Upender Bahadur @ Kanchha & Anr vs State
2016 Latest Caselaw 985 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : JANUARY 12, 2015
                          DECIDED ON : FEBRUARY 09, 2016

+      CRL.A. 1762/2014, CRL.M.B.Nos.11280/14 & 11281/14

       UPENDER BAHADUR @ KANCHHA & ANR...... Appellants
                   Through : Mr.Aditya Vikram, Advocate with
                             Ms.Garima Yadav & Mr.Harsh
                             Prabhakar, Advocates.

                          versus

       STATE                                           ..... Respondent
                          Through :    Mr.Raghuvinder Varma, APP.

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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 05.09.2014 of

learned Additional Sessions Judge in Sessions Case No.43/13 arising out

of FIR No.150/2011 registered at Police Station Sarita Vihar, New Delhi

by which the appellants Upender Bahadur @ Kanchha (A-1) and Rajeev

Yadav (A-2) were held guilty for committing offence under Section 376

IPC. By an order dated 23.09.2014, they were sentenced to undergo

Rigorous Imprisonment for seven years with fine `10,000/- each.

2. Briefly stated, the prosecution case unfolded in the charge-

sheet was that on the night intervening 16/17.07.2011 at about 1.00 am in

a room at 2nd Floor, near house No.46, Nizamuddin Railway Station, Sarai

Kale Khan, New Delhi, A-2 committed rape upon the prosecutrix

'A'(changed name) whereas A-1 committed rape upon another prosecutrix

'G'(changed name) in a room at Madanpur. The incident was reported to

the police on 17.07.2011 and the Investigating Officer after recording

victim 'A's statement (Ex.PW-3/A) lodged First Information Report.

During investigation, both 'A' and 'G' were medically examined; they

recorded their 164 Cr.P.C. statements. The appellants along with one

Bhootla were arrested and medically examined. Exhibits collected during

investigation were sent for examination to Forensic Science Laboratory.

Statements of witnesses conversant with the facts were recorded. Upon

completion of investigation, a charge-sheet was filed against the

appellants and Bhotla. To establish its case the prosecution examined 22

witnesses. In 313 statements, the appellants denied their complicity in the

crime and pleaded false implication. The trial resulted in their conviction

as mentioned previously. It is relevant to note that Bhootla was

discharged vide order dated 16.01.2012 and the State did not challenge the

said order. Being aggrieved and dissatisfied, the appellants have preferred

the instant appeal.

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

examined the file. The incident occurred on the night intervening

16/17.07.201 was promptly reported to the police on 17.07.2011 without

any delay. In the complaint (Ex.PW3/A) 'A' gave vivid description of the

incident and implicated the appellants for committing sexual assault upon

her and her cousin 'G'. In their 164 Cr.P.C. statements (Ex.PW3/E and

Ex.PW-4/A respectively), 'A'and 'G' both reiterated the version given to

the police and specifically named the appellants for committing rape upon

them forcibly at two different places. In her Court statement, the victim

'A' (PW-3) proved the version given to the police without any variation.

Giving detailed account of the incident, she deposed that she along with

her brother Kanchan and cousin (G) had arrived at Nizamuddin Railway

Station to board a train to their village in Orissa. They could not go that

day being unable to get train tickets and stayed overnight on the platform.

On the next day, at about 8.00 am when they were waiting for the train,

A-2 came there and informed them that he was also going to Orissa. After

some time, Bhootal and A-1 also arrived there and disclosed themselves to

be natives of Orissa going there by train. At around 12.20 pm when the

train arrived at the platform, they could not board it due to heavy rush.

