Delhi High Court
Sanjay @ Arun vs State on 17 April, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
5 to 9
Date of judgment: 17th April, 2018
+ CRL.A.1331 /2014
SANJAY @ ARUN .....Appellant
Through:Mr. Azhar Qayum, Advocate (DHCLSC)
versus
STATE . ...Respondent
Through:Mr Kewal Singh Ahuja, APP for the
State
+ CRL.A.1334 /2014
AJAY @ RINKU .....Appellant
Through:Mr.K. Singhal and Mr Nishant Bhardwaj,
Advocates.
versus
STATE . ...Respondent
Through:Mr Kewal Singh Ahuja, APP for the
State
+ CRL.A.1358 /2014
VIKRAMJEET SINGH .....Appellant
Through:Ms. Manika Tripathy Pandey, Mr
Ashutosh Kaushik and Ms Raveena Tandon,
Advocates.
versus
STATE . ...Respondent
Through:Mr Kewal Singh Ahuja, APP for the
State
+ CRL.A.1565 /2014
RITU .....Appellant
Crl.A.1331/2014 & connected appeals Page 1 of 18
Through:Mr. Sumeet Verma with Ms Preeti
Jakhar, Advocates.
versus
STATE . ...Respondent
Through:Mr Kewal Singh Ahuja, APP for the
State
+ CRL.A.1132 /2015
STATE OF NCT OF DELHI . .....Appellant
Through: Mr Hirein Sharma, APP for the State
versus
SALAUDDIN @ SANJAY @ ANR ...Respondents
Through:Mr. Kartickey Mathur and Mr Sanket
Gupta, Advocates for R-1.
Mr Harsh Prabhakar, Advocate (amicus curiae)
with Mr Anirudh Tanwar and Mr Jay Kumar
Bhardwaj, Advocates for R-2
CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA
JUDGMENT
Dr. S. Muralidhar, J.:
1. These five appeals, four by the accused and one by the State, are directed
against the common impugned judgment dated 3rd June, 2014 passed by the
learned Additional Sessions Judge-01 („ASJ‟) West in Sessions Case
No.40/2013 arising out of FIR No.42/2009 registered at Police Station
(„PS‟) Ranhola convicting Sanjay @ Arun (Accused No.1 - „A-1‟); Ajay @
Rinku („A-2‟); Ritu @ Monam („A-3‟); Kamlesh („A-7‟) for the offence
punishable under Section 347/34 of the Indian Penal Code („IPC‟); A-1, A-2
and Vikramjeet Singh („A-4‟) for the offence punishable under Section 376
IPC; A-1, A-2 and A-3 for the offence punishable under Section 372/34 IPC;
A-7 for the offence under Section 373 IPC; A-1, A-2 and A-3 for the offence
punishable under Sections 363/366/34 IPC; and A-3 and A-7 for the
offences punishable under Sections 109/376 IPC.
2. As far as the appeals of the accused are concerned, they are also directed
against the order on sentence dated 6th June, 2014 whereby:
(i) Sanjay @ Arun (A-1) was sentenced to rigorous imprisonment (RI)
for two years and a fine of Rs. 1000/- and in default to undergo simple
imprisonment (SI) for 7 days for the offence punishable under Section
347/34 IPC; RI for Seven years and a fine of Rs. 5000/- in default SI
for 15 days for the offence punishable under Section 376 IPC; RI for
five years and a fine of Rs. 5000/- in default SI for 15 days for the
offence under Section 372/34 IPC; RI for three years and a fine of Rs.
1000/- in default to undergo SI for 7 days for the offence punishable
under Section 363/34 IPC; RI for five years and a fine of Rs. 5000/- in
default SI for 15 days for the offence punishable under Section 366/34
IPC.
