Delhi High Court
Saurabh vs State Of Nct Of Delhi on 22 August, 2019
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: July 22, 2019
Decided on : August 22, 2019
+ CRL.A. 407/2019 and Crl. M (Bail) 591/2019
SAURABH ..... Appellant
Through: Mr. Ajay Verma and Mr. Nikhil
Anand, Advocates
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
+ CRL.A. 409/2019 and Crl. M (Bail) 593/2019
SANDEEP ..... Appellant
Through: Mr. Ajay Verma and Mr.
Katyayini, Advocates
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
1. The two appellants before this court have been described as
residents of jhuggies (hutments) located in the compound of office of
Delhi Jal Board in the locality called Kishangarh in Vasant Kunj area
of New Delhi. They were concededly arrested on 20.03.2017 during
the course of investigation into first information report (FIR)
No.124/2017, dated 19.03.2017 of Police Station Vasant Kunj (North).
They were brought to trial in the court of Additional Sessions Judge
(ASJ) in Sessions case No.175/2017 on the basis of report (charge
sheet) dated 03.05.2017 under section 173 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) submitted by the Station House Officer of
the Police Station through Assistant Commissioner of Police of the
sub-division.
2. The trial was held on the charge for offences punishable under
section 366 read with section 34 of Indian Penal Code, 1860 (IPC),
sections 376(2)(l), 376-D IPC and 323/506 read with section 34 IPC.
The ASJ presiding over the trial, by her judgment dated 14.02.2019,
found the appellants guilty on charge for offences under sections
323/366 read with section 34 IPC and also under sections 376(2)(l)
and 376-D IPC, they having been acquitted on the charge under
section 506 IPC.
3. By order dated 22.02.2019, the trial court awarded rigorous
imprisonment for twenty years with fine of Rs.10,000/- under section
376-D IPC, rigorous imprisonment for ten years with fine of
Rs.10,000/- under section 376(2)(l) IPC, rigorous imprisonment for
seven years with fine of Rs.5,000/- under section 366 IPC and
rigorous imprisonment for six months with fine of Rs.1,000/- for
offence under section 323 IPC to each of these convicts. The trial
court further specified the default sentences in the event of non-
payment of fine adding that the entire amount of fine would be
payable as compensation to the prosecutrix (the victim), also
recommending appropriate compensation to be awarded by the
concerned Legal Services Authority under Delhi Victim
Compensation Scheme, 2015.
4. Feeling aggrieved by the above-mentioned judgment of
conviction, and order on sentence, these appeals have been preferred,
the prime contention being that the appellants are innocent, they
having been implicated under some confusion, it being a case of
mistaken identity.
5. It is apposite to take note at the outset of certain facts which
emerge from the record as established by evidence which is beyond
reproach, and which are now indisputable, there being no endeavour
made by the appellants to question the correctness thereof.
6. The prosecutrix who appeared at the trial as witness for
prosecution (PW-1) is a girl who was aged about 22 years‟ old on the
relevant date (17.03.2017). Unfortunately, her mental growth has
been stulted, her intelligence quotient (IQ) being very low, she also
finding it difficult to engage in conversation with others or to express
herself fully, this having been mentioned in so many words by her
mother, who appeared at the trial as a witness for prosecution (PW-2),
in her statement (Ex.PW-2/A) to the investigating officer SI Preeti
(PW-13), which statement became, upon endorsement (Ex.PW-13/A)
of PW-13 (investigating officer), to be the basis of the FIR (Ex.PX2).
The prosecutrix was sent for evaluation of her intellectual and mental
capacity to Psychiatry Department of All India Institute of Medical
Sciences (AIIMS) on 24.03.2017 and, thereafter, on several dates. In
AIIMS, she was examined by the specialists, they including Mrs.
Tanuja (PW-6) and Dr. Koushik Sinha Deb (PW-7). The said two
witnesses have proved their reports (Ex.PW-6/A, Ex.PW-7/A and
Ex.PW-7/B), the conjoint effect whereof is that the prosecutrix, in
their opinion and assessment, was (then) a person of "moderate
intellectual disability", her IQ being in the range of 45-50 which
would indicate her mental age as that of a child in the age group of 6-9
years.
7. Sub-Inspector Nisha (PW-14) is the first police official before
whom information was given about the acts of commission
constituting kidnapping and rape of the prosecutrix by two persons.
PW-14 was posted at the relevant time in Police Station Mehrauli on
19.03.2017. Her evidence is to the effect that the prosecutrix (PW-1),
along with her mother (PW-2), had met her in the Police Station
Mehrauli at about 4:00 p.m. on 19.03.2017. It is the mother of the
prosecutrix who told her about kidnapping and rape, the prosecutrix
being "unable to speak clearly". She (PW-14) visited the place where
the rape had allegedly been committed (i.e., Delhi Jal Board office,
Kishangarh, New Delhi) and this brought out that the case pertained to
the jurisdiction of (adjoining) Police Station Vasant Kunj, (North).
PW-14, thus, had made a call to the duty officer of Police Station
Vasant Kunj (North) and passed on the information, this becoming
subject matter of daily diary (DD) entry No.34-B being recorded in the
said Police Station at 4:35 p.m. on 19.03.2017 (vide Mark „A‟).
8. The matter arising out of DD No.34-B was entrusted by Police
Station Vasant Kunj (North) to Sub-Inspector Manish Kumar (PW-15)
who, accompanied by Constable Mintoo (PW-9), reached the place
near Delhi Jal Board, Kishangarh, New Delhi. He was met by PW-14,
the prosecutrix (PW-1) and her mother (PW-2). He made inquiries of
the prosecutrix but she was unable to "speak clearly" and, borrowing
the expression used by him (PW-15), she (PW-1) seemed to be
"mentally retarded" inasmuch as she was unable to answer the
queries put to her, even though questions were repeated three-four
times, her answers being "hesitant". He gathered the information
from her mother and then called the duty officer in the Police Station
to request for a lady officer to be sent.
9. It is pursuant to the request of PW-15 that SI Preeti (PW-13),
the investigating officer (IO), assisted by Constable Kavita, reached
the place. PW-13 (the IO) would corroborate the statement of PW-15
in above regard and also state that during her inquiry she found that
the prosecutrix was "unable to speak clearly", her observations being
that "her mental conditions was not of a normal person".
10. For completion of narration, it may be mentioned that, as
proved by PW-13, the FIR was registered on the basis of statement
(Ex.PW-2/A) of the mother (PW-2) of the prosecutrix.
11. The evidence adduced before the trial court would also include
reference to the application (Ex.PW-13/E) made by the IO before the
Metropolitan Magistrate (MM) with the request for the statement of
the prosecutrix to be recorded under section 164 Cr.P.C. It is seen
from record that the said statement was recorded by Ms. Jasjeet Kaur,
MM, New Delhi on 20.03.2017 with assistance of Ms. Parmita Singh,
a Counselor working with Prayas Organization, a non-governmental
organization (NGO) engaged in the work of crisis intervention, her
educational qualification relating to social work. Pertinent to note that
the statement of the prosecutrix under section 164 Cr.P.C. as recorded
by the Metropolitan Magistrate, on the request of the IO, was not
formally adduced as evidence in the trial, neither proved by the
prosecution nor used by the defence to contradict the prosecutrix
during the course of her court testimony.
12. It may also be mentioned here that when her turn to testify as
witness for prosecution came, and the prosecutrix appeared before the
special court on 13.09.2017, taking note of the admitted position of the
prosecution that she (prosecutrix) "suffers from moderate intellectual
disability", accepting the request of counsel representing Delhi
Commission for Women, the examination for recording evidence with
the assistance of Ms. Huzaifa A. Ahmad, Psychologist was permitted.
The special court also examined the said psychologist as court witness
No.1 (CW-1). As per the statement of CW-1, who has been working
as Psychologist with another NGO - Medecins Sans Frontieres
(Doctors Without Borders), she had earlier interacted with the
prosecutrix and had found her to be suffering from "moderate
intellectual disability", her speech being slurred, she capable of
uttering only a few words having difficulty in speaking complete
sentences. The trial court record would show that the statement of the
prosecutrix (PW-1) was recorded with the assistance of CW-1, she
having given interpretation of certain words or sign language that was
used by the witness (the prosecutrix).
13. From the above material on record, there being no other theory
proponded by either side, there can be no doubt as to the fact that the
prosecutrix, though having attained the biological age of about 22
years‟ (as on 17.03.2017) was a person of very low IQ, her mental age
having been assessed to be that of a child aged 6-9 years.
