Naresh Kumar v. State

1. Aggrieved by the judgment of conviction dated 05.06.2018, and the order on sentence dated 07.06.2018, passed by Additional Sessions Judge, Special Fast Track Court, North- West, Rohini, Delhi in SC No. 107/2015, the appellant has challenged the same by filing the present appeal. The appellant was convicted for the offence under Section 376 IPC and sentenced to undergo RI for 07 years along with a fine of Rs.5,000/- and in default thereof, he was to undergo SI for period of 6 months. The benefit of Section 428 Cr.P.C was given to the appellant. Appellant’s sentence was suspended by this Court vide order dated 28.11.2018.

2. The investigation was set in motion with receipt of DD No. 55A on 01.02.2013 at 11:15 P.M., recording the information received via intercom that a lady caller was stating that, she had locked two people in her house who had committed galat kaam with her. Her phone number was recorded as ‘xxxxxx9021’. The prosecutrix was brought to Police Post Prem Nagar. Her medical examination was conducted and thereafter her statement under section 161 CrPC was recorded. The prosecutrix stated therein, that on 01.02.2013 at around 9:30 pm, she had gone to a nearby shop for recharging her mobile. Her husband was on night duty, her children had gone to her sister’s house and she had not locked the door when she went. Upon returning, she found one motorcycle parked near her house. The moment she entered the room, the appellant caught hold of her from behind. When she enquired why he was there at this time, he put his hand on her mouth and told her that, “Tum par bahut din se mera manna a raha tha, aaj maza lekar hi rohoonga”. Thereafter, he (appellant) pushed her on a cot, removed their clothes and established physical relations with her. She managed to get out of the room and locked it from the outside. She called 100 number. After police reached, the room was opened and the appellant was apprehended.

3. Charges were framed under Sections 376 IPC, to which the appellant pleaded not guilty and claimed trial. In support of its case, the prosecution examined 13 witnesses. The prosecutrix was examined as PW-13. Dr. Ankur Jain was examined as PW-2, who proved the MLC of prosecutrix. Dr. Geeta Aggarwal, who conducted gynaecological examination of the prosecutrix was examined as PW-3. Inspector Savitri and SI Neeraj, the IOs of the case, were examined as PW-15 and PW-16. HC Satish, the beat officer was examined as PW[7]. Rest of the witnesses were formal in nature who deposed as to various aspects of investigation.

4. In his statement recorded under Section 313 CrPC, the appellant claimed false implication due to prior enmity with the prosecutrix. He was called by the prosecutrix to reach a settlement in pending matters against his nephew, which had been filed by her. She had also demanded Rs.[1] lac from him. She also had a dispute with the appellant’s sister in regard to purchase of a property. She herself went to the kitchen and within minutes, police came and stripped him down and made a call at 100 number. In his defence, he examined 4 witnesses. DW[1] was ASI Umesh Tiwari, DW[2] was Chandershekhar, a Nodal Officer from Bharti Airtel, DW[3] was HC Mohit and DW[4] was Ms. Santosh Yadav (appellant’s sister).

5. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case. The prosecutrix has a pending land dispute with the sister of the appellant and she had also made false cases against his sister and nephew. He submits that perusal of CDR would show that the prosecutrix had called him multiple times on the date of the incident. Her testimony is riddled with improvements and contradictions. Medical and scientific evidence is also non-supportive of her case.

6. Learned APP for the State, duly assisted by Mr. Aniruddha Ghosh, learned Amicus Curiae, (pro bono), have supported the impugned judgment and submits that the prosecutrix had been categorical and consistent in her testimony that the appellant had committed rape upon her. It is submitted that the MLC also records history of acid attack by the same person and burns on right hand.

7. The statement of prosecutrix under Section 164 CrPC was recorded on 04.02.2013, 3 days after the incident. In addition to what was stated in the statement under Section 161 CrPC, she stated that the bike parked outside was red in colour, the appellant had already removed his clothes, threatened to kill her if she made noise, he also had a knife which he showed her, she told him she was thirsty, took a glass and came to the kitchen where her phone was charging. She locked the room he was in and called the police from her kitchen. She stated that appellant lived in her neighbourhood and she had never met him.

8. The prosecutrix was examined in Court as PW-13. She deposed that on the day of the incident around 10/10.30 PM, she went to a nearby shop for mobile recharge, leaving her door open. Upon returning after 10/15 minutes, she saw a red motorcycle outside her house. Upon entering her room, the appellant, who she knew very well, since she had seen him coming and going, misbehaved with her. He scuffled with her, broke the cord of her salwar, committed balatkar upon her and also threatened her. She identified the appellant in the Court. The appellant threatened her that in case she raised alarm, the person accompanying the appellant would kill her. She got out of the room on the pretext of drinking water. She locked the room from outside. She went to the chowk and called the police at 100 number. At that time, she was wearing only kurta and not wearing any jumper as the appellant did not allow to wear her lower clothes. She called the police by dialling from her mobile phone. When the police opened the door, the appellant was in naked condition, only wearing his lower undergarments. She stated that the appellant was not her known and he along with his jija, who also lived in the same colony, had committed rape on one more lady. Upon this, she was asked by the Court whether she knew this incident at the time the appellant committed rape upon her, to which she replied that she came to know the said facts subsequently. She did not know the name of the lady. She stated that police seized her bedsheet, clothes, top of child’s dress. She stated that after committing rape, the appellant cleaned his private part with the frock of her child. In her cross-examination, she stated that though she did not remember the mobile number from which she made the call, but it was her phone. She could not remember whether the mobile number ‘xxxxxx9021’ was hers. She deposed that she did not raise any alarm or called the neighbours because she was in naked condition. She reiterated that she did not know the appellant prior to the date of the incident, nor did she know her mobile number. She never made call to the appellant. She did not know any lady named Santosh. She was given a suggestion that she had sold her house to one Santosh, who was the sister of the appellant. However, the market price got higher and she wanted Santosh to return her house, which she refused to do and she also filed two cases her son Naveen, nephew of the appellant, FIR No. 21/13 and 46/13 at PS. Anand Vihar. This suggestion was denied. She also denied making calls to the appellant to settle the cases and demanding Rs.[2] lacs.

