Anand @ Balli Ram vs State
2016 Latest Caselaw 1825 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : FEBRUARY 08, 2016
                           DECIDED ON : MARCH 08, 2016

+                           CRL.A. 2/2005

       ANAND @ BALLI RAM                                 ..... Appellant
                   Through :             Ms.Shweta Kapoor, Proxy counsel
                                         for Ms.Naomi Chandra, Advocate.

                            VERSUS

       STATE                                              ..... Respondent
                            Through :    Mr.Raghuvinder Varma, APP.
                                         SI Deepak Shiwatch.

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

S.P.GARG, J.

1. The appellant-Anand @ Balli Ram impugns a judgment

dated 29.10.2004 of learned Additional Sessions Judge in Sessions Case

No.10/2003 arising out of FIR No.402/2001 PS Chanakya Puri by which

he was held guilty for committing offence punishable under Section 376

IPC. By an order dated 30.10.2004, he was sentenced to undergo

Rigorous Imprisonment for seven years with fine ₹ 4,000/-.

2. Briefly stated the prosecution case as reflected in the charge-

sheet was that on 21.11.2001 at about 10.30 p.m. in the jhuggi cluster of

Indira Camp, Bapu Dham, Chanakya Puri, the appellant along with his

associate Dinesh Kumar @ Tillu (since acquitted) kidnapped/abducted the

prosecutrix 'X'(changed name) and committed gang-rape upon her in the

house belonging to Usha. The incident was reported to the police

promptly. PCR van on receipt of a call through wireless at 11.11 p.m.

went to the spot; local police also arrived there. After recording victim's

statement (Ex.PW-2/A), the Investigating Officer lodged First Information

Report. 'X' was medically examined. The appellant was arrested from

Usha's shop soon after the incident whereas accused Dinesh Kumar @

Tillu succeeded to flee the spot. During investigation, statements of

witnesses conversant with the facts were recorded. Exhibits collected

during investigation were sent to Forensic Science Laboratory for

examination. Despite best efforts, Dinesh Kumar @ Tillu could not be

arrested and was declared Proclaimed Offender. A charge-sheet was filed

against the appellant for commission of offences under Sections 366/376

IPC. During pendency of trial, Dinesh Kumar @ Tillu was arrested and a

supplementary charge-sheet was filed against him. In order to establish its

case, the prosecution examined eleven witnesses. In 313 statements, the

accused persons denied their involvement in the crime and pleaded false

implication. DW-1 (Usha) appeared in defence. The Trial Court after

considering the rival contentions of the parties and on appreciation of the

evidence acquitted Dinesh Kumar @ Tillu of the charges. It is apt to note

that the State did not challenge the said acquittal. Being aggrieved and

dissatisfied, the appellant has preferred the instant appeal.

3. In the written submissions Ld. Counsel for the appellant

urged that the Trial Court did not appreciate the evidence in its true and

proper perspective. There were material lapses in the investigation by the

Investigating agency; the crime spot was not visited and its photographs

were not taken. The prosecution did not produce and examine material

witness Maya Devi, victim's mother-in-law present along with the

prosecutrix at the time of arrival of PCR at the spot. Non-examination of

PW Raju, who had allegedly seen the prosecutrix 'unconscious' at the

crime spot was not examined. 'X' did not suffer any visible external

injuries on her body including private parts. FSL reports (Ex.PW8/F1 and

Ex.PW-8/F2) did not connect the appellant with the crime. The

prosecutrix has given divergent versions and at one stage filed an

'affidavit' stating that no such incident had taken place. Statement under

Section 313 Cr.P.C. came to be recorded mechanically.

4. Admitted position is that the victim is Usha's (DW-1) real

sister. Both the appellant and Dinesh Kumar @ Tillu worked with her

(DW-1 Usha). Relations between the victim and Usha, real sisters were

strained. After victim married Anil Kumar, Usha's husband, she has

instituted divorce proceedings against him. The occurrence took place on

the night intervening 21.11.2001 at around 10.30 p.m when 'X' had gone

to answer the call of nature. The police machinery was set in motion

promptly without any delay. PW-1 (Vasu Dev) along with other officials

present in PCR Van, Victor 67, on receipt of a wireless call about a girl

lying 'unconscious' behind Maurya Hotel near water tank arrived at the

spot at around 11.15 p.m. He met the prosecutrix and her mother-in-law

Maya Devi there; 'X' apprised him of the incident. SI Saroj Tiwari

recorded her statement (Ex.PW-2/A) in which 'X' gave detailed account

as to how and in what manner, she was sexually assaulted by both the

appellant and Dinesh Kumar @ Tillu inside the shop. Specific and definite

role in the crime was assigned to the appellant. The Investigating Officer

was able to apprehend him from Usha's shop soon thereafter. Since the

FIR was lodged without any delay, there was least possibility of the

prosecutrix to have concocted a false story in such a short period.

The Investigating Officer had moved an application under

Section 164 Cr.P.C. to record victim's statement before the learned

Metropolitan Magistrate. However, he declined to record her statement.

5. In her Court statement as PW-2, the victim fully proved the

version given to the police at first instance without any variation. In her

examination-in-chief recorded on 30.04.2002, she implicated the appellant

by name and assigned specific and certain role to him in the crime. She

deposed that on 21.11.2001, when she had gone to answer the call of

nature in the area by the side of road at about 10 or 11 p.m. behind

Maurya Hotel, the appellant, who lived in her neighbourhood, caught hold

of her by hand and his associate Dinesh Kumar @ Tillu caught hold of her

by neck. Dinesh Kumar @ Tillu pushed her as a result of which she

started feeling giddi. Thereafter, both of them dragged her to Usha's shop

and committed rape upon her turn-by-turn. Thereafter, they brought her

to a place where a cobbler used to sit and left her there 'unconscious'.

