Delhi High Court
Kusum Sharma vs State & Anr. on 25 September, 2019
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25.09.2019
+ CRL.A. 1009/2018
KUSUM SHARMA ..... Appellant
Through Mr. Braham Singh with Mr. Rohit
Vidhudi, Mr. M.S. Vidhudi and
Ms. Manju, Advs.
versus
STATE & ANR. ..... Respondents
Through Mr.Hirein Sharma, APP for State.
Adv. for R-2 (appearance not given)
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present appeal, the appellant seeks direction thereby to set
aside the final judgment dated 07.10.2017 passed by the learned court of
Additional Sessions Judge, Special, Fast Track Court, South-East, Saket
Courts, New Delhi in Session Case No. 1553/2016, Case FIR No. 419/2014,
punishable under sections 376/328/323 of Indian Penal Code, registered at
Police Station- Jaitpur, New Delhi, whereby the accused/respondent no.2
has been acquitted by the learned Trial Court.
2. Case of appellant herein is that the appellant is a house wife and is
residing alongwith her husband and two sons. She unfortunately became the
victim of faith imposed upon a so-called priest/respondent no.2. The
appellant‟s family was preparing for the solemnization of marriage of their
elder son. The respondent no.2 used to reside in the neighbourhood of the
appellant‟s as they reside in the same locality. The Respondent no.2 used to
perform pooja and other rituals and religious functions in the house of the
parents and brother of the appellant and due to that reason the respondent
no.2 was known to her family also. The appellant, after taking cellular phone
number of the respondent no.2 from her brother‟s family, contacted him on
his mobile phone number on 04.06.2014 to know and fix an auspicious date
for marriage of her elder son. The respondent no.2 deliberately and
intentionally asked the appellant to come his house No.23, Gali No.7/2,
Shakti Vihar, Meethapur, Police Station-Jaitpur, New Delhi on 05.06.2014
at about 8 PM. After making call at the mobile of the respondent no.2 i.e.
9312846907, the appellant at the given date and time reached at his house.
The respondent no.2 called her inside his house and asked her to sit on the
sofa and offered her a glass of water mixed with some
intoxicating/stupefying substance to drink. After taking the said sedative
water offered by the respondent no.2, the appellant started becoming
unconscious and she became nervous and unable to control her body and
movements. After seeing the appellant‟s condition, the respondent no.2
committed rape upon her against her will. The appellant tried to stand up
and run away and also resisted the sexual assault made by the respondent
no.2. She was also physically assaulted by him thereby causing grievous
injuries to her. After sexual assault and sustaining grievous injuries by the
respondent no.2, the appellant became semi unconscious. On seeing the
serious condition of the appellant after sexual assault and causing grievous
injuries, the respondent no.2 through his son called the brother of the
appellant to remove her from his house. The brother of the appellant being
called by the respondent no.2 through his son reached at the house of the
respondent no.2 and moved the prosecutrix to her house and thereafter, to
Holy Family Hospital, New Delhi. The prosecutrix in an unconscious
condition was admitted in intensive care unit (ICU) at Holy Family Hospital,
New Delhi with the complaints of three episodes of GTCS with tongue bite,
uprolling of eyeball and postictal confusion, in gasping state with labored
breathing. The Medical Legal Report (MLC) of the appellant was prepared
in Holly Family Hospital, New Delhi and the doctor opined "Patient was
admitted in ICU with the complaints of 3 episodes of GTCS with tongue
bite, uprolling eyeball and postictal confusion. The patient was brought to
casualty in gasping stage with labored breathing so was immediately
intubated and put on mech. Ventilation Later on she was shifted to ICU. In
examination she had pallor with b/1 felxor pantars. NCCT Head and later
MRI was done which showed ledt sigmoid-transverse venous throboiss,
cture left with Mech. Ventilation, muscle relaxants, BZDs, antibiotics,
atacids, antiemetics, antiepilepttics and other symptomatic and supportive
management."
3. Further case of the appellant is that the condition of appellant became
bad to worse and started deteriorating in Holly Family Hospital, New Delhi.
