, was working for gain (tailor)
in the local market of the area of Delhi where the prosecutrix was living.
There is no reason to disbelieve the evidence of the prosecutrix also about
Ram Kumar (PO) being in the business of cassettes in a shop adjacent to
the shop of A-3 in the same market. A-3 in the course of his statement
under Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.)
admitted these facts to be correct.
7. Evidence to the effect that the prosecutrix was closely acquainted,
and was on friendly terms, with A-3 and Ram Kumar (PO) is admitted by
A-3 in his statement under Section 313 Cr.P.C. He went to the extent of
taking the position that the prosecutrix used to come to his tailoring shop
to get clothes stitched and had proposed that he should marry her to which
he was not agreeable. During the course of cross-examination of the
prosecutrix (PW-6), photographs Ex.PW-6/DA-1 to 8 were shown to her
and she admitted that the said photographs had been exposed when she had
visited a garden in the company of A-3 and Ram Kumar (PO). It may be
mentioned here that in six of these eight photographs, the prosecutrix is
shown to be posing for the photographs all alone. There is nothing in the
other two photographs, also depicting the male companion, to lead to the
inference of both being on any terms more than that of friends.
8. It is beyond the pale of any dispute that appellant Tasleem (A-1) and
Ashok (A-2) were employed on the relevant date (03.09.1997) as driver
and conductor (or helper) respectively by Avtar Singh (PW-4) in his bus
bearing registration no. DBP-1735. The evidence shows that the bus was
operating on stage-carriage route between Priya cinema and Noida with
NCERT falling en-route. A-1 would live during those days in Trilokpuri
and would park the bus at Sector - 34, Noida. The testimony of PW-4
Avtar Singh to this effect was not challenged and this part of the evidence
came to be admitted as correct during their respective statements under
Section 313 Cr.P.C. by A-1 and A-2.
9. It also must be noted at this stage that according to the version of the
prosecutrix (PW-3), as appearing in the FIR, Chetan (A-3) and Ram
Kumar (PO) had taken her into a bus, the driver and the conductor whereof
were acquaintances and friends of the former two, all four eventually
subjecting her to forcible sexual intercourse one after the other. It is clear
from her said version (PW-6/A) that she herself did not know the said
driver and conductor of the bus by name or otherwise.
10. It does appear that the prosecutrix had given the registration number
of the bus to the IO in the said first statement as "1753". It is the case of
the prosecution that the bus which was actually involved bears the
registration no. DBP-1735. Clearly, the description given by the
prosecutrix in the FIR was not correct and would not match the bus with
which A-1 and A-2 are connected under the employ of PW-4. But this
cannot be ground to absolve A-1 and A-2. According to the prosecution
case, the discrepancy in the description had come to the fore by
23.09.1997, in the course of investigation which had since been taken over
by S.I. Rakesh Kumar (PW-16), the second Investigating Officer (second
IO), inasmuch as A-2 had been arrested at Ashram Chowk on the pointing
out by PW-6 at a stage when he (A-2) was on duty in the bus bearing
registration no. DBP-1735 ("the bus"), with some other person at the
wheels.
11. According to the prosecution case, both A-3 and Ram Kumar (PO)
whose names and addresses had been given by the prosecutrix in the FIR
could not be immediately located and had made themselves unavailable.
The prosecution sought to prove the arrest of A-2 on 23.09.1997, after
personal search (vide Ex.PW-6/F) by PW-16 in the presence of PW-17 and
the prosecutrix through their respective testimony. According to the IO, it
was A-2 who had disclosed the identity of A-1 and led to his arrest from
his house in Trilokpuri which was effected after personal search (vide
Ex.PW-16/B) again on 23.09.1997 in the presence of PW-17.