After some time, her mother-in-law arrived there. Her salwar (Ex.P1) was

seized by the police. The appellant was arrested from inside Usha's shop

on her pointing-out. In the cross-examination, she admitted that Anil

Kumar, her husband was earlier married to Usha and she had not taken

divorce from her husband Jai Shankar Prasad. She denied to have

physical relations at that time with her husband Anil Kumar. She denied

if there were several litigations between her family and the accused.

6. In her testimony recorded prior to the apprehension of co-

accused Dinesh Kumar @ Tillu, she fully supported the prosecution and

proved the version given to the police without any major improvements.

Despite lengthy cross-examination, no material infirmities or

contradictions could be elicited. The appellant did not assign any oblique

motive to the prosecutrix to falsely rope him in the crime. Nothing has

emerged on record if prior to the incident there was any history of

hostility between the two. 'X' was found at a secluded place at odd hours

at about 11.15 p.m. on the night intervening 20/21.11.2001. PCR was

alerted soon after the incident. On getting a call through wireless, they

immediately rushed to the spot and found the victim and her mother-in-

law present there. PW-1's (HC Vasu Dev) testimony lends credence to

the victim's version. 'X' had given detailed account of the incident to him

on his arrival at the spot. The prosecutrix was taken for medical

examination at Lady Hardinge Medical College. There at 1.20 am vide

MLC (Ex.PW9/A), she was medically examined. Alleged history

recorded therein reveals that she was sexually assaulted by the appellant

and his associate Dinesh Kumar @ Tillu, her neighbourers on 21.11.2001

in a room near her house. The examining doctor did not rule out the

possibility of sexual intercourse. FSL reports (Ex.PW8/F1 and Ex.PW-

8/F2) reveal that human blood of 'AB' group was detected on Ex.3

(salwar) and Ex.6 (blood sample). Human semen stains were detected on

Ex.1a and Ex. 1b (vaginal swabs), Ex.2a and 2b (microslides having

whitish smear described as 'Vaginal smear'); Ex.3 (salwar) and

Ex.5(underwear). 'AB' group was detected on Ex.3 and Ex.5. It shows

that human semen of 'AB' group found on the appellant's underwear

(Ex.5) was similar to 'AB' group on victim's salwar (Ex.3).

7. PCR form (Ex.PW8/DA) speaks volume of the incident and

corroborates the victim's statement. Information was received by PCR at

23:15 hours from one Raju (Mobile No.6880744) on 21.11.2001

informing that a girl was lying unconscious behind Maurya Hotel, near

water tank, Bapu Dham. It further records that at 23:39 hours 'X' who

had gone to answer the call of nature was ravished by two boys Tillu and

Balli Ram inside their shop. It further records that Anand @ Balli Ram

and 'X' were present at the spot but Tillu could not be found. This

document is in consonance with the victim's narration of sequence of

events.

8. After Dinesh Kumar @ Tillu was charge sheeted, 'X' was

recalled for recording statement qua him. She identified him to be the

individual who had caught hold of her by neck and had pushed her. In the

cross-examination, she admitted that affidavit (Ex.PW2/DA) was signed

by her after going through its contents. She, however, denied to have

appeared before the Oath Commissioner to put her signatures thereon.

She admitted that affidavit (Ex.PW-2/DA) was signed by her on her own

without any pressure and the accused persons had not committed any

wrong act with her. It was emphasized that 'X's version cannot be

believed as she has given two contradictory and inconsistent versions.

This plea deserves out-right rejection. Apparently, after Dinesh Kumar @

Tillu's arrest, 'X' was won over by the accused persons. Seeming for that

reason, she opted to exonerate the appellant and his associate Dinesh

Kumar @ Tillu. In view of the law laid down by Hon'ble the Supreme

Court in 'Khujji @ Surendra Tiwari vs. State of Madhya Pradesh', 1991

Crl.L.J.2653, the statement given in the cross-examination after a gap of

about 13 months of recording her previous evidence can correctly be

ignored or discarded. 'X' cannot be permitted to sabotage the prosecution

case and to play hot and cold merely because she has opted to settle the

dispute with the perpetrators of the crime at a subsequent stage. 'X's

recall for examination was meant to prove prosecution's case against

Dinesh Kumar @ Tillu who was Proclaimed Offender. So far as the

appellant is concerned, her testimony was complete before Dinesh Kumar

@ Tillu's arrest.

9. Minor contradictions, inconsistencies and discrepancies

highlighted by the appellant's counsel are inconsequential as they do not

affect the core of the prosecution case. Appellant's involvement had

come to light soon after the incident. The victim was defiled taking

advantage of her loneliness at odd hours when she had gone to answer the

call of nature. It is now well-settled principle of law that conviction can be

founded on the testimony of the prosecutrix alone unless there are

compelling reasons to seek corroboration. Non-examination of her

mother-in-law Maya Devi is not fatal. Record reveals that she was cited

as a witness and process was issued many times to secure her presence but

she could not be traced. Bailable warrants were also issued but these were

returned unexecuted with the report that she had left the given address.

Needless to say, sincere efforts were made by the prosecution to ensure

her appearance before the court but for the reasons beyond their control,

she could not be examined. The appellant was also unable to produce and

examine her in defence. Again non-examination of informant, PW Raju, is

not very relevant as he was not a witness to the incident. His name finds

mention in the PCR form (Ex.PW8/DA).

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

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

sent to the Superintendent Jail. The appellant shall surrender before the

Trial Court on 18.03.2016 to serve out the remaining period of substantive

sentence.

(S.P.GARG) JUDGE MARCH 08, 2016 sa