Full Text
HIGH COURT OF DELHI
CRL.A. 495/2013
JUDGMENT
Through: Mr. S. S. Ahluwalia and Mr. Jatin Teotia, Advocates
Through; M". Amit Ahlawal, APP for the State.
1. The present appeal has been preferred' by the appellant challenging the impugned judgment dated Op.11:2012 and order on sentence dated 09.11.2012, passed by Additional- Sessions Judge (hereinafter referred as 'ASJ^, Rohini* Courts, "Delhi, in Session Case NO. 79/2011, arising out of anV'MR-No. 197/2011, registered at Police Station North Rohini, Delhi, wherehv the appellant was convicted under Section 376 of the Indian Penal, Code, 1860 (hereinafter referred as the 'IPC') and seatsnced to undergo rigorous imprisonment for 10 years with fine of.Rs. 10,000/-, and in default of payment of fine, to further undergo simple imprisonment for six months. CRL. A. 495/2013 Page I of22 2017:DHC:9071 u Factual Matrix
2. The factual narration ofthe prosecution case before the Trial Court, as observed by the ASJ, Rohini Courts, vide its judgement dated 05.11.2012,,is that:-
07. G[7].2011 frojn mobile no. 9868704168 a call was made to PCR that at House. No 134, N.Piir, Sector-7 at about 5pm that boy has committed rape with a 6 years old girl The information was. conveyed by wireless operator PS North Rohini to dut^' officer and he recorded DD No. 43A which was assigned to SI Manoj Kumar. SI Manoj Kumar reached gi fhe.spot and when he found, that the matter,is ofrape he called SI Nisha who came at the spot andjecprded the statement ofprosecutrix (her name is withheld being, rape case). Riikka w^is prepared^6ri the basis ofwhich FIR No. 197/2011 Was: reic&Med in PS North Rohini. In her statement prosccuirix has stated that she resided at House No. 13,4village Naharpur with her parents and /vt'O younger brothers who were school going. Her mother andfather used to go out for work whereas her brother^ go to their school and she remained at home, doing household work. On 06.07.2011, at about.6:15 pm when she was alone at home,and cleamng utensils, at that. time Ratnesh son of her parental auni (Bva) who CRL. A. 495/2013 Page 2 of22 was residing in their house since four years came and committed rape with her against her wishes and also gave her heatings and threatened her if she disclosed saidfact to anyone, he will kill her but when her mother came to the house after work, she narrated the incident to her. Prosecutrix was taken to BSA Hospital for medical examination where doctor after her medical examination handed over exhibits lo 10 SI Nisha which were seized by her. She prepared site plan at the instance ofprosecutrix ar,id arrested the accused Ramesh at her instance, Accused Ramesh was also medically examined and doctor handed over exhibits which were seized by 10. Prosecutrix was produced before the Ld. MM who recorded her statement imderfSection 164 CnP^C. date of birth certificate ofprosecutrix )^s,alsi> collected by the 10, exhibits were sent to FSL, statement of witnesses were recorded tiut§: to, time and after completion of investigation, charge sheet against accused Ramesh under Section 376/506 and accused was put to trail "
3. The prosecution^ to substantiate the charges leveled against the appellant, examined 15 witnesses, in all. The appellant denied the entire incrimj'nating evidence agaiiist him and pleaded false CRL. A. 495/2013 Page 3 of22 implication. It was alleged that the appellant and the parents of the prosecutrix had fights prior to the incident, and therefore, in order to take revenge, the appellant was falsely implicated in the present case.
4. After meticulously examining the evidence led by the parties, the Trial Court convicted the appellant and sentenced him as mentioned hereinbefore.