14. It was mentioned in the FIR itself by the mother of the
prosecutrix that she (prosecutrix) had been married about two years
prior to the date of incident. The said marriage had not worked out, the
prosecutrix having been left by her in-laws at her parental home. It
has come on record, however, that the prosecutrix had spent sometime
in the society of her husband.
15. The evidence on record shows that the prosecutrix is second
amongst four daughters of PW-2, native of a village in District
Almorah, Uttarakhand. PW-2 lives in Delhi, apparently in an
unauthorized colony and earns her livelihood by working as a maid
(cook) in nearby households. The family has meagre means of
support. There is no clarity as to the nature of job in which the father
of the prosecutrix had earlier been engaged, PW-2 testifying that he
was unemployed during the period to which the case relates and
would mostly remain at home to take care of the prosecutrix. One of
the other daughters would also go out for work to earn.
16. After the FIR had been registered, the prosecutrix was sent for
medical examination to Department of Emergency Medicine in AIIMS
on 19.03.2017, on the basis of request (Ex.PW-13/B) made by the
investigating officer. The medico-legal certificate (MLC) was proved
at the trial by Mr. Pramod Joshi (PW-3), an official deputed by
Medical Superintendent, the author of such record (Dr. Meenakshi)
having left the services of the hospital, the witness being acquainted
with her writing and signatures. Through PW-3, the MLC of the
prosecturix prepared by Dr. Meenakshi, was proved as Ex.PW-3/A,
along with consent form (Ex.PW-3/B) and emergency form (Ex.PW-
3/C). It may be mentioned here that PW-3 also proved the MLCs
(Ex.PW-3/D and Ex.PW-3/E respectively) in respect of the two
appellants, as had been prepared by another medical officer (Dr. Paras
Satadeve) on 20.05.2017, the said doctor also having left the services
of the hospital.
17. As per the MLC (Ex.PW-3/A) of the prosecutrix, the medical
officer had found no external or internal injuries suffered by her, she
having also noted old hymenal tear with no fresh bleeding. As was
argued on behalf of the appellants, and fairly conceded by the Public
Prosecutor for respondent State, the above condition may possibly
relate to the period of cohabitation spent by the prosecutrix with her
husband.
18. As mentioned earlier, MLCs in respect of the two appellants
were also proved by Pramod Joshi (PW-3), an official of AIIMS. The
MLC (Ex.PW-3/D) in respect of appellant Saurabh (A-1), and MLC
(Ex.PW-3/E) in respect of other appellant Sandeep (A-2), show that at
the time of their medical examination in the Department of Emergency
Medicine of AIIMS during afternoon of 20.03.2017, no external injury
was found on their person. The said MLCs also show that both the
appellants had given their age as 19 years, there being no dispute
raised in this regard. It also must be added that at the time of their
medical examination, each of the appellants was also subjected to
"potency test", the reports (Ex.PX1 - admitted under section 294
Cr.P.C.) and (Ex.PX-5 - also admitted under section 294 Cr.P.C.)
having come on record with opinion that there was nothing to suggest
that each of them was unable to perform sexual intercourse under
ordinary circumstances. The appellants do not take a position contrary
to the said opinion.
19. The evidence, particularly the MLC (Ex.PW-3/A), shows that at
the time of medical examination of the prosecutrix, biological samples
were also collected and made over to the investigating agency (vide
Ex.PW-13/C). The chain of custody of the said biological samples has
been proved through Contsable Mukesh (PW-11) and Constable
Sandeep (PW-10), the former having handed over the said samples to
the latter who took it and deposited the same with the concerned
laboratory. It is admitted case of the prosecution that nothing
incriminating could be found on the basis of such exhibits, the report
(Ex.PW-12/A) proved by Dr. V. Sankaranarayanan (PW-12), Senior
Scientific Officer (Biology), Regional Forensic Science Laboratory
(RFSL) confirming that the DNA analysis could not be performed
since no biological fluid (i.e. semen or blood) was detected in the
vaginal swab (Ex.1) or vaginal smear (Ex.2).
20. In above context, however, it must also be noted here that the
rape had allegedly been committed against the prosecutrix sometime
after 9:30 p.m. on 17.03.2017. The matter had been formally taken
note of by the police vide FIR (Ex.PX2- admitted under section 294
Cr.P.C.) registered at 6:30 p.m. on 19.03.2017. As per the MLC
(ExPW-3/A) the prosecutrix had been examined in AIIMS at 6:56
p.m. on 19.03.2017. There is evidence also showing that the
prosecutrix having returned home in the early hours of 18.03.2017 had
taken bath, thereby washing herself.
21. It will be proper at this stage to take note of the chronology of
events, as per the prosecution case, respecting evidence on which
score dispute is raised.
22. According to the first version of the prosecutrix, narrated
through the mouthpiece of her mother (PW-2), it forming the contents
of the statement (Ex.PW-2/A) based on which FIR was registered, the
prosecutrix had left home sometime after 3:30 p.m. and before 10:00
p.m. on 17.03.2017. There is no clarity as to whether any member of
the family, including the husband of PW-2, was present and actually
saw the prosecutrix (PW-1) leaving the house in the afternoon of
17.03.2017. PW-2 had left for her work at 3:30 p.m. and had returned
at 10:00 p.m. to find the prosecutrix not present at home. It is her
version that the family had made attempt to locate the missing girl but
with no success. The family, thus, returned home late in night. The
prosecutrix returned home at 03:45 hours of 18.03.2017. The mother
(PW-2) talked to her for a short while but she (PW-1) appeared to be
tired and was allowed to go to sleep. The mother (PW-2) went for her
duty on the next morning and, upon return in evening, had another talk
with the prosecutrix (PW-1). It is at that stage that the prosecutrix
(PW-1) told her that she was feeling pain in her vaginal area. When
the mother questioned "in evening of 18.03.2017", the prosecutrix told
her that when she had gone out on 17.03.2017, she had lost her way
and had reached Kishangarh. At about 9:30 p.m., near a peepal tree,
she had come across two young persons, one dark complexioned and
the other fair complexioned who had forcibly taken her to Macchli
Wala Park where they had committed rape upon her, extending threats
to kill her, The prosecutrix also told the mother that the two said
persons had brought her back near her home and thereafter fled away.
23. Narrating the above sequence in her report to the police
(Ex.PW-2/A), the mother (PW-2) also stated that she had taken the
prosecutrix (PW-1) out to trace the perpetrators of the sexual assault in
the area of Jal Board office and Macchli Wala Park in Kishangarh but
with no clue. She had then brought the prosecutrix to the Police
Station Mehrauli in the morning of 19.03.2017.
24. As mentioned earlier, the questioning of the prosecutrix (PW-1)
by the police (for recording statement under section 161 Cr.P.C.) and
by the Metropolitan Magistrate (for recording her statement under
section 164 Cr.P.C.) was with the assistance of counsellors. It may be
mentioned here that in her statement under section 164 Cr.P.C. the
prosecutrix is shown to have told the Metropolitan Magistrate that the
persons who had committed sexual assault on her had made her
remove all her clothes, each of them having raped her by lowering
their respective trousers, she having described the acts so as to indicate
sexual penetration.
25. The prosecution case, as set out in the charge sheet, has been
that on 20.03.2017, SI Preeti (PW-13), the investigating officer
accompanied by Constable Pushpender (PW-5) had taken the
prosecutrix and her mother to Macchli Wala Park, Kishangarh to
make another attempt to trace out the perpetrators of the crime. It is
during the said visit that the prosecutrix first confided in her mother
pointing out towards first appellant Saurabh (A-1), who was present at
the scene, identifying him as one of the two rapists. The IO
questioned A-1 and then formally arrested him, preparing the arrest
memo (Ex.PW-2/B) after effecting personal search (vide Ex.PW-5/A),
the said police proceedings showing the arrest to have been made at
about 9:00 a.m. on 20.03.2017 from Macchli Wala Park, Kishangarh.
