Full Text
HIGH COURT OF DELHI
DEEPAK .....Appellant
Through: Mr. Rajiv Bajaj and Ms. Nandini Singhal, Advocates
Through: Mr. Pradeep Gahalot, APP for State.
Mr. Kanahiya Singhal, Mr. Pulkit Jolly, Ms. Avantika Shakar, and Ms. Shatakshi Singh, Advocates.
JUDGMENT
1. The present appeal has been preferred by the appellant seeking setting aside of the judgment of conviction dated 09.03.2018, whereby the appellant was convicted for the offence punishable under Section 376 read with Section 511 IPC; and the order on sentence dated 15.03.2018 vide which he was sentenced to undergo RI for a period of 3 ½ years along with payment of fine of Rs.2,000/-, in default whereof he would undergo SI for 6 months. The benefit under Section 428 Cr.P.C. was extended to the appellant.
2. The facts of the prosecution case, as noted by the Trial Court, are reproduced hereunder:
3. The prosecution examined 16 witnesses in support of its case. The most material witnesses are the prosecutrix herself (PW-2), her aunt (PW-8), and the landlord of the appellant (PW-9). Dr. Azia Manzoor Bhat/PW-6 conducted the appellant‟s potency test and prepared an MLC (Ex. PW-6/A). Dr. Rakesh Solanki/PW-7 identified the signatures and handwriting of Dr. Irfan on another MLC of the appellant, which has been exhibited as Ex. PW- 3/A. PW-3, PW-10, PW-11, and PW-12 are medical witnesses who proved various endorsements on the MLC of the appellant. Dr. Farheen/PW-5 conducted the medical examination of the prosecutrix and prepared her MLC (Ex. PW-5/B). PW-13 is the learned MM who proved the prosecutrix‟s statement recorded under Section 164 Cr.P.C. Ms. Amita Raghav, Jr. Forensic/Chemical Examiner (Biology) proved the relevant FSL report (Ex. PW-15/G). The I.O. of the case, W/SI Vinita Kaushik was examined as PW-15 and deposed as to various aspects of the investigation carried out by her. The remaining witnesses are police officials whose testimonies are largely formal in nature.
4. The prosecutrix was examined as PW-2. On 15.05.2017, she deposed that she had come to live at her aunt‟s house around the time of the incident and that the appellant (correctly identified) was residing on the second floor of the same property. On the day of the incident, the appellant had a quarrel with the witness‟ aunt, though she did not know the reason for the same. She stated that the appellant was in a drunken state and had asked her to make tea for him. She had pushed him aside and during the course he had sustained abrasions on his face by her nails. She volunteered that she could not come (to Court) repeatedly and her employers at the house where she worked as domestic help would not allow her to come (to Court) repeatedly. She stated that the appellant had not tried to do anything wrong with her and volunteered that her aunt had called the police in fits of anger. The police had come to the spot and apprehended the appellant. Her statement was recorded by the police, and she volunteered that whatever she had stated in her Court deposition that day is what she had told to the police. She identified her signatures on her statement (Ex. PW-1/A). She was recalled for further examination on 14.07.2017 and she identified the seized clothes that she had been wearing at the time of the incident. As she had resiled from her previous statements, learned APP for the State was allowed to cross-examine her. During the said crossexamination, she supported the prosecution version. She admitted that the incident in question had happened on 13.01.2017 at 5:00 PM at the house of her aunt. She stated that when her aunt and uncle had gone to work and she was alone, the appellant forcibly entered the house, pinned her down, laid upon her, and started opening the string of her salwar. When she tried to raise alarm, the appellant gagged her mouth. She scratched the appellant‟s face, bit his thumb, and kicked him to push him aside. She somehow raised alarm and the people from the neighbourhood gathered there and apprehended the appellant. She got frightened and shut the door of her room from the inside and started weeping. After some time, when her aunt returned home, she called the police at 100 number. When the police reached the spot, public persons handed the appellant over to the police, and the witness was thereafter taken for medical examination. From the hospital she was brought back to the place of the incident by the police, where her statement (Ex. PW-1/A) was recorded. She was recalled for cross-examination on 02.08.2017. During her cross-examination by the learned counsel for the accused, she stated that she did not know whether her aunt had an old quarrel with the appellant. She denied the suggestion that the appellant had not pushed her at any point of time. She stated it to be correct that she was wearing jeans on the date of the incident. A suggestion was put to her that the appellant had not opened the string of her salwar on the given date, nor had he removed her jeans, nor did any incident as alleged take place. She denied the said suggestion. She also denied the suggestion that that one day prior to the incident a quarrel had happened between her aunt and the family of the appellant. A Court question was put to the witness asking why and when she had caused scratch marks on the face of the appellant, to which the witness replied that she had done so when the appellant was trying “galat kaam” (wrong act) with her.