(ii) Ajay @ Rinku (A-2) was sentenced to RI for two years and a fine
of Rs. 1000/- in default SI for 7 days for the offence punishable under
Section 347/34 IPC; RI for Seven years and a fine of Rs. 5000/- in
default SI for 15 days for the offence punishable under Section 376
IPC, RI for five years and a fine of Rs. 5000/- in default SI for 15
days for the offence punishable under Section 372/34 IPC; RI for
three years and a fine of Rs. 1000/- in default SI for 7 days for the
offence punishable under Section 363/34 IPC, RI for five years and a
fine of Rs. 5000/- in default SI for 15 days for the offence punishable
under Section 366/34 IPC.
(iii) Smt. Ritu @ Monam (A-3) was sentenced to RI for two years and
a fine of Rs. 1000/- in default SI for 7 days for the offence punishable
under Section 347/34 IPC, RI for five years and a fine of Rs. 5000/- in
default SI for 15 days for the offence punishable under Section 372/34
IPC; RI for three years and a fine of Rs. 1000/- in default SI for 7
days for the offence punishable under Section 363/34 IPC; RI for five
years and a fine of Rs. 5000/- in default SI for 15 days for the offence
punishable under Section 366/34 IPC; RI for seven years and a fine of
Rs. 5000/- in default SI for 15 days for the offence punishable under
Section 109/376 IPC.
(iv) Smt. Kamlesh (A-7) was sentenced to RI for two years and a fine
of Rs. 1000/- in default SI for 7 days for the offence punishable under
Section 347/34 IPC; RI for five years and a fine of Rs. 5000/-in
default SI for 15 days for the offence punishable under Section 373
IPC; RI for seven years and a fine of Rs. 5000/- in default SI for 15
days for the offence punishable under Section 109/376 IPC.
(v) Vikramjeet (A-4) was sentenced to RI for seven years and a fine
of Rs. 5000/- in default SI for 15 days for the offence punishable
under Section 376 IPC.
The benefit of Section 428 Cr PC was given to all those sentenced. The
sentences were directed to run concurrently.
3. As far as the appeal by the State is concerned, it is directed against the
acquittal by the trial Court of Salauddin @ Sanjay (A-5) and Kumar
Sambhav @ Kaku (A-6) of all the offences with which they were charged.
The charges
4. The charges against the accused, who were originally eight in number,
were that
(i) after 1st December, 2009, all of them with their common intention
wrongly confined the prosecutrix (PW-6), at that time below 18 years of
age, compelled her into prostitution which facilitated the offence of rape;
sold a minor for the purposes of prostitution, criminally intimidating her
thereby committing the offence punishable under Section 347/34 IPC;
(ii) A-1, A-2 and A-4 were charged with committing her gang rape thereby
committing an offence punishable under Section 376(2)(g) IPC;
(iii) A-1, A-2, A-3, A-5 along with co-accused Rachna @ Neha [later
declared a juvenile in conflict with the law (JCL)](hereafter referred to as
JCL) were charged with using PW-6 for the purposes of prostitution and
other unlawful and immoral purposes, in furtherance of their common
intention, thereby committing the offence punishable under Section 372/34
IPC;
(iv) A-1, A-3, A-5 and the JCL were charged with abducting PW-6 from her
lawful guardianship at around 6 pm on 1 st December, 2009 from her house
at Yadav Enclave, Vikas Marg, Delhi and thereby committed an offence
punishable under Section 363/34 IPC and with the intention that she be
compelled to engage in illicit intercourse thereby committing an offence
punishable under Section 366/34 IPC;
(v) A-7 was charged with buying PW-6 for employing her for the purposes
of prostitution thus committing an offence punishable under Section 373
IPC and further threatening PW-6 with injury to her person thereby
committing an offence punishable under Section 506 IPC;
(vi) A-3, A-4, A-5, A-7 along with the JCL were charged with abetting the
commission of rape upon PW-6 and thereby committing offence punishable
under Sections 109/376/34 IPC;
(vii) A-2 along with A-1, A-3, A-4 and the JCL were charged with
kidnapping PW-6 from her lawful guardianship and thereby committing an
offence punishable under Section 363/34 IPC; and
(viii) further A-2 along with A-1, A-3, A-4 and the JCL were charged with
kidnapping her with an intent that she may be compelled into illicit
intercourse thereby committing an offence punishable under Sections
366/366A read with Section 34 IPC.