It is further the case of the prosecution that during interrogation of A-1
complicity on the part of other appellant Sandeep (A-2) came to be
revealed, reference in this regard being made to his disclosure
statement (Ex.PW-13/D). It is the case for the prosecution that in the
follow up on the disclosure of A-1, the second appellant Sandeep (A-
2) was traced out in the compound of the office of Delhi Jal Board in
Kishangarh where the prosecutrix (PW-1) identified him confirming
that he was the second perpetrator of the crime. It is on that basis that
A-2 was arrested by the IO vide formal arrest memo (Ex.PW-2/C),
after personal search (vide Ex.PW-5/B), the said police proceedings
showing the arrest of A-2 to have been effected at 9:45 p.m. on
20.03.2017 from the compound of the office of Delhi Jal Board in
Kishangarh.
26. The prosecutrix (PW-1), her mother (PW-2), Constable
Pushpender (PW-5) and SI Preeti (PW-13) have deposed on oath
affirming the above mentioned sequence of events from the time of
revelation (of facts constituting the offences) by the prosecutrix to her
mother in the evening of 18.03.2017 till the time of arrest of the
appellants in the morning of 20.03.2017.
27. It may be mentioned here that the prosecution evidence also
proved, through testimonies of SI Ajay (PW-4) and Constable Jai
Singh (PW-8), members of the crime team, the fact of inspection of
the scene of the alleged incident (Macchli Wala Park) but their report
does not bring out any incriminating evidence particularly to show the
complicity on the part of the appellants.
28. Since the version of mother of the prosecutrix (PW-2), and of
the investigating officer (PW-13), is essentially based on what had
been told to them by the prosecutrix (PW-1), it is apposite that her
version is noted at this stage.
29. The learned trial Judge, taking note of the difficulties of the
prosecutrix in expressing herself fully, took care by recording her
deposition, with the help of a psychologist (CW-1) eliciting the
information and reducing it into writing in question and answer form.
In the said court testimony, PW-1 stated that she was taken by two
young persons, her hands being held, to Macchli Wala Park where she
was fully disrobed, she being slapped and hit with leg, threatened with
a brick piece, bitten on face and her hand being twisted. She identified
the second appellant Sandeep (A-2) addressing him in Hindi as "Da-
Da" (डाडा). She also identified the other appellant Saurabh (A-1) and
stated that while A-2 had laid over her, A-1 had also lowered his
trousers. She pointed out towards vaginal area and spoke about
penetration and indecent act indulged in by both of them, it causing
excruciating pain to her, but while pointing out body parts of the
appellants which were used for such penetration, she used a colloquial
expression which is generally used in the Northern parts of the country
as referable to anal region. She stated that the appellants had given
Rs.20/- to her but she did not accept the same. She also said that she
was left near a shop whereafter both the appellants had gone away.
She then spoke about she having returned home, having been rebuked
by the parents and prohibited against going out again, she having
taken food, washed utensils and clothes and cleaned the house. When
asked about the time of she being taken, she referred to the time for it
to be as one of lunch (भात) during day, and when asked about the
return, she referred to the time of morning (नाश्ते के टाइम). She also
spoke about having gone to the police and being examined by a doctor
and identifying the appellants at a place far away from her house, at a
stage when her mother was with her.
30. During cross-examination, upon being so questioned, the
prosecutrix (PW-1) described the members of the family who were
living with her during the relevant period and that she would rarely go
out of the house on her own. She clarified that she was taken by the
appellants on foot to Macchli Wala Park at a time when no one was
present there. She stated that she had not been allowed (by the family)
to go to the said park earlier. She stated that no one had seen her
being taken to Macchli Wala Park, it having turned dark by that time.
She was questioned about the period (of one month) when she had
stayed with her husband after marriage when she stated that he would
beat her up. She confirmed that she had not seen the appellants prior
to this incident. The defence counsel asked her if the appellants had
brought her back up to her house and she answered in negative stating
that they left her near a shop which was not very far from her house.
31. The cross-examination of the prosecutrix (PW-1) concluded
with her answers to the suggestions given by the defence counsel
having been recorded as under:-
"...It is wrong to suggest that the accused did not take me
to part (sic park) and did not take off my clothes. It is
wrong to suggest that the accused persons did not commit
any wrong act with me or that they did not offer me
money or that they did not give threats to me. It is wrong
to suggest that I have falsely implicated the accused
persons at the instance of my mother or that I had never
told my mother that the accused persons had committed
any offence with me. It is wrong to suggest that I have
identified the accused persons at the instance of my
mother and the IO. It is wrong to suggest that since it was
very dark I could not have seen the accused persons and
that some other persons have committed wrong act with
me and I have named the accused persons at the instance
of my mother. It is wrong to suggest that today I have
given false deposition. (All the suggestions have been put
to the victim in Hindi and she has shook her head in
denial to each of the suggestion)".
32. When the mother (PW-2) of the prosecutrix entered the witness
box, her examination-in-chief having been recorded on the lines
indicated above, it was brought out through her cross-examination that
her younger daughter had informed her on telephone at about 9:30
p.m. that the prosecutrix was not present at home. She had returned
home upon such information being conveyed and then had gone out
with her daughters and a son-in-law in search. She mentioned the time
of return of the prosecutrix as 3:30 a.m. of 18.03.2017. She admitted
that she had not taken the prosecutrix to a doctor till the matter had
been reported to the police on 19.03.2017. She spoke about the visit to
Macchli Wala Park on 20.03.2017 in the company of the IO as an
event that had occurred at about 11:30 a.m. - 12 o‟clock noon time on
20.03.2017. At that stage, during cross-examination she spoke about
presence of appellant Sandeep (A-2) with certain other boys in the
park, disputing suggestion that he was instead on duty in Jal Board
office at that point of time.
33. Certain suggestions were given to PW-2 during cross-
examination, they representing the defence, the responses of the
witness having been recorded in her testimony thus:-
"...It is wrong to suggest that both the accused
persons had rescued the prosecutrix and brought
her home. It is wrong to suggest that both the
accused persons had told us all these facts when
they had come to drop the prosecutrix at our house
on the night of 17.03.2017 or that this had
happened in the presence of my husband and the
son in law. It is wrong to suggest that on this day,
both the accused persons had told us that they
worked with Jal Board office and that if we ever
need their help for filing complaint against the
auto driver, they can be contacted at the Jal Board
office. It is wrong to suggest that when the police
failed to apprehend the real culprits, they
apprehended the accused persons and falsely
implicated them in this case. It is wrong to suggest
that I am deposing falsely at the instance of the IO
and have manipulated facts at her instance."
34. The evidence of PW-5 and PW-13 is relevant on the subject of
police proceedings leading to arrest of the appellants on 20.03.2017.
Both the said witnesses deposed along the lines of the prosecution
case, confirming the facts including with reference to the memos of
arrests and personal search which have been referred to earlier. Both
clarified, even reiterating during cross-examination, that the second
appellant Sandeep (A-2) was apprehended from a jhuggi near Delhi
Jal Board office, denying the suggestions given by the defence that
the arrests were made at a time when both the appellants were working
in the office of Jal Board.
35. When the case reached the stage of statements under section
313 Cr.P.C., each of the appellants was confronted with the
incriminating evidence that had come on record at the instance of the
prosecution. They denied the said evidence to be incorrect claiming
they were being falsely implicated stating that the prosecutrix (PW-1)
had deposed falsely. It is essential, however, to take note of the
explanation offered by them at the said stage.
36. In the course of his statement under section 313 Cr.P.C.
appellant Saurabh (A-1), inter alia, stated thus:-
"... I have no knowledge what the prosecutrix told
to her mother but neither me nor my co-accused
Sandeep did any act whatsoever with the
prosecutrix. The correct facts are that I worked as
a helper in Car Market, Kishangarh and reside in
a jhuggi near Jal Board office, Kishangarh and my
co-accused Sandeep works as a helper in the Jal
Board office. On the night of 17.03.2017 at about
10:30 pm I had gone to the chauraha near the Jal
Board office to buy a cigarette. I saw that the
prosecutrix was standing against an auto in which
there were two men sitting and the man sitting on
the rear seat was holding the hand of the
prosecutrix. One rickshaw puller told me that the
said men are troubling the prosecutrix and I should
help her. I then picked up a brick and went near
the auto and showed as if I will hit the brick on the
front glass of the auto and when the two men saw
this, they started the auto and went away leaving
the prosecutrix, I also thereafter came back to my
jhuggi and next morning went for my work. When I
returned from work, my co-accused Sandeep told
me that 3-4 persons had come to our jhuggi and
one of them had told him that he is the jija of the
prosecutrix and one of the woman was her mother
and then they took my friend Sandeep to the house
of the jija of the prosecutrix and that they told him
that he alongwith another boy had raped the
prosecutrix and the other boy i.e. myself who lives
with him had left for work and after that he told all
these facts to them, they let him come back. Since
we were being defamed in the locality, we decided
to go ourselves to the house of the jija of the
prosecutrix as we have not done anything of this
kind. We accordingly the next day i.e. 19.03.2017
at about 7:00 am went to the house of the jija of the
prosecutrix and from there the jija of the
prosecutrix took us to the house of the prosecutrix.
