Mukesh Khanna vs The State (Nct) Of Delhi & Ors.
2016 Latest Caselaw 2038 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : 8th MARCH, 2016
                        DECIDED ON : 15th MARCH, 2016

+                        CRL.A.770/2013

      MUKESH KHANNA                                      ..... Appellant
                         Through :    Mr.V.K.Vats, Advocate.


                         VERSUS

      THE STATE (NCT) OF DELHI & ORS.                    ..... Respondents

                         Through :    Mr.Amit Gupta, APP.

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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 18.03.2013 of

learned Addl. Sessions Judge in Sessions Case No.106/2013 arising out of

FIR No.280/2010 PS Vijay Vihar by which the appellant - Mukesh

Khanna was held guilty for committing offences punishable under

Sections 376/506/342 IPC. By an order dated 23.03.2013, he was

sentenced to undergo RI for ten years with fine `10,000/- under Section

376 IPC; RI for three years with fine `5,000/- under Section 506 IPC and

RI for one year with fine `1,000/- under Section 342 IPC. All the

sentences were to operate concurrently.

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

sheet was that on 07.08.2010 at around 10.00 a.m. at House No.C-171,

Sector-24, Rohini, Delhi, the appellant committed rape upon the

prosecutrix 'X' (changed name) after criminally intimidating and

wrongfully confining her. The incident was reported to the police on

10.08.2010 and DD No.8A(Ex.PW-8/A) came into existence at PS Vijay

Vihar at 08.05 a.m. The Investigating Officer, after recording victim's

statement (PW-3/A) lodged First Information Report. 'X' was medically

examined; she recorded her 164 Cr.P.C. statement. Statements of the

witnesses conversant with the facts were recorded. The accused was

arrested and medically examined. Exhibits collected during investigation

were sent to Forensic Science Laboratory for examination. Upon

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

the Court. The prosecution examined thirteen witnesses to prove its case.

In 313 Cr.P.C. statement, the appellant denied his involvement in the

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

mentioned previously. Being aggrieved and dissatisfied, the instant appeal

has been preferred.

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

examined the file minutely. Appellant's conviction is primarily based

upon the solitary statement of the prosecutrix 'X' which has not been

corroborated by any other independent source. Needless to say, conviction

can be based on the sole testimony of the prosecutrix provided it lends

assurance of her testimony. In case, the Court has reasons not to accept

the version of the prosecutrix on its face value, it may look for

corroboration.

4. Admitted position is that 'X' was 'major' on the day of

occurrence. The appellant used to run a placement agency under the name

and style of 'Khanna Ji Enterprises' at his House No.C-171, Sector-24,

Rohini, Delhi, where he lived along with his wife Ganga, mother-in-law

and son. Undeniably, on 21.05.2010, PW-2 (Lakshmi) - victim's sister

was brought to Delhi. In her Court statement, PW-2 (Lakshmi) disclosed

that Tanu (Ganga's sister) had brought her to Delhi on the pretext that she

would get her a good job. After coming to Delhi, she started living at

Ganga's house. Subsequently, she was employed in a house at

Bahadurgarh. In the cross-examination, she admitted that prior to her job

at Bahadurgarh, she was employed by the appellant at two other places.

PW-11 (Tarundeep Mahipal) in his Court statement disclosed that he had

paid `4,000/- as 'commission' to the appellant who used to run a

placement agency known as 'Khanna Ji Enterprises' at Shakarpur. He was

provided a maid Rukmani aged about 18 years on a monthly salary of

`2,000/- by the appellant. On 10.08.2010, when he came to know that the

said maid was wanted by the police of Police Station Vijay Vihar, he

handed over that girl to the police. PW-2 (Laskshmi) did not complain if

during her employment with PW-11 (Tarundeep Mahipal), she was ever

sexually abused or assaulted. She did not level any allegations of

molestation or rape against the appellant. She had accompanied Tanu, her

acquaintance in the village, to Delhi after getting her uncle's permission

and consent to get a Job. In her Court version, she categorically stated that

during her employment with PW-11 (Tarundeep Mahipal), she was quite

physical well and never informed her sister or anyone else that she was

not feeling good or was suffering from any ailment.

5. The victim claimed that she came to Delhi on 04.08.2010

along with Tanu, who had informed her in the village that her sister

Lakshmi (PW-2) was unwell and she should bring her back to the village.

After coming to Delhi, the victim lived at the appellant's residence. When

she expressed her desire to talk to her sister PW-2 (Lakshmi), the

appellant informed that she would return on 12.08.2010. 'X' continued to

live at the appellant's residence. Allegedly on 07.08.2010, she was

sexually assaulted by the appellant at around 10.00 a.m. when she was

sleeping on the second floor of the house. She informed that the accused

had brought her to first floor in his lap and committed rape upon her there.

