Sachin vs State (Govt. Of Nct) Of Delhi
2015 Latest Caselaw 2598 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      RESERVED ON : 18th MARCH, 2015
                                       DECIDED ON : 27th MARCH, 2015

+                            CRL.A. 185/2012
      SACHIN                                               ..... Appellant
                             Through :    Ms.Anu Narula, Advocate with
                                          Mr.Kunal Aurora, Advocate.

                             versus

      STATE (GOVT. OF NCT) OF DELHI            ..... Respondent
                    Through : Mr.Navin K.Jha, APP.

AND
+                 CRL.A. 838/2010
      KRISHAN KUMAR                          ..... Appellant
                  Through : Ms.Anu Narula, Advocate with
                            Mr.Kunal Aurora, Advocate.

                             versus

      STATE GOVT. OF NCT OF DELHI              ..... Respondent
                    Through : Mr.Navin K.Jha, APP.


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

S.P.GARG, J.

1. The appellants - Sachin (A-1) and Krishan Kumar (A-2)

impugn a judgment dated 05.10.2009 of learned Addl. Sessions Judge in

Sessions Case No.65/08 emanating from FIR No.212/08 PS Kashmiri

Gate, by which they were held guilty for committing offences punishable

under Sections 363/366A/34 IPC read with Section 376 (2)(g) IPC. By an

order dated 07.10.2009, they were sentenced to undergo RI for three years

with fine ` 100/- each under Sections 363/34 IPC; RI for five years with

fine ` 500/- each under Sections 366A/34 IPC and RI for ten years with

fine ` 500/- each under Section 376(2)(g) IPC. All the sentences were to

operate concurrently.

2. Briefly stated, the prosecution case as set up in the charge-

sheet was that on 21.07.2008 at around 01.30 P.M. at jhuggi near „Kura

Ghar‟, opposite Madras Road, Jamuna Bazar, the appellants in furtherance

of common intention kidnapped „X‟ (assumed name) aged 12 / 13 years

and sexually assaulted her. When one of the appellants was in the process

of committing rape upon „X‟, her brother Mohd.Irshad arrived at the spot

and apprehended him (A-1) then and there. The other individual (A-2)

succeeded to flee the spot. The occurrence was reported to the police

promptly. The Investigating Officer, after recording victim‟s statement

(Ex.PW-5/A), lodged First Information Report. „X‟ was medically

examined; she recorded her statement under Section 164 Cr.P.C. A-1 was

also taken for medical examination. Subsequently, A-2 was arrested and

application for conducting Test Identification Proceedings was moved but

he declined to participate. Statements of the witnesses conversant with

facts were recorded and after completion of investigation, a charge-sheet

was filed against both the appellants. The prosecution examined sixteen

witnesses to substantiate its case. In 313 Cr.P.C. statements, the appellants

denied their involvement in the crime and pleaded false implication due to

a previous quarrel with X‟s relatives. They did not examine any defence

witness. The trial resulted in their conviction as aforesaid. Feeling

aggrieved and dissatisfied, they have preferred the instant appeals.

3. Appellants‟ counsel vehemently urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error in relying upon the testimonies of interested witnesses

without independent corroboration. The Trial Court overlooked glaring

inconsistencies and contradictions in the testimonies of the prosecution

witnesses. She pointed out that there was no indication of forcible rape

upon the prosecutrix and no external injuries were found on her body.

Prosecution witnesses have given divergent and conflicting versions as to

when and where the occurrence took place. The prosecutrix has narrated

different versions in her statements recorded under Section 161 Cr.P.C.

before the police, 164 Cr.P.C. before the Metropolitan Magistrate and the

one given before the Court. From the MLC, it can be inferred that the

hymen was ruptured but the rupture was „old‟ indicating that „X‟ was

habituated to sexual intercourse. The prosecution was unable to furnish

cogent document to ascertain if „X‟ was below sixteen years of age. At the

most, it can be taken as a case of „sexual assault‟ and not „rape‟. Learned

Addl. Public Prosecutor urged that there are no sound reasons to

disbelieve the testimony of the minor prosecutrix. She has implicated the

appellants with certainty.

