Delhi High Court

Ram Chander vs State (Nct Of Delhi) on 22 July, 2015

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 2nd JULY, 2015
                                      DECIDED ON : 22nd JULY, 2015

+                        CRL.A. 1107/2011

      RAM CHANDER                                       ..... Appellant

                         Through :    Mr.Biswajit Kumar Patra,
                                      Advocate.


                         versus



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

                         Through :    Mr.Navin K.Jha, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 23.12.2010 of learned Addl.

Sessions Judge in Sessions Case No. 11/2008 arising out of FIR No.

111/2007 PS Gokalpuri, Delhi, by which the appellant - Ram Chander

was convicted under Sections 376(2)(g)/380/506 IPC, the instant appeal

has been preferred by him. By an order dated 06.01.2011, he was awarded

RI for ten years with fine ` 50,000/- under Section 376(2)(g) IPC; RI for

three years with fine ` 10,000/- under Section 380 IPC and RI for three

years with fine ` 5,000/- under Section 506 IPC. The substantive

sentences were to operate concurrently.

2. The prosecution case as set up in the charge-sheet was that on

15.02.2007 at about 11.00 a.m. at A-98, gali No.2, Bhagirathi Vihar,

Delhi, the appellant - Ram Chander @ Kanhaya along with his associate

Vashisht @ Thekedar (since PO) committed gang rape upon „X‟ (assumed

name) aged 28 years. They also committed theft of ` 28,000/-, ear-rings

and gold chain belonging to the complainant besides criminally

intimidating her. Police machinery was came into motion on receipt of an

information about a „quarrel‟ and Daily Diary (DD) No.6A (mark „4-A‟)

came into existence at PS Gokalpuri, Delhi at 11.18 hours. The

investigation was assigned to HC Chanderveer Singh who with Const.

Rambhaj went to the spot. The investigation was taken over by W/ ASI

Nirmala who lodged First Information Report after recording victim‟s

statement (Ex.PW-1/A). „X‟ was medically examined. Statements of

various witnesses conversant with the facts were recorded. Efforts were

made to locate the perpetrators of the crime. The appellant could be

arrested on 22.03.2007 whereas his associate Vashisht @ Thekedar

remained untraced and was finally declared Proclaimed Offender. Upon

completion of investigation, a charge-sheet was laid before the Court

against the appellant. The prosecution examined nine witnesses to

substantiate its case. In 313 Cr.P.C. statement, the appellant denied his

involvement in the crime and pleaded false implication without producing

any defence evidence. The trial resulted in his conviction as aforesaid.

Being aggrieved and dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have

examined the file. Appellant‟s counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell in grave

error to base conviction on the sole testimony of the prosecutrix without

any independent corroboration. Material discrepancies and contradictions

emerging in the statements of the prosecution witnesses were

conveniently ignored and overlooked by the Trial Court. No visible

injuries were found on X‟s body at the time of her medical examination.

Articles allegedly stolen from the house were not recovered. The appellant

was wrongly named in the FIR as „Kanhaya‟ whereas his real name is

Ram Chander. Admittedly, the appellant did not establish physical

relation with „X‟. There is no evidence if he participated or facilitated the

offence of rape by his associate Vashisht @ Thekedar in any manner. The

prosecution was unable to establish if the appellant shared common

intention with co-accused to commit rape. Learned Addl. Public

Prosecutor urged that no valid reasons prevail to disbelieve the prosecutrix

who was ravished by the appellant‟s associate in his presence.

4. The occurrence that took place on 15.02.2007 at around

11.00 a.m. was promptly reported to the police and Daily Diary (DD)

No.6A (mark „4-A‟) came into existence at PS Gokalpuri, Delhi at 11.18

hours. HC Chanderveer Singh with Const. Rambhaj immediately rushed

to the spot where „X‟ apprised them about commission of rape. PW-5 (HC

Chanderveer Singh), on getting information about commission of rape by

Vashisht @ Thekedar and Kanhaya, requested the Duty Officer to depute

senior officer. Subsequently, the investigation was undertaken by W/ASI

Nirmala who with SI Prakash Roy reached the spot. She recorded victim‟s

statement (Ex.PW-1/A) and sent rukka by making endorsement (Ex.PW-

4/A) over it at 04.15 P.M. Prior to that at 02.10 p.m. „X‟ was medically

examined at Guru Teg Bahadur Hospital, Shahdara vide MLC (Ex.PW-

8/A). In her statement (Ex.PW-1/A), „X‟ gave detailed account of the

incident and attributed specific role to the appellant and his associate in

the commission of crime. While appearing as PW-1, she proved the

version given initially to the police without any variation. In her

deposition before the Court, she disclosed that on 15.02.2007 at around

11.00 a.m. she was alone in the house as her husband was away to his

place of work. At that time, the appellant who lived on the third floor of

the house as „tenant‟ along with his associate Vashisht @ Thekedar, came;