Thereafter, she was confined for two days in the room. After getting an

opportunity, she managed to approach a nearby 'aunt' who informed the

police.

6. Apparently, there is inordinate delay in lodging the report

with the police. No proper explanation has been offered by the prosecutrix

for lodging the complaint with the police after about three days of the

incident. Nothing has come on record if 'X' raised any hue and cry at the

time of crime or soon thereafter. She continued to live at the appellant's

house after the crime for two days. She did not reveal as to where his son,

mother-in-law were during these two days. In her medical examination on

10.08.2010 vide MLC (Ex.PW-9/A), no visible external injuries were

found on her body including private parts to infer forcible rape. There

were no struggle / violence marks on her body to show if the sexual

assault was resisted by her. A number of material discrepancies and

infirmities have emerged in her deposition which makes her testimony

unreliable. It is unclear if she was acquainted with Alok Nandini before

the occurrence. The victim in her cross-examination claimed that she used

to talk with her in Oriya. In further cross-examination, however, she

changed her version and stated that she did not know her. PW-10 (Alok

Nandini) who lived at C-199, J.J.Colony, Sectore-24, Rohini, Delhi, did

not furnish explanation as to why soon after victim's arrival at her

residence, she did not alert the police. The prosecutrix was kept by her at

her house throughout the night without informing the police. The

prosecutrix claimed that on 09.08.2010, she had a talk with Ganga

(appellant's wife) on his phone (walky-talky) and apprised her about the

rape incident. Ganga told her to go to the 'Aunt' and stay there till her

return from the village. The prosecution did not examine Ganga -

appellant's wife. The victim further informed that a 'boy' used to live in

the appellant's house and he remained there till 08.08.2010. The

prosecution did not examine the said 'boy' and produced him as a witness.

The accused had not put any lock on the door while leaving the house on

09.08.2010. She claimed to have informed the 'boy' who lived with the

appellant on 07.08.2010 about the rape incident. She was unable to reveal

as to who opened the door to allow the said boy in on 07.08.2010.

7. The prosecution also did not examine 'Tanu', who had

allegedly brought the girls to Delhi on the pretext to provide them jobs.

PW-3 'X' contradicted the statement of PW-2 (Lakshmi), her sister, who

categorically stated that she was physically fit. There was no occasion for

Tanu and Ganga to pretend that Lakshmi (PW-2) was unwell and the

victim should come to Delhi to take her back to the village.

8. After recording victim's statement in detail implicating many

others, the Investigating Officer lodged FIR under various Sections i.e.

356/365/368/374/376/342/506/120B IPC. Upon completion of

investigation, a charge-sheet was also filed for commission of the said

offences. However, Ganga and Tanu were given clean chit and were not

prosecuted; they were kept in column No.12. It is relevant to note that the

Trial Court did not take cognizance against them for committing any

offence. Vide order dated 14.12.2010 charges under Sections 376/506/342

IPC were settled only against the present appellant. Apparently, the victim

had attempted to implicate not only the appellant but Ganga and Tanu

also. In her 164 Cr.P.C. statement, however, she did not assign any role to

them. It is true that in FSL reports 'semen' has been detected on the

appellant's garments as well as that of the prosecutrix. However, nothing

surfaced on record if the 'semen' found on the clothes of the victim was

that of the appellant. Moreover, the appellant has put suggestions that

physical relations were with the consent of the prosecutrix which

possibility can't be ruled out.

9. On consideration of the totality of the facts and

circumstances, it will be unsafe to convict the appellant as there are many

infirmities, holes and lacunas in the prosecution version. No implicit

reliance can be placed on the testimony of the prosecutrix as well.

10. In 'Sadashiv Ramrao Hadbe vs. State of Maharashtra &

Anr.', 2006 (10) SCC 92, the Apex Court while reiterating that in a rape

case, the accused could be convicted on the sole testimony of the

prosecutrix if it is capable of inspiring the confidence in the mind of the

Court, put a word of caution that the Court should be extremely careful

while accepting the testimony when the entire case is improbable and

unlikely to have happened. This is what has been stated :

"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

11. In the light of above discussion, the appeal is allowed.

Conviction and sentence awarded by the Trial Court are set aside. The

appellant shall be released forthwith if not required to be detained in any

other case.

12. 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 / compliance.

(S.P.GARG) JUDGE MARCH 15, 2016 / tr