5. Feeling aggrieved, the present appeal has been preferred. By the appeal at hand, the appellant impugns not only his conviction but also the order on sentence.. Arguments addressed on behalfofthe appellant
6. Addressing arguments on, the present appeal, the counsels for the appellant submitted that the impugned judgment being perverse, i '... based on conjectures and surmisesis,not properly supported by the evidence/material on record; that there are material contradictions in the statements of the prosecutrix and,the Trial Court has erred in relying onthetestimony ofthepi-osc^^ which culminated inthe conviction of the appellant; that there were several neighbors but none came to the rescue of the prosecutrix when she raised an alarm; that no independent witnesses (neighbors) were examined on behalf ofthe prosecution; that the statement ofPW-14 cannot be relied upon as he stays very close to the place where the alleged incident took place; that the fight took place prior to the incident between the appellant and the parents of the prosecutrix; that the father of the prosecutrix was not exa nined; that it is not natura.[1] for a person who allegedly conmiited sexual assault to have stayed CRL.A. 495/2013 Page 4 of22 / back in the house after the alleged incident took place; that no complaint was lodged for sexual activity as alleged by the prosecutrix to have occurrecitwice prior to the incident. Arguments raised on behalfofthe State
7. Refuting the submissions of the learned counsel for the appellant, Mr. Amit Alilawat, learned APP appearing for the State, submitted that the prosecution has been fully able to prove its case againstthe appellant, beyond any shadow of doubt, as all the witnesses have duly supported the case of the prosecution and there were no discrepancies in their •statement. Besides, that, the case of prosecution further finds corroboration from the medical and scientific evidence placed on i-ecord^Undei these circumstances, it was submitted Lliat there is no merit in the appeal and the same deserves to be dismissed.
8. I havegiven my considerable thought:to the respective submissions of the learned coimsel for the parties and haveperused the material available on record. ^. • '• The Proseeiiticn Narrative
9. At this juncture, tlieyappreGiaiion.of evidence brought on record requires to be appositely.scrutinized to adjudge the fact whether the appellant,is guilty of his culpability. For this, it is imperative to appreciate the evidentiary value to be attached to the testimony of PW-4/the prosecutrix and the contentions advanced in this regard by the,counsel for the appellant. Therefore, thefirst issue which calls for dcterinivatio:: by this Court is whether there exists any.contradiction in the statenien/s the prosecutrix and if so CRL. A. 49S/2013 Page 5 of22 whether the contradictions are material enough to cast doubt on the veracity of the prosecution narrative. It would be appropriate to reproduce her.testimony, deposed during her Examination-in- Chief, which reads as under:-..J, Uiied to T'-iside at my house. I am not going to my schddl. My two brothers are going to school. My mother is a working lady. She goes oitt ofthe housefor her work as she is doingthejob of cleaning the pulses. My father works in a atta chakki shop. She said it was 16"\ Then she again •said it was 6'^. Witness states that ^he is unable to recollect the ddte, month or.year when the incident took place. On that day at about 6pm accused Ramesh. present in the eoiu't today, correctly 'ii; ' •• • identified by the mtriess, coremitted rape with me. He is sen of my used to reside in Mehrauli hadcome'tb ourhouse prior to thatday. Accused Ramesh has first threatened to kill me. mv mother and father.. Hp. hit me with belt and also kevt knife on mv neck. Accused Ramesh put his hand on mv mouth while committin[2] rape upon me. mv mother came back at 7:30 pm and I told all the facts to mv mother. Mv faiher returned back at about 10:3Gpm. I and mv mother told all facts to mv father My father called the police. Police recorded my statement which us ExPW4/A which CRL. A. 495/2013 Page6of22 bears my signature at point A. Accused Ramesh was sleeping in our house at that time. Police woke up him andtookhiih to thepolice station. Accused Ramesh was arrested by the police vide ExPW4/B which bears my signature at point A. Personal search memo ExPJV4/C also bears my signature at point A. Policc took to police station and thereafter to hospital. Doctor conducted my medical examination. My inner clothes and suit salwar were also taken away by the doctor. I was also taken to the Rohini Courts and my statement was recorded by MMat^Rohirii Courts."
10. This prosecutrix had further described the entire incident in the court and had also proved her statement Ex. PW-4/A, which was recorded bythe InvestigMing ©ffr^ time of registration of FIR. She was also eros?-yexam length by the defence counsel but nothing material could be accredited therefrom.
11. The mother of the prosecutrix was examined as PW-3. She had also duly supported the case of the prosecution by deposing on similar lines chat: "0/7 6"^ July ofthe last year, I had gone for my duties ai about iO am and I returned at home at about 7:30 pm. Ply daughter San^eeta tole me that accused Ramesh committed salat kaam with her. She explains salai kaam as accused committed CRL. A. 495/2013 Page 7of22 sexual intercourse with her damhter. She further told me that Ramesh has taken out her salwar and also put knife (chufi) upon her and threatened her. At about 1030'pm hiy husband reached at the house and[1] told him the entire incident. Thereafter my husband made a call to police. Police reached at my house. Police interrogated my daughter and also arrested and took him topolice station. Police also took my daughter,to the police station first and thereafter to theihospital. ".