tapped her door and enquired whereabouts of her husband. When she

apprised him that her husband was away at his work, he put the latch of

the door from outside. After a while, the appellant and his associate came

inside her room and put the latch of both the doors of the room. Vashisht

@ Thekedar removed her salwar. Attributing specific role, she disclosed

that the appellant caught hold of her; whereas Vashisht @ Thekedar

closed her mouth. The accused removed her ear-rings, chain and cash `

28,000/-. Vashisht @ Thekedar committed rape upon her in his presence.

The accused held her while Vashisht @ Thekedar put knife on her chest.

She could not raise alarm due to fear. Both of them tied her hands and

legs, put her on the bed and threatened to kill if she raised alarm. In the

cross-examination, she informed that she had three children and the eldest

one was aged about 11 years. Her two children used to go to school. She

fairly admitted that the appellant had not removed her jewellery forcibly.

She was tied with the clothes of her husband. She knew the appellant by

the name of Kanhaya.

5. On analysing the testimony of the prosecutrix in its entirety,

it reveals that material facts deposed in her examination-in-chief have

remained unchallenged and uncontroverted. The appellant did not deny

his presence inside X‟s room along with his associate at the relevant time.

No suggestion was put if co-accused Vashisht @ Thekedar had not

sexually assaulted the prosecutrix to his view. No ulterior motive was

assigned or attributed to the prosecutrix for falsely implicating the

appellant in the heinous crime. Nothing has emerged if there was any

previous animosity on any cause with the prosecutrix prompting her to

falsely implicate her neighbour. In the absence of prior ill-will or enmity,

the prosecutrix, a married lady, aged around 28 years, mother of three

children was not expected to level serious allegations of rape. No valid

reasons exist to disbelieve the statement of the prosecutrix, particularly

when she stood the lengthy cross-examination without any material

damage to the case of the prosecution. She is a victim of the crime. She

does not have a strong motive to falsely involve the appellant. Specific

role was attributed to the appellant and his associate in the crime. „X‟

assigned a definite role to Vashisht @ Thekedar whereby he alone

ravished her. She was fair enough to state that she was not sexually

assaulted by the appellant. She accused him of committing theft of her

jewellery, cash and other articles that time.

6. Undoubtedly, the appellant and his associate Vashisht @

Thekedar used to stay in a room on the third floor on the day of incident.

PW-2 (Roopwati), landlady, emphatically deposed that she had rented out

the room on the third floor to Ram Chander (the appellant) and Vashisht

@ Thekedar. She identified the appellant to be the individual who was

also known by the name of Kanhaya. In the cross-examination, she

elaborated that the accused was inducted as a tenant on 07.02.2007. In 313

Cr.P.C. statement, the appellant admitted that he and Vashisht @

Thekedar used to live as tenant on the third floor of the premises in

question. Earlier, the appellant had declined to have occupied any room as

a tenant. The appellant was missing from the tenanted accommodation

soon after the occurrence and could be arrested after a gap of about one

month on 22.03.2007 only. Various attempts were made by the police to

apprehend him at his place of work in Delhi and at his native place;

however, he was untraceable. The circumstance of abscondance soon after

the incident points an accusing finger against the appellant. He did not

explain or give any reason for abscondance for so long and for not going

to his place of work to earn his livelihood as usual. As observed above,

Vashisht @ Thekedar could not be found till date.

7. Soon after the incident, „X‟ was medically examined vide

MLC (Ex.PW-8/A) at Guru Teg Bahadur Hospital proved by PW-8

(Dr.Ria). MLC records the alleged history of rape at 11.00 a.m. FSL

report reveals that „human semen‟ was detected on Ex.„1‟ (Bed-sheet); Ex.

