Anil @ Balbir vs State
2015 Latest Caselaw 7818 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment reserved on : 30.9.2015
                                     Judgment delivered on :.13.10.2015

+      CRL.A. 201/2013 & Crl. M.A. No.7153/2015
       ANIL @ BALBIR
                                                              ..... Appellant
                             Through        Mr. Pradeep Kumar Saini, Adv.
                             versus
       STATE
                                                 ..... Respondent
                    Through     Ms. Kusum Dhalla, APP for the
                                State.
+   CRL.A. 304/2013 & Crl. M.A. No.12955/2014
    VIJAY
                                                    ..... Appellant
                    Through     Ms.Suman Chauhan, Adv.
                    versus
    STATE
                                                 ..... Respondent
                    Through     Ms. Kusum Dhalla, APP for the
                                State.
+   CRL.A. 535/2013 & Crl. M.(B) No.7402/2015
    VINAY KUMAR
                                                    ..... Appellant
                    Through     Mr. Sumeet Verma, Mr. Amit
                                Kala and Mr. Gopal, Advs.
                    versus
    STATE
                                                 ..... Respondent
                    Through     Ms. Kusum Dhalla, APP for the
                                State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
Crl. Appeal Nos.201/2013, 304/2013 & 535/2013                    Page 1 of 15
 INDERMEET KAUR, J.

1 These appeals are directed against the impugned judgment and

order on sentence dated 27.11.2012 and 17.12.2012 respectively

wherein the appellants namely Anil @ Balir, Vijay and Vinay Kumar

stood convicted under Section 376 (2)(g) of the IPC i.e. for the offence

of gang rape. Each of them had been sentenced to undergo RI for a

period of 10 years and to pay a fine of Rs.5,000/- and in default of

payment of fine to undergo SI for 3 years. Accused Anil @ Balir and

Vinay had also been convicted under Sections 506/34 of the IPC for

which the sentence imposed upon them was SI 2 years and a fine of

Rs.5,000 and in default of payment of fine to undergo SI 6 months.

Accused Vijay was also convicted under Sections 366/341 of the IPC

for which the sentence imposed upon him was SI 10 years and a fine of

Rs.5,000/- and in default of payment of fine, to undergo SI for 3 years

for the two offences respectively. Benefit of Section 428 of the Cr.PC

had been granted to the appellants.

2 The version of the prosecution was that on 16.06.2010 DD No.

19-A was got recorded by Mishri Devi (PW-7), the mother of the victim

relating to an incident of gang rape having been committed by Anil @

Balir, Vijay and Vinay Kumar upon her daughter. Separate statement of

the victim (PW-3) was recorded. Criminal law was set into motion. In

the course of investigation, the victim was medically examined. Her

MLC was prepared; her hymen was found torn. Exhibits which included

her vaginal swab, blood samples and clothes were seized and sealed and

sent to the CFSL for examination. The blood samples and the clothes of

the appellants had also been seized. The CFSL vide its report (Ex.PW-

13/A) had opined that there was blood detected on the salwar of the

victim; semen stains were also detected on her half torn kurta as also her

vaginal swab; semen stains were also detected upon the underwear of

accused Vijay and the nicker of Anil @ Balir.

3 In the statement of the accused recorded under Section 313 of the

Cr.PC, they had pleaded innocence stating that they have been falsely

implicated in the present case.

4 In view of the aforenoted evidence, both oral and documentary,

the appellants were convicted and sentenced as aforenoted.

5 On behalf of the appellant Vinay, it has been submitted that he

has not been named in DD No. 19-A (Ex.PW-6/A). His name does not

find mention; this is a clear case of false implication qua the appellant;

his defence all along was that he was running a grocery shop and a sum

of Rs.350/- was owed by the complainant and her family to him and on

his asking this led to squabble which was the reason for his false

implication. The version of the prosecutrix is full of contradictions.

There is no explanation as to why if there was an act of forcible rape, no

injury was noted upon her person.