12. After his arrest, while in judicial custody granted by the
Metropolitan Magistrate, during the course of investigation, A-1 had
engaged services of an advocate. On 24.09.1997, the very next day after
arrest, A-1 moved an application (Ex.P-X) through the said counsel before
the Metropolitan Magistrate stating that he was not the driver of bus
bearing number 1753 as mentioned by the prosecutrix and no precaution
had been taken to fix his identity. By the said application, he requested for
Test Identification Parade (TIP) to be arranged expressing his desire to
participate in such exercise. The application eventually came to be marked
for holding of TIP in respect of A-1 to Shri S.K. Sharma, Metropolitan
Magistrate (PW-10). The proceedings conducted in this regard on
24.10.1997 in Central Jail, Tihar by PW-10 (vide Ex.PW-10/D) were
proved by the judicial officer through his testimony which has remained
unchallenged. These proceedings show that the prosecutrix, in the course
of the said TIP (vide Ex.PW-10/E), positively identified A-1 as one of the
assailants who had participated in the crime of gang rape against her. The
prosecutrix PW-6 in the course of her testimony also deposed in this regard
and no attempt was made to discredit her in this context during her cross-
examination.
13. It is pertinent to note here that during his statement under Section
313 Cr.P.C., A-1 pleaded ignorance about the request for and conduct of
his TIP and rather took the position that the prosecutrix had come to him
being a friend of A-3, two or three days prior to the date of incident and
had requested his intervention for getting her marriage with A-3 settled at
which he had declined any role for himself for the reason it was their
personal matter.
14. The defence explained to above effect by A-1 indeed confirms not
only his friendship with A-3, as deposed by the prosecutrix but also the
capability of the prosecutrix to identify him. This puts pale the defence
argument of there being no connection between A-3 (and PO Ram Kumar)
on one hand and A-1 and A-2 on the other.
15. The sequence of events of the fateful evening/night (03.09.1997) as
narrated by the prosecutrix in the FIR, briefly noted, were that since she
wanted to leave for her native place in Nepal on 04.09.1997, she had
requested A-3 and Ram Kumar (PO), who were here acquaintances and
had accompanied them on the scooter driven by Ram Kumar (PO) at about
04:00 P.M. with A-3 sitting in the middle. The scooter had reached village
Ghazipur area at about 07:00 P.M. when the bus, the registration number
of which she recollected as "1753" later corrected as 1735, was found
stationary with passengers alighting. She stated that A-3 had alighted from
the scooter and had boarded the bus while she had continued as the pillion
rider on the scooter driven by Ram Kumar (PO) which followed the bus.
She stated that when the bus had reached near CRPF Camp, it was taken
by the driver into a dark area when Ram Kumar (PO) asked her to
accompany him into the bus as he wanted to meet his friends. She alleged
that inside the bus, the said four persons, A-1, A-2, A-3 and Ram Kumar
(PO) had consumed liquor and at the instance of the driver of the bus, she
was also forcibly made to consume liquor by Ram Kumar (PO) and the
driver. She stated that in the course of such indulgence in alcohol, the said
four persons had become flirtatious and started teasing her and forcibly
removed all her clothes disrobing her totally. She alleged that she was
then subjected to forcible sexual intercourse after being made to lie on the
bus seat, first by A-3, with the assistance of Ram Kumar (PO) (who was
holding her hands) and then by Ram Kumar (PO) himself with similar
assistance by A-3. She stated that she made an attempt to run out of the
bus on finding opportunity but was again brought back into the bus by all
the four persons giving her beatings. She alleged that thereafter the driver
and conductor of the bus also forced her into sexual intercourse.
According to her, she had lost consciousness and after regaining control,
she had found the four persons indulging in liquor consumption and on
opportunity coming her way, she jumped out of the bus, in nude state, to
run and hide herself in a dark pit. She stated that after some time, the four
assailants had left her behind, taking away the bus while she remained
hidden in the pit overnight. She told the IO that someone had given her a
sheet wrapping which over herself she had been able to come out in the
morning.
16. The first bit of information to the police came in the form of D.D.
entry no. 43-A, recorded at 04:30 A.M. on 04.09.1997, copy whereof was
brought on record of the trial court as Mark - „X‟. The D.D. entry was not
formally proved but its gist about presence of a girl near CRPF Camp finds
echo in the rukka Ex.PW-17/A and the deposition of PW-17 who was
accompanied at that time by Constable Kashmir Singh PW-26 and Lady
Constable Raj Kumari PW-14 (who had also been called for assistance in
due course). PW-17 and PW-9 had found the prosecutrix in a pit near the
aforementioned CRPF Camp without a stitch of clothes on her person, but
wrapped in a sheet.