Thereafter, on the life support system, she was shifted and admitted in Max
Super Speciality, New Delhi. In the said hospital, the doctors diagnosed
"CEREBRAL VENOUS THROMBOSIS (LEFT SIGMOD SINUS AND
TRAVSVERSE SINGUS) WITH ACUTE LEFT PCA TERRITORY
INFARACT WITH HEMORRHAGIC TRANSFORMATION WITH
CLACIFIED GRANULOMA RIGHT FRONTAL REGION WITH SEIZURES,
FIBROD UTERUS WITH PV BLEED", and it was further diagnosed that
MRI Brain - "with venogram contract (7/6/14) revealed Thrombois of deft
transverse and sigmoid sinuses tempro-occipital territory infract with
hemorrhagic transformation." In Max hospital, the doctors concerned
further gave the details of the course in hospital and opined that Patient was
admitted for the same above mentioned complaint. Her examination shows
"E2VTM5, pupils - b/1 normal size and racting to light, plantar=bilateral
flexor. Patient was on ventilator and was treated with LMWH (clexane), IV
mannitol, inj. Levetiracetam. She responded to treatment but she developed
PVT bleed & her ultrasound abdomen showed fibroid uterus. She was seen
by gynecologist, bipisy was done, report awaited. Patient responded well to
the treatment and is now being discharged in stable condition."
4. Further case of the appellant is that on 30.06.2014, the appellant on
regaining her consciousness, recollected the incident of rape by giving her
sedative water and grave injuries caused by the respondent no.2. She
immediately narrated the entire incident to her husband. The husband of the
appellant after hearing the gruesome incident of rape and deadly attacks and
assault and giving poisonous and sedative water to her by the respondent
no.2 in his house on 05.06.2014, immediately rushed the appellant to Police
Station Jaitpur, New Delhi and reported the matter to police and
consequently the present case FIR No.419/2014 was registered.
5. Learned counsel appearing on behalf of the appellant submits that the
investigating agency got the appellant medically examined in All India
Institute of Medical Science vide MLC No. 11932/14 and the doctors
opined; she is slightly drowsy; a little stirring of speech; patient is keeping
her eyes closed and also opined; 1X1 cm scale lesion on (R) anterior aspect.
During the course of investigation, the prosecutrix was produced in the court
before learned Metropolitan Magistrate, New Delhi and her statement under
Section 164 of the Code of Criminal Procedure, 1973 was recorded. During
investigation, the investigating agency sealed the "pyajami" of the
prosecutrix, which she was wearing at the time of incident of rape and
deadly assault on 05.06.2014 and also collected the blood samples of the
respondent no.2. The investigating agency sent "pyajami" of the prosecutrix
and blood samples of the respondent no.2-accused to Forensic Science
Laboratory, Rohini, Delhi for DNA analysis. On biological examination and
DNA analysis, the Forensic Chemical Examiner concluded that "DNA
profiling (STR analysis) performed on the exhibit P-1 (Payajami of the
victim) and P-2 (Blood gauze of accused) are sufficient to conclude that
DNA Profile generated from the Exhibit-2 (Blood gauze of Accused) is
matching with the DNA profile generated from the source of exhibit "1")
(Pyajami). The Forensic Science Laboratory report was duly exhibited
during the course of prosecution evidence as Ex. PW 14/A. After thoroughly
investigating the crime, the investigating agency filed the charge-sheet
against the respondent no.2 and after compliance of mandatory provisions
the case was committed for trial to the court of session and the trial court
framed the charges against the Respondent no.2 for offences punishable
under Section 323/328/376 IPC.
6. During the course of trial, the prosecution examined 15 witnesses to
prove its case and charges against the respondent no.2 and the prosecutrix/
appellant was examined as PW-6. After prosecution evidence, the statement
of accused/respondent no.2 under Section 313 Cr.P.C. was recorded before
the learned Trial Court.
7. Learned counsel further submits that the prosecution has proved its
case against the respondent no.2 by material and clinching oral and medical
evidence but the learned Trial Court despite of the clinching material and
documentary and medical evidence against the respondent no.2, acquitted
him from the offences by giving him benefit of doubt vide impugned
judgment dated 07.10.2017.
