Vinay Kumar v. State

1 These appeals are directed against the impugned udgnient and order on sentence dated 27-11 2012 and I 7. I 2.201 2 respectively wherein the appellants namely Ani IBa I ir, V ijay and V nay Kumar stood convicted under Seed on 376 (2)(g) of the I PC i.e. [or 111C o Ilencu of gang rape. Each of them had been sentenced to undei-go RI ihi a period of 1.0 years and to pay a fine 01 Rs.5,000/- and in dcftiu It ol Payment of fine to undergo SI for 3 years. Accused And (00 13 -M I11- ard Vinay had also been convicted under Sections 506/34 of the IPC OF Which the sentence imposed upon them wa.s 51 2 years and a hue 0 Rs.5,000 and in default of ol hue H undergo S I 6 months. Accused Vi jay was also conficted under Sect ions 366/34 I of the 1 for which the sentence imposed upon him was SI 10 years a nd a [inc 01 Rs.5,000/- and in default of payment of fine, to undergo Si for 3 yeai-s for the two offences respectively. Benefit of Section 428 o the C. IC had been granted to the appellants-

2 The version of the prosecution was that on 1 6.06.201 0 [)D NO. 19-A was got recorded by Mishri Dcvi (PV/-7), the in other of' [he vi ct:i TI Cr!. Appeal Nos.201/2013, 304/2013 & 535/2013 Pgc 2. u ( 15 ci i° £ d U I OZ/VE, i p E I O/170( - U I OZ/ F OLSON 1po ddV 1)0 LI Soop W I LI H (v/9-i\ (1! x) V-61 Oj\[ GIG LI pLL[I uq jou S1Lj )Lj 1) ILI) 1X[1])] LLIC1OU LIDCI vaq H;cl3LIi A JLT [1 CIClt qj jo jjPqocl£10 c p1lOU3JOjI? JI paLI2lLIU LIB TAT0 1i S 1I[ cICT LJ[1],GU )L0) LLIflOO I 1'-' LiHLj UpIJ\ p1I0LI IOJ[1] UJ J0 MIA LIJ - S1D jug swd t[ LIT pJCIL1JI 1c U 5) U001 OAU[4] iL)) 1)SLj) N Q U I S 0OU000LIP ppojd PE L T 1cLJ YL[) Jo £ uogooS JLIil IDI)1 i pSno12 O tIl JO I tIQUI[9] L I S 9tII 11I £:iijs ) pLIo JpiLl Lp pu A(TA pno O iIiI))LIO Oqj uociin D)TJ) OUJU MOM. SL1[ES UT1TS qE[1] IIEA JLJ SL MAnN LLLA) JHu H AOLI p0100101) OSJE 0J0A SUTTES OOLLTOS LL1900 OLjJ JO JSi\\ JSS OLJI) LI0 I pOOJq SPA, amy Imp puido p p q (V7EI - ç J\J) LiocIoJ Si OplO. 1J[3] oLU, i)0Z[5] LIOO P OSJE PE L T SUE1I0 JCIE OLP.j.0 SOL)10I0 0L(1 PUS S0)CIWIIES pooq 0LJ[ LI0[1ELITLL[5X )OJ qJ O qI US pU n pop-)S pLIS p02105 0i0A SOLqOJO pos S01cILUES pojq 'qEMS TELl EA JOLT 0fl JOLI L)0I UJA'U S i LI LLICJ p000.]. SEAL LIO ULI /cL T IT p0JJ sE P°P[1] IlXO iJJ1i0I 0LLI SiiO, W[IOE A OLIJ U0 EEiSOAL1i JO OSJ003 0LJ LIJ LI0I]OLLI OJUII SEAL i\-\IJJ IIJLI]0-P-P) ppJO0O-F SEAL (id) LLO 0L JO )LI0 LUOJ SJS olymAS uoQnup IOU LIOCTO JE L UIJ )I AE LIT A p uu 'A Au g (ill, I LI V 1cq poppuloo LIOOCJ UI I A1?LJ OdE) WE ILIOpI Ti LIE ULTEIO-T find mention; this is a clear case 01 lsc mu ication qua the appci lanL his defence all along was that he was running a grocery shop and a sum of Ks.[3] 50/- was owed by the compi a.i n ant an ci her fa.m i ly to 111111 and on his asking this led to squabble which was We reason [or his ftdsc implication. The version of the prosecul ris is ii ii o [ con I r a cl I ctions. There is no explanation as to why if there was an act of forcible i-ape, no injury was noted upon her person-