Statement of PW-6
5. Mahender Pal Singh (PW-5) went to the PS Ranhola on 4th December,
2009 to give a complaint that his daughter, PW-6 aged about 16 years, had
been missing since 6 pm on 1st December, 2009. On the basis of this
complaint, FIR No.42/2009 was registered.
6. After about six months, PW-6 returned home on 6th April, 2010. On that
date her statement under Section 161 Cr PC was recorded. On the next day
i.e. 7th April, 2010, her statement was recorded under Section 164 Cr PC
before the learned Metropolitan Magistrate („MM‟). In that statement, PW-6
stated that in the year 2009, she had been asked to make tea by her father in
the evening. However, she stepped out to play with her friends. After some
time, all her friends had gone back home and it was just her and a small girl
Kajal playing near the house.
7. Rachna (the JCL), whom she had known for the past 2/3 years, and who
was a neighbour came there and told PW-6 that her car was standing on the
road and invited her to see it. While Kajal continued playing by herself, PW-
6 accompanied the JCL to the car. The JCL then invited PW-6 to open the
door of the car. As she opened it, the JCL pushed her into the car from
behind. Ritu (A-3) was seated in the car and pulled her inside. She found 4/5
persons inside the car. Arun (A-2) was in the driving seat. Arun was related
to Rachna who would refer him as her jija (brother-in-law). A-3 kept her
hand pressed against the mouth of PW-6 and also raised the windows of the
car.
8. They then took PW-6 to Prem Nagar. On the way, PW-6 tried to bang on
the glasses of the car and even screamed but the road on which the car was
travelling was silent and empty. Throughout the entire time, her mouth was
kept shut by the accused. They took her to a house at Prem Nagar and kept
her locked there. When she shouted or resisted, they threatened her with
imprisoning her family members and also started beating her. They kept her
there for 3-4 days. There Arun (A-2) and his brother-in-law Ajay raped her
repeatedly. PW-6 remembered that along with them there was another
person present there namely one Sahil. Those people called Kamlesh (A-7).
In the meanwhile, the JCL, A-2 and A-3 would often come there and when
PW-6 asked them as to why she had been brought to that house by them,
they told PW-6 that they were in the business of kidnapping young girls for
trafficking.
9. According to PW-6, A-7 came there at the house, saw her and liked her.
A-7 purchased her (PW-6) for Rs.2 lacs and in the presence of PW-6 gave
the same to A-2, in the presence of Ajay, the JCL, A-3. A-7 then took her to
Yamuna Nagar to a house near the Huda Market, which she had taken on
rent. She was used as a domestic help there. There was another girl Rinki,
who also worked as a domestic help there. In the night, A-7 called 3-4 men
to the house, showed PW-6 to them, and these men proceeded to rape her in
turns. Afterwards, when PW-6 was wearing her clothes, A-7 abused her and
asked why she was putting on her clothes as more people were coming. She
was again raped by 5/6 more people that night and A-7 threatened to kill her
if she disclosed this to anyone.
10. This state of affairs at the house in Yamuna Nagar continued for months
and PW-6 was repeatedly raped. There was no opportunity for her to escape.
There was no access to any telephone either. One day, A-7 took her to
Dehradun. She was first kept at the Danapani Hotel where she was handed
over to one Rakesh by A-7 on contract basis for a sum of Rs.22,000/-.
Rakesh then took her to Hotel Shiv Palace and kept her locked inside a room
there. The manager there was Vikramjeet (A-4). Rakesh used to keep her
locked inside the room in the hotel and would keep bringing persons there
who would rape PW-6. Rakesh himself also committed rape of PW-6 over a
period of 5-6 days.
11. PW-6 also recollected that in between, A-4 had also raped her. One day,
Rakesh sent her to a house. The police somehow rescued her from there and
caught hold of the persons to whom house she was sent. The police then put
her in a bus with Rs.300/- and she reached Delhi on 6th April, 2010, after
which she told her family the events that had unfolded since she went
missing.