17. Questions were raised during trial, as indeed during hearing on the
appeals as to what had happened to the clothes of the prosecutrix of which
she is stated to have been forcibly relieved before the gang rape and at
what stage and from what source she had had the benefit of a sheet for
covering herself. We would revert to the question of clothes of the
prosecutrix a little later. As regards the sheet, while the prosecutrix would
claim that it was made available to her by the police, there is no
confirmation in this regard coming forth from PW-9, PW-14 or PW-17.
Going by the attendant facts, it is clear that the pit where the prosecutrix
was found hiding is in close proximity to the CRPF Camp. Apparently,
her presence in nude state would have come to notice in the early morning
hours of someone who informed police telephonically leading to the D.D.
entry 43-A. Before PW-17 accompanied by PW-9 arrived, substantial time
had elapsed. Apparently, some good samaritan, possibly CRPF personnel
(also similarly uniformed), would have arranged a sheet to help the
prosecutrix cover herself.
18. It may be mentioned here that a lot of argument was raised about
non-seizure of the sheet by the IO during investigation. In our view, this
omission is of no consequence as the sheet was never used in the crime and
its seizure would not have made any difference. The evidence shows that
PW-14, the Lady Constable, who had been asked to join, had been
instructed by the IO to bring along some of her own clothes. She had,
accordingly, taken her own clothes from her house before reaching the spot
and the same had been given to the prosecutrix for immediate use before
she was escorted by PW-14 to the hospital for medical examination.
19. The IO and the prosecutrix together proved the facts relating to
recording of her statement (vide Ex.PW-6/A) on which endorsement was
made vide Ex.PW-17/A which led to registration of the FIR Ex.PW-3/A by
Head Constable Kuldeep Singh (PW-3) on the basis of rukka brought by
PW-9 at 09:45 A.M.
20. When the prosecutrix PW-6 was brought to the hospital at 07:10
A.M. on 04.09.1997 under the escort of Lady Constable Raj Kumari (PW-
14), she was medically examined by Dr. T. Mishra (PW-2) and Dr. Sunita
Vashisht (PW-5). The Medico Local Report (MLC) prepared by PW-2 has
been proved by her as Ex.PW-2/A while PW-5 has proved her own notes
Ex.PW-5/A on the same document. In the opinion of PW-2, who had
examined the prosecutrix first before she was referred to PW-5, the general
condition of prosecutrix was fair and she had no external injuries. This
was confirmed by PW-5 in her notes though she particularly deposed, inter
alia, about the hymen being ruptured and linear laceration of 2 cm present
at 6 o‟clock position on perineum indicative of force having been used in
sexual intercourse with her.
21. PW-5 was subjected to cross-examination by the defence in an
attempt to bring out that such laceration as noted by the medical officer
could possibly be suffered during intercourse indulged in "willingly" with
more than one person. Question of marital status of the prosecutrix also
came to be raised in this context. It appears that PW-5 proceeded on the
assumption that the prosecutrix was an unmarried girl, for the reason that
the name of the husband is not indicated in the MLC. Given the nature of
the form used for preparing the MLC (where there is no column for the
name of the husband to be ascertained or recorded) and the state in which
the prosecutrix would have been brought to the hospital for medical
examination, in our view, it cannot be said that the prosecutrix would have
concealed the factum of her marriage from the examining lady medical
doctors. The prosecutrix had no reason to withhold such fact. Apparently,
she had no desire to conceal her marital status since she had mentioned it
on her own to the IO earlier when her statement Ex.PW-6/A had been
recorded at the place where she had been discovered.
22. In our opinion, nothing turns on the opinion of PW-5 except that the
laceration of 2 cm present at 6 o‟clock position on perineum is proved.
What is important in the testimony of PW-5 is the observation that this
laceration was indicative of use of "force". This corroborates and affirms
the prosecutrix‟s deposition and the charge of gang rape.