6 On behalf of appellant Vijay, learned counsel for the appellant submits that he J.sas been falsely inipi icaled. The version ol the prosecutrix is contradictoryl whether she was n 0W ii to the a ppel ci nI or not 1aown to him is not clear from hei: deposit nm she was con iuscd and her conflicting stands entitles the appellant to a benefit of doubt and a consequential acquittal. There is also no esplanal inn as to why there are no injuries upon the person of the victim. To support this I ne ni argument, learned counsel for the appellant has p[1] aced reliance ci pon Ilic judgments of the Apex Court reported as (2007) 6 2CC 465 Ncticrjti( Ncian 17. State of Raf as/han, (2000) 9 2CC 1 61 S/cite_of Ro72esthai'i Vs. Shankee and AIR 1998 SC 2694 Kcilc/eTpKMohclIo_ Vs. Sfo/r'o/Bi[7]:iL. I Submission being that where there was no nj i ry uporl the person ui HIC Cr!. Appeal Nos.20 1/2013, 304/2013 & 535/201 3 ISiuc 4 ot 15 victim, it could safely be presumed that the \'icti m was a consenting party.

7 On behalf of the third appellant Vinay Kumar, learned amicus curiae submits that the role attributed to V nay Ku mar was Qua he was standing outside when the alleged act was committed; it is not the ease of the prosecution that he had committed rape upon her. 190 presence outside by itself would not be su1i dent 1.0 nail the appellant and to support this proposition. he has placed re a ice upon thejudgments reported as (2011) 14 SCC 309 /±!;Akc/s! IfuCLLt1CVI't(L 2006 (3) JCC 1347 Fcirdcep Kuincii' V Union 14c/m/ncvfeCI(101'I, Ci/uncIfuvleI[7] as 4 also another judgment of the Apex Court reported! as 2009 (3).1CC 213c JiteneTs. State. Submission being that in the case of (supra), the Apex Court had gone on to note that even where the prosecutrix had used the word'guard' in her deposition while a ttri bi.iti ng a role to a particular person, the Apex Court had held In this was mere presence and this could not establish [hat 1 1-1c Said person h ad a common intention with the other co-accused to rape the proscen trix, Ws conviction under Section 376 (2)(g) of the JIPC had been set aside.

8 Needless to state that these arguments have been refuted. Cr[1]. Appeal Nos.201/2013, 304/2013 & 535/2013 iSige 5 n 1 5 IC Record has been perused. Arguments have been appreC1ate 10 The star witness of tile prosectl:tion was pW[3]. She was the prosecUtflx. She was examined in camera. She has deposed that she was working in a tiles factory in Karala where the accused Vijay also used to work. He used to have an evil eye upon her. On the fateful day i.e. on 15.06.2010 when she was going to the market. accused Vba.y met, her on the way. This was at about 09:00 pm. He Forcibly took her to a vacant room. He pressed her inoutl.i with his hands. He threatened 10 idIl her and her brother. He forcibly committed rape upon her. Meanwhile Anil @ Bahr and Vinay Kumar also come there. They also threatened her that if she did not perform the sexua.I act with them they would prepare a video of her and show it in the area, After committing rape upon her, they threatened to kill, her if she disclosed the incident to any person. She was sent home. She did not ns.niate the incident to her mother due to fear and shame. On the following day, her condition started deter] orating. On quety by l.er mother about the same she narrated the incident to her, pursuant to which a complaint, was lodged by her mother in the local police station. Her statement was recorded by the police. She was medically examined. Cr[1]. Appea1NOS.20l!2Ol[3] 304/2013 & 535/2013 I PW-3 was subjected to a lengthy crosseiiniinaIioIi. hue admitted that she was working in the factory \V th her a stei where tli c ace uscd Vijay was also worKing Since the last 4-3 months, She used to Li 11< to Vijay sometimes due to professional reasons. On an carl icr occasion, she had made an oral complaint against \/ijay to icr Lictory owner. During the incident, Vinay Kunar had told her that he was preparing a video film of the act of rape and if she disclosed this incident to any POI-SO11, he would show this film in the colony in a tuirther pal-i. ol her crosexamination, she admitted that the incident lasted for about less than nnc hour. She had gone to the police station "Oh tli tier mother she was a Ian medically examined; she was acconapaniedl by hei mother at that ti mc she luew the house of accused And Bahr but she did not know Lhe house of other persons. She denied the suggestion that she had purchased ceirtain grocery items from the shop n C V nay K rim a r an cI lic owed some money to him pci rsuant to which a ciii ii ri-cl had Well place us As money has not been returned by her and this was the reason Or kilse implication of Vinay. She denied the suggestion that the accused had been falsely implicated