5. The prosecutrix‟s aunt was examined as PW-8. She deposed that the prosecutrix had come to stay with her on 09.01.2017 and left to go back to her place of work on 15.01.2017. She stated that on 13.01.2017, she and her husband had gone to work and left the prosecutrix alone in the house. When the witness returned home at about 5:00 PM, she found the prosecutrix weeping. She inquired and noticed that the prosecutrix had blood stains on her clothes. On her asking, the prosecutrix told her that the appellant had tried to force himself upon her. The prosecutrix further told the witness that she had bit the appellant‟s thumb and clawed at his face. The witness waited for her landlady to come for half an hour and thereafter made a call on 100 number. The police officials came to the spot and recorded the prosecutrix‟s statement. They took the witness and the prosecutrix to the police station and thereafter to the hospital, where the prosecutrix was medically examined. The appellant was arrested by the police in her presence. She correctly identified the appellant in Court. During cross-examination by the learned counsel for the accused, she admitted that there had been a quarrel between her and the wife of the appellant two days prior to the incident. She denied the suggestion that she had extended threats to the appellant and his wife that she would implicate them in a false case.
6. The landlady of the prosecutrix‟s aunt was examined as PW-8. She stated that when she returned home from shopping at about 7:30 PM, she found commotion in the street. On inquiring in the neighbourhood, she came to know that both of her tenants, i.e., the prosecutrix‟s aunt and the appellant, had gone to the police station. When the prosecutrix‟s aunt returned at about 11:00 PM, she told the witness that the appellant, in a drunken state, had done “badtamizi” with the prosecutrix. In her cross-examination, she denied the suggestion that the prosecutrix‟s aunt and the appellant‟s wife used to quarrel with each other.
7. The I.O. of the case, W/SI Vinita Kaushik was examined as PW-15. She took the prosecutrix for medical examination and collected her MLC. She took the clothes that the prosecutrix was purportedly wearing at the time of the incident (jagging, sweater, top, and inner), converted the same into parcels, sealed them, and then seized the same vide Seizure Memo (Ex. PW- 2/B). She also got the appellant‟s medical examination conducted (MLC is Ex. PW-3/A) and also got the potency test of the appellant done (MLC is Ex. PW-6/A). She stated that the doctor who had conducted the appellant‟s medical examination also handed over the exhibits pertaining to the appellant, including his blood sample in gauze. The witness deposited the concerned exhibits in the Malkhana. She collected the FSL report and exhibited the same as Ex. PW-15/G. She also identified the clothes which were handed over to her by the prosecutrix.
8. Ms. Amita Raghav, Jr. Forensic/Chemical Examiner (Biology), FSL, Rohini, Delhi, who had prepared the concerned FSL report, was examined as PW-16. She deposed that the male DNA profile generated from source of exhibit „1c‟ (sweater of the victim) and exhibit „2‟ (gauze piece cloth of the appellant) were found to be matching with each other.