23. During medical examination of PW-6, vaginal smear/slide had been
prepared. This was passed on by the medical officer to the IO through
PW-14 and was subjected to formal seizure (vide Ex.PW-14/A). After
their arrest, A-1 and A-2 had also been taken for their respective medical
examinations. Dr. M.K. Mandal, Chief Medical Officer (PW-1), who
examined both the said accused in the hospital, had prepared MLCs in
respect of A-1 and A-2 vide Ex.PW-1/B and Ex.PW-1/A respectively. The
MLCs confirm capability of both the said accused to indulge in sexual
intercourse. There is no denial of the said fact by the said accused at any
stage. The MLCs also show that the examining medical officer had
collected blood samples of both A-1 and A-2 which were also passed on to
the IO. It is pertinent to note here that the MLCs further disclose that both
A-1 and A-2, when asked to do so by the examining medical officer, had
refused to give the samples of their respective semen. The prosecution
seeks to use this fact to press for an adverse inference.
24. It has been the case of the investigating police that at the time of
arrest of A-2 from the bus at Ashram Chowk on 23.09.1997, the bus (DBP-
1735) was seized (vide Ex.PW-6/C) in the presence of the prosecutrix. As
noted earlier, there had been a mis-description of the bus number in the
FIR. The IO seized the number plate (Ex.P-3) of the bus in which A-1 and
A-2 were engaged as crew vide separate proceedings drawn (Ex.PW-6/D).
It has been the deposition of PW-17, PW-16 and Head Constable Jagbir
Singh (PW-7) that after the seizure of the bus when its toolbox was
checked, it was found to contain a polythene parcel which, on being
opened, revealed its contents to include two articles of girls clothing (Ex.P-
1 and Ex.P-2) which were identified by the prosecutrix (PW-6) to be the
clothes which had been removed from her person inside the bus before the
sexual assault. The prosecutrix identified the said wearing apparels
(Salwar Ex.P-1 and Kurta Ex.P-2) during her statement.
25. Given the sequence of events narrated by PW-6, it is possible that
after the incident her clothes may have gone away with the bus inasmuch
as she had been disrobed inside the bus. But then, PW-14, the Lady
Constable, who had been called to the scene by the IO for assistance, in her
cross-examination, testified that she had picked up the clothes of the
prosecutrix from the spot which, in that event, would have been carried
along by the IO as pieces of evidence. PW-14 confirms, at the same time,
that the said clothes picked up by her from the spot, were not sealed in her
presence.
26. Taking note of the above-noted part of deposition of PW-14 and
observing that it was improbable for said accused to be moving around
with such incriminating evidence, the learned trial court judge disbelieved
the case of the police about the recovery of Ex.P-1 and Ex.P-2 from the
toolbox of the bus on 23.09.1997. Since the view taken by the learned trial
court on this issue is based on sound reasoning, we defer to it and would
exclude from consideration the evidence to such extent, also for the reason
that the said article of clothing did not provide any corroboration inasmuch
as no biological samples connecting the appellants with the crime could be
detected thereupon. The FSL report (PX) is of no consequence as the
blood samples preserved during the medical examination of A-1 and A-2
were found to be putrefied and hence, leading to no definitive opinion.
27. It is the argument of the learned counsel for all the three appellants
that learned trial judge fell into error by believing the word of PW-6. It is
their submission that PW-6 is not worthy of reliance and her testimony
ought not be acted upon in absence of independent corroboration. In an
attempt to impeach her credibility, questions were raised about her
character and it was argued that this witness has been giving contradictory
versions at different stages. Reliance is placed on the judgment in the case
reported as Rai Sandeep @ Deepu v. State of NCT of Delhi (2012) 8 SCC
21 and the judgment of another Division Bench of this court in Criminal
Appeal No. 660/1999 Rohit Bansal v. State (decided on 29.05.1995) also a
case of gang rape.
28. The defence particularly relies upon the following observations in
Rai Sandeep @ Deepu (supra):
"To test the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What
would be more relevant would be the consistency of the
statement right from the starting point till the end, namely, at
the time when the witness makes the initial statement and
ultimately before the Court. It should be natural and
consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the
cross-examination of any length and strenuous it may be and
under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as,
the sequence of it. Such a version should have co-relation
with each and everyone of other supporting material such as
the recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of
every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence
where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests
to be applied, it can be held that such a witness can be called
as a 'sterling witness' whose version can be accepted by the
Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the other
supporting materials for holding the offender guilty of the
charge alleged."