6 On behalf of appellant Vijay, learned counsel for the appellant

submits that he has been falsely implicated. The version of the

prosecutrix is contradictory; whether she was known to the appellant or

not known to him is not clear from her deposition; she was confused and

her conflicting stands entitles the appellant to a benefit of doubt and a

consequential acquittal. There is also no explanation as to why there are

no injuries upon the person of the victim. To support this line of

argument, learned counsel for the appellant has placed reliance upon the

judgments of the Apex Court reported as (2007) 6 SCC 465 Narayan @

Naran Vs. State of Rajasthan, (2000) 9 SCC 161 State of Rajasthan Vs.

Shanker and AIR 1998 SC 2694 Kuldeep K Mahato Vs. State of Bihar.

Submission being that where there was no injury upon the person of the

victim, it could safely be presumed that the victim was a consenting

party.

7 On behalf of the third appellant Vinay Kumar, learned amicus

curiae submits that the role attributed to Vinay Kumar was that he was

standing outside when the alleged act was committed; it is not the case

of the prosecution that he had committed rape upon her. His presence

outside by itself would not be sufficient to nail the appellant and to

support this proposition, he has placed reliance upon the judgments

reported as (2011) 14 SCC 309 Om Prakash Vs. State of Haryana, 2006

(3) JCC 1347 Pardeep Kumar Vs. Union Administration, Chandigarh as

also another judgment of the Apex Court reported as 2009 (3) JCC 2139

Jitender Vs. State. Submission being that in the case of Om Prakash

(supra), the Apex Court had gone on to note that even where the

prosecutrix had used the word 'guard' in her deposition while attributing

a role to a particular person, the Apex Court had held that this was a

mere presence and this could not establish that the said person had a

common intention with the other co-accused to rape the prosecutrix, his

conviction under Section 376 (2)(g) of the IPC had been set aside.

8 Needless to state that these arguments have been refuted.

9 Record has been perused. Arguments have been appreciated.

10 The star witness of the prosecution was PW-3. She was the

prosecutrix. She was examined in camera. She has deposed that she was

working in a tiles factory in Karala where the accused Vijay also used to

work. He used to have an evil eye upon her. On the fateful day i.e. on

15.06.2010, when she was going to the market, accused Vijay met her

on the way. This was at about 09:00 pm. He forcibly took her to a

vacant room. He pressed her mouth with his hands. He threatened to kill

her and her brother. He forcibly committed rape upon her. Meanwhile,

Anil @ Balir and Vinay Kumar also come there. They also threatened

her that if she did not perform the sexual act with them, they would

prepare a video of her and show it in the area. After committing rape

upon her, they threatened to kill her if she disclosed the incident to any

person. She was sent home. She did not narrate the incident to her

mother due to fear and shame. On the following day, her condition

started deteriorating. On query by her mother about the same, she

narrated the incident to her, pursuant to which a complaint was lodged

by her mother in the local police station. Her statement was recorded by

the police. She was medically examined.

11 PW-3 was subjected to a lengthy cross-examination. She admitted

that she was working in the factory with her sister where the accused

Vijay was also working since the last 4-5 months. She used to talk to

Vijay sometimes due to professional reasons. On an earlier occasion, she

had made an oral complaint against Vijay to her factory owner. During

the incident, Vinay Kumar had told her that he was preparing a video

film of the act of rape and if she disclosed this incident to any person, he

would show this film in the colony. In a further part of her cross-

examination, she admitted that the incident lasted for about less than one

hour. She had gone to the police station with her mother; she was also

medically examined; she was accompanied by her mother at that time;

she knew the house of accused Anil @ Balir but she did not know the

house of other persons. She denied the suggestion that she had

purchased certain grocery items from the shop of Vinay Kumar and she

owed some money to him pursuant to which a quarrel had taken place as

this money has not been returned by her and this was the reason for false

implication of Vinay. She denied the suggestion that the accused had

been falsely implicated.