At the said house, the mother of the prosecutrix
kept on saying that she will file a complaint against
me and Sandeep as we had raped her daughter. We
told her that we had not done anything of this kind
and that we will ourselves take them to the police
station if they are not satisfied. We both then took
the prosecutrix, her mother and other family
members to PS Mehrauli. At the PS, nobody heard
our side of the story and falsely arrested us."
37. The second appellant Sandeep (A-2), in his statement under
section 313 Cr.P.C., offered a different explanation in the following
manner:-
"...I have no knowledge what the prosecutrix told
to her mother but neither me nor my co-accused
Saurabh did any act whatsoever with the
prosecutrix. The correct facts are that I used to
work as a helper in Jal Board office, Kishangarh
and used to reside in a jhuggi near Jal Board
office, Kishangarh alongwith Saurabh, one Jai
Prakash and one Shakir. After the work in the Jal
Board office got over in February 2017, myself, Jai
Prakash and Shakir shifted to Nangloi as some
government construction work was going on there.
I do not know where accused Saurabh started
residing after we left the said jhuggi. He was
working in Car Market, Kishangarh even at that
time and must be residing somewhere in
Kishangarh. In the evening of 17.03.2017, I had
accompanied Jai Prakash to Mehrauli as he had
some work there and I thought I will also met my
sister in law who resides in Achar Wali Gali,
Mehrauli. Jai Prakash had to attend some digging
work in Mehrauli and the said work got over very
late at night and I therefore thought that I will
spend the night in Jal Board office and go back to
Nangloi after meeting my sister in law. Therefore,
on 17.03.2017 in the late evening, I went to the Jal
Board office jhuggi, where we used to earlier
reside and at about 9-9:30 pm and Saurabh also
came to the said jhuggi and thereafter we remained
in the said jhuggi the entire night. On 18.03.2017
after I met my Bhabhi and came back to the jhuggi,
two women came to the Jal Board jhuggi- one of
the them was the mother of the prosecutrix and the
other was the sister of the prosecutrix and both of
them told me to accompany them to the house of
the jija of the prosecutrix and at the said house
they started asking me as to which boy resides with
me in the said jhuggi and that they were also
alleging that me and the said boy had raped the
prosecutrix. They also told me that I should bring
the said boy the next day. I went back to my jhuggi
and thereafter when Saurabh came, I told him
everything and the next morning both of us decided
to go ourselves to the house of the jija of the
prosecutrix as we had not done anything of this
kind. We accordingly the next day i.e. 19.03.2017
at about 7:00 am went to the house of the jija of the
prosecutrix and from there the jija of the
prosecutrix took us to the house of the prosecutrix.
At the said house, the mother of the prosecutrix
kept on saying that she will file a complaint against
me and Sandeep as we had raped her daughter. We
told her that we had not done anything of this kind
and that we will ourselves take them to the police
station if they are not satisfied. We both then took
the prosecutrix, her mother and other family
members to PS Mehrauli. At the PS, nobody heard
our side of the story and falsely arrested us."
38. The appellants examined one witness Sanjay Singh (DW-1) in
their defence. As per the testimony of DW-1, he is an acquaintance
of appellant Sandeep (A-2), he (DW-1) having brought him (A-2)
from his native village to Delhi in 2015, on the request of the parents
of the latter, so that he could get a job. He testified that A-2 was
working in a cold drink shop near Jal Board office and would live
with his employer in the said shop itself. He stated that on 17.03.2017
at about 5:00 - 6:00 p.m. A-2 had come to his residence in Mehrauli
(house No.281-B, ward no.2, Mehrauli, New Delhi) and had left after
the dinner at about 10:00 - 10:30 p.m. It may be mentioned that the
prosecutrix and her family also live in a colony of ward no.2,
Mehrauli, New Delhi. Clearly, the version of this witness (DW-1)
contradicts the version of A-2 in his statement about his presence in
his own jhuggi from 9-9.30 p.m. onwards.
39. The trial judge found the evidence of the prosecutrix (PW-1),
and that of her mother (PW-2), credible to accept the allegations
forming the sequence of events. She also found the evidence of the
investigating officer and the accompanying constable corroborative of
the evidence of the former two about the chain of events leading to
apprehension and arrest of the appellant Saurabh (A-1) from Macchli
Wala Park followed by the apprehension and arrest of the other
appellant Sandeep (A-2) from a jhuggi in the vicinity of Delhi Jal
Board in Kishangarh area. In the opinion of the trial judge, the
identification of both the appellants by the prosecutrix as the
perpetrators of the crime confirmed their complicity. She rejected the
arguments of the defence that in absence of corroboration from MLC
(particularly about the injuries on the private parts or other parts of the
body) and the FSL report (showing absence of biological fluids) was
inconsequential. The trial court was not impressed by the argument
about investigation being deficient due to failure on the part of the
investigating agency to locate the shop near which the prosecutrix had
been left by the offenders. It found no merit in the argument that it
was not believable that gang rape could have been committed in a
public park which was ordinarily frequented by the people at large. It
also rejected the argument of delay.
40. The learned counsel representing the appellants has argued,
placing reliance on decision of the Supreme Court reported as Dhan
Raj @ Dhand Vs. State of Haryana, (2014) 6 SCC 745 that in absence
of each circumstance being proved beyond all reasonable doubts by
independent evidence, a criminal charge based on circumstantial
evidence should not be held to have been brought home. The
argument must be rejected straightaway for the simple reason the case
at hand is not based on circumstantial evidence. The prosecution
seeks to prove the accusations brought against the appellants on the
basis of testimony of prosecutrix (PW-1), the victim, result of the
charge, of course, being contingent upon credibility of her word.
41. Placing reliance on Modi's Textbook of Medical Jurisprudence
and Toxicology (26th Edition published by Lexis Nexis), it was
submitted on behalf of the appellants that the FSL report rules out the
possibility of rape having been committed. It was argued that
spermatozoa can be identified for as long as 72 hours after sexual
encounter, reference also being made, for support, to views to such
effect having been expressed in certain research papers including
"Biological and DNA evidence in 1000 sexual assault cases" (co-
authored by France Gingras and ors.), as published in Forensic
Science International: Genetics Supplement Series 2 (2009) 138-140
and Extending the Time to Collect DNA in Sexual Assault Cases
(authored by Terry Taylor), as published in NIJ Journal / Issue
no.267. The submission of the counsel was that assuming that the
prosecutrix had been subjected to forcible sexual intercourse during
the late night hours of 17 and 18.03.2017, notwithstanding the fact that
she had washed herself (by bathing) on the next day, good quality
DNA result could still be gathered so as to connect the crime with the
perpetrators on account of continued presence of spermatozoa for
more than 72 hours, her medical examination having been conducted
and biological samples taken around 7.00 p.m. on 19.03.2017. The
argument was that since FSL scrutiny of the vaginal swab and smear
was negative, the possibility of presence of spermatozoa in the private
parts of the prosecutrix having been ruled out, the word of the
prosecutrix as to penetrative sexual intercourse ought not be believed.
This argument cannot be accepted because seminal discharge is not
necessary for the offence of rape to be proved nor has it been spoken
of by the prosecutrix, she not having been questioned in this regard
even by the defence. The reliance on Krishan Kumar Malik vs. State
of Haryana, (2011) 7 SCC 130 is misplaced.
42. There is no doubt that since the prosecutrix suffers from
moderate intellectual disability, her mental age being that of a child
aged 6 to 9 years, the evidence given by her requires to be subjected to
very close and acute scrutiny. Further, given the fact that there was
some delay in reporting the crime, the family not taking the
prosecutrix to the police till the morning of 19.03.2017, the argument
of possibility of tutoring needs to be considered. But then, the plea of
the defence counsel that the case deserves to be thrown out only on
such account is unacceptable.