29. It was pointed out that in Rohit Bansal (supra), the court had
disbelieved the testimony of the prosecutrix for the reason it did not pass
the muster of the test of high quality and caliber.
30. In above context, we would also like to bear in mind the law on the
subject of appreciation of the evidence of a prosecutrix in the case of
sexual assault, summarized by the Supreme Court in the case reported as
Narender Kumar v. State (NCT of Delhi) 2012 (7) SCC 171 in the
following words:
"It is a settled legal proposition that once the statement of
prosecutrix inspires confidence and is accepted by the Court
as such, conviction can be based only on the solitary evidence
of the prosecutrix and no corroboration would be required
unless there are compelling reasons which necessitate the
court for corroboration of her statement. Corroboration of
testimony of the prosecutrix is a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. Minor
contradictions or insignificant discrepancies should not be
ground for throwing out an otherwise reliable prosecution
case. A prosecutrix complaining of having been a victim of
the offence of rape is not an accomplice after the crime. Her
testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high
degree of probability having been shown to exist in view of
the subject matter being a criminal charge. However, if the
court finds it difficult to accept the version of the prosecutrix
on its face value, it may search for evidence, direct or
substantial, which may lend assurance to her testimony.
(Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P.
and Anr.: AIR 2003 SC 818; and Vishnu v. State of
Maharashtra: AIR 2006 SC 508)."
31. The quoted observations of the Supreme Court are reiteration of
what has been the consistent view of the Courts in India on the subject of
evidentiary value of the testimony of prosecutrix, to understand the logic
for which reference to the following observations (in para 7 of the
judgment) in State of Punjab v. Gurmit Singh AIR 1996 SC 1393 would
suffice:-
"The testimony of victim in cases of sexual offences 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. Seeking
corroboration of her statement before relying upon the same,
as a rule, in such cases amounts to adding insult to injury.
Why should the evidence of girl or a woman who complains of
rape or sexual molestation, be viewed with doubt, disbelief or
suspicion? The Court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is
interested in the outcome of the charge leveled by her, but
there is no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost at par with the
evidence of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury in
the occurrence, which is not found to be self inflicted, is
considered to be a good witness in the sense that he is least
likely to shield the real culprit, the evidence of a victim of a
sexual offence is entitled to great weight, absence of
corroboration notwithstanding. Corroborative evidence is
not an imperative component of judicial credence in every
case of rape. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. It must not be overlooked that a woman or a
girl subjected to sexual assault is not an accomplice to the
crime but is a victim of another person's lust and it is
improper and undesirable to test her evidence with a certain
amount of suspicion, treating her as if she were an
accomplice. Inferences have to be drawn from a given set of
facts and circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of law
is introduced through a new form of testimonial tyranny
making justice a casualty. Courts cannot cling to a fossil
formula and insist upon corroboration even if, taken as a
whole, the case spoken of by the victim of sex crime strikes the
judicial mind as probable."
32. It is the argument of the appellants that the prosexutrix has been a
woman of easy virtue. In an attempt to persuade us to proceed on this
assumption, it was pointed out on their behalf that the prosecutrix has
admitted in her testimony that she was frequently going out with A-3 and
Ram Kumar (PO) and even getting herself photographed in their company
in public gardens. It was argued that no girl of such status and background
would ordinarily agree to accompany a person with whom she had no
relation for a drive out on a public road in the late evening hours. It was
submitted that the prosecutrix had admitted that she had accompanied her
employer out of Delhi to places like Bombay where his wife lives or even
abroad (Holland and Moscow) on his official or family trips. The
prosecutrix was confronted in the course of her cross-examination with
photograph Ex.DA-9 which admittedly depicts her employer sitting at his
office desk without a shirt. The learned counsel for the appellants argued
that the above-noted admissions and the photographs conjointly are
suggestive of illicit relationship between the prosecutrix and her employer.
The counsel further submitted that the prosecutrix had been insisting upon
A-3 to marry her and had even sought the intervention of A-1 in this
regard. It was argued that the defence to this effect taken by the appellant
cannot be lightly brushed aside.