9. Dr. Farheen, who had conducted the medical examination of the prosecutrix, was examined as Ex. PW-5. The witness exhibited the prosecutrix‟s MLC as Ex. PW-5/B.
10. Dr. Azia Manzoor Bhat, who conducted the appellant‟s potency test, was examined as PW-6. She exhibited his MLC as Ex. PW-6/A and deposed she had observed certain injuries on the appellant‟s body at the time and had described the same in the MLC.
11. Dr. Roshni/PW-3 exhibited another MLC of the appellant as Ex. PW- 3/A and proved her endorsement thereon. She also deposed that she had observed a laceration injury on the left thumb of the appellant and stated that the said laceration could have been caused by biting. In her crossexamination, she stated that such a laceration could be caused by any object.
12. Dr. Rakesh Solanki/PW-7 identified the signatures and handwriting of Dr. Irfan, who had prepared the appellant‟s MLC exhibited as Ex. PW-3/A. PW-10, PW-11, and PW-12 proved different endorsements on the said MLC.
13. The appellant‟s statement under Section 313 Cr.P.C. was recorded, wherein he stated that he was innocent and claimed false implication due to enmity with the prosecutrix‟s aunt. He stated that on 13.01.2017 he was in the market with his wife, and the police lifted him from there at about 8:00 PM. He stated that he had sustained an injury on the thumb of his left hand at the police station from a chair, and that he was not in a drunken state at the time. Although he stated that he wants to lead defence evidence, he could not produce any witnesses.
14. Learned counsel for the appellant, while assailing the judgment of conviction, has contended that the appellant has been falsely implicated in the present case due to enmity with the prosecutrix‟s aunt. In the alternative, it is submitted that the conviction of the appellant under Section 376 read with Section 511 IPC must be set aside since even if the allegations are taken at face value, at best a case under Section 354 IPC is made out. He has contended that even if the prosecution version is believed, it is evident that the appellant did not go beyond the stage of preparation as he did not so much as take off his own clothes or the clothes of prosecutrix. In this regard, he has placed reliance upon Madan Lal Vs. State of J&K[1] and Aman Kumar & Anr. Vs. State of Haryana[2].
15. Learned APP for the State as well as the learned Amicus Curiae appointed to represent the victim have opposed the said contentions and supported the impugned judgment. Learned Amicus submitted that the prosecutrix has supported the case of the prosecution on all material particulars, that her version has been corroborated by her aunt, and that the guilt of the appellant stands established in light of the medical as well as the forensic evidence on record.
16. I have heard the learned counsels for the parties and carefully examined the record.
17. While the prosecutrix did not support the prosecution case at the time of her initial examination, she supported the case of the prosecution on all material particulars when recalled. Additionally, she also withstood the test of cross-examination by the learned counsel for the accused and remained faithful to the prosecution version. It is also worthwhile to mention that the present case was registered on the complaint of the prosecutrix herself and that her statement recorded under Section 164 Cr.P.C. also contains the same allegations.
18. The prosecution version further finds support in the testimony of the prosecutrix‟s aunt, who has stated that she found the prosecutrix in a distressed state upon returning home from work, and that upon her asking, the prosecutrix disclosed to her that the appellant had tried to force himself upon her. She also deposed that she noticed blood stains on the clothes of the prosecutrix.
19. In this context, the prosecution version draws further strength from the forensic evidence on record. The FSL report states that blood was detected on the exhibit „1c‟, i.e., the sweater worn by the prosecutrix at the time of the incident, and on exhibit „2‟, i.e. gauze piece of cloth containing the appellant‟s blood. The said exhibits were subjected to DNA isolation and the male DNA profile generated from the two exhibits were found to be matching to each other.
20. Furthermore, the landlady of the prosecutrix‟s aunt and the appellant has also deposed that the prosecutrix‟s aunt revealed to her at night on the date of the incident that the appellant in a drunken state had committed “badtamizi” with the prosecutrix.
