Manoj Kumar vs State (G.N.C.T) Of Delhi
2019 Latest Caselaw 1300 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment Reserved On: 08.02.2019
                                      Judgment Pronounced On: 28.02.2019

CRL.A. 328/2003

MANOJ KUMAR                                              ... Appellant
                           Through:    Mr. Akshai Malik, Advocate, Amicus
                                       Curiae
                    versus
STATE (G.N.C.T) OF DELHI                                  ..... Respondent
                    Through:           Ms. Radhika Kolluru, APP for State
                                       SI Ranbir Singh, P.S. Nangloi.

CRL.A. 543/2003

RAMESH KUMAR                                              ... Appellant
                           Through:    Ms. Inderjeet Sidhu, Advocate
                                       (DHCLSC)
                           versus
STATE                                                        ..... Respondent

                           Through:    Ms. Radhika Kolluru, APP for State
                                       SI Ranbir Singh, P.S. Nangloi.

CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
HON'BLE MS JUSTICE SANGITA DHINGRA SEHGAL

                              JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present batch of criminal appeals, being Criminal Appeal Nos.

328/2003 and 543/2003 instituted under the provisions of section 374 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C'),

assail the judgment dated 29.11.2002 and order on sentence dated

30.11.2002, rendered by the Ld. Additional Sessions Judge, Delhi, in

Sessions Case no.105/2000, arising out of FIR No.703/98 (hereinafter

referred to as the 'subject FIR').

2. By way of the impugned judgement dated 29.11.2002 and order on

sentence dated 30.11.2002, Manoj Kumar and Ramesh Kumar, the

Appellants in these two appeals (hereinafter collectively referred to as

'Appellants'), were sentenced to undergo rigorous imprisonment for life and

pay a fine of Rs.1,000/- each for the offence punishable under Section

376(2)(g) read with section 34 of the Indian Penal Code, 1860 (hereinafter

referred to as 'IPC'). In default of payment of fine, the Appellants have been

sentenced to undergo simple imprisonment for a further period of two

months.

3. The fulcrum of the case of the prosecution is that on 12.10.1998, the

Appellants enticed the prosecutrix (PW-2), who was unfamiliar with the city,

on the pretext of dropping her to her sister's house and with the common

intention, committed rape on the prosecutrix, who was 17 years old on the

date of commission of the offence.

4. On 13.11.1998, at 12 PM, DD No. 6A was recorded by the Duty

Officer, Ms. Darshana (PW-3) at the instance of the prosecutrix at P.S

Nangloi, who complained about being raped by the Appellants on the

intervening night of 12/13.10.1998. An FIR bearing No. 703/98 was

registered upon the statement of the prosecutrix. Subsequent thereto, the

prosecutrix accompanied the police officials to the crime spot where the

Appellants were found sleeping on the roof of the premises where the

prosecutrix was allegedly raped and were apprehended therefrom at around

1/1:30 PM by SI Partap Singh (PW-10), the IO in the present case, on the

pointing out of the prosecutrix. Personal search was conducted of the

Appellants [vide personal search memos Ex.Pw-8/B and Ex.Pw-8/C]. On the

prosecutrix pointing out the crime spot, a site plan was prepared [Ex.PW-

10/A].

5. During the course of investigation of the case, the prosecutrix, as well

as, the Appellants were medically examined at DDU hospital by Dr. Anupam

(PW-6) [Ex.PW-6/A and Mark B]. The exhibits were later sent for forensic

examination [Ex.PA]. The prosecutrix also underwent an ossification test for

assessment of her bone age. [Mark -XI and Ex. PW-1/A].

6. Thereafter, the prosecutrix was sheltered at Nari Niketan until her

father received a telegram from the authorities; who subsequent thereto

reached Delhi and was informed about the unfortunate incident; whereafter

the prosecutrix joined the company of her father.

7. By way of order dated 31.03.2000, charges were framed under section

376(2) (g) of IPC against the Appellants. The Appellants pleaded not guilty

and claimed trial. At the stage of evidence, in support of its case, the

prosecution examined 10 witnesses. The statements of the Appellants were

recorded under section 313 of the Cr.P.C. The Appellants denied committing

rape on the prosecutrix and chose not to examine any witness in their

defence.

8. The Trial Court whilst rejecting the defence set up by the Appellants,

convicted them, essentially predicated on the testimony of the prosecutrix

which was found to be consistent, credible and truthful.