8. Learned counsel further submits that the learned Trial Court has
ignored the clinching evidence and the statement of prosecutrix recorded
under section 164 Cr.P.C. by the Magistrate. Learned counsel submits that
the learned Trial Court has not considered that the doctors in their report of
Holy Family Hospital has opined that immediately after the occurrence of
incidence i.e. on 06.06.2014 the patient was admitted in hospital with the
complaint of 3 episodes of GTCS with tongue bite, uprolling eyeball and
postical confusion and patient was brought to causality in gasping state with
labored breathing so was immediately untubated and put on Mech.
Ventilation. However, the learned Trial Court has not considered the
opinion of the doctors in Max Super Speciality Hospital and treatment taken
by the prosecutrix.
9. On the other hand, counsel for respondent no.2/accused submits that
since no substantive evidence was adduced by the prosecutrix, therefore,
there was no option left for the learned Trial Court but to acquit the
respondent no.2 from the offences mentioned above. Moreover, FSL report
is persuasive only, but not a conclusive piece of evidence as per settled
principles of law.
10. Heard. Learned counsel for the parties and perused the material on
record.
11. The fact remains that as per MLC prepared at Holy Family Hospital,
Ex.PW8/B, the prosecutrix was brought in the hospital on 06.06.2014 at
11:30 p.m. by her husband. The police was also informed on the same day at
2:45 p.m. As per the history recorded in the MLC, „some panditji'
(respondent no.2) had given water/liquid to the prosecutrix in his house on
05.06.2014 at around 8:30 p.m. Although the IO/PW-13 did not collect the
complete record of the treatment of the prosecutrix from the hospitals
concerned but the prosecutrix while claiming the compensation u/s 357A(3)
& (4) Cr.P.C. had filed the documents. As per the documents, she was
discharged from Holy Family hospital on 07.06.2014 upon medical advise.
She was diagnosed, "Venous thrombosis-left sigmoid sinus & transverse
sinus; Acute infarct of left PGA territory with hemorrhagic transformation;
Calcified granuloma in right frontal region (on mech. ventilation); There
was history of 3 episodes of GTCS with tongue bite and post-ictal
confusion." She was then taken to Max Hospital at Saket. She was
discharged on 17.06.2014, there, she was diagnosed, "Cerebral venous
thrombosis (left sigmoid sinus\ and transverse sinus) with acute left PCA
territory infarct with hemorrhagic transformation with calcified granuloma
right frontal region with seizures; Fibroid uterus with PV bleed." As per the
history, there was recurrent seizure and altered sensorium. She had difficulty
in breathing. However, when she was discharged, she was stable and
advised follow-up.
12. It is pertinent to mention here that PW-6 (appellant/prosecutrix) has
deposed that after committing rape, accused hit on her head with some
object and she fell unconscious and when regained consciousness, she found
herself in Max hospital.
13. PW12 has deposed that at about 10:00 p.m., son of the accused came
at his shop and informed him that his sister/prosecutrix was lying
unconscious in his house. Accordingly, he reached there and asked the
accused about his sister. He told him that she was in the „Gali‟ (Street)
having a lota in her hand. He came out and saw the prosecutrix standing near
the wall of „Awana Farm House‟, Tunkey road. She was unable to stand and
walk properly and making gesture of vomiting. She was crying by putting
her hand on her head, but he did not notice injury mark on her head. His
wife sprinkled water on her face. On inquiry, she told them that the accused
had given her some intoxicated water as a result her condition deteriorated.
He then called PW-ll. They took the prosecutrix to her house and on the next
day, she was got admitted in Holy Family Hospital. He has further deposed
that he had found his sister at a distance of 400 meters from the house of the
accused. At that time, people were coming and going.
14. Whereas, PW-ll has deposed that when he reached at the house of
PW-12, her mother was lying unconscious. He with the help of PW12
brought her in his house. When she did not regain consciousness till 10:00
a.m. and he noticed blood stains on her face, he informed his father about
the same who took her to the Holy Family Hospital.
15. In view of above, question arose in the mind of the Trial Judge that
when the prosecutrix had become unconscious in the house of the accused,
how she covered the distance of 400 meters. There is inconsistency whether
the prosecutrix was fully or partially unconscious when she was standing in
the gali. Further question arose in the mind of the Trial Court that when she
was unconscious on the precious day, why she was taken to the hospital on
the next day at about 10:00 a.m.