12 The testimony of the prosecutrix as highlighted supra does not

discredit her version qua her statement recorded under Section 161 of

the Cr.PC. On oath in Court, the witness had stated that a video film of

her was being recorded by accused Vinay and he threatened to show the

same in the neighbourhood if she did not perform the sexual act with the

appellant and this part of her version did not find any mention in

Ex.PW-3/A for which reason, the Trial Court had rightly rejected this

part of her version. The explanation furnished by the victim in this

regard was that her statement was recorded by the police (admittedly

there was no statement recorded of the victim under Section 164 of the

Cr.PC); she being illiterate, she had disclosed the incident to the police

but she did not know what was exactly recorded by the Investigating

Officer.

13 The narration of the prosecutrix as discussed supra otherwise is

clear and cogent. She has been consistent that at the time when she was

going to market at about 09:00 pm on 15.06.2010, accused Vijay who

was working in the same factory and who had evil eyes upon her

pursuant to which she had also lodged an oral complaint against him had

taken her to a vacant room where he forcibly committed rape upon her;

her mouth had been gagged and that is why she could not raise an alarm.

She was threatened that if she disclosed the incident to any person, she

and her family would be killed. Anil @ Balir and Vinay Kumar had also

reached at the spot by that time. Anil @ Balir had also committed rape

upon her. All three of them had threatened her that in case she disclosed

this incident, she would be shamed.

14 The role attributed to Vinay Kumar was that he was the

accomplice with Vijay and Anil @ Balir; he was fully aware of the

illegal act which was being committed upon the prosecutrix and in fact

he along with his accomplices had threatened the prosecutrix that in case

she disclosed the incident to any person, she would be killed. The threat

to kill the prosecutrix, her mother and brother was emanating from all

three and this is clear from her testimony. Her statement being cogent

and coherent, the Trial Court had rightly relied upon the same.

15 Apart from her oral version, the medical evidence also supports

this stand. The medical evidence which was the MLC of the victim

(Ex.PW-11/A) shows that her hymen was torn. She was referred to a

Gynecologist. The Gynecologist Dr. Megha was examined as PW-12.

There was no fresh injury upon the victim and this has been highlighted

vehemently by the appellant to advance an argument that even

presuming that a sexual act had been done, it could not be without the

consent of the victim.

16 This Court notes that the victim was 16 years of age. Her hymen

was found torn. Apart from this medical evidence, the CFSL had also

supported the version of the prosecution and the report of the CFSL

(Ex.PW-13/A) had evidenced that there was blood on the salwar of the

victim; this salwar had been seized on the following day; the victim had

disclosed that she had not taken a bath the previous night (the incident

had occurred at 09:00 PM and the matter was reported on the following

day at 01:30 pm); semen stains were detected on her vaginal swabs

which was taken on the following day as also on her half torn kurta;

semen was also detected on the underwear of accused Vijay and the

nicker of Anil @ Balir; all supporting the coherent version of PW-3 that

it was Vijay and Anil @ Balir who had committed this forcible act of

rape upon her and Vinay Kumar along with the other accomplices were

threatening her to succumb to this act or else she and her family would

be killed.

17 In this background, the absence of injuries on the victim could not

be a telling factor by itself to hold that the otherwise coherent version of

PW-3 which is supported not only by the medical evidence but also by

the scientific evidence is to be discarded.

18 In this context, the observations of the Apex Court in 2013 (2)

ACR 2252 Manoj Giri Vs. State of Chhatisgarh are relevant:-

" It was next contented that there are no injuries on the prosecutrix to infer rape. There is no merit in this contention in view of the fact that the prosecutrix was a married woman and was overpowered by several men before she was raped. She was obviously not in a position to resist and to fight several men, who had threatened her with death in case she cried out. There is, however, ample evidence of rape in view of the forensic report regarding the clothes of the prosecutrix and those of the Appellant. The report clearly discloses the presence of semen spots and human sperm on the clothes of the accused including the Appellant and the prosecutrix. The entire evidence thus collected along with the proper and clear identification of the accused at identification parade and in the court by the prosecutrix leaves no manner of doubt that conviction of the Appellant is well founded."