Investigation and trial
12. The police then arrested A-1, A-2 and A-3 from Delhi. A-4 and A-5
were arrested from hotel Shiv Palace. A-6 and A-7 were arrested from
Yamuna Nagar, Haryana.
13. After completion of investigation, a charge-sheet was filed. The charges
were framed by the trial Court against the accused persons as indicated
hereinbefore by order dated 22nd November, 2010.
14. 14 witnesses were examined for the prosecution. When the incriminating
circumstances were put to the accused, each of them denied them and
claimed to have been falsely implicated. Assistant Sub Inspector („ASI‟)
Narsingh was examined on behalf of the defence as DW-1. He brought the
record of FIR No.101/2010 dated 4 th February, 2010 of PS City Yamuna
Nagar registered under Sections 3, 4, 5 and 7 of the Immoral Traffic
Prevention Act in which a charge-sheet was filed against one Jyoti, daughter
of Tilak Raj (which is the new name used by the accused for PW-6),
Kamlesh (A-7) along with Vimal and Shiv Kumar. DW-1, however, could
not state whether the Jyoti mentioned in the above FIR and PW-6 were the
same girl or not.
Impugned judgment of the trial Court
15. In the impugned judgment, the learned trial Court came to the following
conclusions:
(i) The date of birth of PW-6 as has emerged from the school record, is
1st July, 1995 (Ex.PW-7/B). It is the correct date of birth. Therefore,
PW-6 was less than 15 years as on the date of commission of the
offence.
(ii) While there was no evidence to prove that A-4 had kidnapped PW-6,
her testimony corroborated by her statement recorded under Section
164 Cr PC proves beyond reasonable doubt that she was kidnapped by
A-1, A-2 and A-3 and was raped by A-1 and A-2.
(iii) The testimony of PW-6 also proves that A-1 to A-3 sold her to A-7
for the purposes of prostitution and that A-7 had in fact bought PW-6
for that purpose. Her testimony also proved that A-1 to A-3 and A-7
had wrongly confined PW-6 and compelled her into prostitution.
There was no evidence, however, to prove that A-4, A-5 and A-6 had
wrongly confined PW6.
(iv) The testimony of PW-6 also proved that she had been raped by A-1,
A-2 and A4. However, there was no evidence of them having
committed gang rape on her.
(v) There was no evidence to show that A-5 and A-6 intentionally aided
in the act of rape upon PW-6. The defence of the other accused that
PW-6 was involved in prostitution with consent was without merit.
There was no conviction of PW-6 in the cases registered against her at
PS City Yamuna Nagar.
16. The trial Court proceeded to convict the aforementioned accused and
sentence them in the manner indicated hereinbefore.
17. This Court has heard the submissions of learned counsel for the
Appellants and the learned APP for the State.
Age of PW-6
18. It was first submitted by counsel for the Appellants/accused that the
prosecution had not been able to prove beyond reasonable doubt that PW-6
was a minor, i.e., less than 15 years of age at the time of the alleged
abduction. The Court‟s attention was drawn to the evidence of her father
Mahender Pal Singh (PW-5) in this regard. It was pointed out that according
to PW-5, he was married at the age of 15. His first child was born one year
after the marriage and she was 24 years as on the date of his deposition in
the Court, that is, 20th January, 2011. His next child (a daughter) was born
after one year, and after a gap of another year, a son was born to him. One
year after the son was born, PW-6 was born. It is argued that in terms of this
statement, PW-6 was 20 years old as on 1st December, 2009.
19. Attention was also drawn to the fact that PW-5 has admitted that "as per
the ESI card the date of birth of all my children falls on 1 st July". The Court
is unable to agree with the above submissions. The prosecution examined
Satender Kumar (PW-7), a Primary Teacher of MCD School at Ranhola
where PW-6 was admitted in the first standard on 3rd August, 2000. Her
name got struck off from the school register due to long absence on 6th
November, 2007. In terms of the admission register maintained by the
school, her date of birth is 1st July, 1995.