33. We find no substance in the above submissions. We rather find the
innuendos respecting the character of the prosecutrix adding insult to the
injury.
34. We accept the word of PW-6 that her employer used to treat her as
his daughter. The photograph showing the elderly employer of PW-2
without a shirt at his office desk is of no relevance. It is not clarified how
it was sourced. The prosecutrix cannot be made accountable for any
explanation in its respect. She is not in the frame. Non-examination of the
employer leads the defence nowhere. The employer would not be privy to
any of the events which are subject matter of this case. The prosecutrix
referred to the family of the employer also being part of the scene where
she was working. It is wholly unfair to the prosecutrix to attempt draw
from such circumstances any such connections as have been urged.
35. The prosecutrix, on her part, has given good explanation by
deposing that she treated A-3 as a brother. No attempt was made to
impeach her testimony to such effect. If she was living alone in Delhi, far
away from her native place in Nepal and was treating A-3 and Ram Kumar
(PO) as friends or brothers, insalubrious insinuations are unworthy and
unacceptable. There is no evidence adduced by the appellants as to the
alleged desire of the prosecutrix or her proposal to A-3 for marriage. Mere
assertion by A-3 or A-1 cannot be given any credence.
36. The argument that the fact that prosecutrix willingly sat and moved
on the scooter with A-3 and Ram Kumar (PO) is indicative of her consent
needs only to be mentioned to be rejected. She may have as a friend
consented for a joyride. But, this cannot be stretched to allege consent for
sexual intercourse with either A-3 or Ram Kumar (PO), or for that
matter, any of their friends to her total strangers, individually or
collectively. The facts speak and are glaring.
37. It was then argued that though prosecutrix claims to have been
beaten up at several stages of the incident, the MLC is not supportive of
her claim to such effect. We reject this argument for the reason that no
weapon, blunt or otherwise, is stated to have been used in such physical
assault. The beatings, thus, would have been restricted to fists or slap
blows, or force used to overpower her. Such assault committed on her
person till about 20:30 hours on the previous night may not have left any
tell-tale signs for the medical officer to note or record at the stage of
medical examination at 07:10 hours on 04.09.1997.
38. During the course of investigation, the prosecutrix was brought
before PW-10 (Metropolitan Magistrate) for her statement under Section
164 Cr.P.C. PW-10 proved the proceedings in this regard vide Ex.PW-
10/A. Statement Ex.PW-6/B forms part of the said proceedings which was
also affirmed by the prosecutrix in her deposition. The learned counsel for
the appellants submitted that the said statement does not jell with the
version of the prosecutrix either in the FIR (Ex.PW-6/A) or the testimony
given in the court.
39. We find the above criticism on the basis of statement under Section
164 Cr.P.C. to be impressible. The proceedings recorded by PW-10 under
Section 164 Cr.P.C. do appear to us rather cryptic. What has been
recorded under Section 164 Cr.P.C. by the Magistrate is only a
summarized version of the events constituting the incident. The said
proceedings indeed are in the nature of previous statement of PW-6. In
terms of Section 145 of the Evidence Act, the defence was entitled to
cross-examine PW-6 with reference to such previous statement. But if it
intended to contradict her on its touchstone, it was required to confront her
by drawing her attention to such parts of the previous statement as were
indicative of contradictions or discrepancies vis-à-vis the version in the
court. No such attempt was made during cross-examination of PW-6 for
impeaching her creditworthiness on the basis of Ex.PW-6/B. The
argument raised during appeal, thus, must be repelled. It would be
incorrect to urge that the statement under Section 164 Cr.P.C. contradicts
assertions and the charge of rape.
40. Learned counsel for the appellants also submitted that the
investigation has been casual. They argued that the Investigating Officer
has not shown in the site plan (Ex.PW-17/B) the location of the pit where
the prosecutrix had been found hiding. It was argued that though CRPF
Camp is located nearby, no official from the said Camp had been joined in
the investigation. It was submitted that the seats of the bus were neither
seized nor any corroborative evidence lifted therefrom. As per the
argument of the defence, the omission of the IO to take the appellants,
after arrest, for pointing out the place of occurrence, is a circumstance
adverse to the case of prosecution.