4. Admitted position is that A-1 was arrested from the spot. His

name finds mention in the victim‟s statement (Ex.PW-5/A) recorded soon

after the incident. The occurrence took place at around 01.30 P.M. Daily

Diary (DD) No.21-A (Ex.PW-14/A) was recorded at 13.57 hours at PS

Kashmiri Gate on getting intimation of the incident of rape near „Kura

Ghar‟, Nigam Bodh Ghat. The investigation was assigned to SI Ram

Singh who with Lady Const.Raj Rani rushed to the spot. „X‟ was taken for

medical examination at Aruna Asaf Ali Govt. Hospital at 03.45 P.M. In

the alleged history recorded therein (Ex.PW-4/B), there is mention of

commission of rape at about 02.00 P.M. behind Hanuman Mandir in

Jamuna Bazar. Rukka was sent promptly at 04.45 P.M. In her statement

(Ex.PW-5/A), the prosecutrix gave graphic detail of the incident and

named two individuals including A-1 to have committed rape turn by turn

upon her. She also identified the other assailant known as „Chavanni‟ who

fled the spot. Since the FIR was lodged quickly without any delay, there

was least possibility of the prosecutrix to fabricate a false story in such a

short interval. In her 164 Cr.P.C. statement (Ex.PW-13/A) also, she

attributed specific role to each of the appellants. She informed the learned

Metropolitan Magistrate that she was raped by two „unknown‟ boys when

she was in a state of semi-sleep after taking lunch. Both of them took her

to a jhuggi near „Kura Ghar‟, Jamuna Bazar and took turns to rape her.

Her brother Mohd. Irshad arrived at the spot per chance and caught hold

of one of the rapists whose name was ascertained Sachin (A-1).

Mohd.Irshad made a telephone call at 100. In her Court statement also she

identified with certainty both the appellants to be the perpetrators of the

crime. She deposed that when she was picking rags, near Hanuman

Mandir at about 02.00 P.M., two boys met her when she was going to

Hanuman Mandir to have food. The said two boys offered good food and

she accompanied them. They took her towards „Kura Ghar‟ where there

was a temporary shanty. She was raped by an individual while the other

stood outside to guard the spot. In the meantime, her brother Mohd.Irshad

came for her search and at that time, A-1 was committing rape upon her.

In the cross-examination, she denied herself to be a tutored witness. She

revealed that she used to go to Hanuman Mandir for food many a times.

The day of occurrence was Monday. She denied if there was enmity

between her brother and A-2. Apparently, no material discrepancies or

infirmities could be extracted in her cross-examination. Her version

throughout is consistent. No ulterior motive was assigned to her to falsely

implicated the appellants with whom she was not acquainted with before

the incident and did not nurture any ill-will. The appellants had enticed a

poor innocent girl aged about 12/ 13 years on the pretext to provide her

good food. Thereafter, they established physical relations with her against

her wishes. No sound reasons exist to suspect her testimony.

5. PW-7 (Mohd.Irshad) another crucial witness has

corroborated the testimony of the prosecutrix on all material and relevant

circumstances. The factum of his arrival at the spot is recorded in the

statement (Ex.PW-5/A) given to the police at the first instance. He also

deposed that when he arrived in Jamuna Bazar at Hanuman Mandir at

about 01.00 P.M. in search of her cousin „X‟ and enquired from two or

three persons about her, he was informed that a girl had gone with two

boys towards „Kura Ghar‟. When he reached there, he saw a boy having

sexual intercourse with „X‟ on a cot. He caught hold of the boy and

slapped him. A-1 was the individual identified by him who was caught red

handed. He also named another individual known „Chavanni‟ who fled the

spot. In the cross-examination, he stated to have reached Hanuman

Mandir between 01.30 P.M. to 02.00 P.M. He was unable to disclose as to

what type of clothes the appellants were wearing that time. He denied that

a quarrel had taken place between him and A-2 over parking of a Rehri.

Again, testimony of PW-7 (Mohd.Irshad) remained unchallenged on

material facts. A-1 did not deny his apprehension at the spot by him. No

suggestion was put by A-2 as to where else he was present at the time of

occurrence.