19 The mother of the prosecutrix was examined as PW-7. She was

the complainant. Her evidence was to the effect that on 16.06.2010, her

daughter was not felling well and was perplexed. On inquiry, she

disclosed the incident to her stating that Vijay and Anil @ Balir had

committed rape upon her and Vinay had also helped them in this act.

20 PW-7 was also subjected to a lengthy cross-examination wherein

she stuck to her stand. She admitted that her daughter disclosed the

incident to her on the following morning as she looking perplexed and

feeling shamed. She also denied that the accused have been falsely

implicated. She had in fact volunteered that the accused persons were

threatening them for settlement and were pressurizing them.

21 DD-19 A reflects that this complaint was lodged at 01:30 pm i.e.

after victim who was both under fear and shame had disclosed the

incident to her mother (PW-7).

22 The defence of the appellant is moonshine. The defence of Vijay

is that he has been falsely implicated. He has not denied that he was

unknown to the prosecutrix or that he was not working in the same

factory where the victim was also working. Vijay was arrested at 11:00

pm in the presence of the prosecutrix which is corroborated by her

version. Accused Vinay was also arrested on the same day. His arrest

was also witnessed by the prosecutrix. Anil @ Balir was arrested at

11:20 pm; the victim was present there. This has been corroborated in

the version of the victim.

23 The defence of Vinay that because of a quarrel over a sum of

Rs.350/-, he has been falsely implicated is also a defence noted to be

rejected. The victim would not put her honour at stake for a sum of

Rs.350/- and that too when there was other documentary evidence apart

from her oral version i.e. the report of the CFSL to nail the appellant

Vinay. There is also no explanation given by appellant Anil @ Balir as

to how his nicker had semen stains.

24 The submission of the accused Vinay that the only role attributed

to him was that he was standing outside and a mere presence would not

attract his conviction under Section 376 (2)(g); this is also an argument

without any merit. As discussed supra, the victim has categorically

disclosed that after Vijay had taken her to a room and had committed the

forcible act of rape upon her, Anil @ Balir and Vinay had joined and

both of them had threatened her that if she disclosed this incident to any

person, they would kill her and her family. This threat continued even

after Anil @ Balir raped her. Her version clearly disclosed that Vinay

was well aware of the forcible act being committed upon the victim by

both Vijay and Anil @ Balir. It is not a case where he was unaware of

what was going on; he was an active accomplice; in fact he had clearly

told the victim that in case she did not succumb to the pressure of his

accomplices, she and her family would be wiped out.

25 In this factual matrix, the judgments relied upon by the learned

counsel for the appellant Vinay would not be applicable. Each case is

distinct on its own factual matrix.

26 This Court is of the considered view that the conviction under

Section 376 (2)(g) qua all the appellants is fully established. There is no

gainsaying to the settled legal proposition that if the statement of the

prosecutrix inspires confidence, the conviction can be based on this

solitary statement itself. In the instant case, not only is the version of

PW-3 corroborated by her mother (PW-7) but the medical and the

scientific evidence also support this stand, the victim was conscious of

the fact that her complaint in a non-permissive society may ostracize her

and there was absolutely no reason but for the fact that it was an honest

narration that the victim would falsely implicate the accused. Except for

the bald defence raised by Vinay that there was a dispute over a grocery

item for a sum of Rs.350/-, the other two accused had not projected any

defence. The defence of Vinay was also rightly held to be unbelievable.

27 The impugned judgment does not call for any interference. The

sentence of 10 years RI imposed upon the appellants which is the

minimum for the offence of gang rape also calls for no interference.

 28     Appeals are without any merit. Dismissed.



                                                INDERMEET KAUR, J
OCTOBER 13, 2015
A