21. As far as the medical evidence is concerned, the appellant‟s MLC reveals several injuries, including abrasions on his face, abrasion on his left thumb on two regions, and abrasions on his right forearm, which are consistent with the prosecution version of resistance by the prosecutrix. The prosecutrix has categorically stated in her Court deposition that she bit the appellant‟s thumb and clawed at his face as well as kicked him. The medical witness/PW-3 has categorically deposed as to having observed a laceration injury on the left thumb of the appellant that could have been caused due to a bite. Furthermore, the MLC records that the smell of alcohol was present, which also supports the prosecution version.
22. Considering all of the above, this Court has no hesitation in holding that the identity of the appellant, his presence at the spot, and the occurrence of the incident in question, stand proved beyond reasonable doubt. The plea of false implication taken by the appellant appears to be moonshine and cannot stand in the face of the prosecution evidence as discussed above.
23. Now, at this stage, the contention put forth by the learned counsel for the appellant that only a case under Section 354 IPC is made out must be dealt with.
24. In Madan Lal Vs. State of J&K (supra), the Supreme Court was seized of a matter wherein the prosecutrix‟s evidence established that the accused had spread a blanket on the floor, forcibly laid the prosecutrix down, opened the cord of her salwar, kept it apart, and then forcibly rode upon her. In the said case, the accused had caught hold of the prosecutrix‟s head with one hand, closed her mouth with the other, and was trying to penetrate with his penis but was unable to, and he even gripped his penis with his hand and was rubbing it against the prosecutrix‟s private parts. In this context, the Supreme Court upheld the conviction of the appellant under Section 376/511 IPC and held as follows:-
case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC.”
25. A gainful reference may also be made to the decision in Aman Kumar & Anr. Vs. State of Haryana (supra). In the given case, having regard to the fact that the prosecutrix‟s version in Court was of rape but certain irreconcilable discrepancies existed compared to her version given during investigation, the Supreme Court altered the conviction of the appellants from one under Section 376(2)(g) IPC to one under Section 354 IPC, and held as under:- “11. In order to find an accused guilty of an attempt with intent to commit a rape, court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect. …
13. … The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word “modesty” is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn.) defines the word “modesty” in relation to a woman as follows: „decorous in manner and conduct; not forward or lewd; Shamefast; scrupulously chaste.‟
14. Modesty can be described as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R. v. James Lloyd in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her.”
26. Considering the law as reproduced above and the facts and circumstances of the present case, this Court is of the considered view that the appellant‟s conviction under Section 376 read with Section 511 IPC must be altered to a conviction under Section 354 IPC.
27. Now, the matter turns to the question of sentencing.
28. The appellant‟s latest nominal roll on record shows that he has spent nearly 2 years under incarceration and that his conduct in jail remained satisfactory. It is also pertinent to note that the present case pertains to the year 2017 and the appellant has faced the ordeal of a protracted trial for nearly a decade. He belongs to an economically modest background and is stated to be the sole breadwinner of his family, consisting of his wife, mother, and sister.
29. Considering the totality of the peculiar facts and circumstances of the present case, this Court believes that the ends of justice would be met if the appellant‟s substantive sentence is reduced to the period of custody already undergone by him. The fine imposed upon the appellant as well as the sentence in default of payment of fine, however, are maintained. If the appellant does not deposit the fine amount in four weeks with the Trial Court, then he shall have to undergo the default sentence of 6 months SI.
30. The present appeal is partly allowed in the above terms.
31. Subject to the payment of fine as above, the personal bond furnished by the appellant stands cancelled and his surety is discharged.
32. Before parting, this Court places on record its appreciation for the valuable assistance rendered by Mr. Kanahiya Singhal, learned Amicus Curiae appointed to represent the victim.
33. A copy of this judgment be communicated to the Trial Court as well as the concerned Jail Superintendent.
MANOJ KUMAR OHRI (JUDGE) JANUARY 14, 2026