9. She was confronted with her statement made to the police under Section 161 CrPC. She had not stated to the police about coming back from the shop in 10/15 minutes, or having seen the appellant once or twice in front of her house or misbehaving with her, appellant threatening her. She admitted not stating to the police about scuffle with the appellant. She deposed that she told the police about the appellant threatening her. However, she was confronted with her statement wherein it was not so recorded. She was also confronted with various aspects of her testimony which were not mentioned in her initial complaint, such as the threat that he was accompanied by other persons who would kill her; or that she remained lying on the cot due to fear; the appellant removing his entire clothes and stating that he enjoyed a lot; going out of the room to the kitchen by stating that she was thirsty; telling the police that the appellant was not permitting her to wear even kurta; her phone getting charged in the kitchen or the colour of the bike; the appellant cleaning his private part with her child’s frock. She denied telling in counselling that she had called HC Satish, who was the beat officer who came to the spot after five minutes and made the call to 100 number from her phone. She was confronted with a document Ex. PW-13/D[1] bearing her thumb impression in this regard. She was also confronted with her statement where she had mentioned about the knife to the IO. She denied making calls to the appellant 10 times. She also denied making calls to him prior to 01.02.2013 for getting her house back from his sister, Santosh who had purchased it from her. She denied suggestions of deliberate improvements and false implications.

10. HC Satish Kumar, was examined as PW[7]. On the day of incident, he was on beat duty with Ct Ramesh. He received a wireless message at 11.15 PM that one lady had confined a person who committed rape upon her. They reached the spot and met the prosecutrix. She was wearing only a lady shirt and told that there are two boys inside the room. On opening the door, the appellant was found sitting in his baniyan and underwear. In his cross examination, he stated that he knew the prosecutrix from before, however she was not having his mobile number. He stated that there was a dispute ongoing between the prosecutrix and sister of the appellant. When they reached the spot, no neighbour or family member of the prosecutrix was present. He further stated that the appellant was found naked and he asked him to wear underwear and he did not find any knife in the room. Ct. Ramesh was dropped as a prosecution witness of repetitive facts.

11. Ct. Rakesh was examined as PW[8]. He deposed that on receipt of DD he along with ASI Satbir reached the spot where PW[7] and beat staff was present. The door of the room was bolted from outside. Staff opened the door and the appellant came out from inside and was taken to PP Prem Nagar. He does not state that the appellant was found in his undergarments.

12. The MLC of the prosecutrix (Ex. PW2/A) was proved through Dr. Ankur Jain, CMO, SGMH Hospital, examined as PW[2]. MLC was recorded on 02.02.2013 at 2.15 A.M. History of sexual assault by the appellant was given. MLC records bruises over the face of the prosecutrix. PW[3] Dr. Geeta Agrawal, SR Gynae, SGMH deposed that upon examination of prosecutrix, she found there was old hymen torn, no bleeding and no signs of injuries.

13. The exhibits of the prosecutrix from the hospital were handed over to PW[9] SI Asha Devi with seal of ‘SGMH Gynae’, which was seized vide memo Ex. PW9/A. The bed sheet and the frock of the child of the prosecutrix were also taken in possession by PW[9] and sealed with seal of ‘SS’. PW[9] was also shown parcel 1 by desealing, which had been sent for FSL, and she confirmed the bedsheet and frock to be the same one which was seized. HC Surender, examined as PW[1], confirmed deposit of sealed pullandas and two of them being handed over to Ct Ajit on 01.03.2013 for depositing at FSL, Rohini. Ct Ajit, examined as PW[5], deposed as to the deposit of the samples at FSL. No suggestion was given to any of these witnesses as to the tampering or manipulation of the samples.

14. The FSL report was proved by Ms. Shashi Bala Pahuja, Senior Scientific Officer (biology), FSL Delhi. The report was exhibited as PW11/A. Semen was not detected on any exhibit, including on the vaginal samples of the prosecutrix or the child’s cloth.

15. Sh. Chander Shekhar, nodal officer of Bharati Airtel Limited, was examined as DW[2]. He stated that the CDR of mobile no. ‘xxxxxx6659’ from January to February 2013 was not available with the company. However, the number belonged to the appellant. CAF was produced as Ex. DW2/A. He was shown the CDR mark- D[2]. Analysing the same, he stated that on 01.02.2013, incoming calls were received from mobile no. ‘xxxxxx9021’ (the number mentioned in the DD entry) at 13:06:09, 15:03:33, 18:56:37, 20:01:28, 21:49:17, 22:00:28 and 22:11:59. One outgoing call was made to the said number at 21:37:18.