9. Learned counsel appearing on behalf of the Appellants would canvass

that the learned Trial Judge has erred in convicting the Appellants, inasmuch

as, the Appellants have been falsely implicated at the instance of the

prosecutrix who admittedly reached Delhi on 12.10.1998 at 8AM and joined

the company of the Appellants thereafter, whereas the alleged offence is

stated to have taken place on 13.10.1998. Therefore, the only logical

inference that can be deduced in these facts and circumstances is that the

prosecutrix roamed around with the Appellants for an entire day of her own

free will, without raising any hue and cry and hence was a consenting party.

10. The counsel for the Appellants would further submit that there has

been an unexplained delay of 24 hours by the prosecutrix in the registration

of the subject FIR in the present case.

11. The counsel for the Appellants would also asseverate that the medical

evidence belies the allegation of rape against the Appellants, inasmuch as,

although the MLC of the prosecutrix reveals that the hymen of the

prosecutrix was found to be torn, the same was not a fresh tear. It further

reveals the absence of any external injuries on the prosecutrix.

12. Learned counsel appearing on behalf of the Appellants further submits

that there is discrepancy in the place of occurrence of the crime and the place

of arrest of the Appellants.

13. Lastly, the counsel for the Appellants would urge that the solitary

version of the prosecutrix in her examination in chief cannot be taken as the

gospel truth in the absence of any corroborating evidence. In order to

buttress this submission reliance would be placed on the decisions in Rai

Sandeep @ Deepu v. State of NCT of Delhi reported as (2012) 8 SCC 21;

Tameezuddin @ Tammu v. State (NCT of Delhi) reported as (2009) 15 SCC

566 and Krishan Kumar Malik v. State of Haryana reported as (2011) 7

SCC 130.

14. Per contra, learned Additional Public Prosecutor whilst supporting the

impugned judgment in its entirety, would urge that the findings of the Ld.

Trial Court require no interference. It would be asseverated that conviction

can be solely based on the testimony of the prosecutrix. However, if the

court is dissatisfied, it may seek other evidence, direct or circumstantial to

lend assurance to her testimony.

15. We have heard the counsel appearing on behalf of the parties and

perused the entire evidence on record.

16. The case of the prosecution is that the prosecutrix who was 17 years

old at the time of the commission of offence travelled from her native place

in Muradabad at 9PM to Delhi alone in a train that arrived in Delhi at 8 AM

on 12.10.1998. A bare perusal of her testimony would reveal that after

alighting from the train at the New Delhi Railway Station, she proceeded to a

nearby hotel to satiate her hunger where she was approached by the

Appellants who enquired about her place of visit and enticed her into

accompanying them to her destination on the pretext that they were residents

of the same area. The Appellants thereafter took her along with them in

various buses around the city until the same evening, which acts of the

Appellants the prosecutrix had strenuously objected to because of her

assertion that it would not take that long to reach her sister's place. The

Appellants had then threatened her with a knife stating that they would kill

her in the event she raised an alarm. Subsequent thereto, the prosecutrix was

taken to a secluded spot where she was ravished overnight. The prosecutrix

managed to escape from the clutches of the Appellants on the following

morning, leaving behind her chunni and slippers at the crime spot and

managed to reach P.S - Nangloi, where she lodged her complaint.

It is further deposed by the prosecutrix that pursuant to lodging a

complaint at the police station, she insisted that the police officers

accompany her to the place of commission of offence in order to apprehend

the Appellants who would otherwise escape. The Appellants were found

sleeping on the roof of the said premises where the prosecutrix was raped

and were arrested by PW-10, the IO, at the pointing out of the prosecutrix.

17. The prosecutrix was thereafter taken for medical examination

[Ex.PW-6/A] and was then escorted to Nari Niketan. The Appellants were

also medically examined. The Exhibits were sent to the Forensic Science

Laboratory (hereinafter referred to as the 'FSL'). In the FSL examination

[Ex.PA], it was discovered that human blood comprising of the same blood

group was present on the underwear of both the Appellants.

18. In order to appreciate the evidence of the prosecutrix, it would be

relevant to refer to the testimony of PW-10 who is the investigating officer in

the present case, in relation to the underlying offence. PW-10 has deposed

that the investigation was handed over to him post registration of the subject

FIR. During the course of the investigation, the Appellants were arrested on

13.08.1998, at around 1-1:30 PM from the roof of a wooden unoccupied

room in the vicinity of the timber market near Amar Colony, Rohtak Road,

Nangloi Extension (hereinafter referred to as the 'crime spot'), which was

the place of the commission of the offence, at the instance of the prosecutrix.

Further, PW-10 in his cross examination has further categorically deposed

that the Appellants were apprehended from the crime spot and not the roof of

Haryana Hotel, where they were employed, as suggested by them.