12 The testimony of the prosccutrix as high I igh ted supra does riot Cit. Appeal Nos.20 1/2013, 304/2013 & 535/20 1 3Pap 7 of -1 ç D OME I QUi7OC C I Q/i OZ SO ddy Ji[3] Liii i ii LI ii DuAl O U I HOD DLI ii ALIA& ci uiicp p Liii pDii UDDq pq qno LU JDL[ i D L I LIOIJH 0(1W pD].ji LLIL1IOD i(iqioioj. DL I DJDL[A\ [0001 JUPOUA Ti L1D)J1i P I Ll LLI L I.)IJ IiiL ] LI L I CILLIOD IAIO Liii POOP01 OS p[4] DLJii L0L4M ol juinsocf i0I LIOLI H SDi(D PCI OLIAA PUE 1L10I1012j. DLUIiS Qtjj UT UDJ10M SEM. UL)iV\ A I! /\ p051100 ii O I OZ ç uo hid le )I113 iLi LTI0 Mn" DL[5] LIOLIAL DLj[1] III JU L S)LI01SISL100 0L[ LT000 pUU.W0D i ISIAUQ10 ITJCIHS pDI10i p xulnoasoid 01.[9] JO UOi1AU1iLi

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1. SSDUIJIAL 04] 'iJflO UT L9130 d °9 9j Lb 1100$ JDI)L!fl pDpi000.T il.lOLLbDi l3i s J09 STIED UOTSJOA J04 iipo.TDS[p She was threatened that if she disclosed the incident to any person. she and her family would he killed. And ad, Bahr and Vinay Kuniar had also reached at the spot by that time. Ani I ( Ba.! ft had a iso corn m i tied rape upon her. All three of them had threa teried her hat in case she cisc! osed this incident, she would be slamed.

14 The role attributed to Vi nay Ku mar was that he was the accomplice with Way and And d) Bair he was my ly aware or me illegal act which was being col-111,[1] 0M upon the prosecutrix arid in i/rut he along with his accomplices had threatened the prosecritrix that i m case she disclosed the incident to any 1aei-son, she won Ic! he ft 11cc!. the I -ireni. to kill the prosecutrix, her mother and broi icr \vas emanating, from i.! three and this is clear from her testimony. I-icr statement her ng coger ii and coherent, the Trial Court had rightly rel ed upon the same.