16. PW6 has deposed that the accused had given her water in the glass
and PW-12 has stated that the prosecutrix was holding a lota in her hand.
Accordingly, further question arose, how the „Lota‟came in the hand of the
prosecutrix and why she was carrying that „Lota‟. It is not in dispute that the
said „Lota‟ was not seized during investigation.
17. I note, learned Trial Court has observed that the „gastric lavage‟ of the
prosecutrix was sent to the FSL. As per the report dated 24.12.2014 which is
admissible in evidence u/s 293 Cr.P.C., no ethyl & methyl alcohol,
alkaloids, barbiturates and tranquilizers were detected in the gastric lavage.
Thus the FSL report rules out the possibility of mixing of sedatives or
intoxicants in the water allegedly given to the prosecutrix by the accused.
18. The undisputed facts of the case are that the instant matter was
reported to the police on 30.06.2014 i.e. after about 13 days from the date of
discharge of the prosecutrix from the Max hospital. PW-4 has deposed that
when he reached Holy Family hospital on receipt of DD no.26A, he had met
the attending doctor and he had not declared the prosecutrix unfit for
statement.
19. It is important to note that during investigation, his statement
(Ex.PW4/DA) was recorded where he had stated that the relatives of the
prosecutrix had disclosed him that 'kisi ne pilaya' but he failed to disclose
the name of that relative. PW-ll has stated that the prosecutrix was in her
house from 17.06.2014 to 30.06.2014 but she was not fully conscious and
was recovering.
20. PW-6 (Prosecutrix) has deposed that after discharge from the
hospital, she started feeling better and regaining consciousness and
recollecting the facts. On 30.06.2014, she narrated the incident to her
husband. However, the prosecution did not examine the husband of the
prosecutrix. He was the material witness in this case as he was the person
who had taken the prosecutrix to the police station on 30.06.2014. He
himself is a practicing doctor. From his testimony, it could be known as to
what was the condition of the prosecutrix during the period from 17.06.2014
to 30.06.2014.
21. PW-12 deposed that when he took the prosecutrix to his house, she
was making gesture of vomiting. His wife sprinkled water on her face. On
inquiry, she told him that the accused had given her intoxicated water as a
result of which her condition deteriorated. She had also asked him to call
PW-11. Whereas, PW-6 has deposed that she had told her bhabhi (wife of
PW-12) that the accused had given her something and she was feeling giddy.
She had also asked her bhabhi to call PW-ll to take her to her house.
22. It is not out of place to mention here that before 30.06.2014 when the
report was lodged, PW-6 never alleged that the accused molested her,
committed sexual intercourse with her forcibly and inflicted blow on her
head with some object. Accordingly, the learned Trial Court has observed
that what had prevented the prosecutrix from disclosing the other incidents,
caused to her by the accused, to her brother/PW-12, bhabhi and her husband.
23. It is difficult to understand why the family members of PW-6 waited
for the whole night to take PW-6 to the hospital though it had already come
in the notice of her husband that PW6 was given some intoxicant by the
accused as appearing in her MLC Ex.PW8/B.
24. The fact remains that PW-6/prosecutrix has stated that at the time of
incident, she was wearing kurta, chunni and pajama. Due to the impact, she
sustained injury on her head and the blood had oozed out from her head and
right leg. She does not know who changed her clothes when she was taken
to Holy Family hospital or who had taken her to the hospital. When she
regained her senses, she was wearing hospital dress. She has further deposed
that she did not hand over her kurta and chunni to the police during the
investigation. On 30.06.2014, she narrated the incident to her husband and
asked him about her clothes which she was wearing at the time of incident.
Her husband then brought her pajami. She has admitted that she did not
hand over her pajami to the doctor at Holy Family Hospital or at Max
Hospital. As per the FSL report Ex.PW14/A, blood was detected on the
pajami of the prosecutrix and the blood in gauze of the accused. Semen was
also detected on the pajami of the prosecutrix. However, DNA profile of the
accused matched with the DNA profile generated from the pajami. The
report shows that the blood was detected on the pajami but there is no report
whether the blood was of the accused or of the prosecutrix on the pajami as
no analysis was made in this regard. In the instant case, the exhibits of the
accused and the prosecutrix were collected on 01.07.2014 and 02.07.2014
but they were sent on 19.09.2014 after the gastric lavage was sent. However,
no explanation came why the exhibits were sent so late.
