Sanjay Kumar vs State (Govt. Of Nct Of Delhi)
2015 Latest Caselaw 8432 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : 19th OCTOBER, 2015
                        DECIDED ON : 6th NOVEMBER, 2015

+                        CRL.A.914/2006

      SANJAY KUMAR                                       ..... Appellant

                         Through :    Mr.Krishan Kumar, Advocate with
                                      Ms.Sunita Arora, Advocate.


                         VERSUS

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

                         Through :    Mr.Amit Ahlawat, APP.


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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 12.09.2006 of

learned Addl. Sessions Judge in Sessions Case No.181/2006 arising out of

FIR No.191/03 by which the appellant - Sanjay Kumar was convicted for

committing offences punishable under Sections 376/448 IPC. By an order

dated 21.09.2006, he was sentenced to undergo RI for seven years with

fine `1,000/- under Section 376 IPC and RI for six months with fine `500

under Section 448 IPC. Both the sentences were to operate concurrently.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 25.02.2003 at 02.00 pm after committing house

trespass at D4/363, Sultanpuri, the appellant committed rape upon the

prosecutrix 'X' (assumed name) aged around 27 years. She was criminally

intimidated and robbed of her jewellery articles and cash `9,000/-. Police

machinery came into motion on receiving information about the incident

at 02.55 pm on 25.02.2003 and DD No.58B (Ex.PW-7/A) came into

existence at PS Sultanpuri. The investigation was assigned to ASI Kaptan

Singh who with Const.Parminder went to the spot. After recording

victim's statement (PW-8/A), he lodged First Information Report. The

prosecutrix was medically examined; she recorded her 164 Cr.P.C.

statement. The accused was arrested and taken for medical examination.

Statements of the witnesses conversant with the facts were recorded.

Exhibits collected during investigation were sent for examination to

Forensic Science Laboratory. Upon completion of investigation, a charge-

sheet was filed against the appellant for offences under Sections

323/376/380/506/397/452 IPC. By an order dated 07.02.2004, the

appellant was charged for committing offences under Sections

448/377/376/323/380/506 part-II IPC to which he pleaded not guilty and

claimed trial. To establish its case, prosecution examined fifteen

witnesses. In 313 Cr.P.C. statement, the appellant pleaded false

implication and denied complicity in the crime. He did not produce any

evidence in defence. On appreciation of the evidence and after

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment held the appellant guilty for committing offence

under Sections 376/448 IPC. It is apt to note that the appellant was

acquitted of the charges under Sections 380/506 part-II/ 377 IPC. State did

not challenge the said acquittal.

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

examined the file. Admitted position is that the prosecutrix and the

appellant were acquainted with each other prior to the incident. The rented

premises where the prosecutrix lived were arranged by him and he had

stood guarantor. The appellant had visiting terms at X's residence.

Throughout, the appellant's defence was that physical relations with the

prosecutrix that day were consensual. He contended that his false

implication at Jai Singh's behest to extract money from him. Specific

suggestions were put to the prosecutrix in the cross-examination that

physical relations with the appellant were with her consent. It was further

suggested that the said relationship was established to implicate him at the

instance of Jai Singh. It was heavily for the appellant to establish that

physical relations with the prosecutrix on that day were with her free

consent. He, however, did not examine any witness in defence to prove

his assertion. Nothing has come on record to show if Jai Singh nurtured

any grievance or enmity against the appellant to falsely implicate him. As

observed above, relationship between the appellant and the prosecutrix

was cordial prior to the incident and as per the appellant's own assertion,

he had established physical relations with her many times before that also.

Under these circumstances, the prosecutrix having no animosity was not

expected to level false allegations of rape against the appellant at Jai

Singh's behest. Nothing has come on record to show if the alleged rape

incident was ever en-cashed by the prosecutrix or she demanded any

money consideration to favour the appellant. She categorically stated that

the appellant and her brother had threatened her of dire consequences and

asked her to turn hostile.

4. The occurrence took place at around 02.00 pm on

25.02.2003. The prosecutrix herself made telephone call at 100 without

any delay at 02.55 pm and DD No.58B (Ex.PW-7/A) came into existence.