43. It does appear that the prosecutrix had spoken of she having
been threatened with a brick-piece and slapped on the cheek, her
complaint to this effect having been noted in the MLC. Further, in her
statement under Section 164 Cr. PC, she had also spoken about she
having been hit with the brick-piece by one of the assailants, the other
having given her a slap. During her court testimony, she attributed
slap blows being given by both assailants, the brick having been used
only for extending threat, she having been bitten on the face, her hand
having been twisted. It also does appear that in the MLC, the
examining medical officer did not find any sign of external injury
having been suffered. Her mother (PW-2) has also not spoken of
having seen any physical injury, she having only noticed that when the
prosecutrix (PW-1) returned in the wee hours of 18.03.2017, she was
in a dishevelled state. The absence of physical injuries by itself,
however, cannot mean that the allegations of rape are false. The
presence of injury is not a sine qua non for credibility of the word of
the prosecutrix about sexual assault to be accepted. The cases of
Pratap Mishra & Ors. vs. State of Orissa, (1977) 3 SCC 41; Lalliram
and Anr. vs. State of Madhya Pradesh, (2008) 10 SCC 69; Raju vs.
State of MP, (2008) 15 SCC 133, Rai Sandeep @ Deepu vs. State
(2012) 8 SCC 21 relied upon by the defence are distinguishable on
facts.
44. The prosecutrix cannot be blamed for delay in reporting the
case to the police. She did not have the capacity to do so on her own.
She was a vulnerable person who had strayed out of the house
sometime before 9.30 p.m. on 17.03.2017. She could return home
around 3.30 a.m. on the next morning i.e. 18.03.2017. The state in
which she returned is indicative of she having suffered some traumatic
or exhausting experience. The family at that stage could possibly have
had no clue as to what may have happened to her during the period of
her absence from home. The omission on the part of the family,
particularly the mother (PW-2), to question the prosecutrix (PW-1) at
that point of time or during the course of the next day, sounds at first
blush to be a lapse. But, it has to be borne in mind that the family
apparently has been facing economic distress, it being dependent
primarily on the earnings of the mother (PW-2) from her work as a
maid-servant in several households, she consequently being obliged
to rush to such work, finding time eventually only in the late evening
hours of 18.03.2017 to make detailed enquiries from the daughter in
question. Being persons from marginalized and vulnerable section of
society, the delay in approaching the police on the next morning (i.e.
19.03.2019) cannot be fatal to the prosecution case, in general, or, to
the word of the prosecutrix, in particular. This Court draws strength
from the decision of Supreme Court in Tulshidas Kanolkar vs. State of
Goa; (2003) 8 SCC 590 which had a similar backdrop.
45. It is the argument of the appellants that the place of occurrence
(Macchli Wala Park) is a public place where, the evidence concedes,
large number of people at large are generally present. It has been
submitted that it is inconceivable that a young girl of such age could
be dragged to the said park, covering long distance (of over one and
half kilometre) from her house and raped in open. It was also argued
that a girl, being ravished by two persons, would ordinarily resist and
it being an open public place, the hue and cry raised by her would
attract attention and preclude the possibility of any such incident
happening. The arguments to this effect ignore the uncontroverted
evidence of the prosecutrix that at the time she was taken to the park
in question, it had already turned dark and no one else was present
there. She has spoken consistently in her statements to the police, to
the Magistrate and, at the trial, to the court, that she had been
threatened, even slapped and given leg blows, her arm being twisted to
force her into submission. Given the fact that it was dark and the park
was desolate, threats having been extended, it was apparently not
possible or opportune for her to raise alarm. Slaps or leg blows or
twisting of arm do not result in tell-tale signs of injuries as can be
visible or noted in the medical examination on the third day. It has not
been the case of the prosecutrix that she was dragged upto the park.
She was taken to the park, her hands being held and, therefore, it
would be only logical to conclude that she was led to the park under
compulsion.
46. It is the argument of the counsel for the appellants that there are
contradictions in the testimonies of witnesses concerning the sequence
of events leading to their arrest on 20.03.2017. It is also the argument
that the appellant Saurabh (A-1) has been identified only on the basis
of dark complexion. It has been submitted that such identification is
unsafe to be acted upon.
47. Indeed, the mother (PW-2) of the prosecutrix has spoken about
the time of arrest of the appellant Saurabh (A-1) differently from the
time reflected in the police proceedings or in the testimony of the IO
(PW-13) and the accompanying constable (PW-5). The statement of
PW-2 to such effect, however, stands in isolation. No suggestions to
that effect were given by the defence during the cross-examination of
PW-5 or PW-13. As noted earlier, in their statements under Section
313 Cr. PC, the appellants have also not indicated the time of their
arrest. On the contrary, each of them has spoken about a visit to the
house of the prosecutrix in the early morning hours (7.00 a.m.) of
19.03.2017, this being followed by a voluntary visit to the police
station, time or date of such visit to the police station having been kept
vague. In this view of the matter, the contradiction appearing in the
testimony of PW-2 as to the time of arrest of the appellant Saurabh
(A-1) does not go to the root of the matter.
48. It is the consistent evidence of the prosecutrix (PW-1), her
mother (PW-2), investigating police officer (PW-13) and the police
official (PW-5) accompanying her that the appellant Saurabh (A-1)
was apprehended from the Macchli Wala Park upon he being
identified by the prosecutrix (P-1) in the morning of 20.03.2017. It
does appear that in the police proceedings, and the evidence, there is a
reference to his dark complexion. But then, it is not correct to say that
he was identified because of the dark complexion. The prosecutrix in
her court testimony may have referred to the appellant Sandeep (A-2)
by his dark complexion. But again, it does not lead to the assumption
that she was identifying him on account of his comparative darker
complexion. When appellant Saurabh (A-1) was arrested, the other
appellant Sandeep (A-2) was yet to be identified or traced. The
reference to dark complexion of the appellant Saurabh (A-1) at that
stage would consequentially be not on account of comparison of his
complexion with that of the other perpetrator. The reference to dark
complexion was, therefore, just a manner of pointing out, not of
crucial importance, not the least clinching.
49. The core question is as to whether the prosecutrix was in a
position to identify both the appellants and as to whether her evidence
holding them complicit in sexual assault against her deserves to be
accepted on its own strength. Having examined the material available
on the record of the trial court, this court would answer in the
affirmative on both counts endorsing the view taken by the trial court
in such regard. The reasons may be elaborated hereinafter.
50. It is well settled principle of criminal jurisprudence that onus to
prove the requisite facts to bring home a criminal charge rests squarely
at the door of the prosecution. The well established norms of the
criminal procedure taking care of the principles of natural justice,
provide level playing field offering to the accused an opportunity to
meet not only the charge for which he has been arraigned but also to
explain the incriminating circumstances that are shown to exist against
him for proving his complicity. This opportunity is availed by the
accused not only by exercising a very valuable right of cross-
examining the witness(es) for prosecution - in order to discredit their
word - but also by offering (at the stage of his own statement under
Section 313 Cr. PC) his explanation for the incriminating facts which
are proved by the prosecution, as indeed by adducing evidence in
defence so as to prove facts to the contrary. The stage of statement of
the accused under Section 313 Cr. PC is one of great significance and
import. The statutory provision in this regard reads thus :
"313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any
circumstances appearing in the evidence against him,
the Court-
(a) may at any stage, without previously
warning the accused, put such questions to
him as the Court considers necessary;
(b) shall, after the witnesses for the
prosecution have been examined and before
he is called on for his defence, question him
generally on the case:
Provided that in a summons- case, where the
Court has dispensed with the personal
attendance of the accused, it may also
dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when
he is examined under sub- section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
giving false answers to them.
(4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into,
or trial for, any other offence which such answers may
tend to show he has committed."
(emphasis supplied)
51. Even a bare reading of the statutory prescription makes it clear
that the opportunity thereby given is to enable the accused "to explain
any circumstances appearing in the evidence against him". He does
not appear at such stage as a witness in his defence, as he may do,
though only of his own volition, under Section 315 Cr. PC later. The
statement under Section 313 Cr. PC is not recorded on oath. It is thus,
not evidence in the strict sense of the term. Refusal to answer the
questions put to him, or giving false answers to them, does not give
rise to he being liable for punishment as are consequences which a
witness refusing to make a statement or lying on oath might attract.
The answers given by him, however, "may be taken into
consideration". It is, however, also a well recognized principle of law
that refusal to answer (to offer explanation or incriminating
circumstance) or giving a false answer at the stage of statement under
Section 313 Cr.PC, may lead to adverse inference being drawn. In
this context, it would be of advantage to refer to some judgments of
the Supreme Court on the subject.