The appellants and Bhootal asked them to accompany them to Madan Pur

Khadar where their sister lived. Thereafter, they were taken to Madan Pur

Khadar. After some time, the accused asked them to purchase a new

slippers for her cousin Kanchan as he was wearing ladies chappal. At

about 5.00 p.m. the appellants and Bhootal took her and her cousin

brother to Railway Station, Nizamuddin. Kanchan lost in the crowd and

could not be found despite search. Thereafter, A-2 took her to the

Bhootal's room situated near the Railway Station. During night, he

committed rape twice upon her forcibly. In the morning A-2 brought her

to Madan Pur where her sister 'G' apprised her about the rape committed

by A-1 upon her during that night thrice against her wishes. Finding an

opportunity, she slipped away from there and disclosed the incident to the

landlord who took her and 'G' to the Police Station where her statement

was recorded. Similar is the testimony of PW-4 (G), another victim. Both

were cross-examined at length. However, no material infirmity could be

extracted to discard their versions. Suggestion was put in the cross-

examination to PW-3 that she had remained in the appellant's company

from 15th to 17th of the said month with her sweet will. Another

suggestion was put in the cross-examination of PW-4 ('G') that physical

relations with her were consensual. These suggestions were vehemently

denied by the victims. It was heavily upon the appellants to prove that the

victims had accompanied them on their own without any allurement or

that physical relations were with their free consent. Nothing has emerged

on record to infer if victims were acquainted with the appellants before the

incident and had voluntarily agreed to accompany them or to have

physical relations with consent. Material facts deposed and proved by the

victims have remained unchallenged in the cross-examination. The

victims had accompanied the appellants to their so-called sister's

residence believing that they were also from their village, as represented

by them to take shelter there so that they could catch the train to their

village next day. However, during night both of them were ravished at

different places. Both the victims were under fear as whereabouts of their

cousin Kanchan were not known and they were dependent upon the

appellants to find him out. The appellants took advantage of the situation

and established physical relations by putting them in fear. In the absence

of prior acquaintance or familiarity, both the victims who had already

worked in Delhi for certain duration, were not expected to suddenly

accompany the appellants at an unknown place from the Railway Station

from where they had intended to go to their native place and also to have

physical relations with them at two different places unaware about the

whereabouts of their cousin Kanchan. Had the victims been consenting

parties, there was no occasion for them to lodge the report with the police

promptly on the very next day.

4. Victim's ocular versions have been corroborated by medical

evidence. In the MLC (Ex.PW13/A), pertaining to 'A' fresh cut marks

were noticed on lower aspect of post vagina; hymen was found torn. In

G's MLC (Ex.PW.13/B), fresh cut was seen on lower aspect of post-

vagina; hymen was torn; tenderness around introitus.

5. PW-7 (Vinita), appellants' so called sister, has corroborated

the version given by the victims. She confirmed victim's arrival along

with the appellants at their house. She also deposed about the recovery of

blanket on which A-1 had slept during night from the room. PW-21

(Kaleshwar Nayak), PW-7's husband, also disclosed that on 17.07.2011

the appellants and Bhootla had brought two girls who were from village

adjoining to their native village along with their brother at around 3.00

p.m. The accused persons had told him that the said girls had missed their

train while going to their native place and had asked him to permit them to

stay there for a night. He had verified and confirmed these facts from the

said girls. He further stated that in the evening they had gone for

shopping to buy chappal for victims' brother. A-1 along with a girl stayed

at his house while another went to the market and did not come back.

PW-5 (Dharmender Bidhuri) is the landlord, who had let out a room to

PW-21 (Kaleshwar Nayak). He also supported the prosecution and

deposed that on 15.07.2011, a girl had informed him that A-1 had

committed rape upon her. He took A-1 to the Police Station. This

independent witness had no ulterior motive to make a false statement.

6. PW-20 is Davender Singh at whose residence 'A' worked as

maid for about three years since 2008. He disclosed that when 'A' left the

job, she deputed her cousin 'G' at her place who had also worked at his

house as domestic servant for less then a year. In the evening of

14.07.2011, 'A's cousin Kanchan and she had come to his house to take

'G' back to her native place as her brother was ill. He had allowed her to

leave the house paying `15,000/- as her balance dues. They wanted to

catch train on the next morning for their native place. In the morning of

20.07.2011, he received a call from 'A' informing commission of rape

upon her and 'G'. He along with his wife and mother-in-law of his

daughter went to meet them and came to know that they had already

lodged the complaint. Testimony of this uninterested witness lends

credence to the version given by the victims.

7. No sound reasons prevail to disbelieve the victims merely

because they did not raise alarm at the time of commission of rape. It did

not make their testimonies unreliable or unbelievable. The appellants

took advantage of their situation; both the victims were separated at

different locations and whereabouts of their brother Kanchan were not

known. They were stranger to the location and were in fear. When both

'A' and 'G' met in the morning and came to know about the plight of each

other, they gathered courage and finding an opportunity 'A' immediately

rushed to the landlord who lived in the neighbourhood and apprised him

about the incident. The appellants had misrepresented themselves to be

the residents of Orissa. Record reveals that A-1 is a resident of District

Sahebganj, Jharkhand and A-2 is from District Muradabad, U.P. PW-7

(Vinita) was not their real sister as claimed by them. Victims' statements

have been corroborated by medical evidence as well as FSL report

(Ex.PW22/J) which showed semen in the microslides of one of the

prosecutrix. The appellants failed to establish that the victims were

consenting parties. In 313 statements, they did not even claim that

physical relations with the prosecutrix were with their free consent.

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

The judgment based upon fair appreciation of evidence warrants no

intervention.

9. The appeal lacks merits and is dismissed. Trial Court record

be sent back forthwith along with the copy of the order. Intimation be

also sent to Superintendent Jail.

(S.P.GARG) JUDGE FEBRUARY 09, 2016/sa