19. Dr. Amitabh Bhasin, the Chief Medical Officer, DDU Hospital (PW-

1), on examining the ossification test report has opined that the age of the

prosecutrix is around 17 years.

20. The criminal jurisprudence on the offence of gang rape as it stands

today delineates the said offence under Section 376D of IPC which was

inserted vide the Criminal Law (Amendment) Act of 2013 that came into

force on the 3rd of February 2013 as follows :

"376D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital.--Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. Explanation.--The expression "hospital" shall have the same meaning as in Explanation 3 to sub-section (2) of section 376."

21. Since the present case relates to an offence of gang rape committed on

the prosecutrix on 13.10.1998, prior to the Criminal Law (Amendment) Act

of 2013 coming into force, it axiomatically invokes the erstwhile proviso (g)

to section 376(2) of IPC under which, the Appellants were charged and

convicted for the said offence by the Ld. Trial Court.

22. For the sake of completeness, we may, at this stage, briefly

recapitulate the relevant provisions of Section 376(2)(g) of IPC prior to

Criminal Law (Amendment) Act of 2013:

"376. Punishment for rape.--

(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years

and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

(a) being a police officer commits rape--

(i) within the limits of the police station to which he is ap-pointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's insti-tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of

imprisonment of either description for a term of less than ten years. Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.-- "Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation."

23. It is settled law that in cases involving sexual assault/rape, it is

generally difficult to find any corroborative witnesses, except the victim

herself and therefore, the evidence of the victim is suffice for conviction

unless there exist compelling reasons for seeking corroboration. Thus, a

conviction can be sustained on the sole testimony of the prosecutrix, if it

inspires confidence. [Ref: Vishnu (alias) Undrya v. Sate of Maharashtra

reported as (2006) 1 SCC 283; State of M.P v. Dayal Sahu reported as

(2005) 8 SCC 122 and Ravinder Singh v. State being CRL.A 1509/2014].

24. In Gagan Bihari Samal v. State of Orissa reported as (1991) 3 SCC

562, The Hon'ble Supreme Court of India whilst observing that

corroboration is not the sine qua non for conviction in a rape case, held as

follows :

"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, 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. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society."

25. At the outset, the prosecutrix has clearly and unequivocally stated that

she was raped by the Appellants, in her examination in chief, as well as,

cross examination. Further, she has also deposed that while travelling in the

bus with the Appellants, on being suspicious of the route not leading to her

sister's house, she tried to raise an alarm but was threatened to silence by the

Appellants, with a knife. In view of the foregoing, the testimony of the

prosecutrix seems natural and inspires confidence. The same cannot be

rendered unworthy of credence solely on the assertion that the prosecutrix

did not raise an alarm. This circumstance cannot lead to the assumption to

the effect that she was a consenting party, especially when no specific plea

was taken by the Appellants that the prosecutrix was known to them.

26. Justice Krishna Iyer, whilst documenting his observations on absence

of injuries on the victim, as well as, importance of corroborative evidence in

rape cases, in his celebrated judgment in Rafiq v. State reported as (1980) 4

SCC 262 has very eloquently cited as follows :

"5.Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.

6. When rapists are revelling in their promiscuous pursuits and half of humankind -- womankind -- is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable."

27. It is thus needless to state, in view of the settled jurisprudence that,

absence of corroboration by medical evidence is not fatal to the

prosecution's case, if the oral testimony of the prosecutrix is credible and

trustworthy. [Ref: B.C Deva v. State of Karnataka reported as (2007) 12

SCC 122]. Ordinarily, the weightage to be accorded to medical evidence is

only corroborative. It proves that the injuries could have been caused in the

manner alleged and nothing more. Unless, however the medical evidence

completely rules out all possibilities whatsoever of injuries taking place in

the manner alleged, the testimony of the eye-witnesses/prosecutrix cannot be

discarded on the ground of alleged inconsistency between the oral testimony

and the medical evidence. [ Ref: Solanki Chimanbhai Ukabhai v. State of

Gujarat, reported as (1983) 2 SCC 174].

28. In the present case, vide the MLC report of the prosecutrix (Ex.PW-

6/A), it has been opined by PW-6 that no external injury was found on the

prosecutrix and that there was no fresh hymen tear. The MLC reports of the

Appellants (Mark B) find the latter capable to perform sexual intercourse. Be

that as it may, the MLC reports are just a corroborative piece of evidence

which is used as a rule of prudence. In keeping with the aforesaid legal

position, presence of such injuries is not a sine qua non to prove a charge of

rape and the testimony of the prosecutrix accredited as reliable is by itself

sufficient to convict the Appellants.