52. In Ashok Kumar vs. State of Haryana, (2010) 12 SCC 350, the
dual purpose of the stage of statement of accused under Section 313
Cr. PC was explained thus :-
"...It is a settled principle of law that dual purpose is
sought to be achieved when the courts comply with the
mandatory requirement of recording the statement of
an accused under this provision. Firstly, every material
piece of evidence which the prosecution proposes to
use against the accused should be put to him in clear
terms and secondly, the accused should have a fair
chance to give his explanation in relation to that
evidence as well as his own versions with regard to
alleged involvement in the crime. This dual purpose
has to be achieved in the interest of the proper
administration of criminal justice and in accordance
with the provisions of CrPC. Furthermore, the
statement under Section 313 CrPC can be used by the
Court insofar as it corroborates the case of the
prosecution. Of course, conviction per se cannot be
based upon the statement under Section 313 CrPC."
(emphasis supplied)
53. In State of U.P. vs. Lakhmi, (1998) 4 SCC 336, the judgment of
acquittal rendered by the High Court in a case of culpable homicide
not amounting to murder was upturned by the Supreme Court, the
observations to the following effect with regard to the effect of certain
answers of the accused in the statement under Section 313 Cr. PC
being of import :
"8. As a legal proposition we cannot agree with the
High Court that statement of an accused recorded
under Section 313 of the Code does not deserve any
value or utility if it contains inculpatory admissions.
The need of law for examining the accused with
reference to incriminating circumstances appearing
against him in prosecution evidence is not for
observance of a ritual in a trial, nor is it a mere
formality. It has a salutary purpose. It enables the
court to be apprised of what the indicted person has to
say about the circumstances pitted against him by the
prosecution. Answers to the questions may sometimes
be flat denial or outright repudiation of those
circumstances. In certain cases the accused would
offer some explanations to incriminative
circumstances. In very rare instances the accused may
even admit or own incriminating circumstances
adduced against him, perhaps for the purpose of
adopting legally recognised defences. In all such cases
the court gets the advantage of knowing his version
about those aspects and it helps the court to effectively
appreciate and evaluate the evidence in the case. If an
accused admits any incriminating circumstance
appearing in evidence against him there is no warrant
that those admissions should altogether be ignored
merely on the ground that such admissions were
advanced as a defence strategy.
9. Sub-section (4) of Section 313 of the Code contains
necessary support to the legal position that answers
given by the accused during such examination are
intended to be considered by the court. The words
"may be taken into consideration in such enquiry or
trial" in sub-section (4) would amount to a legislative
guideline for the court to give due weight to such
answers, though it does not mean that such answers
could be made the sole basis of any finding.
10. Time and again, this Court has pointed out that
such answers of the accused can well be taken into
consideration in deciding whether the prosecution
evidence can be relied on, and whether the accused is
liable to be convicted of the offences charged against
him; vide Sampat Singh v. State of Rajasthan [(1969) 1
SCC 367]; Jethamal Pithaji v. Asstt. Collector of
Customs [(1974) 3 SCC 393 : 1973 SCC (Cri) 958]
; Rattan Singh v. State of H.P. [(1997) 4 SCC 161 :
1997 SCC (Cri) 525]
11. We make it clear that answers of the accused, when
they contain admission of circumstances against him
are not by themselves, delinked from the evidence, be
used for arriving at a finding that the accused had
committed the offence."
(emphasis supplied)
54. The background facts in the Mohan Singh Vs. Prem Singh and
Anr., (2002) 10 SCC 236 were similar to the preceding case, the
Supreme Court ruling thus :
"27. The statement made in defence by the accused
under Section 313 CrPC can certainly be taken aid of
to lend credence to the evidence led by the prosecution,
but only a part of such statement under Section 313 of
the Code of Criminal Procedure cannot be made the
sole basis of his conviction. The law on the subject is
almost settled that statement under Section 313 CrPC
of the accused can either be relied in whole or in part.
It may also be possible to rely on the inculpatory part
of his statement if the exculpatory part is found to be
false on the basis of the evidence led by the
prosecution. See Nishi Kant Jha v. State of
Bihar [(1969) 1 SCC 347 : AIR 1969 SC 422] : (SCC
pp. 357-58, para 23)
"23. In this case the exculpatory part of the
statement in Exhibit 6 is not only inherently
improbable but is contradicted by the other
evidence. According to this statement, the
injury which the appellant received was caused
by the appellant's attempt to catch hold of the
hand of Lal Mohan Sharma to prevent the
attack on the victim. This was contradicted by
the statement of the accused himself under
Section 342 CrPC to the effect that he had
received the injury in a scuffle with a
herdsman. The injury found on his body when
he was examined by the doctor on 13-10-1961
negatives both these versions. Neither of these
versions accounts for the profuse bleeding
which led to his washing his clothes and having
a bath in River Patro, the amount of bleeding
and the washing of the bloodstains being so
considerable as to attract the attention of Ram
Kishore Pandey, PW 17 and asking him about
the cause thereof. The bleeding was not a
simple one as his clothes all got stained with
blood as also his books, his exercise book and
his belt and shoes. More than that the knife
which was discovered on his person was found
to have been stained with blood according to
the report of the Chemical Examiner.
According to the post-mortem report this knife
could have been the cause of the injuries on the
victim. In circumstances like these there being
enough evidence to reject the exculpatory part
of the statement of the appellant in Exhibit 6
the High Court had acted rightly in accepting
the inculpatory part and piercing the same with
the other evidence to come to the conclusion
that the appellant was the person responsible
for the crime."
(emphasis supplied)
55. Noticeably, the decision in Nishi Kant Jha vs State of Bihar,
(1969) 1 SCC 347, referred to in the above quoted ruling, was
rendered by a Constitution Bench of the Supreme Court.
56. In Ashok Kumar (supra), the Supreme Court held as under :
"31. The Court has been empowered to examine the
accused but only after the prosecution evidence has
been concluded. It is a mandatory obligation upon the
Court and besides ensuring the compliance thereof, the
Court has to keep in mind that the accused gets a fair
chance to explain his conduct. The option lies with the
accused to maintain silence coupled with simpliciter
denial or, in the alternative, to explain his version and
reasons, for his alleged involvement in the commission
of crime. This is the statement which the accused
makes without fear or right of the other party to cross-
examine him. However, if the statements made are
false, the Court is entitled to draw adverse inferences
and pass consequential orders, as may be called for, in
accordance with law. The primary purpose is to
establish a direct dialogue between the Court and the
accused and to put every important incriminating piece
of evidence to the accused and grant him an
opportunity to answer and explain. Once such a
statement is recorded, the next question that has to be
considered by the Court is to what extent and
consequences such statement can be used during the
enquiry and the trial. Over the period of time, the
courts have explained this concept and now it has
attained, more or less, certainty in the field of criminal
jurisprudence.
32. The statement of the accused can be used to test the
veracity of the exculpatory part of the admission, if
any, made by the accused. It can be taken into
consideration in any, enquiry or trial but still it is not
strictly an evidence in the case. The provisions of
Section 313(4) CrPC explicitly provides that the
answers given by the accused may be taken into
consideration in such enquiry or trial and put in as
evidence for or against the accused in any other
enquiry or trial for any other offence for which, such
answers may tend to show he has committed. In other
words, the use of a statement under Section 313 CrPC
as an evidence is permissible as per the provisions of
the Code but has its own limitations. The Courts may
rely on a portion of the statement of the accused and
find him guilty in consideration of the other evidence
against him led by the prosecution, however, such
statements made under this section should not be
considered in isolation but in conjunction with
evidence adduced by the prosecution."
(emphasis supplied)
57. The decision reported as Manu Sao vs. State of Bihar, (2010) 12
SCC 310, is similarly placed. The crucial observations of the Supreme
Court vis-a-vis the use of the statement of accused to test the veracity
of exculpatory nature of his admission read thus :
"13. As already noticed, the object of recording the
statement of the accused under Section 313 of the Code
is to put all incriminating evidence against the accused
so as to provide him an opportunity to explain such
incriminating circumstances appearing against him in
the evidence of the prosecution. At the same time, also
to permit him to put forward his own version or
reasons, if he so chooses, in relation to his involvement
or otherwise in the crime. The court has been
empowered to examine the accused but only after the
prosecution evidence has been concluded. It is a
mandatory obligation upon the court and besides
ensuring the compliance therewith the court has to
keep in mind that the accused gets a fair chance to
explain his conduct. The option lies with the accused to
maintain silence coupled with simpliciter denial or in
the alternative to explain his version and reasons for
his alleged involvement in the commission of crime.