41. We reject the above contentions. It is true that location of the pit in
the site plan Ex.PW-17/A would have made the said document more
graphic. But the area, as described, would have a number of pits. The fact
that prosecutrix was discovered in hiding in a pit is borne out from other
evidence on record. Absence of reference thereto in the site plan, thus,
cannot discredit the word of the relevant witnesses on this score. It is
nobody‟s case that a CRPF official had seen anything connected with the
crime. Non-joining of CRPF personnel, thus, is inconsequential. The
crime had occurred on 03.09.1997. The bus apparently had continued to
be in use for public service thereafter till it was impounded on 23.09.1997.
Apparently, no evidence would have come up even if its seats had been
taken off and seized. We find the argument about the omission to take the
arrested persons for pointing out the place of occurrence to be ignoring the
basic provisions contained in Sections 25 to 27 of the Evidence Act. Such
steps, even if taken during investigation by the IO, would be inadmissible.
42. We have gone through the testimony of the prosecutrix carefully.
She narrated the sequence of events that had occurred and the role of each
of the three appellants clearly and precisely. She may have mixed up,
while narrating the incident at different stages of the legal process, the
order in which the four persons subjected her to sexual assault. This, to
our mind, cannot be a circumstance rendering her testimony doubtful. A
woman, who suffered such sexual assault, particularly in a case of gang
rape involving four perpetrators, is not expected to narrate the incident
parrot-like. Small imperfections or variations, as appearing, are natural.
Absence of external injuries or failure to detect semen in the vaginal swab
cannot render her word incredible. [Parminder @ Ladka Pola v. State of
Delhi JT 2014 (2) SC 306; Radhakrishna Nagesh v. State of A.P. JT 2012
(12) SC 616; and, State of U.P. v. Chhoteylal JT 2011 (1) SC 228]
43. It is well-settled that ocular evidence of the prosecutrix would hold
supremacy over medical evidence even if the latter rules out all
possibilities of injuries taking place in the manner stated by the witness
[Radhakrishna Nagesh (supra)] As noticed earlier, in the case at hand,
medical opinion confirms use of force against PW-6 at the time of sexual
assault. The said observation of the medical officer, who examined her,
provides corroboration to the word of the prosecutrix.
44. We find the evidence of the prosecution in general and that of PW-6
in particular inspiring confidence and worthy of reliance. The sole
testimony of PW-6 is sufficient in the case at hand to lead to the
conclusions and findings recorded by the learned trial court judge. We
find no infirmity in the reasoning set out in the impugned judgment. Thus,
the findings recorded by the learned Addl. Sessions Judge and the
conviction of the three appellants are upheld.
45. It was submitted on behalf of the three appellants that they are now
in middle age with families/children to support. It was submitted on behalf
of A-1 that his wife has deserted him and his small children totally depend
on him. The counsel also submitted that the appellants were enlarged on
bail pending hearing on appeals and that they have not been involved in
any criminal activity thereafter. The counsel, thus, urged for leniency in
sentence.
46. The offence of gang rape is serious and grave crime. The manner in
which the prosecutrix was trapped and subjected to sexual assault by the
appellants and their fourth accomplice reflects gross depravity. In a case
where an acquaintance exposes the victim to a situation that leads to she
being subjected to rape or gang rape, as in the case at hand, there is also an
added element of breach of trust. In such cases as reach the logical
conclusion of the perpetrator(s) being found guilty after the judicial
scrutiny, there can be no scope for leniency in the matter of punishment.
47. The penal code, through the provision contained in Section
376(2)(g), prescribes the punishment that could extend to imprisonment for
life with fine. The said punishment has been awarded, and befittingly so in
our opinion, by the learned trial judge in the case at hand. We find no
reason to interfere.
48. The appeals are, thus, dismissed. The appellants are directed to
surrender to custody forthwith to undergo the sentence awarded against
each of them in the impugned judgment and order. The learned trial judge
(successor judge) and the Station House Officer of Police Station Kalyan
Puri are directed to take necessary steps to ensure due compliance.
R.K.GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
JULY 16, 2015
ik