15 Apart from her oral version the mccl ccl cv iclenec also supports this stand. The medical evidence which was I lie M I,C or I he rid i ni (Ex.PW.- 11/A) shows that her hymen was MY She was relerred lo a Gynecologist. The Gynecologist Dr. l\/legha was cxciii i ned as MM-12. There was no fresh injury upon the victim aim! ti p has been hi gli Ii gh cc! vehemently by the appel ian I to advance MI a.rgir cii en. that e\/en Cu]. Appeal Nos-20 1/2013, 304120 13 & 535/2015 jogc 9 oilS wl JO (fl O!iJ Qçç W ',,[OZ/tOZ so tq I L, 3ddV j, JL) I.I0i0JA L1OLi 0:) O0i/L\ILp0 OHI jBqj poq q LIT[I0 E IOU P [1100 LU I0 A OLII LID [JO fLu O 0OLIOSiJ 0If 'pjq OJIl UJ L I PJLPI q p n OA\ A[1] 111112j. JI - L i P LI i OSfO:10 J01 SIL-p CILLinoons JOJ LUL10L[ 0JOi\ '! C]LLI000U JOLjJO OLfIJ Lp1M. L10f 1LLLI LIj ILTT A pU JLJ ttodn odo JO p0 OJLJIDJOJ SILfI p01.[1] LLILLIOO pLf OLfM JifE[ IJV P U UfTA SM I JlL[) £/Y! j.0 SJOi\ I) LIOJOLfOD OLp Ouqioddns Hulljo O L IJ pu p,cU ! A posnoo p jOJPOIVDIOpUO OLp po-j0 g jo-p OSIE OEM UOflIOS II1J H LLiO:9 SLf:109 LII) SE,cEj) LTUA\OJ [OJ 0L[ UB)P OEM L10[LJM SCf OiV\ S l OLl UA i O U ! LID JoloolOp OJOA SLI [ES LIOLLIOS J(Lud Qp IL' IU I i/ \ ' \O l 1H• 0L[9] pOliOCJO. I SB,L\iOIfI9LLl OLfI 9L10 d 00:60 E pOLI0000 pal I LIO l ) [DLI OLfIl).[1] pP LI ADiCi @qJ L I BC ! B UfBI OLI PPLI BUS ELfl p0S00S[ PILI LLI A OLP 1cP PLI MO 0j.

LEO POMS 9ELJ:EEAUJES S[L[9] LUTO [A OL I[1] JO i0\'\J05 DL[9] HO p099 SOAk OJOL[9] SIULfI p UDJD[AB EUJ (v/c _jx).f ) 2L I:i J0d0.I OLJ[1] [10 LID 1T00250JC! OL[9] J.0 UTO[SJOA 2L[9] piodJn OSI) OL( '1 dD I 20LI2fDIA0 1)01 pOLLI S1L[9] LLLO:p. TEcf 'L[-10 p000J SEAL LID LUI/(Ll JDJ-f 'OPt' JO SUPDX LLI[D1A Ie qj SB0LT Jfl0 SIt ULITIpIA B5JJ.0 LTBSL100 DLJ[1] 1I0LjJIM OL[1] loLl p11100 ]I oLIop IIDDLf OL 9TLLXOS E PUTLUUSBJCI jw PW-3 which is supported not only by the niedica I evidence but also by the scientific evidence is to be discarded. in this context, the obsen'atlOfls of the Apex Court in 2013 (2) ACR 2252 Al lanoi Gii'i ifs. Sicife of ChIwp±We relevant:- It was next conteiued that there cire /'/O iifuries 0/7 /h(: to ii'!/er / c/pr. There is no merit in this contentIon in i 'ieii of the /act that the pro.vecutrix was a married wOmCin and was overpoivered/ by revere/I torn bc/air she was / awed. h/me was obviously not in ci post/mo ci to reixl ct/id to fr lit.rc trial torn, i.i'Iio I'iod threatened her with death in cc/ ye slw Crie(/ aid. 1/inc iv, however, u/tip/c (/ 'ic/i'll' 1' of i-ape in view of the forensic report i-ey, ordii,s i/ic c/oilier o/ the pi'O.V('d /itl L.V at mcI those of the Appellant. The report c/early disc/ores the presence a/sen/ca v /la/V ct/Id hunm.an sperm on the clothes of be accusccc/ inclucltny the Appe//orit aird the prosecutriX. The entire evidence thus collected c/long with the proper and c/ear identification of the aCCi(sed Cd ic/entficcttior/ parc/C/v oi'icl in the carat by the prosecutrix leaves no manner of doubt that cor/i'/d Iia/i of the xippelhio( i.s or/I founded.

19 The mother of the prosecutOx was exaniined as PAW. She was the complainant. Her evidence was to the effect that on 10061010, her daughter was not Ming well and was perplexed. On i n dl n icy, she disclosed the incident to her stating that \/ jay and Anil 1-3)a hl- had committed rape upon her and Vinay had also helped them in this act. 20 PW-7 was also subjected to a lengthy cross-exam nation wherein she stuck to her stand. She admitted that her daughter disclosed 111c, Cr[1]. Appeal Nos.201/2013, 3002013 &. 535/2013 loge 11 / /l 15 incident to her on the foilownsg morning as she looking perplexed and feeling shamed. She also denied that the acci sod have been [h scly implicated She had in fact volunteered that the accused persons were threatening them for settlement and were pressu riai np them 21 DD-19 A reflects that this complaint was lodged at 01:30 pm i.e. after victim who was both under rear and ci aha me. had ch sd oscd the incident to her mother (PW[7]).