12. After going through the statements of the prosecutrix/PW[4] and PV/3/Mother of the proseoutrix, it vis summarily clear, that the deposition of proseoutrix fiiliy corroborate v/ith the testimony of her mother/PW-3 and has rema;ined consistent, unfettered, invariable and even, throughout th^-Entire process of recoding of her evidence inthe pres^t;^qasexvl^0i^;are no lacunae in the entire process of recording of evidence of the prosecutrix which can pin point to any inconsistency and/or contradiction in her deposition. In the present case, the testiinoiiy of the prosecutrix inspires confidence and can be totally relied upon.
13. The next issue which requires determination is whether the medical and the scisntific evidences support the case of the prosecution
14. The prosecutrix was medically examined by PW-7 vide MLC exhibited as Ex.PW-7/A. The medical opinion of the examining CRL. A, 495/2013 Page S of22 medical officer/ Dr. Renu Lalharia/ PW-7 in the present case, is hereby reproduced as,under;-. "..As pen^exteriial examngt^^ bite marks present on upper, outer right breast, bruise on left middle1/3 thigh. Ofj local examination, hymen torn, per vagina examination vaginal admitting tM>ofingers. " As the cxamihiiig niedical officer has, during the course of examination, found the proseciitrix to be exposed to recent coitus, her opinion shali well be regarded as definitive to such effect. Therefore, the JVILG report (Ex.PW-7/A) which shows A'arious injuries on the body ofthe prosecutrix leads to affirmation ofact of sexual activity upon prosecuirix and clearly connect the appellant with the crime.
15. It is pertinent to mention herein that, the appellant was also m.edically examined which;has,affirm the absence of any indication of incapability:6fthe,aj^ in engaging in sexual intercourse.
16. The case of the prosecutrix was flirther, supported by FSL report exhibited as Ex.PW15/E;and ^&.PW15/F. In FSL Report ExPV/15/E it is mentioned that human semen was detected on exhibits
(i) Exhibit le: one cotton woolswab on stick, keptin.tube described as 'CervicalMucus Collection'
(ii) Exhibit Ifl: one cotton wool swab on stick described as'VaginalSecretion.'
CRL. A. 495/2013 Page 9 of22 (yo (Hi) Exhibit lf[2] & lf[3]: two microslides havingfaint smear described as 'Vaginal secretion.'
(iv) Exhibit Ig: dirty liquid kept in syringe described as 'washingfrom vagina (v) 2a: one dirty salwar (vi) 3hl and 3h[2]: two micro slides having faint smear described as 'swab'. (vii) 31: one dirty underwear.
17. Having done the survey of the evidence, it is amply clear that the ocular evidence and medical evidence which is eloquent and selfexplicit, connects the accused ! appellant with the crime. It is clearly stated that the prosecutrix was subjected to sexual assault due to which she suffered injuries on the body and the MLC report was also corroborated with the report of FSL by categorically stating the presence of semen;on,various exhibits. Simultaneously, it camiot be overlooked,that the appellOT committed a heinous crime against a minor girl, whose age is tlirther proved by the testimony of P\V-3 and PW-6/ Teacher who submitted the school admission register to the pHicd-rof^ being exhibited as EX.PW6/A.
18. Now proceeding further, the next issue involved in the present case is whether reliance can be placed on the case of the prosecution in the absence ofany independent witnesses.