25. In view of above, learned Trial Court opined that it assumes
significance because it remained a mystery under what circumstances, the
pajami of the prosecutrix was seized/collected.
26. The testimony of PW-14/Sr. Scientific Officer shows that the accused
was never brought before him nor the samples were taken in his presence.
Accordingly, learned Trial Court opined that in these circumstances, it is
difficult to rely on the FSL report.
27. It is further important to note that before 30.06.2014, the prosecutrix
did not tell anyone that she was raped by the accused. Her clothes were not
seized either by the doctor or the police when she was admitted in Holy
Family Hospital or Max Hospital. She herself had handed over her pajami to
the doctor when her MLC was prepared at AIIMS. Accordingly, a question
arose in the mind of the learned Trial Court that what made the family
members of the prosecutrix to preserve her pajami only in that very
condition and did not wash the same and why the other clothes of the
prosecutrix were not preserved with the pajami. No plausible answer came
from the side of the prosecutrix in this regard.
28. It is not the case that the prosecutrix when she was being taken to the
hospital in an unconscious condition had murmured that accused had
molested her or committed sexual intercourse with her. As per PW-6, her
husband had brought the pajami. Since her husband is not examined, so it
remained unanswered from where he had brought the pajami or who had
preserved it before it was given to the doctor at AIIMS. Thus, the
prosecution even failed to prove that the pajama was of the prosecutrix.
29. In addition to above, testimony of PW-6 reveals that she had
contested the election for Municipal Corporation. A case vide FIR
no.59/2009 punishable u/s 302 IPC at the police station Sunlight colony was
registered against her husband. The police had also inquired her regarding
her involvement in the said case and in this regard, a press release was made
by the Asst. Commissioner of Police.
30. However, version of the accused is that the family of the girl side had
broken the engagement with her son when they came to know about the
involvement of her husband in the murder case and her son eloping with his
Mami (maternal aunt), the prosecutrix and her family had suspicion on
respondent no.2 that he had informed the girl side about it. They were
having grudge against him and on that day, the prosecutrix, her brother and
son beat him. This version is substantiated by the defence witnesses DW-l
and DW-2 who used to live in the same locality. They have deposed that at
about 9:00 p.m., in gali no. 7, they saw a crowd. The prosecutrix, her brother
and son were beating the accused. They intervened in the quarrel and DW-2
took the accused to his house on his motorcycle.
31. On perusal of the judgment, learned Trial Court has believed DW-1 &
DW-2. The Hon'ble Supreme Court in Ram Singh case Crl. App. No.
932/2009 held that the evidence tendered by defence witness cannot always
be termed to be tainted one. The defence witness is entitled to equal term
and equal respect as of the prosecution. The issue of credibility and
trustworthiness will also to be attributed to the defence witness at par with
that of the prosecution.
32. In the case of Dudh Nath Pandey vs. State of UP AIR 1981 SC 911,
the Hon‟ble Supreme Court has held that defence witnesses are entitled to
equal treatment with those of the prosecution and the Court ought to
overcome their traditional instinctive disbelief in defence witnesses.
33. Learned Trial Court while writing the impugned order was conscious
of the legal proposition that the conviction in such like cases can be made on
the sole testimony of the prosecutrix even without any medical
corroboration and the version of the victim in rape commands great respect
and acceptability. But, if there are some circumstances which cast doubts in
the mind of the court about the veracity of the victim's evidence then it is not
safe to rely on the uncorroborated version of the victim of rape.
34. In the case of Rajoo Vs. State of MP: AIR, 2009 SC 858, it is held as
under:
"It cannot be lost sight that rape causes the greatest
distress and humiliation to the victim but at the same time
a false allegation of rape can cause equal distress,
humiliation and damage to the accused as well. The
accused must also be protected against the possibility of
false implication"
35. Keeping in view the facts discussed above and the settled legal
position, I am of the considered view that there is no illegality and perversity
in the impugned order passed by the learned Trial Court whereby respondent
no.2/accused has been acquitted.
36. I find no merit in the present appeal and the same is accordingly
dismissed.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 25, 2019
ab