20. Although in the cross-examination, PW-7 stated that no date of birth
certificate was given by the parents of PW-6 at the time of her admission,
the fact remains that the school register is sufficient proof of the date of birth
of the child even in terms of the rules made under the Juvenile Justice (Care
and Protection of Children) Act, 2000 („JJ Act‟). It is a settled legal position
that this can form a reasonable basis even for the determination of age of
PW-6 in a case of sexual assault [See Jarnail Singh v. State of Haryana
(2013) 7 SCC 263]
21. There was no question put to PW-7 that the school records are false or
are not maintained in accordance with law. As far as replies elicited from
PW-5 are concerned, a reading of his entire testimony shows that he does
not recollect the exact date of birth of any of his children and only offers
approximation in that regard. However, he categorically denied the
suggestion that PW-6 was 20 years of age as on 1st December, 2009. On the
contrary, in his very first statement to the police while giving his complaint
about her having gone missing on 1st December, 2009, he mentioned her age
as being about sixteen years. Even in her statement under Section 164
Cr.P.C. recorded on 7th April, 2010, PW-6 disclosed her own age as 16
years. The Court is, therefore, not persuaded to accept the submission that
the trial Court erred in acting as per the school record as far as age of PW-6
was concerned.
The evidence of PW-6
22. As far as the deposition of PW-6 herself is concerned, none of the
counsel were able to point out any glaring inconsistency in her first
statement to the police under Section 161 Cr PC recorded on 6th April, 2010,
her subsequent statement before the learned MM under Section 164 Cr.P.C.
on 7th April, 2010 and her deposition in the Court. The discrepancies sought
to be pointed out did not shake her essential version of her abduction,
confinement, rape and subsequently being sold for prostitution. The fact that
the police did not investigate her stay at Dana Pani hotel in Dehradun or did
not examine Rakesh who is named as being involved in her prostitution does
not really discredit PW6 herself.
23. On account of a number of incidents of rape having happened to her over
a period of four months, her inability to specify the dates and time of her
rape will again in no way discredit the testimony of PW-6. In this context,
the following observations of the Supreme Court in Ugar Ahir v. State of
Bihar AIR 1965 SC 277, with regard to appreciation of the testimony of
rape victims require reiteration:
"The maxim falsus in uno, falsus in omnibus (false in one thing, false
in everything) is neither a sound rule of law nor a rule of practice.
Hardly one comes across a witness whose evidence does not contain a
grain of untruth or at any rate exaggerations, embroideries or
embellishments. It is, therefore, the duty of the court to scrutinise the
evidence carefully and, in terms of the felicitous metaphor, separate
the grain from the chaff. But, it cannot obviously disbelieve the
substratum of the prosecution case or the material parts of the
evidence and reconstruct a story of its own out of the rest."
24. Specific to the testimony of a victim of sexual assault, the Supreme
Court in State of Punjab v. Gurmit Singh AIR 1996 SC 1393 explained:
"We must remember that a rapist not only violates the victim's privacy
and personal integrity, but inevitably causes serious psychological as
well as physical harm in the process. Rape is not merely a physical
assault - it is often destructive of the whole personality of the victim.
A murderer destroys the physical body of his victim; a rapist degrades
the very soul of the helpless female. The Courts, therefore, shoulder a
great responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. The Courts should
examine the broader probabilities of a case and not get swayed by
minor contradictions or insignificant discrepancies in the statement of
the prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be appreciated in
the background of the entire case and the trial court must be alive to
its responsibility and be sensitive while dealing with cases involving
sexual molestations."
25. Again in Om Prakash v. State of U.P. AIR 2006 SC 2214 it was
observed:
"11. It is settled law that the victim of sexual assault is not treated as
accomplice and as such, her evidence does not require corroboration
from any other evidence including the evidence of a doctor. In a given
case even if the doctor who examined the victim does not find sign of
rape, it is no ground to disbelieve the sole testimony of the
prosecutrix. In normal course a victim of sexual assault does not like
to disclose such offence even before her family members much less
before public or before the police. The Indian women has tendency to
conceal such offence because it involves her prestige as well as
prestige of her family. Only in few cases, the victim girl or the family
members has courage to go before the police station and lodge a case.