13 Counsel for the appellants contended that when the alleged incident took place, there were several neighbors residing near the house CRL. A. 495/2013 Page 10 of22 >1 but none came to the rescue of the prosecutrix when she raised an alarm and no independent witnesses (neighbors) were examined on behalf of the prosecutrix. The prosecutrix has specifically stated during her recording of evidence(s) that she raised an alarm for help but she was threatened by the appellant that he would kill her find then pressed lier.mouth. The neighbors came near the door after hearingthe criesbut the same was not opened as it v/as bolted from inside. It was further stated by PW-15/SI Nisha that during the course of inyestigation when she reached at the spot, no neighbors v/ere present there and the other tenants who were residing on the ground floor also denied any explanation to the alleged incident hen; enquired by her. While dealing with the aspect of reluctance of the public persons to join the public proceedings, in the case of Jawahar v. State reported in (2007) ILR 2 Delhi 146, it was obsei-ved as under: - "Asfar as nomasse&^Aion^ofpiiblic witnesses at the time of recover)^ is coHcem^ I consider that this is not on infirmity sufficient to throw out the case of the prosecution. It is{very^^igrd these days to get as'^ociation ofpublic witnesses in criminal. investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reasonfn^' thepublic witness not readily agreeing CRL. A. 495/2013 pageII cf22 "iX to associate with investigation is harassment of public witness that takes place in the courts. NormMlly a.puhtic witness should be calledonce to depose in the court and his testimony should be recorded arid: he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifxally taken by counselsfor accused persons, when witnesses are present, just to see that witnesses get harassed by calling them, time and again. The excuses normally given in the courts are •: the counselhaving urgent personal work, left the court; death near relatives etc; the cdunsel bmiig^busy in arguing other matter in other court of cross examining other witness in some other court. This attitude of the courts ofsendmgwitness..backjs:a major cause of harassment which discourages public from associating in the investigation ofany case. Sincc the police is:faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whetherfrom public or police, CRL. A. 495/2013 Page 12 of22 has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony ofpolice witness cannot be rejected on the ground that theyare official witnesses. In Ram Dev v State of NCT of Delhi(Crl. Appeal No. 61/13), it was stated that: "The next contention of Learned Counsel for the Appellant is that the evidence oftheprosecution is not worthy of credence for the reason that the incident allegedly tookplace in a thicklypopulated area at the rooftop. Despite that, there is no independent witness to hear the cries of the prosecutrix. The absence of independent witness, in my opinion, is not a reason to discard the testimony of the prosecutix which is corroborated by the medical evidence as well as forensic evidence, i.e., report ofCFSL. "
14. Therefore, it is a well settled principle of law that mere non association of the independent witness itself is no ground to throw out the entire case ofthe prosecution. CRL. A. 495/2013 Page 13of22
15. Another contention of the counsel for the appellant is that it is not natural for a person who allegedly committed sexual assault to have stayed back in the house after the alleged incident took place. It is to be primarily CGnsidered herein that the proseciitrix and the parents ofthe prosecutrix have clearly stated in their statements that after the alleged incident the appellant slept in their house which is further apparent from the statements of police officials that after the receiving of information they went to the house of the prosecutrix for the ihvestigation, where the appellant was present in the said house, apprehended at the instance of the prosecutrix and thereby arrestedby the police officials. ^16. After the perusal of.the aboA'e, statements and explanations, it is clear that the prosecutrix Version is reliable and fully corroborates v/ith the statements of other' witnesses. The Law in relation to the testimony of the Pros0cjLitrix has been settled by the Hon'ble Supreme Court and tl^ Gourt:^ -oflla^,!?in a catena ofjudgments. The settled proposition of ^aw;:in to the facts and circums[1];atices of the present case is no more res Integra and can thus, be clearly seeii from th.e decision and/ or obser\'ation of the Hon'ble Courts of Law. In State of Madhya Pradesh v. DayalSahii reported m (2005, 8 SCC122), it was held as under: "it was held that once the statement of the prosecutrix inspires confidence and the same is accepted by the Court, conviction can be based only on the solitary evidence oftheprosecutrix and no corroboratiqn of her^testimony is required CRL, A, 495/2013 Page 14 of22 unless there are compelling reasons which necessitate the same." In Vijay v. State of M.P.; (2010 8 SCC 91), it was held as under:
prosecutrix." In State of Himachal Pradesh V[5]. Raghubir Singh (18.02.1993 - it was held'as under; "There is no leffal compulsion to look for corroboration of the evidence of the prosecutrix before recording M order of:conviction. Evidence has to be weighed andmot com^^ Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is dbsence of dircumstances which militate against her veracity. In the present case the evidence of the prosecvtrix is found' to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record." CRL. A. 495/2013 Page ISof22 The Hon'ble Supreme Court in State ofRajasthan v. Om Prakash, reported in (2002) 5 SCC 745, dealing with a similar question in the case of a child rape, while upholding the conviction of the appellant therein and reversing the decision of the High Court therein, relied upon earlier decisions and made the following observations:
CRL A. 495/2013 Page16of22 should not overlook. The testimony ofthe victim in such cases is vital and unless there are compellins reasons which necessitate lookins for corroboration of her statement, the courts should find no difficulty to act on the testimony ofa victim ofsexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injiiiy. "
10. A reference deSen'es to be made to the binding mling of the Supreme Court in the cd^^M BItaiimda BhoginbhaiHirjibhai v. State of Gujarat, 1983(3) Supreme Court Cases 217, wherein guidelines with respect to appreciation of the evidence of a minor girl as avictim ofthel)ffei%e,^!^ishM^ Section 376 of the IPG have been laid down, Whicii ar^ as undcr:- '10. By andJarge these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can besaid that rardy will a girl cr a woman in India make false allegations ofsexual assault on account ofany suchfactor as has been just elmsted. The statement is generally true in the context of the urban, as also rural SRLA. 495/2013 Page J7of22 society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: - (I) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect her chastity had ever / I occurred, (2) shewoiddhe conscious ofthe danger ofbeing ostracized by thesogiety or being looked down by the society' including by her own family members, relatives, friends, mid neighbours, (3) she would have to brave the whole world. (4) She wouldface the risk of losihg the love and respect ofher own huslmndmdiiedr-relatives, and ofher matrimonial home and happiness being shattered. (5) Ifshe is unmarried, she would apprehend that it would be difficidt-to. secu^ gmtw^^ with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably residt in mental torture and suffering to herself (7) The fear of being taunted by others will always haunt her. (8) She wouldfeel extremely embarrassed in relating the incident to, othersbeing overpowered by afeeling ofshame on CRL. A. 495/2013 Page 18 of22 account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest thefamily name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husbandand members ofthe husbands'family ofa married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear ofthe victim herself being considered to be promiscuous or in some way responsible for ^the -ihcideni regardless of her innocence. (12) The reluctance to face interrogation by the ihvesitigating, agency, toface the Court, toj:face [ ike cross-examination by counsel for the cul^ii,-'and' the risk of being disbelieved, act as a deterrent. " Conclusion
11. There can be no iota of doubt that as the sole testimony of the prosecutrix, is unimpeachable and beyond reproach, conviction can be based solely upon it. The law permits that the testimony of a prosecutrix can be accepted without any corroboration in material particulars, for she has to be placed on a higher pedestal than an injured witness. CRL. A. 495/2013 Page 19 of22
12. It is evident from the observations and judgments as quoted above that the testimony put forvv-ard by the prosecutrix can be totally relied upon. Sne remained categorically clear that rape was committed upon her. There is no hesitation to hold that from the sole testimony of PW[4] coupled with medical evidence and testimonies of the other relevant witnesses, the. prosecution has established its case against the accused beyond a shadow of reasonable doubt. The testimony of the prosecutrix (PW-4) is coherent, cogent and successfully corroborated in the cross examination. Her testimony is further proved by the medical evidence, MLC Ex.PW7/A and the FSL Report exhibited as Ex.PV/15/E and Ex.PW15/F. Such crimcs not only,caused physical harm, but also shattered the pnvacy, integrity and personality of the victim girl, and c^ised psychological harm to her, and degraded her very soul. V;;,
13. The Hon'ble Apex CSivrt wkilef^^ the case ofState of Karnataka J-'s. Kiishnappa, reported in AIR 2000 SC 1470 has categorically obseiyed notions that must be borne in mind by a Court of I.aw while adjudiGa.tirig upon the quantum of punishment to be accorded to the accused; the I'elevant paragraph whereof is reproduced as under: - "........The measure ofpunishment in a case ofrape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the stage and age of sexually CRL. A. 495/2013 Page 20 of22 '3\ assaulted female and gravity of the criminal act. Crimes of violence upon v,-omen need to be severelly dealt with. Socio-economic, status, religion, race, casts or creed ofthe accused or the victim are irrelevant consideration in sentencing the policy. Protection ofsociety and deterring the criminal is the avowed object of law that is required to be achieved by imposing an appropriate sentence. The sevMncing Courts are expected to consider all relevant facts and circumstances bearing on,the question ofsentence and proceed to iir^dse a sentence commensurate vAth the gravity of the offence. Courts must hear the loud cry for justice'^byi the society in the heinous crime qfi-ape on innocent helpless girls of tender years, aridrespond by impjosition ofproper sentence. Public ablSrrcnce kf the crime needs reflection, therefore, imposition ofproper sentence by the court,...:..." _,
14. In the ckcumstances, having comprehensive view of the matter, and more particularly, after scrutinizing and re-appreciating the evidence onrecord, there isno infirmity inthe impugned judgment and the order of conviction.
15. As a result, present appeal stands dismissed, and the conviction and sentence imposed-upon the appellant/accused, by the impugned judgment and order on sentence, stands confirmed. CRL. A. 495/2013 Page21of22
16. Copy of the judgment be sent to the Superintendent, Tihar Jail, for information and to be communicated to the appellant.
17. Trial Court record be also sent back. \4^ NOVEMBER \,2017 gril CRL. A. 495/2013 SANGIfi^fflNJ^ SEHGAL, J. Page 22 of22