22 The defence of the appellant is moonshine. The cicrence Of ANNY is that he has been falsely impkicaled. He has rot denied that he was unknown to the prosecutrix or that he was not working in the same factory where the victim was also working. 3l iiay was arrestecL at I I:00 pm in the presence of the prosecutrix which is corroborated by her version. Accused Vinay was also arrested on the same clay. His arrest was also witnessed by the p.rosecutrix Am] (di Ba hr was a nested at 11:20 pm; the victim was present there. Tb is has been corrobora ccl in the version of the victim.

23 The defence of Vinay tha.t because or a quarrel over a sum of Rs.350/-, lie has been falsely inipiicat:ed is a Iso a defence noted to he rejected. The victim would not put her honour at stake for a sum id Cii. Appeal Nos.201/2013, 304/2013 & 335/2013 Pay 1 2 n 5 i n v I O NE c!oA/c[c WE I oioc 'CEO /i QSO 1dcIy j.i )1LLIU0 I oql cq LIOCII[1] p oi SLTLupn[1] OLfl xuotoi fEfl0E[1] sjqj ul c Ino I)OCII/\'[ OCI pfflOM IcJft[oj ioLl pLIE gLIs 'sarjcforiooi CILJ JO aiH00JCi OLIlI LjLLII100flS I OU PP OL[L '0LD LIT IBL11 UTTIA tp PJ OJ AjJI?oo JlHLf 0Lj Eocj LH '. - ) ^) l jdLU000B AQ0B LI0 OL A'[ O LI 2LqoS OEM JO) II?,[[IILII[1] O0i\k 1LJ I1LA\ IOU Li JI J O EI FUV PLI-C L4O Rl 01uochi po Hi LL1LL100 lUpq JOB CI[9] J J Eft O E1OM1L h EM SEM Aft 1IOLP p000JOLI 31) 1!I00E0 UO1SJOA i0j-3 IOU pOCIEJ IE[ ) JTTJ/ iJ [10,01 p on uquoo ]EOIOJII CI LJJ J iLLiE lop LI[1] JE L l pJflOiVL otJ UOSJOJ,(uo.[3] LOiJI OUTT qj P°° ) EU S Il j­Rqj. J o U EL[ TJJOL[ JO tpoq PUP p0th 0! p)UJ W T. pue ii pg Q D I [U OOLJ LTOJfl ocfLn J.o jac OIqioJoJ OLJI Pqq LULUO0 PUq PUB JO L i LI0 I L O P OL l 1E150 EL D P0So1OiP iiiJ0UO300 S)LJ [Li !OIA 0qj O)JdnS possnomp S\ UELLT,cUTo TflOLtM iLIOLLili)Ii) [10 OS[0 SJ S ITE c() 9LE UTO DO JOLTU LT0I0TALI00 ST -11L iOLi pjflo/V\ LI050JCI 01OLL[1] JDU11i OpISIHJO LlfpLiES 0M OLj JULIJ OEM LLT1LJ ponqjio ooi,cJUO 0[H I11P[1] 1coLi!1\ p0011000 otll jo LT0TLSLTflL EUII LTOL[105 P ULl JE)TOI LT S1UJ MOUJ O SO J!J13 )2) i m, 1UIL)I ocJcI 1cUJ UoA!v U1O1iE1JEIC3XO OUT OSJE ST EJEUTI /L1TA 3L11)J EUIUIE OUJ[1] lOLl o3-g-1 LTOT510A JOLT LLTOJJ iiIlUI[! OOLIOpEAO,co:LiowHaOp JOUpO OEM OJOLJIJ LIOM 40L11 Pup (J ^^ counsel for the appellant Vinay would not be applicable. Each case is distinct on its own factual matrix.