In the information conveyed to the police, it was specifically mentioned

that she was sexually abused. Soon after arrival of the police, her

statement (Ex.PW-8/A) was recorded and the Investigating Officer sent

Rukka (Ex.PW-14/A) at 08.45 pm to lodge the FIR. In the complaint, the

prosecutrix named the appellant for committing rape upon her. She gave

detailed account as to how and under what circumstances, after gaining

entry inside her room, the appellant not only ravished her but also

criminally intimidated her and deprived her of gold ornaments and cash.

The prosecutrix was taken for medical examination at around 05.50 pm at

Sanjay Gandhi Memorial Hospital, Mangolpuri. Multiple scratch marks

over chest and abrasions over left forearm were found on her body. PW-1

(Dr.Sweety Bansal) proved the MLC (Ex.PW-1/A) and testified that the

patient had complained of bleeding and pain in lower abdomen. Slight

bleeding could be seen per vagina. The appellant failed to explain as to

how the prosecutrix who had allegedly made physical relations with

consent, suffer multiple scratch marks over her chest. It shows that some

resistance was offered by the prosecutrix at the time of commission of the

crime.

5. The prosecutrix is consistent throughout. In her 164 Cr.P.C.

statement (Ex.PW-12/B) recorded on 21.04.2003 she was categorical and

definite to inform about commission of rape upon her by the appellant. In

her Court statement, she proved the version given before the police and

the Court without major variations. She testified that at around 02.00 pm

that day, when she was sleeping in her house and her daughter had gone

outside to purchase eatables, the accused who was known to her before

the incident entered inside the house. The accused bolted the door from

inside and when she enquired about it, he asked her to keep quiet and

pressed her mouth with his hand. Thereafter, he directed her to take off

her clothes. When she resisted unsuccessfully, he tore her clothes and put

his male organ in her mouth and committed carnal intercourse. Thereafter,

she was raped by the appellant. She identified clothes Ex.P-1 (salwar),

Ex.P-2 (kameej) and Ex.P-3 (underwear) which she was wearing at the

time of occurrence. Clothes Ex.P-4 (T-shirt), Ex.P-5 (trouser) and Ex.P-6

(underwear) were also identified by her which the appellant was wearing

at the time of incident. She was cross-examined at great length on various

dates. All sorts of questions, relevant or irrelevant, were asked from her.

She specifically denied if physical relations with the appellant were with

her free consent. She answered all the queries of the appellant intelligently

and no material discrepancies or infirmities could be extracted in her

lengthy cross-examination. No ulterior motive was assigned to the

prosecutrix to level serious allegations of rape against the appellant with

whom she had familiarity long before. No sound reasons exist to

disbelieve or discredit the testimony of the prosecutrix.

6. It is true that certain discrepancies and improvements have

emerged in the statement of the prosecutrix before the Court. The Trial

Court has noted this aspect and has given benefit of doubt to the accused

on that account. For certain exaggerations made by the prosecutrix in her

Court deposition, her entire testimony cannot be thrown overboard. The

crux remains that physical relations were established on the date and time

stated by the prosecutrix in her house. It is so admitted by the appellant.

The burden to prove that the physical relationship was with the

prosecutrix's free consent was upon the appellant which he has failed to

discharge. There were no compelling reasons for the prosecutrix to put the

police machinery into motion soon after the occurrence, had she been a

consenting and willing party. Medical evidence corroborates her version

about forcible rape. The maxim falsus in uno falsus in omnibus has no

application in India and the witnesses cannot be branded as liar on that

account. The exaggerations in the prosecutrix's statement are not fatal to

exonerate the appellant of his crime. The impugned judgment based upon

fair appraisal of the evidence needs no intervention. Minimum sentence

prescribed under Section 376 IPC has been awarded to the appellant,

which can't be modified or reduced.

7. It is relevant to note that substantive sentence of the appellant

was suspended by this Court by an order dated 18.12.2006. On 30.06.2015

when the case was taken up for hearing, none appeared on behalf of the

appellant. Bailable warrants in the sum of `10,000/- and notice to his

surety were ordered to be issued. On 14.08.2015, the appellant appeared

in judicial custody from Tihar Jail. Bailable warrants were served upon

him in jail as he was involved in case FIR No.259/2009 under Section

302/34 IPC PS Sultanpuri. He stood convicted in the said case. It shows

the appellant's antecedents.

8. In the light of above discussion, the appeal lacks merit and is

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 NOVEMBER 06, 2015 / tr