„3A‟ & „3B‟ (micro slides described as vaginal swab slides of the

prosecutrix); Ex. „5a‟ (kurta) and Ex. „5b‟ (salwar). Detection of „human

semen‟ on the bed-sheet and other pieces of clothes of the prosecutrix

lends-credence to her version that sexual intercourse had taken place. In

313 Cr.P.C. statement, the appellant did not deny physical relation by

Vashisht @ Thekedar with the prosecutrix. He merely stated that Vashisht

@ Thekedar, the real culprit succeeded to flee whereas he was falsely

implicated by the police.

8. The prosecution has produced clinching evidence to prove

that the appellant had accompanied his associate Vashisht @ Thekedar to

the residence of the prosecutrix at 11.00 a.m. where she was sexually

assaulted by Vashisht @ Thekedar. The appellant did not offer any

reasons as to why and for what purpose, he along with his associate had

gone inside the prosecutrix‟s residence in the absence of her husband

skipping his duty at his place of work. He also did not give any reason as

to what forced him to abandon his work for one month after the

occurrence when he went in hiding. Nothing has come on record to

ascertain as to where and at which particular place, the appellant stayed

during this period to avoid arrest. Appellant‟s name had emerged soon

after the incident in X‟s statement (Ex.PW-1/A). She was not even aware

of his real name as Ram Chander and referred him by the name of

Kanhaya. She identified him to be one of the perpetrators of the crime in

the Court. Minor discrepancies, contradictions and improvements

highlighted by the appellant‟s counsel are not material to throw away the

prosecution case overboard. „X‟ was not going to be benefitted in any

manner by levelling serious allegations of rape against the appellant and

his associate. Taking advantage of absence of her husband, the appellant

and his associate committed the crime when landlady living on the ground

floor had gone to her native village on 12.02.2007 to attend a marriage

function. Finding the prosecutrix alone, the appellant and his associate

Vashisht @ Thekedar not only sexually assaulted her but also deprived

her of valuable articles and cash. Adverse inference is to be drawn against

co-accused Vashisht @ Thekedar to avoid arrest to face criminal

proceedings initiated against him.

9. The prosecutrix has categorically alleged commission of rape

by Vashisht @ Thekedar in the presence of the appellant. She also

assigned specific role to the accused / appellant whereby he caught hold of

her and also tied her along with his associate. The appellant did not

intervene to prevent Vashisht @ Thekedar from establishing physical

relations with „X‟. Rather he facilitated him and removed her gold chain,

ear-rings and cash. Both the assailants had gained entry inside the house

after ensuring that „X‟ was alone in the house. They had apparently, no

reasonable excuse to visit „X‟ at that point of time when her husband and

children were away. After the crime, they both fled the spot together.

From the facts and circumstances of the case, common intention is

reflected by the participation of both the accused persons in the crime. All

these circumstances indicate beyond doubt that the appellant and Vashisht

@ Thekedar were acting in concert and shared common intention to

commit the crime. It is settled law that common intention or intention of

the individual concerned in furtherance of the common intention could be

proved either from direct evidence or by inference from the acts or

attending circumstances of the case and conduct of the parties. Direct

proof of common intention is seldom available and, therefore, such

intention can only be inferred from the circumstances appearing from the

proved facts of the case and the proved circumstances.

10. In cases of gang rape, it is not necessary that the prosecution

should adduce clinching proof of a completed act of rape by each one of

the accused on the victim. In „Ashok Kumar vs. State of Haryana‟, 2003

Cri.L.J. 4932, Supreme Court held :

"....In order to establish an offence under Section 376 (2)(g) IPC, read with Explanation I thereto, the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that she had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused. In other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention; that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action and it could arise and be formed suddenly, but, there must be meeting of minds. It is not enough to have the same intention independently of each of the offenders. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence".

11. In 313 Cr.P.C. statement, the appellant did not give plausible

reason for false implication. He attempted to divert the entire blame upon

his associate and stated that the real culprit i.e. Thekedar succeeded to

decamp the spot. He admitted that he was working with Thekedar for the

last 3 - 4 months before the incident. There is no denial that the appellant

did not live with co-accused Thekedar in the premises in question. No

evidence in defence was filed to falsify the incriminating circumstances

proved on record by the prosecution. He even did not bother to examine

any witness from his family to prove if during the relevant period, he was

present at his specific place of work.

12. Certain deficiencies and discrepancies pointed out by the

appellant‟s counsel are inconsequential to dislodge the prosecutrix‟ cogent