In the instant case the suggestion given on behalf of the defence that
the victim has falsely implicated the accused does not appeal to
reasoning. There was no apparent reason for a married woman to
falsely implicate the accused after staking her own prestige and
honour.
XXXXX
13. A victim of a sex-offence cannot be put on par with an
accomplice. She is in fact a victim of the crime. The Evidence Act
nowhere says that her evidence cannot be accepted unless it is
corroborated in material particulars. She is undoubtedly a competent
witness under Section 118 and her evidence must receive the same
weight as is attached to an injured in cases of physical violence. The
same degree of care and caution must attach in the evaluation of her
evidence as in the case of an injured complainant or witness and no
more. What is necessary is that the Court must be conscious of the
fact that it is dealing with the evidence of a person who is interested in
the outcome of the charge levelled by her. If the Court keeps this in
mind and feels satisfied that it can act on the evidence of the
prosecutrix. There is no rule of law or practice incorporated in the
Indian Evidence Act, 1872 (in short 'Evidence Act') similar to
illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the Court is hesitant to place
implicit reliance on the testimony of the victim it may look for
evidence which may lend assurance to her testimony short of
corroboration required in the case of an accomplice. The nature of
evidence required to lend assurance to the testimony of the victim
must necessarily depend on the facts and circumstances of each case.
But if a victim is an adult and of full understanding the Court is
entitled to base a conviction on her evidence unless the same is own
to be infirm and not trustworthy. If the totality of the circumstances
appearing on the record of the case discloses that the victim does not
have a strong motive to falsely involve the person charged, the Court
should ordinarily have no hesitation in accepting her evidence."
26. Appearing for Vikramjeet (A-4), Ms. Manika Tripathi, learned counsel,
pointed out that in her cross-examination PW-6 admitted that A-4 had raped
her „once‟ whereas in her statement under Section 164 Cr PC. she made it
appear that he had raped her more than once. The Court finds that her
statement before the Court that A-4 raped her once is sufficient to prove his
guilt for the offence under Section 376 IPC and this again does not discredit
her testimony.
27. The evidence of DW-1 to the effect that there was a complaint against
PW-6 along with some of the other accused under the ITPA in fact
substantiates the case of the prosecution that the accused had intentionally
sold PW-6 into prostitution. There is not a shred of evidence to show that
PW-6 willingly entered into prostitution. On the other hand, her consistent
versions before the police and before the Court substantiate the prosecution
version that she was forced into prostitution. The absence of any medical
record to prove the rape of the victim in the present case is not fatal to the
prosecution at all. This is a case where the victim has been raped multiple
times over a period of four months and in fact sold into prostitution. In such
circumstances to expect specific medical evidence of rape is not being
realistic at all.
28. The unimpeachable evidence of PW-6 in the present case is sufficient to
bring home the guilt of the Appellants for the offences with which they have
been charged. Therefore, there is no merit in any of the appeals of the
accused as far as their conviction is concerned.
Appeal of the State
29. Turning now to the appeal filed by the State (Crl.A.1132/2015) against
the acquittal of A-5 and A-6, the Court finds that the trial Court has
discussed in detail the evidence gathered against these two accused. As
rightly pointed out by the trial Court, the evidence of PW-6 as regards these
two accused is not consistent. In her initial statement (Ex.PW-6/A), PW-6
did not mention A-5 at all. Again as regards A-6, the position is the same.
In her initial statement (Ex.PW-6/A) under Section 164 Cr PC she did not
name A-6.
30. Both A-5 and A-6 are, therefore, entitled to the benefit of doubt with
regard to the charge of their abetting the act of rape. Consequently, the Court
finds no merit in the appeal of the State either.
31. The orders on sentence qua the accused who have been convicted are not
shown to be suffering from any legal infirmity at all. That too does not call
for interference.
32. For all the aforementioned reasons, these appeals are dismissed but with
no order as to costs. The trial Court record be returned forthwith along with
a certified copy of this judgment.
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 17, 2018
rd/ 'anb'