29. Further, the FSL report records the detection of human blood stains,

comprising of the same blood group on the undergarments of both the

Appellants.

30. Even otherwise, the prosecution story clearly brings out that after the

commission of the offence of gang rape, the prosecutrix got the subject FIR

registered immediately upon escaping and at that time, insisted that the

police apprehend the Appellants first before undergoing a medical

examination. The said fact is corroborated by the testimonies of the

prosecutrix, PW-3 and PW-10, the IO, which remain unrebutted.

31. The argument raised on behalf of the counsel for the Appellants qua

discrepancy with respect to the place and time of arrest, is founded on the

assertion that the arrest memo records the date and time of arrest as -

13.10.1998 and '9:40PM', and that the place of occurrence and place of

arrest are two different places. In this behalf, it would be relevant to observe

that the figure '1' is not clearly legible on the arrest memo and is being

erroneously read as '9' by the Appellants, to raise a dispute qua the time of

their arrest. This argument is without any basis and unsustainable, since the

MLC report of the prosecutrix itself records the day and hour of arrival as -

13.10.1998 and 4 PM, evidently conducted post the arrest of the Appellants.

The contention of the arrest having been made subsequent to the medical

examination is therefore untenable. Furthermore, the site plan was prepared

by PW-10 who has controverted the suggestion that the Appellants were

arrested from the Haryana Hotel and has clearly and unequivocally deposed

that the place of the incident is the same as the place of arrest, which was a

wooden unoccupied room close to the Timber market, Amar Colony, Rohtak

Road, Nangloi Extension. The same is reflected as 'mark A' on the site plan.

A bare perusal of the site plan would also illustrate that Haryana Hotel,

Timber market, Amar Colony and the crime spot are in close vicinity to each

other and are infact, adjacent to each other. Recording of the same, as the

place of arrest, on the arrest memo is evidently erroneous; although in our

view, the same does not go to the root of the matter and is a fortiori

inconsequential in view of clear and cogent evidence on record.

32. Insofar as the contention raised on behalf of the Appellants qua the

unexplained delay of 24 hours by the prosecutrix in the registration of the

subject FIR in the present case is concerned, the same is untenable inasmuch

as, the time of incident is the intervening night of 12/13.10.1998 and the time

of registration of FIR is 12:05 PM on 13.10.1998. Therefore, the time

elapsed is very little for the court to draw an adverse inference against the

testimony of the prosecutrix.

33. Now alluding to the Explanation to proviso (2) of the erstwhile

Section 376(2), which embodies the principle of common intention, we

observe that the conduct of the Appellants in enticing the minor prosecutrix,

who was unaware of the city, into accompanying them to a secluded spot,

threatening her with a knife and then ultimately committing rape on her

offers coherence to the element of mens rea present in their minds during the

entire course of action and establishes the charge of common intention under

Section 34 of IPC against the Appellants.

34. Justice Krishna Iyer with his legal prowess has very succinctly

remarked in Rafiq (supra) that "A murderer kills the body but a rapist kills

the soul." Indeed the offence of rape is one of the gravest crime against

human dignity, and the magnitude of its depravity escalates manifold times

especially in child rape cases. It is trite to state that not only must the Courts

have a sensitive approach while dealing with cases of child rape but they

should also be adjudicated with alacrity. Delay in administering justice only

leads to the abuse of the entire judicial process and has a cascading effect on

the vulnerability of the victim, who in the present case has lived with the

horror for over 20 years now. Before parting, we would like to observe that

although age of the victim is not relevant in the present case, the gruesome

and heinous offence was however, committed on a 17 year old girl who

exemplified immense courage in not only rescuing herself but also pinning

her perpetrators down, who are prowling in the society like wild wolves by

taking legal recourse immediately.

35. In view of the foregoing, after appreciating the evidence of the

prosecution in its entirety for determining the commission of the offence

under Section 376(2)(g) of IPC, there appears to be no circumstance that

warrants an interference of this Court with the findings of the Ld. Trial

Court.

36. Consequently, the conviction of the Appellants as recorded in the

impugned judgment, as well as, the sentence awarded to both the Appellants

by way of the order on sentence, are upheld.

37. The present appeals are accordingly dismissed, with no order as to

costs.

38. Copy of the judgment be supplied to the Appellants through the

Superintendent, Central Jail, Tihar and also be sent for updation of the

records.

SIDDHARTH MRIDUL, J.

SANGITA DHINGRA SEHGAL, J.

FEBRUARY 28, 2019/ns/as