This is the statement which the accused makes without
fear or right of the other party to cross-examine him.
However, if the statements made are false, the court is
entitled to draw adverse inferences and pass
consequential orders, as may be called for, in
accordance with law. The primary purpose is to
establish a direct dialogue between the court and the
accused and to put to the accused every important
incriminating piece of evidence and grant him an
opportunity to answer and explain. Once such a
statement is recorded, the next question that has to be
considered by the court is to what extent and
consequences such statement can be used during the
enquiry and the trial. Over the period of time, the
courts have explained this concept and now it has
attained, more or less, certainty in the field of criminal
jurisprudence.
14. The statement of the accused can be used to test the
veracity of the exculpatory nature of the admission, if
any, made by the accused. It can be taken into
consideration in any enquiry or trial but still it is not
strictly evidence in the case. The provisions of Section
313(4) explicitly provides that the answers given by the
accused may be taken into consideration in such
enquiry or trial and put in evidence against the
accused in any other enquiry or trial for any other
offence for which such answers may tend to show he
has committed. In other words, the use is permissible
as per the provisions of the Code but has its own
limitations. The courts may rely on a portion of the
statement of the accused and find him guilty in
consideration of the other evidence against him led by
the prosecution, however, such statements made under
this section should not be considered in isolation but in
conjunction with evidence adduced by the
prosecution."
(emphasis supplied)
58. In Munna Kumar Upadhyay vs. State of Andhra Pradesh,
(2012) 6 SCC 174, the conviction of the appellant on the charge, inter
alia, for offence under Section 302 IPC, as affirmed by the High
Court, was upheld, endorsing the raising of adverse inference from the
vague or false denial of a crucial circumstance by the accused. The
court observed thus :
"72. Besides all this circumstantial evidence, another
very significant aspect of the case is that none of the
accused, particularly Accused 2, offered any
explanation during the recording of their statements
under Section 313 CrPC. It is not even disputed before
us that the material incriminating evidence was put to
Accused 2 while his statement under Section 313 CrPC
was recorded. Except for a vague denial, he stated
nothing more. In fact, even in response to a question
relating to the injuries that he had suffered, he opted to
make a denial, which fact had duly been established by
the statements of the investigating officers, doctors and
even the witnesses who had seen him immediately after
the crime.
73. It is a settled law that the statement under Section
313 CrPC is to serve a dual purpose, firstly, to afford
to the accused an opportunity to explain his conduct
and secondly to use denials of established facts as
incriminating evidence against him."
(emphasis supplied)
59. The ruling in Raj Kumar Singh vs. State of Rajasthan, (2013) 5
SCC 722, follows the above principles, holding thus :
"41. In view of the above, the law on the issue can be
summarised to the effect that statement under Section
313 CrPC is recorded to meet the requirement of the
principles of natural justice as it requires that an
accused may be given an opportunity to furnish
explanation of the incriminating material which had
come against him in the trial. However, his statement
cannot be made a basis for his conviction. His answers
to the questions put to him under Section 313 CrPC
cannot be used to fill up the gaps left by the
prosecution witnesses in their depositions. Thus, the
statement of the accused is not a substantive piece of
evidence and therefore, it can be used only for
appreciating the evidence led by the prosecution,
though it cannot be a substitute for the evidence of the
prosecution. In case the prosecution evidence is not
found sufficient to sustain conviction of the accused,
the inculpatory part of his statement cannot be made
the sole basis of his conviction. The statement under
Section 313 CrPC is not recorded after administering
oath to the accused. Therefore, it cannot be treated as
an evidence within the meaning of Section 3 of the
Evidence Act, though the accused has a right if he
chooses to be a witness, and once he makes that option,
he can be administered oath and examined as a witness
in defence as required under Section 315 CrPC. An
adverse inference can be taken against the accused
only and only if the incriminating material stood fully
established and the accused is not able to furnish any
explanation for the same. However, the accused has a
right to remain silent as he cannot be forced to become
a witness against himself."
(emphasis supplied)
60. The stage of recording the statement of an accused under
Section 313 Cr.P.C. stems from the principles of natural justice and
engages him in a statutorily mandated dialogue, the court affording to
the former opportunity to explain the incriminating circumstances
established against him by the prosecution evidence. If no such
incriminating circumstances have been proved, he need not explain.
His statement is not substantive evidence which can be singularly used
to hold him guilty. His explanation, if plausible, may be accepted to
reject the charge. He may refuse to offer any explanation maintaining
silence. But his refusal to explain, or offering vague denial, or tender
of false defence are situations wherein the criminal court may draw
adverse inference against him. The adverse inference, of course,
cannot by itself be the sole basis of finding of guilty being returned,
the burden of proof in which regard remains throughout on the
shoulder of prosecution. The exculpatory part of the statement of
accused may be rejected if proved to be false by prosecution evidence.
The inculpatory part of his statement may be used to draw assurance
as to the credibility of evidence of prosecution in respect of
incriminating facts or circumstances.
61. As noted above, during cross-examination of the prosecutrix
(PW-1), both the appellants have taken the plea of total denial. They
not only took the defence that they had nothing to do with the incident
and had been falsely implicated at the instance of her mother (PW-2)
but also, and more crucially, suggested that she had identified them
not of her own, not on account of they having committed wrong acts
with her, but at the instance of her mother and the investigating
officer. In contrast, when the mother (PW-2) of the prosecutrix
entered the witness box and was under cross-examination, the
appellants came up with a version affirming the word of the latter
(prosecutrix) that they had been with her on the night of 17.03.2017.
They took the plea that they had "rescued" the prosecutrix having
come with her to drop her back at her home and had even offered to
render help in filing complaint against an auto driver. The defence
suggestions to such effect, as given to PW-2 (and refuted by her), are
conspicuously missing from the cross-examination of PW-1. Be that
as it may, what stands out from the suggestions given to PW-2 is the
admission of both the appellants atleast to the extent that they together
had accompanied her till or upto her house that night on 17.03.2017.
62. In their statements under Section 313 Cr. PC, as extracted
above, the version of defence materially changed. Only the first
appellant Saurabh (A-1) would continue with the claim of the
prosecutrix having been "rescued" from harassment, the sole auto
driver (who was earlier projected to be the cause of harassment) being
now shown as one of two persons sitting in the auto rickshaw, the
second appellant Sandeep (A-2) opting out of the claim of such role,
the first appellant Saurabh (A-1) also not naming him to be present.
The appellant Saurabh (A-1), in his statement, sought to claim that he
had come across the prosecutrix standing near an auto rickshaw, her
hand being held by a person sitting in the rear seat at about 10.30 p.m.
on 17.03.2017 in the vicinity of chauraha (roundabout) near Jal Board
office. He claimed that he had intervened because he was told by a
rickshaw puller that the said persons were troubling the prosecutrix
and that upon he threatening to hit the front glass of the auto rickshaw,
the said persons had fled away with their vehicle leaving the
prosecutrix behind. He was contradicted materially by the second
appellant Sandeep (A-2) in his version by not only not claiming to be
part of the rescue effort or being in the company of the former (A-1)
but also stating that the appellant Saurabh (A-1) had joined him in the
said jhuggi in the vicinity of Jal Board office at about 9.00 / 9.30 p.m.
on 17.03.2017 where-after both had remained inside the said jhuggi
for the entire night. If the version of the appellant Sandeep (A-2) is
correct, the rescue effort claimed by the other appellant (A-1) is
apparently an imaginary story. What is also noteworthy from the
statements of both the appellants that neither of them spoke of having
accompanied the prosecutrix back to her house, as was clearly
suggested to PW-2, during her cross-examination.
63. The second appellant Sandeep (A-2) has taken the plea of alibi,
his claim being that he was first in the company of his relative Jai
Prakash till return to the jhuggi in Jal Board office late in the evening
of 17.03.2017, after visiting his sister-in-law in Mehrauli, and
thereafter being in the company of the other appellant Saurabh (A-1)
throughout the night from 9.00 to 9.30 p.m. onwards. He has not
mustered any evidence in support, the testimony of DW-1 not being in
sync with such claim.