6. Ocular testimonies of PW-5 and PW-7 are in consonance

with medical evidence. PW-4 (Dr.Rajesh Prasad), CMO, Aruna Asaf Ali

Govt. Hospital, proved the MLC (Ex.PW-4/B). PW-16 (Dr.Alka Goel),

SR, Aruna Asaf Ali Govt. Hospital, deposed that on medical examination,

she found hymen ruptured; multiple pustular lesion present on vulva. She

disclosed in the cross-examination that hymen ruptured could have been

old or fresh as well. There is, thus, no conflict or variance between ocular

and medical evidence.

7. „X‟ categorically emphasized that sexual intercourse was

against her wishes. Nothing was suggested by the appellants in her cross-

examination if she was a consenting party. No such plea of consent was

taken. Under Section 114-A of the Evidence Act which was inserted by

way of amendment in the year 1988, there is a clear and specific provision

that where sexual intercourse by the accused is proved and the question is

whether it was without the consent of the woman alleged to have been

raped, and she states in her evidence before the Court that she did not

consent, the Court shall presume that she did not consent. In the instant

case there is complete denial of any such sexual act performed by the

appellants with the prosecutrix. In these circumstances, her age is of little

relevance. Nonetheless, the prosecutrix and her close relatives claimed

that she was of 12 / 13 years of age. Her ossification test was also

conducted to ascertain her age and as per ossification report, she was

between 12 - 14 years. Being a little girl, she was not expected even to

consent for sexual intercourse with both the appellants one by one during

day time. Absence of injuries on her private parts cannot be construed as

evidence of consent. The plea that „X‟ was habituated to sexual

intercourse is devoid of force. In „State of U.P. vs. Pappu @ Yunus &

Anr.‟, AIR 2005 SC 1248, it was held that even in a case where it is

shown that the girl is a girl of easy virtue or a girl habituated to sexual

intercourse it may not be a ground to absolve the accused from the charge

of rape. It has to be established that there was consent by her for that

particular occasion. Absence of injury on the prosecutrix may not be a

factor that leads the Court to absolve the accused.

8. Adverse inference is to be drawn against A-2 for not

participating in TIP Proceedings. Moreover, he was identified with

certainty in the Court by „X‟ and PW-7 during evidence. Certain

discrepancies, exaggerations, improvements and omissions on trivial

matters highlighted by appellants‟ counsel are not material to throw away

the prosecution evidence overboard. It is to be remembered that PW-5 „X‟

was an illiterate girl who earned her livelihood by picking rags from

roads. She was not expected to remember all the minute details of the

incident. She was, however, certain and clear that both the appellants had

established physical relations with her one by one against her wishes. She

has not deviated from her firm stand at any stage. Other discrepancies can

be overlooked safely. In „Dimple Gupta vs. Rajiv Gupta‟, 2008 (1) SCC

(Cri) 567, Supreme Court held that a person coming from altogether

different background and having no education may not be able to give a

precise account of the incident. However, that cannot be a ground to reject

his testimony. The Court observed that in a case like rape, "it is

impossible to lay down with precision the chain of events, more

particularly when illiterate villagers with no sense of time are involved".

9. It is significant to note that when charge was framed and it

was read over and explained to the appellants, A-1 pleaded guilty to it.

However, the Trial Court to get cogent evidence in this regard did not

accept the plea of guilt and proceeded to dispose of the case on merits.

Plea of guilt by A-1 lends credence to the statement of the prosecutrix and

confirms his participation in the crime.

10. The appellants did not give plausible explanation to the

incriminating circumstances proved against them. No worthwhile

evidence has appeared to infer if any quarrel had taken place on any

occasion between them and X‟s relatives prompting them to falsely

implicate them in this heinous offence. No particulars of such quarrel have

emerged on record. No complaint about any such quarrel was lodged with

the police. Moreover, for a petty quarrel (if any), the prosecutrix is not

imagined to level serious allegations against the appellants. Unless an

offence has really been committed, a little girl of 12 or 13 years would be

extremely reluctant to level such serious allegations which are likely to

reflect on her chastity. Apparently, she being a helpless, poor and hungry

girl was abused on the pretext to provide her food by the appellants to

satisfy their lust.

11. The Trial Court has dealt with all the relevant contentions

and the conclusion arrived at by it is based upon proper and fair

appreciation of the evidence. It needs no intervention.

12. In the light of above discussion, the appeals lack merits and

are dismissed. Trial Court record be sent back forthwith with the copy of

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

information.

(S.P.GARG) JUDGE MARCH 27, 2015 / tr