64. From the above, it is clear that when called upon to explain the
incriminating circumstances both the appellants have come up not
merely with vague denials but also false and inherently contradictory
narratives. This must result in adverse inference being drawn. Their
suggestion to PW-2 about both of them having accompanied the
prosecutrix back upto her house is of crucial import and significance.
It carries within an admission that the prosecutrix had come across
them during the crucial period after she had strayed out of the house
upto the area in the vicinity of Jal Board office which is located far
away in Kishangarh where the appellants lived. This reinforces the
word of the prosecutrix (PW-1) that she had remained with them on
the said night, this giving to her the capability to identify them on her
own strength, rather than at the instance of anyone else. This is
sufficient to reject the defence argument that it is a case of mistaken
identity.
65. It is well settled that conviction can be based on the sole
testimony of the prosecutrix if it is implicitly reliable [State of Punjab
vs. Ram Dev Singh, (2004) 1 SCC 421; State of H.P. vs. Asha Ram,
(2005) 13 SCC 766; Raju vs. State of M.P, (2008) 15 SCC 133; and
Rajinder vs. State of H.P., (2009) 16 SCC 69, to mention a few
judgments].
66. In Narender Kumar vs. State (NCT of Delhi), (2012) 7 SCC
171, the Supreme Court observed thus:-
"20. It is a settled legal proposition that once the
statement of the prosecutrix inspires confidence and is
accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the court for
corroboration of her statement. Corroboration of
testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies
should not be a ground for throwing out an otherwise
reliable prosecution case".
"21. A prosecutrix complaining of having been a victim
of the offence of rape is not an accomplice after the
crime. Her testimony has to be appreciated on the
principle of probabilities just as the testimony of any
other witness; a high degree of probability having been
shown to exist in view of the subject-matter being a
criminal charge. However, if the court finds it difficult
to accept the version of the prosecutrix on its face
value, it may search for evidence, direct or substantial
(sic circumstantial), which may lend assurance to her
testimony.(Vide Vimal Suresh Kamble vs.
Chaluverapinake Apal S.P. [(2003) 3 SCC 175 :
2003 SCC (Cri) 596 : AIR 2003 SC 818]
and Vishnu v. State of Maharashtra [(2006) 1 SCC 283
: (2006) 1 SCC (Cri) 217 : AIR 2006 SC 508] )
(emphasis supplied)
67. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, (1983)
3 SCC 217, while observing that there is no reason for the evidence of
the prosecutrix who complains of rape or sexual molestation "to be
viewed with the aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion" and that "refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration as a rule, is
adding insult to injury", the Supreme Court ruled thus:-
"11. ....On principle the evidence of a victim of sexual
assault stands on par with evidence of an injured
witness. Just as a witness who has sustained an injury
(which is not shown or believed to be self-inflicted) is
the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of
a sex offence is entitled to great weight, absence of
corroboration notwithstanding. And while
corroboration in the form of eyewitness account of an
independent witness may often be forthcoming in
physical assault cases, such evidence cannot be
expected in sex offences, having regard to the very
nature of the offence."
68. Reiterating the above principles, the Supreme Court in the
judgment in case reported as Mukesh & Anr. vs. State (NCT of Delhi)
& Ors., (2017) 6 SCC 1, observed thus:-
383. At the same time while dealing with cases of rape,
the Court must act with utmost sensitivity and
appreciate the evidence of the prosecutrix in view of
settled legal principles. Courts while trying an accused
on the charge of rape, must deal with the case with
utmost sensitivity, examining the broader probabilities
of a case and it should not be swayed by minor
contradictions and discrepancies in appreciation of
evidence of the witnesses which are not of a substantial
character. It is now well settled that conviction for an
offence of rape can be based on the sole testimony of
the prosecutrix corroborated by medical evidence and
other circumstantial evidence such as the report of
chemical examination, scientific examination, etc. if
the same is found natural and trustworthy.
384. Persisting notion that the testimony of the victim
has to be corroborated by other evidence must be
removed. To equate a rape victim to an accomplice is
to add insult to womanhood. Ours is a conservative
society and not a permissive society. Ordinarily a
woman, more so, a young woman will not stake her
reputation by levelling a false charge, concerning her
chastity. In State of Karnataka v. Krishnappa [State of
Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000
SCC (Cri) 755] , it was held as under: (SCC pp. 82-83,
paras 15-16)
"15. Sexual violence apart from being a
dehumanising act is an unlawful intrusion of the
right to privacy and sanctity of a female. It is a
serious blow to her supreme honour and offends
her self-esteem and dignity -- it degrades and
humiliates the victim and where the victim is a
helpless innocent child, it leaves behind a
traumatic experience. The courts are, therefore,
expected to deal with cases of sexual crime
against women with utmost sensitivity. Such
cases need to be dealt with sternly and severely.
...
16. A socially sensitised Judge, in our opinion, is
a better statutory armour in cases of crime
against women than long clauses of penal
provisions, containing complex exceptions and
provisos."
(emphasis supplied)
69. It is noted that the trial Judge by the impugned judgment under
appeal, taking note of the vulnerable state of the prosecutrix, as indeed
her demeanor at the time of deposition at the trial, has observed that
her competence to appear as a witness cannot be questioned,
notwithstanding the fact that she suffers from moderate intellectual
disability, for the reason she was able to comprehend the questions
which were put to her and was able to give rational answers thereto,
the possibility of she having been tutored being ruled out, her
testimony being of such sterling quality in the veracity of which the
court could put implicit faith, there being no such major discrepancies
as might impair her credibility, her version instead being consistent
throughout. Having gone through the trial court record, this court
endorses the said conclusions.
70. The prosecutrix may be suffering from low intelligence
quotient, her mental age may have lagged behind her physical growth.
But, it cannot be ignored that she was about 22 years‟ old on the
relevant date, nature having bestowed on her the inbuilt sense to
distinguish ill-intentioned physical contact from good-intentioned one,
her short period of cohabitation with the husband having possibly
exposed her to physical intimacy. She has been clear and consistent in
her word that she was disrobed by the appellants, each of them having
lowered their trousers and atleast one of them having laid naked over
her, the acts committed having caused her pain in her vaginal part.
The colloquial expression used by the prosecutrix in her testimony
may be erroneous but there is no doubt that she had been subjected to
penetrative sexual assault. There is no reason why it be assumed that
the prosecutrix may have imagined such sequence of events. In
absence of any evidence showing the possibility of false implication
for ulterior motive, there being no theory of previous enmity, the
argument that the prosecutrix has falsely implicated the appellants at
the instance of her mother does not appeal to reason. There is a ring
of truth around the testimony of prosecutrix when she deposed about
the acts in above nature having been committed by the appellants
against her body. This court finds absolutely no reasons why her
testimony be dis-believed.
71. For the foregoing reasons, this court finds no merit in the
appeals. The learned trial judge has appreciated the evidence
analysing it threadbare and reaching correct conclusions emerging
from the record. The penetrative sexual assault even by one of the
appellants, clearly without the consent and against the will of the
prosecutrix, with the aid of the other appellant, he also participating in
the crime, both acting in furtherance of common intention, established
the charge for the offence of gang rape punishable under Section 376
D IPC. The fact that the prosecutrix was taken by the appellants from
the public street upto Macchli Wala Park quite a distance away from
her house, apparently with the intention of subjecting her to sexual
assault has rightly been held to prove the charge for offence under
Section 366 read with Section 34 IPC. The fact that the prosecutrix
was slapped and hit with legs, her arm being twisted further proves the
offence under Section 323 read with Section 34 IPC. No doubt, the
acts proved to have been committed by the appellants also constitute
the offence of rape punishable under Section 376(2)(l) IPC on account
of the fact that the prosecutrix suffered from mental disability at the
time of commission of the said offence.
72. In the result, the impugned judgment of the trial court holding
the appellants guilty and convicting them for offences under section
376 D, section 376(2)(l), sections 366 and 323 read with section 34
IPC is upheld.
73. The trial court has adopted the punishment prescribed as
minimum for offences under Sections 376D and 376(2)(l) IPC. The
punishments awarded for the said and other offences, being just,
proper and commensurate, are confirmed. This court also endorses the
view taken by the trial judge on the subject of compensation to the
prosecutrix.
74. The appeals and the applications filed therewith are dismissed.
The appellants shall be informed of the result of the appeals by a copy
of this judgment being served on them through Superintendent of the
jail.
R.K.GAUBA, J.
AUGUST 22, 2019
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